A US judge in Pennsylvania has ruled that State agencies that permanently delete emails after five days are not violating the State’s Right to Know Law, denying an injunction sought by newspapers.

Commonwealth Court President Judge Dan Pellegrini ruled the newspapers failed to show the Governor's Office of Administration and the 47 agencies it oversees have a duty to retain emails for at least two years.

A section of the State’s Right to Know Law specifically says the law does not change any agency's existing public record retention policy, even if emails are destroyed after five days, Pellegrini said in a 12-page opinion.

Employees of state agencies can decide for themselves whether an email is a public record, the judge reportedly wrote. An email deleted from an employee's inbox is held for five days in the agency's server. It is then deleted after five days and can't be recovered.

The newspapers said the policy violated the 2008 Right to Know Law because emails of executive agencies are presumed to be public records and public access to them is reviewable by the Office of Open Records.

The newspapers said agencies may not decide an email's status and purge it within five days. They claimed the retention policies nullify the due process rights created by the Right to Know Law.

Retention rules for email in the US vary across State borders.  In New York, email is automatically discarded after 90 days unless an employee specifically tags it. And in North Carolina, executive branch email of any kind must be kept for at least five years.

Every state has policies governing how long records are saved and when they can be purged—if ever. But those retention policies vary greatly across states. Often employees have to determine on their own whether to keep or delete an email.

 “It’s a little bit of the Wild West,” Tanya Marshall, president of the National Association of Government Archives and Records Administrators was reported as saying. 

“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.”

Some states keep email on their servers for about 90 days, as a backup in case employees accidentally delete it or there’s a system failure. Others retain it for seven or more years as part of their overall public records maintenance, according to Todd Sander, executive director of the Center for Digital Government, a research and advisory group that works with state and local governments on IT issues.