Pennsylvania Department of Education's nightly email purges get notice

| Wednesday, Aug. 6, 2014, 10:57 p.m.

HARRISBURG — If Pennsylvania Department of Education officials “delete and cleanse” emails nightly, as the agency's head acknowledged, the practice does not pass a “gut check” for proper email retention policy, the director of the state's Office of Open Records said on Wednesday.

Terry Mutchler, who helped establish the office six years ago when lawmakers amended the Right-to-Know Law, said ordinary citizens would not consider nightly email deletions to be reasonable for a government agency.

“Any of us in public service who believe it's OK to delete email after a day, we ought to rethink it,” Mutchler said.

Acting state Education Secretary Carolyn Dumaresq told ABC/27 TV in Harrisburg about the practice in an interview defending the Corbett administration's decision to keep former Education Secretary Ronald Tomalis on the payroll since July 2013, paying him a $139,542 salary. Critics have questioned how actively engaged Tomalis has been as Gov. Tom Corbett's adviser on higher education.

Tomalis has sent five emails and made about one phone call a day during that period, records show.

Dumaresq, paid the same salary as Tomalis, declined to talk to the Tribune-Review to clarify the agency's email retention policy.

“I check mine at the end of each evening. ... I clear my emails out, as does Ron, and we only save those emails into files to remember a decision that was made,” Dumaresq told the TV station. “So there is no email trail for a lot of folks. I couldn't possibly store all my emails.

“We delete and cleanse each evening, and that's why there are no emails.”

Department spokesman Tim Eller said the agency is limited on what it can say because Democratic House candidate Gene Stilp of Dauphin County filed an Ethics Commission complaint against Tomalis last week. Stilp asked the commission to determine whether Tomalis “was actually working” for his salary and benefits.

The Trib could not reach Tomalis.

If the department has other work product documents for Tomalis, it would not release them despite repeated requests.

Dumaresq has vouched for his job participation.

Asked for documentation, Eller said: “I'm assuming that the secretary, who is a 45-year educator and is well-respected professionally and personally, stating as such isn't good enough.”

He said Dumaresq “has been on the record several times attesting to the fact that he had been an adviser to her since she became secretary” last August.

Tomalis contributed work toward the reopening of three Pennsylvania Governor's Schools with summer courses and the Ready to Succeed Scholarship, which became law, Eller said.

A state manual addresses email retention, but agencies have their own policies. The open records law governs the release of emails and would trump agency policies, Mutchler said, speaking generally and not about the Tomalis controversy.

Most state emails are classified as “records” or “transitory records.” Typically, officials can delete casual emails, such as those asking another employee to go to lunch or notifying a spouse about coming home late. There are categories of “records” — such as those required to be retained for potential litigation.

Deleting policy-oriented emails after one day is “completely inappropriate,” said Melissa Melewsky, media law counselor for the Pennsylvania Newspaper Association.

And “deleting email because it's email elevates form over content,” Melewsky said.

An aide to Senate Majority Leader Dominic Pileggi, R-Delaware County, who sponsored the Right-to-Know Law, said aggressive email deletion, such as wiping out emails after one day, counters the spirit of the law.

The relatively obscure Pennsylvania Historical and Museum Commission oversees agency email retention policies. Mutchler's office determines whether agencies follow the law in response to citizens' open-records requests.

Brad Bumsted is Trib Total Media's state Capitol reporter. Reach him at 717-787-1405 or

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