BY PETER SCHEER–Across the country literally thousands of state and local political officials, from governors to local school superintendents, use their personal email accounts for sending and receiving messages about government business. Hardly surprising. All public officials support government transparency in the abstract, but when it comes to their own communications, most opt for secrecy.
They have been watching Hillary Clinton’s handling of her email travails with more than passing interest. While they operate under rules that may be different than in the federal government (and that also vary from state to state), they know exactly why Hillary eschewed her dot-gov email account in favor of a private account residing on a server in her home: She was shielding her communications from her political enemies—-the media with their FOIA requests; and subpoena-wielding Republicans on Congressional oversight committees.
And what lesson to draw from the pillory of Hillary?
Not that public officials should never use a personal email account for government business. No laws go that far, so far as I know (at least in the absence of classified information which, for security reasons, may have to be confined to appropriate dot-gov accounts). Rather, the lesson for government officials is that when they are sending email about government business, they should use either a dot-gov account OR a personal account that COPIES THE EMAIL TO A DOT-GOV ACCOUNT.
The either-or rule is the solution contained in a new federal law, section 2911 of the Federal Records Act (enacted in 2014, after Hillary had left the State Department). It provides that federal employees, when sending an email on government business, must either copy “an official electronic messaging account . . . in the original . . . or, within 20 days, forward “a complete copy of the record to an official electronic messaging account.” This straightforward rule is essentially the same as that contained in the First Amendment Coalition’s Model Email Policy, and adopted by the Auburn, California city council as part of its settlement of a suit filed by FAC.
This satisfies the need for “convenience,” Hillary’s stated reason for using her personal email account for all emails, explaining that she didn’t want to have to carry around two cell phones. No need for multiple cell phones under this rule. By using a private email account, and “cc’ing” all emails about government business to one’s dot-gov account (or, simpler still, automatically copying all emails to that account), a single smartphone will suffice.
The copying of emails to a dot-gov account assures that government emails are preserved. If a government official tries to delete sensitive or embarrassing emails from her personal account, a second copy of the same emails will still be intact on the dot-gov server. While one can argue that letting government officials decide which of their emails to forward to a dot-gov server will facilitate their withholding of sensitive or embarrassing (or incriminating) emails that, by law, should be disclosed, the fact is that such discretion exists in any system.
In Hillary’s case, for example, her lawyers, sifting through some 80,000 emails, got to decide which ones relate to government business (about 55,000, they say). Had Hillary instead used only her dot-gov account, State Department employees would have made the selection of emails responsive to FOIA requests or subpoenas. In either scenario, the choices would be made by individuals employed or controlled by Hillary.
Hillary is in trouble today because she is the presumptive Democratic candidate—and therefore, by the logic of political journalism in the nation’s capitol, must be brought down—-and also because she is a control freak. By keeping all emails on a personal account on a server in her possession, she was not only evading FOIA requests, but assuring that any subpoena for her emails would have to be submitted to her directly (not to a private ISP like Google or to the State Department).
Having spent years of her professional life embroiled, directly or indirectly, in politically-driven investigations (Whitewater, Travelgate, Monica, Bengazi, etc.), she knows the importance of being in physical control of the evidence. But in failing to copy her emails to a dot-gov address when she was Secretary of State, she took her penchant for control a step too far.
Peter Scheer is executive director of FAC. This column does not necessarily reflect the views of FAC’s Board of Directors.