Right to Know Law Does Not Require Agency to Keep Any Records

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Last week’s decision by the Pennsylvania Commonwealth Court marks a victory for public agencies that are subject to Pennsylvania’s Right to Know Law (RTKL). In a suit by the Pittsburgh Post-Gazette, which sought certain email records from the Pennsylvania Department of Education (PDE), the Court confirmed that although the RTKL requires that certain records be made public upon request, it does not require that any records actually be kept.

Under the applicable record retention policy, certain records, including emails, are to be disposed of as soon as it is determined that they no longer are of administrative value. According to the internal operating procedures, these types of records include such things as phone messages, routing slips, extra copies or preliminary drafts of final documents, communications relating to scheduling of meetings, etc. According to the policy, if an email is found to be one of these types of records that can be deleted, it will be deleted from the employee’s email inbox on a daily basis, and it then is permanently deleted from the server five days later.

The Post-Gazette sought some of these emails from employees at the PA Department of Education and sued the Governor’s Office of Administration (GOA), which developed the internal operating procedure at issue, along with the PA Department of Education, asking the Court to order that the emails be kept for a period of two years so they could be accessed if requested under the RTKL.

The Court noted that Section 507 the RTKL makes very clear that nothing in that law shall supersede a duly adopted record retention policy. Because the record retention policy here was adopted pursuant to the GOA’s authority to make such policies, and because the PDE employees were acting in compliance with the record retention policy when deleting emails each day, the Court concluded there was no reason to order that PDE keep emails for any length of time.

Although this case deals with emails, the statutory language is not limited to email. Public agencies should evaluate their record retention policies first to make sure that the policies describe how and for how long various records will be kept. Also, agencies should make sure that these policies are being followed and that records are being kept for the correct amount of time – no more and no less.

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