PITTSBURGH (AP) State agency employees in Pennsylvania from the governor's office staff to front-line workers routinely are encouraged to pare the numbers of emails they keep, and by doing so, they effectively decide on their own which are public records.

They have that power because deleted emails within the executive branch are backed up by state servers only for five days, the state says.After that, they are permanently deleted, said Dan Egan, spokesman for the Pennsylvania Office of Administration.The result is that an untold number of emails by thousands of public employees are excluded from legal review by a Right-to-Know officer whenever the public seeks release of materials that might illuminate how government works.Egan said employees receive mandatory training in proper records retention practices and said the vast majority of emails are casual "chatter" and not the kind that state rules say must be preserved as public records.The issue surfaced in recent weeks as Acting Education Department Secretary Carolyn Dumaresq sought to explain why her agency could produce only five emails written in a year's time by the governor's special adviser on higher education Ron Tomalis.He resigned two weeks after the Pittsburgh Post-Gazette, using the Right-to-Know Law, reported on his scant email activity, a largely empty work calendar and phone logs averaging barely more than one call a day.Told of the five-day backup period, open government advocates asked why the state does not preserve employee-deleted emails long-term using archiving systems that other agencies, including local school districts, use."You're leaving it up to the person who created the record to determine whether or not it needs to be archived. That's a problem," said Emily Grannis, a legal fellow with the Committee for Freedom of the Press, an Arlington, Virginia-based group that provides legal advice and support on issues including government records access."There's no check on an employee's decision, and with that (five-day) time-frame, there's really no time to catch it" if the initial decision is wrong."That's an amazing amount of discretion to give every public employee who may not have any legal training," said Melissa Melewsky, media counsel with the Pennsylvania Newspaper Association.When told the state backs up deleted emails for five days, she replied: "Yikes."No email trail"There's no email trail for a lot of folks. I couldn't possibly store all of my email. We delete and cleanse each evening, so that's why there's no emails," Dumaresq said.Later, department spokesman Tim Eller said that in fact Dumaresq was referring only to emails that do not qualify as public records, including those that are "transitory," defined by the state as having "little or no documentary or evidential value."But what's more significant about the controversy is how it has highlighted longtime shortcomings in record retention practices across the commonwealth, said Terry Mutchler, executive director of Pennsylvania's Office of Open Records.She said Pennsylvania has strengthened its Right-to-Know Law in recent years but has practices for preserving government records that vary and a 1929 law governing retention that harkens "to the days of giddyap and whoa, before we could even perceive of computers."She said those practices need to be revamped.High cost of storageUpon getting Right-to-Know requests, agency officials "don't resort to doing searches or scans" of servers unless an employee is unavailable or isn't sure what documents should be forwarded for review. Egan said each worker receives about 80 minutes of electronic and general record management instruction, which they can repeat, and can always consult others with questions."We could keep it for longer," he said of deleted email. "But there would be an additional expense for storage."State officials say they carefully maintain hard-copy and electronic documents deemed to be public records. The range varies and in some cases can be 10 years, Egan said.It's clear that many emails on state employee computers have survived long term, said Mutchler, noting that emails years old have been turned over in various Right-to-Know cases.But employee-deleted emails can disappear quickly.In fact, if Education Department employees delete email daily as Dumaresq said, a correspondence written on a Monday could be off state servers in less than a week. That's shorter than the five business-day response time required when agencies receive a Right-to-Know request, Melewsky said.Pennsylvania's 500 school districts have varied retention policies, but typically emails even deleted ones are preserved for months or longer, said Jim Buckheit, executive director of the Pennsylvania School Administrators Association.He said preserving them helps protect districts against liability, including misconduct by employees, and helps in responding to records requests.