State Department Agrees to Probe Missing Clinton Emails

The State Department agreed back on April 2 to investigate department-wide email preservation policies in the wake of the controversy over Hillary Clinton’s use of a private email server, the National Archives and Records Administration announced on Thursday.

Archives’ release of State’s correspondence came hours after a former Archives litigator and other records management experts appearing on a panel expressed anguish at the slow pace at which the government is complying with email recordkeeping requirements.

Secretary of State John Kerry has asked State’s inspector general to review the agency’s recordkeeping and FOIA practices, said the letter from Deputy Assistant Secretary for Global Information Services Margaret Grafeld. The letter was in response to a March 3 message from Archives Chief Records Officer Paul Wester Jr.

Grafeld’s letter stressed State’s “longstanding demonstrated commitment to managing our records” in partnership with the Archives. It described formation of a “working group” led by Undersecretary of State for Management Patrick Kennedy last year that produced an August 2014 memo to senior State leaders reminding them of record keeping obligations and warning them not to use private email. “Secretaries Clinton and [Colin] Powell had used non-government accounts during their tenures, but the degree to which records were captured in the department’s systems was unknown,” it said. The 55,000 emails Clinton turned over to State in December, the letter noted, are being reviewed for responsiveness to Freedom of Information Act requests.

Not included in the response was any information on Clinton’s original decision to set up a private email server.

“Where was everyone?” demanded Jason R. Baron, former director of litigation for the Archives, speaking at an open government panel at the National Press Club Thursday.

“Did a lawyer, a FOIA officer, a records person ever respectfully confront” Clinton when the arrangement was first made, he asked. “I find it unfathomable that no one reported this to the inspector general,” Baron said, describing his reaction when the Clinton email story broke in March as “incredulous.”

Regulations from 2009 “clearly say that emails must be preserved,” he said, and Clinton’s approach was “inconsistent with long-standing practices under the Federal Records Act that people in office implicitly understood without needing a lot of briefings.”

Exceptions existed, Baron noted, for occasional use of commercial accounts, but on condition that the emails be turned over the day the official left office.

The new records management law passed in 2014, he noted, shortens that deadline to 20 days after the document’s creation. The fact that Clinton returned 30,000 official emails “cures the defect substantially,” but not completely, he said.

Thomas Blanton, director of the private National Security Archive at The George Washington University who has been filing FOIA requests for White House emails since the 1990s, answered the question as to whether Clinton broke the law as “yes and no.”

He noted: “There’s no prohibition on using a private server, and returning the 30,000 messages helped, but the Federal Records Act has been around for a long time putting pressure on agency heads to save emails.” Clinton, he surmised, probably came into office and asked what other secretaries had done with email, “and I’m surprised they let her get away with it.”

The real scandal, Blanton added, is “not the server but the atrocious state of governmentwide email records. If it hadn’t been for her private server, the system wouldn’t have saved any,” he said, referring to State’s SMART-SBU system as not working. “We are in danger of losing 30 years of history,” he said, noting that the recent Senate Intelligence Committee report on torture relied heavily on preserved emails. The failure to follow recordkeeping rules is “an extreme dereliction of duty,” he said.

Patrice McDermott, executive director of OpenTheGovernment.org, said the revelations about Clinton’s emailing were “less shocking to some of us, because few agencies are managing email records systematically, and that goes back to all administrations that used email.”

Transparency advocates, however, hope this episode, because it has “highlighted and broken loose the problem across government, can become a salutary moment to force government to look at what it is doing,” she added. President Obama himself has noted that directives from him, the Office of Management and Budget, and the new statute “are not self-implementing. It’s a struggle and a continuing oversight problem.”

Liz Icenogle, director of government affairs for the private-sector group ARMA International, said the headlines about unpreserved emails from Clinton, the Environmental Protection Agency and the Internal Revenue Service “bring to light” the fact that email records are records, and that agency CEOs pay little attention to the problem. FOIA officers and records managers in agencies currently aren’t even “recognized as a skill set,” she said. The government must approach the problem “holistically.” Private industry is ahead in the needed technology, though what the National Archives has done over the past five years is “ground-breaking for government,” she said.

Baron, who spent 34 years in government, called on Archivist of the United States David Ferriero to seize the Clinton email controversy as a chance to “move the government forward” and lead an effort to step up awareness of deadlines agencies face under the law. By 2016, all agencies must be ready to preserve email from high-level officials using the Capstone tool, and by 2019, all government documents appraised as permanent must be preserved in electronic, not print, format. “That mandate is not going away, no matter who is president,” Baron said.