Cuomo ends 90-day automatic deletion policy for emails

Gov. Andrew M. Cuomo on Friday ended his widely criticized policy of automatically deleting routine emails not deemed "official records" after 90 days.

Still, most routine emails are not records and can be deleted by the user immediately from their computer's desktop, according to the Cuomo administration.

But emails not considered an official record could be retrieved from electronic storage beyond 90 days after it was written, Cuomo's counsel, Afonso David, said in an interview.

Emails aren't records, but the key to whether they are saved is not the form of the message, but the content, David said in a meeting forced after months of criticism of the email deletion policy. But if an email contains important information as defined under state archives law, it must be retained for review, David said.

In practice, David said the end of the 90-day deletion policy simply means employees will be able to leave routine emails not defined by law as records in their computer "inbox" for as long as several years. But before and after the change, emails deemed important enough to be "records," such as contracts and final bills, must be kept for as long as state law requires, which is up to seven years for some records, he said.

"The news here is that state policy since 2007 of purging emails that are non-records has been lifted," David said. "Now non-record (emails) can be held in perpetuity."

"Emails by their very nature are not records and do not have to be saved ... and therefore are suitable for immediate removal," David said. Employees can delete emails not deemed official records as soon as "their value" has been served, he said.

Cuomo also shot back at the Legislature, which continues to exempt itself from much of the Watergate-era public records law called the state Freedom of Information Law.

David said the governor will introduce legislation to compel the Legislature, executive branch, comptroller's office and attorney general's office to adhere to a uniform policy on records retention and FOIL.

"It seems inexplicable to me that the Legislature is not subject to FOIL," said Secretary to the Governor Bill Mulrow. "I find that simply outrageous."