To delete or not to delete: State laws vary on how long government emails are kept

How long should emails sent by state officials be saved? In some states, emails are purged after five days, while in other states those emails are kept for five years. While laws vary by state, advocates of open government say those emails should be preserved for transparency and historical value, Jenni Bergal reports for Stateline. (Associated Press photo)

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, told Bergal, “It’s the public’s information. The fact that it can be deleted without consequence or review—everyone should care about that. The public cannot hold their government accountable if they don’t have access to the records. It shouldn’t matter whether that record is written on a piece of paper with ink or whether it’s written on a computer screen.”

Content is the main issue in many states, Bergal writes. "An employee may be required to keep certain types of email, such as official memos or messages dealing with administrative policy, which may be retained for several years. But they also may be allowed to delete email that is deemed 'transitory,' which means it has little value after its use and nothing important in it. Transitory email can range from a 'help yourself to cookies in the break room' note to a list of staffers who participated in a meeting to drafts of a presentation."

"While states have strict retention schedules, it’s often up to the individual agency to determine how to make that work," Bergal writes. "Problems often arise when retention rules bump heads with information technology policies, which favor unclogging email boxes, deleting junk mail that can bog down the system and keeping the cost of storage to a minimum."

Tanya Marshall, president of the National Association of Government Archives and Records Administrators, told Bergal, “It’s a little bit of the Wild West. The processes that are being used are based on paper records. You often don’t see much of a process set up for electronic records. There are very few states where it’s clear to the employee what they need to do and how to manage it.”

The National Archives and Records Administration "has proposed a new approach that would designate email accounts of senior level federal officials as permanent records that would not be deleted and would save nonofficials’ emails for at least three to seven years," Bergal writes. "The idea is to shift the burden of deciding which messages should be erased or archived away from the individual user."

Frederick Frank, an attorney representing several newspapers, "said that he’s even more disturbed that there’s no way to restore deleted email once it’s purged after five days," Bergal writes. Frank told Bergal, “The potential for mischief here is very clear. That’s particularly true when an employee feels that there may be an investigation. When he is asked where his emails are, he says they were all transitory and they’ve been deleted. There’s no way to get them back from the server.” (Read more)