Hillary Clinton says she wants the public to see her e-mails. But there are some that voters may never see: the ones she didn’t give to the government.
Clinton used a private server and e-mail address while U.S. secretary of state, and the law doesn’t force her to release any of the e-mails that she hasn’t turned over to the State Department.
Clinton, through spokesmen, said she turned over all e-mail about public business when she was the nation’s chief diplomat, and other messages may include notes to friends and personal contacts. Open-government advocates say that’s not the point: the public should have a complete record of official e-mail communications, but Clinton’s may forever have gaps.
“There really is not a way to force an agency to turn those over, because they are not under the agency’s control,” Patrice McDermott, executive director of OpentheGovernment.org, a coalition that works to make more government records public, said. “They are not government records until they are turned over.”
There are certain to be other communications from Clinton’s inner circle that will never be made public. Her top aides frequently used instant text messages to talk with each other, a form of communication that isn’t captured or archived by the State Department.
It is not clear whether Clinton herself used her Blackberry’s instant message service, as her aides did.
Clinton, who was secretary of state from 2009 until February 2013, used a private e-mail account that was routed through a server at her suburban New York home. She says she turned over 55,000 pages of documents from the trove to the State Department in response to a request by the agency to all former secretaries of state.
The State Department asked for all government records that Clinton had, though left it up to her to cull through the data.
Late Wednesday night Clinton tweeted that she wants them to be released.
“I want the public to see my e-mail” she said on Twitter. “I asked State to release them. They said they will review them for release as soon as possible.”
There is a process for removing sensitive or personal information, such as names of people working with the State Department in foreign countries or private telephone and Social Security numbers, a State Department official said, speaking on the condition of anonymity. The review process might take months, the official said.
The disclosures this week emerged as Clinton is preparing to announce a campaign for the 2016 Democratic nomination for president. Her activities at the State Department and her work with the Clinton Foundation, created by her husband, former President Bill Clinton, already are providing fodder for Republican critics who say she hasn’t been fully transparent about her activities.
The use of a private e-mail by Clinton was uncovered after a congressional committee sought Clinton’s e-mails in its investigation of the terrorist attack on the U.S. mission in Benghazi, Libya, in 2012. The attack killed four Americans, including U.S. Ambassador Christopher Stevens.
The House panel Wednesday issued a subpoena for any of Clinton’s private e-mails relevant to its probe, and asked Internet service providers to preserve whatever records they have of relevant electronic communications. A subpoena isn’t limited by the same public records limitations, and can encompass any public or private documents related to an investigation -- including those on her private server.
While Clinton said that she turned over all the public records on her private e-mail, that’s not how it works when a government e-mail system is used and messages are automatically archived and subject to requests by the public, news media and others.
Clinton has an obligation to provide any e-mails related to government business to the State Department; however, there’s no mechanism to review messages that Clinton or her private staff decide aren’t public documents, according to Steve Zansberg, an attorney specializing in Freedom of Information Act law.
The issue came up in a separate lawsuit this week. A federal judge in Washington on Tuesday denied a petition from a free-market group to force the Obama administration to search the e-mails that White House science adviser John Holdren kept on a non-government server. Because the government didn’t possess those messages, it couldn’t be asked to produce them under Freedom of Information laws, a government attorney argued.
“The law is clear, however, that agencies do not -- merely by way of the employer/employee relationship -- gain ‘control’ over their employees’ personal e-mail accounts,” U.S. District Judge Gladys Kessler ruled in the case brought by the Competitive Enterprise Institute. “That is precisely why agencies admonish their employees to use their official accounts for government business.”
While the government can’t be asked to search a private e-mail provider, the employee has the responsibility to transfer e-mails about public business to the agency, Zansberg said.
The question advocates for open government are asking now is how the public will know if all the relevant e-mails have been sent to the State Department. Instead of a government employee reviewing the records, Clinton staff members did the work.
“Her staff did the sorting, but what the law requires is for a government official to do the sorting,” said Tom Blanton, the head of the National Security Archive, a group that uses FOIA requests and lawsuits to uncover government actions. “There are other motivations going on here, and she should have been on notice.”
Judicial Watch, a self-described conservative organization that promotes transparency in government, said it filed three new Freedom of Information requests with the State Department Thursday for Clinton’s e-mails. Previous requests it had made for information about Benghazi and other matters never turned up any e-mails from Clinton, which raised suspicions, said Tom Fitton, the group’s president.
“The idea that Mrs. Clinton’s private lawyers can go in and decide what records are public records and what are not is totally inappropriate,” he said.
The issue of government versus private e-mails was raised more than two years ago by the State Department inspector general. A watchdog report from August 2012, when Clinton was secretary, criticized the ambassador in Nairobi, Kenya, for using a non-government e-mail account.
“It is the department’s general policy that normal day-to-day operations be conducted on an authorized information system, which has the proper level of security controls,” the report said. “The use of unauthorized information systems increases the risk for data loss, phishing, and spoofing of e-mail accounts, as well as inadequate protections for personally identifiable information.”