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  1. March 5, 2015 3:49 pm

    The fact that Clinton owned the server raises a really interesting legal question. If the head of the agency owns a private server on which she sends and receives agency-related emails, are those emails “agency records” for FOIA purposes? I could see both sides of that argument.

    • Nate Jones permalink
      March 5, 2015 3:58 pm

      And I am on the side that according to the spirit of the Federal Records Act, they are Federal Records. As for FOIA… I’ll leave it to the litigators, but the “Kissinger precedent” (he “voluntarily gave his dox back to State) and rulings like this do make it tougher.

      • March 5, 2015 7:10 pm

        I had not seen that story or ruling yet, so thanks. I am 100% with you regarding the FRA. As for FOIA, I think the only way you’d be likely to get a ruling like the one I’m envisioning would be if you found out that a sitting agency head was exclusively using a private email server he owned and sued while he was still the agency head. As in, if we had figured this out while Clinton was still SecState and sued, we might’ve had a chance, because other than the “sitting” part, this does meet all the other criteria. Barring that perfect storm, though, I think a FOIA challenge would be hard-pressed to succeed.

  2. March 7, 2015 10:17 pm

    Were the emails from Sec. Clinton delivered to the Dept. of State in paper form only?

    • Nate Jones permalink
      March 7, 2015 10:27 pm

      Because they reported the number of pages, rather than the number of emails, it would sadly appear so. This is common practice within government FOIA shops. Many still use a “print and file” method to archive their (once) digital records.

      • March 8, 2015 9:34 am

        Thanks very much for responding to my question. It is all pretty sad.

  3. Buster Keaton permalink
    August 22, 2015 5:04 pm

    What do you make of the Clinton team’s response that with regard to the government record keeping requirements, Hillary Clinton’s way of dealing with that was cc her emails to official government .gov email addresses.

    Her spokesman sent out a series of tweets today on this topic.

    ‏@brianefallon 4h4 hours ago
    She adheres to updated reg language abt preserving records through a set of practices, such as: .
    … (a) communicating with other Dept officials on their e-mail accounts… (This actually constituted the vast majority of Secretary Clinton’s work-related emails) ….
    (b) contemporaneously fwding emails from non-govt senders to Dept officials on their accounts… …(c) copying Dept officials on their accounts in the case of e-mails she sent to non-govt recipients (20)

    …….She turns over 30k+ work emails, very nearly all of which already on system due to practices she adhered to

    I read that of the 30,000 work emails turned over that upwards of 90% were already on the State servers.

    Would this practice violate CFR 1236?

    • August 26, 2015 12:07 pm

      Mr. Keaton notes that records of Sec. Clinton’s official email on her private account might be faithfully kept by always making a government account one of the addressees for outgoing emails. If at least 90% of the subject emails were found on State servers, then I guess elementary record-keeping duties were unmet for no more than 3000 emails, according to the data submitted by Sec. Clinton.


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