It was a Saturday evening at the Justice Department, and a colleague and I were finishing up a brief to be filed the following Monday. When we tried to put some documents into the secure filing cabinet, the cabinet would not lock properly.
We called the DOJ security officer, who found another secure cabinet to put the files in, and we spent the evening moving files from one cabinet to another – files related to long dormant cases.
These included the DOJ and court files on national security cases dating back to the 1920’s – the Rosenberg case; investigations of Martin Luther King; the Chicago Seven case; parts of the Watergate case.
Those records were all eventually transferred to the National Security Archive, and will ultimately make for a rich heritage for historians.
But in the era of email and digital communications, will future generations be able to learn about the inner workings of the CIA, the Department of Defense, and … um … the State Department? Maybe. Maybe not. And that’s a problem.
So recently there has been a controversy (it will heat up) over allegations that former Secretary of State Hillary Clinton exclusively used a personal email address while conducting official government business at the Department of State. The New York Times has reported that such use “may be illegal.”
Or maybe not.
The law is complicated. The principles are not. Government records (including emails) must be created, stored, maintained and disclosed as provided by law. That’s it.
Whether Hillary’s emails are “government records” does not turn on the domain through which they are sent or received. It depends on the nature of the email and the purpose for creating it.
It doesn’t matter if it’s
Secretary@state.gov or
Hilary.clinton@compuserve.net. The test is, and properly should be a functional one. Thus, when a government employee uses personal email for official business, that email may be a government record subject to retention and disclosure. Whether the record is personal or business is dictated by its content and purpose, not the mode of communication