Hillary Clinton’s use of a private email account as Secretary of State, reported by the New York Times on Monday, is drawing criticism and accusations that the likely 2016 candidate circumvented federal regulations on retaining official correspondence. While it’s still unclear whether Clinton explicitly violated any rules, transparency experts told ThinkProgress that her actions highlight the need for reforms to record-keeping requirements.
“If setting up a completely private parallel communication system that was accountable to her personally satisfies the Federal Records Act, then we should really be looking at reforming it,” said John Wonderlich, policy director for the government transparency group Sunlight Foundation. “My hope is that we can use this to create a reform so that we don’t have to enter the era of the email scandal.”
According to Wonderlich, it is not clear whether Clinton’s use of a personal email account was explicitly illegal. President Obama did not sign the updated Federal Records Act until November 2014, when Clinton had already left office. The updated law clarified the responsibilities of officials like Clinton when using non-governmental email systems, but even before it was signed, there were regulations that outlined the retention policy for the use of private correspondence.
Sean Moulton, director of the Open Government Policy program at the Center for Effective Government, told ThinkProgress that the law is clear enough that Clinton should not have taken the actions she did.
“That being said, this isn’t the first problem we’ve had with emails and it’s an increasing problem at the state level,” he said. “It’s becoming a real challenge and we need to better address it. And it’s not just email. We have a growing array of electronic communications out there and when you get to comments or Twitter, no one knows what to do then.”
Nick Merrill, a spokesperson for Clinton, has defended Clinton’s use of the private account, saying she has been complying with the “letter and spirit of the rules” and that emails that fell under government business were sent from department accounts and were retained, according to the New York Times.
But the decision about which emails to retain — and therefore make available to Freedom of Information Act requests and Inspector General investigations — should not be left up to Clinton and her staff, Wonderlich said.
“We’re at a place right now where the determinations about what to give access to for oversight purposes or what to preserve permanently are being made by private citizens rather than by publicly accountable State Department employees or National Archives employees,” he said. “Our public accountability laws should really be carried out through statutory criteria and not by private employees that are subject to approval by presumably Hillary Clinton herself.”
Even if Clinton’s actions were explicitly illegal, National Archives holds little enforcement power to take action, the New York Times reported. But Wonderlich said productive reforms would also address that issue.
“The National Archives should have investigatory authority to make sure [the record keeping] is happening and then enforcement authority so they can deal with it if it’s not happening,” he said.
Moulton said that enforcement authority should also include the ability to impose penalties. “If we don’t, then where is the proper incentive for people to make the effort? And it is an effort,” he said. “But for a position like Secretary of State, there are historical records implications for not keeping those records.”
Former Florida Governor Jeb Bush (R) made headlines in December when he released a collection of his emails from his time as governor. Bush, another likely 2016 candidate, touted his transparency at the time, attempting to distance himself from other politicians who have been caught up in email scandals in the past few years. Former EPA head Lisa Jackson was the subject of a probe in 2013 after accusations that she used secret email accounts to hide agency business. And George W. Bush’s administration was the subject of lawsuits alleging it did not install an electronic record keeping system and lost 22 million emails, but computer technicians said in 2010 that they recovered the missing correspondence.
Wonderlich said that moving toward transparency is a step in the right direction to prevent future scandals, but stricter laws are needed to prevent confusion and evasion.
“We want to have confidence in our leaders’ use of email and right now we have every reason to just think it’s a mess and that there’s doubt and confusion and evasion,” he said. “It’s a place where reform is suddenly looking a lot more necessary.”