On March 2nd, the New York Times published a story reporting that Hillary Clinton had not used an official Department of State email account during her time as Secretary of State. Instead, Clinton and some staff members used a private email server. As OTG director Patrice McDermott told The Hill, “What she did was not technically illegal…[but] it was highly inappropriate and it was inappropriate for the State Department to let this happen.”
To clarify much some of the confusion surrounding the story and the federal government’s approach to managing and preserving email generally, we have rounded up a set of the records management policies in play—from the National Archives and Records Administration’s (NARA) guidance on management of email, to the recent update of the Presidential and Federal Records Act. These resources provide answers to many frequently asked questions:
1. What did the newly-passed (2014) Presidential and Federal Records Act Amendments say about email?
The new requirements are very clear:
“§ 2911. Disclosure requirement for official business conducted using non-official electronic messaging accounts
(a) IN GENERAL.—An officer or employee of an executive agency may not create or send a record using a non-official electronic messaging account unless such officer or employee— (1) copies an official electronic messaging account of the officer or employee in the original creation or transmission of the record; or (2) forwards a complete copy of the record to an official electronic messaging account of the officer or employee not later than 20 days after the original creation or transmission of the record.”
The 2012 Records Management Directive requires, among other things, to manage all email records” in an appropriate electronic system that supports records management and litigation requirements (which may include preservation-in-place models), including the capability to identify, retrieve, and retain the records for as long as they are needed.”
Also, “Agency officials may create Federal records if they conduct agency business on their personal email accounts. Email sent on personal email accounts pertaining to agency business and meeting the definition of Federal records must be filed in an agency recordkeeping system.”
3. Where can I do a deep dive into the management of federal electronic records?
NARA has a central page with links to all its guidance and training on email management.
4. What is Capstone and would it apply here?
Capstone is NARA’s model approach to managing email. It allows agencies to designate certain email accounts as permanent records by job position or role. Importantly, it recommends agencies save as permanent records all email from high-level officials and decision-makers. Capstone is only a model, and lets agencies approach the management challenge in their own way. As seen in the CIA’s troublesome proposal, the interpretations of the model matter.
5. Where does the Freedom of Information Act come into the equation?
As the National Security Archive notes, the use of private email “made it harder –if not impossible– for FOIA requesters and others to obtain official records, especially those not exchanged with government employees.” The National Security Archive also proposed that the newly-introduced FOIA Oversight and Improvement Act “allow FOIA processors access to all electronic records systems for the processing of FOIA requests.”