By Harry Hammit
Hammit is editor and publisher of Access Reports, a bi-monthly report on U.S. and Canadian freedom of information legal developments.
The recent revelation that Hillary Clinton used her personal email account to conduct government business while she was Secretary of State, retained custody of those emails on a personal server at her home in New York, and did not transfer the emails back to the State Department until two years after she resigned, leaves a number of unanswered questions about the legality of the arrangement. But more broadly, the Clinton emails raise concerns about how agencies treat emails for record-keeping purposes and potential FOIA disclosure. And while there is now no doubt that emails are agency records when they relate to the conduct of government business—regardless of whether the emails were sent or received on a government or personal account—instances like the arrangement Clinton had with State strongly suggest that agencies are willing to play fast and loose with some of their record-keeping obligations when it comes to emails.
Why Clinton did not use a government email account for government business is a mystery all by itself, but her explanation is that it was a matter of convenience and with someone with such multi-faceted political interests it might well have been very appealing to her to be able to control her entire email traffic through a single source. Since the record-keeping and disclosure obligations are the responsibility of the State Department, its willingness to accept such an arrangement probably was not illegal, but to ensure that such an arrangement was appropriate the agency needed to make sure it had access to her government emails while she was at State and, further, to have those records transferred to agency custody as quickly as possible when she left.
What Did State Know and When?
What State agreed to is currently unknown, although it is likely to come out as investigations are conducted by Congress and the agency’s inspector general. But there is no doubt that Clinton’s emails related to government business were agency records and that they were subject to contemporaneous FOIA disclosure. The small amount of anecdotal evidence so far suggests that State did not have access to her emails directly. Clinton argued that most of her emails were sent to others at the State Department and, thus, were captured as agency records. However, such a process is inadequate for FOIA purposes because, while various emails might be in someone else’s files or in subject matter files, they are not searchable as being her emails because they are not in her files.
Clinton apparently turned over 55,000 pages containing her government-related emails. But she also indicated that her attorneys had reviewed and deleted 32,000 other emails they decided were personal. At her press conference, Clinton explained that agency employees typically made the first cut in determining what emails are agency-related and which are personal. While employees are generally responsible for making such determinations, it seems less appropriate for someone at Clinton’s level to be able to decide what records are deleted without a further review.
Dan Metcalfe, former co-director of the Justice Department’s Office of Information and Privacy, told the Canadian Press that “her suggestion that government employees can unilaterally determine which of their records are personal and which are official, even in the face of a FOIA request, is laughable.” He noted that “you can’t have the Secretary of State do that; that’s just a prescription for the circumvention of the FOIA. Plus, fundamentally, there’s no way the people at the National Archives should permit that if you tell them over there.” He added that “there is no doubt that the scheme she established was a blatant circumvention of the Freedom of Information Act, atop the Federal Records Act.”
Others Have Dodged Disclosure
Clinton’s use of a personal email account to conduct government business and, further, personally retaining custody of the records is certainly not common in the federal government. But evidence of the use of anonymous email accounts designed in part to obscure the existence of electronic communications by high- ranking agency officials at the EPA in particular suggests that agencies place the desire to be able to communicate with fewer restrictions above their statutory record-keeping and public disclosure obligations. In litigation with several conservative groups, the EPA has admitted that former Administrator Lisa Jackson used an email account under the alias Richard Windsor and others at the agency seem to have done the same thing. Groups like Landmark Legal Foundation and the Competitive Enterprise Institute have accused EPA of deleting emails and text messages to avoid public disclosure. Judge Royce Lamberth recently considered sanctioning the agency for its dismal failure to search for emails from Jackson and former Deputy Administrator Robert Perciasepe until it became clear from reviewing other officials’ emails that both had participated in discussions relevant to the request.
In another recent decision, Judge Gladys Kessler ruled against CEI in its suit against the Office of Science and Technology Policy for emails sent by agency head John Holdren on an email account he retained from his prior employer Woods Hole Research Center. Kessler ruled against CEI not because the agency showed Holdren had not used the account, but because CEI had not shown that Holdren did not integrate any such agency-related emails into agency files. In other words, she did not address whether Holdren’s use of his non-government email account was appropriate.
Kissinger Case Similarities
The seminal case on an agency’s legal obligation to retrieve agency records that have been improperly taken from an agency’s possession and custody is Kissinger v. Reporters Committee, 445 U.S. 136 (1980), which in some respects is eerily similar to the Clinton case. In Kissinger, the Reporters Committee and others complained that the State Department had a legal duty under FOIA to retrieve records that former Secretary of State Henry Kissinger had taken with him when he left State.
The Supreme Court ruled the State Department did not have the requisite custody or control of the records required to obligate the agency to attempt to retrieve them from Kissinger and process them under FOIA. The Supreme Court found that while Kissinger’s records might be agency records under the terms of the Federal Records Act, the FOIA provided for the disclosure of records in the possession and control of an agency and did not extend to retrieval of records, whether or not they had been taken improperly.
In this case, Clinton seems to have recognized that her government-related emails were agency records, but that she was largely entitled to determine where the line occurred between government-related email and personal emails. Once she made that determination and deleted records she concluded were personal, the agency had no practical recourse to recover them and, under FOIA, no legal obligation to do so.
The Clinton email case has certainly attracted the most publicity because of who was involved. The myriad investigations that will be undertaken as a result promise to keep the case in the news for some time to come. But an immediate lesson to be learned is that agencies are still not to the point where systems exist that ensure such electronic records are always preserved by the government.
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