A federal court ruling that the private e-mail account of a top White House official is off-limits for a records search may help Hillary Clinton shield her electronic messages from the news media and public.
A federal judge in Washington denied a petition from a free market group to force the administration to search the private e-mails of White House science adviser John Holdren. Because the government didn’t posses those messages, it couldn’t be asked to produce them, 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 Tuesday 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.”
Clinton, who was secretary of state from 2009 until February 2013, didn’t. She exclusively used private e-mail accounts that were routed through a server that cyber experts say was at her suburban New York home. That exposed her to hacking risks and ran counter to the Obama administration’s policy of preserving electronic records.
The disclosures come 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 into the terrorist attack on the U.S. mission in Benghazi, Libya, in 2012. The attack killed four Americans, including U.S. Ambassador Christopher Stevens.
Her office recently turned over 55,000 pages of messages to the State Department, including 300 that were provided to congressional investigators.
The court ruled Tuesday on a request made under the Freedom of Information Act by the Competitive Enterprise Institute for e-mails sent by Holdren as science adviser using an e-mail address of the Woods Hole Research Center, which he previously directed. In contesting the request, government lawyers said they couldn’t be accused of withholding the records, because they didn’t have them. Kessler agreed and dismissed the suit, in part because Holdren issued a memo in 2010 prohibiting the use of private e-mail for official business.
“The court is saying, ‘You can’t do this, but if you do do it, you get away with it,’ ” Chris Horner, a CEI senior fellow, said.
Still, the facts in Holdren’s case differ from Clinton’s circumstance in some ways. The 55,000 pages Clinton turned over to the State Department are now under its control and subject to a FOIA request, said Steven D. Zansberg, a lawyer specializing in government records law.
And 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, he 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.”
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