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Hillary Clinton’s Emails

Under federal law, her emails reflecting agency business were agency records.

Harry Hammitt

When the New York Times reported several weeks ago that former Secretary of State Hillary Clinton had used a personal email address rather than one linked to the State Department during her tenure and, further, that her emails resided on a personal server at the Clinton’s residence in New York, it came as no surprise to someone like myself who follows the Freedom of Information Act and related federal policies affecting the availability of records, including records retention, that a scheme like this could have existed. What I found astonishing was that the State Department had allowed her to keep these records several years after she left the agency and that the agency had allowed her carte blanche in determining what records were official agency records, which by law were required to be in the custody and control of the agency, and what records were personal records, which might belong to her.

The Freedom of Information Act provides a right of access to federal government records from executive branch agencies and to the extent that Clinton’s emails qualified as agency records they were subject to disclosure. But a lesser known law—the Federal Records Act—sets standards for what records agencies are required to keep for historical purposes. Records that are created or maintained by an agency documenting the agency’s business are required to be retained and eventually sent to the National Archives and Records Administration for further processing and archiving. And for the past two decades, the National Archives has made clear that emails are agency record subject to the standards of the Federal Records Act and that agencies should print out copies of emails that need to be kept.

Because federal employees are typically allowed to use their email accounts for some routine personal reasons, some of Clinton’s emails almost certainly qualify as personal. At her press conference, she mentioned email about Chelsea’s wedding, her mother’s funeral arrangements, and yoga classes as ones that were personal. That is almost certainly true, but at her level of responsibility, it seems prudent that someone besides herself or her staff should make the final decision on whether an email is personal or reflects agency business. Her status as a politician makes the equation that much more difficult since emails discussing the political ramifications of her conduct as Secretary of State might well be agency records while she might argue it is personal.

At this point it is not clear that Clinton did anything wrong since the State Department allowed her to use a personal email account. What is so disturbing about this unforced error is that neither she nor the State Department apparently took any steps to recover the records shortly after she left office. Under federal law, her emails reflecting agency business were agency records. At her level of responsibility, the agency probably should also have reviewed her decisions as far as what constituted an agency record and what constituted her personal records. Because she deleted 30,000 email, a second level of review would probably have been wise. There probably are not any smoking gun emails, but her records faux pas has given congressional Republicans plenty of ammunition to criticize her for months to come.

Harry Hammitt is the editor/publisher of Access Reports, a biweekly newsletter on the Freedom of Information Act and government information issues.

Copyright © Harry Hammitt. All rights reserved.