Right-to-Know Law Does Not Require Government to Maintain Public Records

The Commonwealth Court has approved a record-retention policy that authorizes individual state-employees to permanently destroy any email the employee decides is not a public record.   The court dismissed a lawsuit brought by a number of newspapers seeking a declaration that the email retention policy implemented by Governor’s Office of Administration (GOA) violates the Right-to-Know Law (RTKL). The Commonwealth Court concluded the RTKL only “governs whether records currently in existence must be disclosed.”

The Pittsburgh Post-Gazette, along with a group of other newspapers and publishers, filed suit after a RTKL request to the Pennsylvania Department of Education (PDE) for emails of special advisor Ron Tomalis revealed only five emails. Then-acting Secretary of Education, Carolyn Dumaresq, indicated her employees “delete and cleanse” emails nightly. Upon further investigation, the newspapers learned PDE follows the GOA email retention policy, which affords each employee discretion to determine whether an email constitutes a “public record” that should be saved or deleted as “transitory.” Emails deleted by an employee are permanently deleted from the executive server five days later, with no possibility of recovery.

The newspapers asked the Commonwealth Court to declare that GOA’s email policy violated the RTKL, to enjoin executive agencies from destroying emails after five days, and to require the executive agencies to maintain all emails on its central server for at least two years. GOA and PDE raised numerous defenses, including an argument that the RTKL does not establish a record-retention policy for any government entity.

The Commonwealth Court agreed that the RTKL does not require agencies to maintain public records. GOA implemented the email retention policy pursuant to Section 701(l) of the Administrative Code.   Section 507 of the RTKL provides the RTKL does not “modify, rescind or supersede any record retention policy or disposition schedule of an agency established pursuant to law, regulation, policy or other directive.” Thus, the RKTL “does not create a duty on the part of agencies to maintain records if they are destroyed as part of a records-retention policy.”

The Commonwealth Court left the door open for future suits against government agencies that fail to comply with their own record-retention schedules.   However, the court found the newspapers failed to demonstrate that Tomalis was not adhering to the email-retention policy.

The Commonwealth Court’s decision is troubling because it allows individual employees to mistakenly delete public records due to a misunderstanding of the record-retention policy, or to maliciously delete public records under the guise that emails serve no further administrative purpose.   The decision whether to permanently delete correspondence should not be left to the discretion of individual employees, but rather to non-biased, administrative-level professionals specifically trained in the intricacies of record-retention policies.

The court noted “the minor discretion afforded employees in carrying out the mandates of the [email-retention policy] is proper and indeed necessary until GOA employs executive officials or lawyers to review each and every e-mail an employee proposes deleting pursuant to the retention schedule before it is deleted.” There are, however, more reasonable alternatives available to prevent the inadvertent or malicious destruction of public records. If asking an administrative-level employee to review and properly file public records is too much of a burden on public agencies, than the less costly alternative proposed by the newspapers in this case, automatic retention of all emails on a central server for a reasonable period of time, preserves the compelling public interest in maintaining access to public records. The state legislature should consider amending the RTKL to require agencies to preserve public records.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.

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