Originally posted at The New York Times.
As Hillary Rodham Clinton this week defended her use of a personal email account to conduct State Department business, she emphasized that because she was corresponding frequently with other department officials on their government accounts, the messages were preserved on government servers.
But the State Department disclosed on Friday that until last month it had no way of routinely preserving senior officials’ emails. Instead, the department relied on individual employees to decide if certain emails should be considered public records, and if so, to move them onto a special record-keeping sever, or print them out and manually file them for preservation.
This patchwork system, reflecting a broader confusion and slowness throughout the government as federal agencies struggle to catch up with the digital age, raises the possibility that some emails from Mrs. Clinton to other State Department officials may have been lost altogether.
In a briefing with reporters on Friday, Jen Psaki, a spokeswoman for the State Department, acknowledged that the system in place under Mrs. Clinton was “imperfect,” and said the department was still trying to establish a comprehensive document retention program.
In February, the State Department began using a system that automatically keeps the emails of the department’s highest ranking officials — like the deputy secretary of state, and under and assistant secretaries. Secretary of State John Kerry’s emails have been automatically retained since around the time he took office in 2013.
Regulations issued by the National Archives in October 2009 said that agencies where employees were free to use private email systems “must ensure that federal records sent or received on such systems are preserved in the appropriate agency record-keeping system.”
In a news conference she held on Tuesday, and backup documents that her staff circulated the same day, Mrs. Clinton argued that she had complied with those record-keeping rules.
“It was my practice to communicate with State Department and other government officials on their dot-gov accounts so those emails would be automatically saved in the State Department system to meet record-keeping requirements, and that, indeed, is what happened,” Mrs. Clinton said at the news conference. She said she had used the personal account for convenience because she did not want to carry two cellphones.
The State Department disclosure is likely to bring intense scrutiny to the process that Mrs. Clinton and her lawyers used in deciding late last year which of the roughly 60,000 emails from her personal account should be considered work-related and turned over to the State Department. That is because the State Department servers — given the system that was in place — appear to lack comprehensive backup records of the former secretary of state’s correspondence with other officials.
A spokesman for Mrs. Clinton did not return an email, call or text seeking comment.
An Obama administration directive in 2012 mandates that agencies must devise a system for retaining and preserving email records electronically by the end of 2016, but many agencies’ current practice is to save emails by printing them out and storing them in files.
The Department of Health and Human Services began automatically archiving and saving the emails of all senior officials and political appointees only in December, said Kevin Griffis, a spokesman for the department.
There is also no consistent system throughout the federal agencies for determining which emails should be saved. The White House has strict requirements dating back two decades that no emails be discarded, but federal agencies are in charge of setting their own policies for determining which emails constitute government records worthy of preservation and which ones may be deleted.
“It really is chaos across the government in terms of what agencies do, what individuals do, and people understand that they can decide what they save and what they don’t,” said Patrice McDermott, the director of the transparency watchdog group OpenTheGovernment.org. “If you leave it up to the agency, some are going to behave properly and take it seriously, and some are going to see it as carte blanche to whitewash the record.”
What is clear is that email poses a unique problem for government agencies, which are required under the law to preserve anything that relates to official business. “It doesn’t matter on what medium or in what form it occurs,” said Gary M. Stern, the general counsel for the National Archives and Records Administration, the agency in charge of preserving federal documents.
But, he said, “There’s such a challenge with email, because everyone gets a couple of hundred a day and nobody has the time to go through and say, ‘Is this a record, or is it not?’ ”
President Obama signed legislation late last year requiring government officials who use personal email addresses for official business to bring those records into the government within 20 days. Before that, the National Archives and Records Administration simply required those messages at some point to be provided to the government.
The vagueness of federal guidelines have caused agencies, cabinet members and other senior officials to forge their own policies and practices, sometimes getting them into trouble.
Lisa P. Jackson, Mr. Obama’s first Environmental Protection Agency administrator used “Richard Windsor” — a combination of her dog’s name and a New Jersey town — for her electronic alias. Republicans on the Senate Environment and Public Works Committee charge that she had created the alias to “hide” her actions, part of what they described in a September 2013 report as a pattern of “obfuscation” and a “culture of secrecy and evasion.”
Ms. Jackson said the alias was a matter of convenience and practicality, arguing that she had complied with requirements that any message relating to E.P.A. business would be captured on the agency’s system.
“You’ll find this with any cabinet head,” Tom Reynolds, an E.P.A. spokesman, said of generic government email addresses. “You just can’t use those because you’d just get inundated with emails. It’s not pragmatic.”
The White House adopted its strict email rules during the Clinton administration after a federal court determined that White House emails — until then considered the same as disposable sheets on a phone-message pad — should be treated as government records.
As part of a settlement in that case, a little-known staff secretary to President Bill Clinton drafted a memo laying out the new policy: Emails had to be preserved and external networks should not be used because those messages would not be retained.
The aide’s name was John D. Podesta. “Podesta helped push the White House essentially into the digital age and created electronic archiving,” said Thomas S. Blanton, of the National Security Archive.
In January, Mr. Podesta left his post as a senior counselor to Mr. Obama. His anticipated new job: chairman of Mrs. Clinton’s expected presidential campaign.
Read more at The New York Times.
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