The Hillary Emails; and a Suggested Fix

5 March 2015

By Lauren Harper and Nate Jones

The National Security Archive and other groups recently proposed an amendment to the House FOIA Reform bill that would allow all FOIA processors access to all electronic records systems for the processing of FOIA requests. This fix would have gone a long way in allowing  State Department FOIA processors and FOIA requesters access to former secretary of state Hillary Clinton’s emails.

As all document hounds know, The New York Times has reported that Hillary Clinton solely used her personal email during her tenure as Secretary of State and did not routinely place the emails on State Department servers.  This made it harder –if not impossible– for FOIA requesters and others to obtain official records, especially those not exchanged with government employees. (In another record keeping and opsec breach, the Associated Press has reported that Clinton owned the computer server for the emails, demonstrating “significant control over limiting access to her message archives.”)

The proposed change to USC 552(a)(3)(C) to allow FOIA processors access to all electronic records systems would read as follows:

(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system.  The FOIA Officer of the agency including the FOIA Officer’s designees, shall be provided access to search for and retrieve any records created and/or stored in electronic form or format for the processing of FOIA requests.  An agency may not limit the scope of a search to systems searchable by the FOIA Officer without an independent substantive reason for the limitation. (emphasis added)

After the revelations of Clinton’s improper email record keeping emerged, some have begun to argue that regulations requiring federal officials use a government email address, or at the very least routinely store emails from personal accounts concerning government work with the State Department, were not in effect while she was using her personal email address to conduct government business. However, an examination shows that there was a law on the books at the time (the Federal Records Act) and NARA guidance which the State Department received that should have prevented Clinton’s actions.

Non 'Not So Fast.'

First, it’s important to note that NARA guidance confirms that email messages constituted federal records at the time Clinton used her personal email while conducting official business. The guidance (on the books at the time) stated “E-mail messages are records when their content (including attachments) meets the definition of a record under the Federal Records Act. See also 36 CFR 1236, and specifically 36 CFR 1236.22, which provides additional requirements for electronic mail.”

Second, the Federal Records Act [on the books since 1950], mandates that the head of each federal agency shall provide for “(1) effective controls over the creation and over the maintenance and use of records in the conduct of current business; (2) cooperation with the Administrator of General Services and the Archivist in applying standards, procedures, and techniques designed to improve the management of records, promote the maintenance and security of records deemed appropriate for preservation, and facilitate the segregation and disposal of records of temporary value.”

The Secretary of State was responsible for all of the Department’s records.  Yet she failed to preserve even her own.

Finally, the Federal Records Act also codifies that “The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”

The Secretary of State was charged to be the watchdog of our history; she was not.  Hundreds of others at the State Department including the IT Department, its FOIA shop, and career civil servants had to have seen and known that the leader of their agency was improperly using a personal email address and –as far as the evidence has borne out– did nothing.  They should have alerted the Archivist of the United States, their Inspector General, blown the whistle to congress, or leaked the misconduct to the press.

Another problem that the Clinton email scandal illuminates is that the US National Archives and Records Administration is loath to use its designated authority to punish government officials who unlawfully destroy official records. Such contenders for punishment should have included Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program that ordered the destruction of key videos documenting it in 2005, claiming that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain;” Admiral William McRaven, who ordered the immediate destruction of any emails about Operation Neptune Spear, including any photos of the death of Osama bin Laden (“destroy them immediately”), telling subordinates that any photos should have already been turned over to the CIA –presumably so they could be placed in operational files out of reach of the FOIA; Gina McCarthy, the EPA official who deleted thousands of text messages from her official agency cell phone; Lois Lerner, an IRS official whose emails regarding Obama’s political opponents “went missing or became destroyed;” former Secretary of State Colin Powell, who has to date also failed to place his emails concerning official business on department servers; and even Henry Kissinger, who fought to prevent the release of over 16,000 transcriptions of telephone conversations (telcons) as Secretary of State and National Security Advisor.

(Ironically, yesterday the NS Archive filed a lawsuit against the Department of State to force the release of the 700 telcons the State Department has still refused to release; the State Department has been “processing” our appeal since 2007.  See our #tbt pick below for more.)

From left to right, Jose Rodriguez, William McRaven, Gina McCarthy, Lois Lerner, and Colin Powell.

In fact, the last time NARA initiated the prosecution of a federal employee was Sandy Berger, who served as Bill Clinton’s National Security Advisor and was charged with a misdemeanor for illegally removing classified documents from the National Archives. His theft of classified documents from NARA’s shelves spurred effective reforms for the security of physical records. Hopefully Hillary Clinton’s use of personal email will spur a similar reform for the storage and security of digital records.

These reforms must remedy the scary fact that only one per cent of government email addresses are saved digitally by the “Capstone” program.  The US National Archives currently trusts agencies to somehow determine and preserve the rest of their emails “deemed appropriate for preservation”on their own, often by employing –you’re hearing this correctly– a “print and file” physical archiving process for digital records.

A sad silver lining is that although Clinton improperly appropriated public records as her own, they have likely been preserved more completely than those of her State Department contemporaries.

Clinton Seeks Release

As we go to press, Secretary Clinton has announced in a tweet that, “I want the public to see my email. I asked State to release them. They said they will review them for release as soon as possible.”  While this is likely the best step forward both for Clinton, historians, and open government advocates, a couple of points bear watching.

First, there is a large difference between “releasing records” and “reviewing records for release.”  As any FOIA requesters knows “reviewing records for release” can take decades.  (The NS Archive used FOIA to request former Secretary of Defense Donald Rumsfeld’s “snowflakes” be “reviewed for release” in 2007, and have not yet received a single record.)

Second, for Archival provenance purposes, Clinton would be wise to provide her entire tranche of emails (including those deemed personal) to the Department of State.  NARA and State officials should determine which records can be withheld under privacy exemptions, not Clinton staffers.

Finally, while the full release of Clinton’s work emails is likely the correct move at this point, I predict it will cause extremely large delays to the many FOIA and declassification requests already backlogged at State.  The fact of the matter is reviewers who were previously processing FOIAs and MDRs will now likely shift all of their person-hours to processing Clinton’s emails for release.  (If I’m wrong on this I welcome correction from either DOS or NARA.)

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FRINFORMSUM (FReedom of INFORMation SUMmary) continues:

In some good news for the Department of State, its Office of the Historian recently announced the publication of twenty digital Foreign Relations of the United States (FRUS) volumes. The volumes span 1948-1951 and “provide great insight into the construction of the national security state and how the United States responded to the rapid decolonization spreading through the Third World.” In 2009 the Office of the Historian announced its intention of publishing the entire FRUS catalogue, which dates to 1861 and contains over 500 volumes, digitally, and this most recent digital publication brings the total number of volumes published digitally to “nearly” 250.

Former CIA director and retired four star general David Petraeus has reached a plea deal with the Department of Justice after admitting to sharing classified information with mistress and biographer Paula Broadwell and lying to the FBI regarding the unauthorized disclosures. The investigation found Petraeus – who previously applauded former CIA officer John Kiriakou’s conviction for revealing the identity of a covert operative to a reporter – allowed Broadwell to read his “black books” – notebooks filled with classified notes “about official meetings, war strategy, intelligence capabilities and the names of covert officers.” Petraeus will plead “guilty to one count of unauthorized removal and retention of classified material, a misdemeanor,” and prosecutors have indicated they will request a two-year probation and a $40,000 fine in lieu of a possible prison sentence – unlike Kiriakou who was only was recently released from prison, or Jeffrey Sterling, another former CIA officer currently facing the possibility of a “lengthy prison term for talking about classified information with” New York Times reporter James Risen, just to name a few.

U.S. District Judge Royce Lamberth railed against the Environmental Protection Agency’s (EPA) FOIA performance earlier this week in connection with a FOIA lawsuit seeking “documents covering communications with groups and individuals concerning potential EPA regulations.” While Lamberth technically ruled against the FOIA requester, the judge berated the EPA, noting “While the existing record in this case does not support a holding that the EPA acted in bad faith, it is obvious to this court that EPA has, once again, fumbled its way through its unambiguous FOIA obligations.”

Documents taken from the Abbottabad compound during the May 2011 raid to capture Osama bin Laden and recently introduced in a terrorism trial in New York are providing new information on Al Qaeda’s ties to Iran and strength in Afghanistan, among other revelations. The documents portray bin Laden as continuing to be heavily involved in Al Qaeda (AQ), rather than living in “comfortable retirement” as some have suggested. The documents detail Al Qaeda’s sometimes contentious relationship with Iran – including AQ’s kidnapping of an Iranian diplomat to spur Iran’s release of members of bin Laden’s family –, and indicate AQ had a “more significant” presence in Afghanistan in 2010 than the US realized.

The Federal Times reported this week that the CIA will launch its own private app store next month. The marketplace will begin with “a few hundred applications” designed with the Intelligence Community’s needs in mind, and will allow employees to “sample an application to see if it meets their needs and buy subscription services to third-party apps or download open source or intra-agency offerings directly.”

The Foreign Intelligence Surveillance Court has declassified a series of rulings in response to a FOIA lawsuit brought by the New York Times and the Electronic Frontier Foundation. The documents concern the Court’s 2002 ruling on “raw data” sharing, which eliminated “a rule that required the Federal Bureau of Investigation to remove names and irrelevant information about innocent Americans picked up as part of wiretapping under the Foreign Intelligence Surveillance Act before sharing information with the National Security Agency and the Central Intelligence Agency — and, starting in 2012, the National Counterterrorism Center.”

dates

Today’s #tbt document pick is chosen with the Archive’s recent FOIA lawsuit against the State Department for the release of the last 700 transcripts of former Secretary of State Henry Kissinger’s telephone calls (telcons), which have been withheld for 8 years – many under the b(5) “withhold it because you want to” exemption –, in mind. Today’s #tbt pick is a June 1, 1970, telcon between Kissinger and White House Press Secretary Ron Ziegler, in which Ziegler teases Kissinger about his dates with Hollywood actresses Jill St. John and Faye Dunaway.

Happy FOIA-ing!

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