Guy who ran FOIA for government finds HC's email defense laughable

Dan Metcalfe, Politico - I thought when I retired from the Justice Department in 2007, I was done with records-related scandals. By that point, I had spent more than a quarter-century as founding director of the Justice Department’s Office of Information and Privacy, effectively serving as the federal government’s chief information-disclosure “guru.” In that position, I had weathered many a Clinton records scandal during the 1990s—about two dozen, all told, including two that amazingly have still never become public—and I thought I had seen the last of them. At the very least, I thought I had become immune to being shocked by anything in that vein.

It turns out I was wrong on both counts.

We now have former Secretary of State Hillary Clinton being revealed as someone who took the unprecedented step of arranging to use her personal email account for all of her official email communications. What’s more, she decided to use her own email server equipment, rather than a commercial Internet service provider, so that the records of her email account would reside solely within her personal control at home. And if that were not enough, she then proceeded blithely—though not uncharacteristically—to present herself to the public, at a press conference held on March 10, as if there were really nothing “wrong” about any of this at all.

Well, as the saying goes, “reality is not her friend.”

For anyone considering this sad tale carefully—including the media, members of Congress and the public at large, whether from “inside the Beltway” or not—some basic points of both law and reality should be borne in mind.

First, while it is accurate for Secretary Clinton to say that when she was in office there was not a flat, categorical prohibition on federal government officials ever using their personal email accounts for the conduct of official business, that’s a far different thing from saying (as she apparently would like to) that a government official could use his or her personal email account exclusively, for all official email communications, as she actually did. In fact, the Federal Records Act dictates otherwise.....

Second, the official availability of official email communications is not just a matter of concern for purposes of the Federal Records Act only. It also makes an enormous (and highly foreseeable) difference to the proper implementation of the Freedom of Information Act (known as the “FOIA” to its friends, a group that evidently does not include Secretary Clinton). That is because the starting point for handling a FOIA request is the search that an agency must conduct for all records responsive to that request’s particular specifications. So any FOIA request that requires an agency first to locate responsive email messages sent to or from that agency’s head, for instance, is necessarily dependent on those records being locatable in the first place. And an agency simply cannot do that properly for any emails (let alone all such emails) that have been created, and are maintained, entirely beyond the agency’s reach. Or, as it sometimes is said somewhat cynically in the FOIA community, “You can’t disclose what you can’t find.”

In this case, which is truly unprecedented, no matter what Secretary Clinton would have one believe, she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it—perhaps forever. “Nice work if you can get it,” one might say, especially if your experience during your husband’s presidency gives you good reason (nay, even highly compelling motivation) to relegate unto yourself such control if at all possible.

Third, there is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.

Now, what Secretary Clinton would have one believe is that this is all just a matter of her choosing one available email option over another, that she really did nothing that her predecessors had not done before her and that she can be trusted to “have absolutely confidence” that what she did “fully complied with every rule that [she] was governed by.” In other words, the thrust of her March 10 press conference was: “Everything was fine, nothing to be seen here, so let’s all just move along.”

But having spent a quarter-century at the forefront of the government’s administration of the FOIA, including its transition to electronic records and its involvement in so many Clinton administration “scandals du jour,” I know full well that both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better and an attempted verbal “cover” of the situation (if not “cover-up”) that is truly reminiscent of years past.

And I say that even as someone who, if she decides to run for president and is the Democratic nominee, will nevertheless vote for her next year.

Dan Metcalfe spent more than thirty years working at the U.S. Department of Justice, at which he served from 1981 to 2007 as director of the Office of Information and Privacy, where he was responsible for overseeing the implementation of the FOIA throughout the entire executive branch. He now teaches secrecy law at American University’s Washington College of Law.