The Herald, Sharon, Pa.

February 9, 2014

Emails in Sandusky case deleted, state AG claims

By John Finnerty
CNHI Harrisburg Correspondent

HARRISBURG — Kane did not disclose the content of what she described as “important” messages that were deleted by attorney general's office staff when Corbett was in charge. She has made it clear that the employees were following office policy at the time.

Kane pointed to the missing messages as a reason her long-awaited review of the Sandusky affair is not yet finished. They also illustrate a gray area in the law over what government records are considered public and how they're maintained.

“In a case as high-profile as the Sandusky investigation, there should have been red flags, and you’d think you’d have erred on the side of saving all documents,” said Harrisburg activist Eric Epstein.

Government employees are free to delete emails – even those written on government accounts – as long as messages do not deal with an “action or transaction” of their agency, said Terry Mutchler, director of the state Office of Open Records.

A message’s content determines whether it’s a public document that ought to be saved, said Dan Egan, spokesman for the Office of Administration, which provides information technology services to most agencies. A note about dinner plans, for example, would not typically be considered a public document worth keeping.

Emails that are considered government records are typically available to the public. Egan noted the attorney general and her staff are subject to the same Right to Know laws as other state employees, though they may have their own record-retention rules since they work as an independent office.

Kane was elected, in large part, on a campaign pledge to ferret out whether the governor delayed the Sandusky investigation for political purposes. Sandusky was not charged until after Corbett took office as governor in 2011.

The case’s handling is just the latest example of how important email messages have become in high-profile investigations.

The Freeh report on Sandusky, completed on behalf of Penn State, pointed to emails among administrators that bolstered the allegation that they knew of complaints about the assistant football coach and conspired to cover them up.

Epstein, the activist, said the case illustrates why government records can be important years later. His Three Mile Island watchdog web site includes government records dating to the 1970s, he noted.

Older records are often necessary, he said, “in order to paint an accurate picture of what happened.”

Another example is the 2007 “Bonus-gate” scandal in Harrisburg. Investigators for the attorney general – Corbett at the time – documented with email messages the use of tax dollars by House Democrats to pay bonuses to legislative staff for campaign work.

The scandal landed former House Speaker Bill DeWeese and House Whip Mike Veon in prison.

“Imagine how Corbett would have been screaming from the rooftops if the House Democrats had deleted their emails,” Epstein said.

Kane said her investigators believe they’ve found a way to recover the emails deleted in the attorney general's office regarding the Sandusky investigation. She declined to say more.

She has not explained whether the emails were deleted because office staff believed they didn’t need to keep them, or if the messages were kept for a period and later deleted. Either is possible based on existing policies at other agencies and the state’s Right-to-Know Law.

Many messages that get junked right away are considered “transitory” under the state's record-keeping rules. In other words, they relate to scheduling meetings or other logistical functions that don't substantively reflect an agency’s work, said Mutchler.

The interpretation of what's “transitory,” said Mutchler, can be subject to debate.

Even if records that are considered public documents worth saving may be destroyed in as little as two years, according to the state's Record Management Plan.

The plan, which dictates how long records are kept, is developed by the Pennsylvania Historical and Museum Commission, which operates the state records center.

Most records are preserved 5 to 10 years, said state archivist David Haury. However, some documents are destroyed in a matter of months.

That means if someone asks for a 4-year-old record but the policy says it can be destroyed after three years, a state agency has no obligation to produce it.

However, if a document is destroyed prematurely, Haury said, “You’re in big trouble.”

The record center stores 243,000 cubic-foot boxes of documents. Each contains about 3,000 pages, meaning the center manages about 750 million pages.

Reams of information are discarded out of necessity. If the state didn't destroy records periodically, said Haury, storing them would become too expensive.

“People are hoarders,” he said. “That’s why we have a schedule. We don’t want to throw away anything while it’s still useful.”

Email is another animal.

Each day state employees send about 800,000 email messages and receive another 450,000, said Egan. That does not include the Office of Attorney General, which has its own email system.