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What Hillary Clinton and the State Department Didn’t Say About Her Emails

Clinton's remarks Tuesday failed to address whether anyone from the State Department ever asked her for emails related to one of several FOIA requests.
Photo by Seth Wenig/AP

Hillary Clinton said today that her decision to exclusively use a private email account to conduct official business during her tenure as Secretary of State was a matter of "convenience" — and she acknowledged that "in hindsight" she should have used a government email account.

"When I got to work as Secretary of State, I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and my personal emails instead of two," Clinton told a hostile press corps at the United Nations in New York City during her first public remarks about the controversy since it erupted a week ago. "Looking back, it would have been better if I had simply used a separate email account and used a separate phone, but at the time, this didn't seem like an issue."


The reason Clinton's email use became an issue, as far as transparency advocates are concerned, is because long-standing federal regulations adopted by the National Archives and Records Administration (NARA) require government employees to preserve their work-related communications so it can be sought by Congress and accessed by journalists, historians, and the public through the Freedom of Information Act (FOIA).

During Clinton's time as Secretary of State, the State Department received at least a half-dozen FOIA requests for her emails covering various issues. But Clinton operated a private server out of her home, and her emails were not accessible to the FOIA analysts tasked with processing the requests. The State Department has failed to produce any records responsive to the requests, some of which date back five years. A spokesperson for State did not respond to repeated requests for comment from VICE News about whether any FOIA analyst asked Clinton's staffers to review and turn over emails for the purposes of responding to FOIA requests, or whether State issued any legal guidance indicating that her emails were exempt from FOIA.

Related: Here is the State Department's first official release of a Hillary Clinton email

Clinton's camp released a nine-page "statement" that attempts to answer all of the lingering questions associated with her use of the private email system. One question posed on the statement asks whether Clinton's use of private email still enabled the State Department to respond to FOIA requests. Clinton's office says yes but fails to provide any concrete examples. The examples her office did provide assert that turning over documents to the State Department last December demonstrates that she was able to respond to FOIA requests filed in 2010.


Dan Metcalfe, the founding director of the Justice Department's Office of Information Policy (OIP), which is supposed to ensure government agencies are complying with the FOIA, told VICE News it is clear to him that Clinton's exclusive use of private email was a "blatant circumvention of the FOIA [in addition to] the Federal Records Act by people on both sides of it who unquestionably knew better."

"You would think that if agency FOIA officials knew she used a personal account across the board, they would have gone to her and said that they have a FOIA request targeted toward her emails in particular, so they of course need access to the official information in that account," said Metcalfe, who now teaches secrecy law at American University in Washington, DC.

Clinton also did not abide by the State Department's own internal guidelines, updated in 2005, that says, for security reasons, "normal day-to-day operations be conducted on an authorized" computer system. Metcalfe said State Department records management officials should have explained to Clinton that she could not use her personal email to conduct all of her government business.

"She should have had a government email account, first and foremost, and then also a personal email account that could be used for official business only occasionally when necessary," he said. "What should have happened is what happens when any agency head takes over an agency: The top career person for administrative matters meets with her to explain the do's and don'ts about the requirements of such things as ethics standards, the Federal Records Act, the FOIA, and the Privacy Act. One can only imagine when that meeting was held, Clinton pushed hard to get such special treatment, given the fact that any use of a personal email account at all is not flatly prohibited. That got turned on its head when she was allowed to use a personal email account exclusively."


Patrick Kennedy is the Undersecretary of State for Management who would have held such discussions with Clinton. He did not respond to requests for comment.

'The laws and regulations in effect when I was secretary of state allowed me to use my email for work, that is undisputed.'

Metcalfe added that If there was a FOIA request that targeted Clinton's emails when she was serving as Secretary of State, then the FOIA officer should have contacted her office and forwarded the request there for a record search.

"If the FOIA officer was ignorant of the fact that no official email account was being used by Clinton, then it would have been up to someone on her staff to say, 'There is nothing to search through because her email as a sender is not part of the State Department system. The most that can be done is to look for State Department people who were recipients.' And I can almost guarantee that they would not have been thrashing about within the State Department looking to see if there was a responsive email for someone as a recipient," he said.

report released Tuesday by the Center for Effective Government that graded government agencies and how they respond to records requests gave the State Department an F, "the lowest-scoring agency by far" in terms of disclosure of documents.

Sean Moulton, the Center's director for open government policy, told VICE News that the State department "sees FOIA as a low priority" and "they are very comfortable with being horrible at FOIA." The State Department currently has a backlog of 13,435 FOIA requests, according its latest quarterly FOIA report.


Related: Republican presidential hopefuls bash Bush and roast Hillary at CPAC

In January, VICE News filed a FOIA lawsuit against the State Department for Clinton's emails and a wide range of other documents pertaining to her work as Secretary of State. It was due to the agency's failure to respond to our original FOIA request.

Clinton's 20-minute press conference came after remarks she gave at a UN session on gender equality, 20 years after a similar speech she made in Beijing as First Lady. She was welcomed to the UN by Phumzile Mlambo-Ngcuka, executive director of UN Women, as the "next president."

Clinton spoke to reporters at the Security Council stakeout, a space usually reserved for impassioned remarks from member states on the kinds of conflicts currently occurring in Ukraine, Syria, and South Sudan. Prior to her arrival, UN staff moved the flags of Security Council members that otherwise would have appeared behind Clinton; still, the setting was odd given the domestic nature of the bulk of her comments.

After addressing gender equality, Clinton brought up a controversial open letter signed by 47 Republican US senators and addressed to Iranian leaders — an effort to interfere in ongoing talks between the Obama administration and the Islamic Republic over its nuclear program.

"Either these senators were trying to be helpful to the Iranians or harmful to the commander-in-chief," Clinton said.


She then turned her attention to her emails.

"I know there have been questions about my emails, so I want to address that directly," she said. "The laws and regulations in effect when I was secretary of state allowed me to use my email for work, that is undisputed."

But it's not Clinton's use of a personal email account to conduct government business that is at issue. It is her failure to store her emails in the State Department's record keeping system as required by the law that was in effect when she was Secretary of State. Clinton attempted to explain that although she did not adhere to the federal guidelines governing the preservation of her emails she was not technically in violation since the State Department still "captured and preserved" her emails because it was her "practice to email government officials on their State or other .gov accounts."

About an hour before her comments, State Department spokeswoman Jen Psaki announced that about 300 of Clinton's emails — 900 pages' worth — that pertain to the 2012 attacks on the US mission in Benghazi, Libya will be publicly released on a government website once they undergo a declassification review. Those emails were also turned over to congressional Republicans who are investigating the attacks.

Clinton said she never disseminated classified information over her unsecured private email system. But issues pertaining to WikiLeaks, for example, could be considered what the State Department calls "sensitive but unclassified" information. State Department guidelines say "sensitive but unclassified" information should not be circulated on private email accounts.


"I did not email any classified materials to anyone on my email," she said. "There is no classified materials. I am certainly well aware of the classification requirements and did not send classified materials."

This does not mean the State Department will abstain from redacting what Clinton wrote in the emails. If the lone email associated with her account obtained by VICE News last week from investigative journalist Alexa O'Brien is any guide, the agency will likely withhold the most substantive information from the 55,000 pages of emails that Clinton said in a tweet last week she wants publicly released.

That email redacted Clinton's email address and almost the entire body of the email, sent by former State Department spokesman PJ Crowley to Clinton with the subject line "WikiLeaks Update." The only exception was, "Madame Secretary, first of all, Merry Christmas. I trust you, the President and Chelsea will have a special holiday." The email was sent on December 24, 2010.

Psaki said the entirety of Clinton's email cache is currently being reviewed and will eventually be posted "in one batch" on the government website. Typically, reviewing a voluminous set of government documents and deciding what information to disclose would take years to complete. But Psaki said she expects it will take "several months" and likely at the expense of pending FOIA requests, said Nate Jones, a FOIA expert at George Washington University's National Security Archive.


"I predict it will cause extremely large delays to the many FOIA and declassification requests already backlogged at State," he wrote in an analysis about the Clinton email controversy. "The fact of the matter is reviewers who were previously processing FOIAs … will now likely shift all of their person-hours to processing Clinton's emails for release."

Related: Primary Sources: The VICE News FOIA Blog

Clinton told reporters Tuesday she had about 60,000 emails "sent and received," and that about half were work-related "and went to the State Department, and about half were personal that were not in any way related to my work."

Clinton also said she used a system that had been set up for Bill Clinton's office, and the server was physically guarded by the Secret Service. (Accessing information on an email server does not require physical proximity to the server.) She said there had never been a security breach. She ruled out an independent review of her server.

"The server will remain private," she said.

Clinton also admitted she deleted some emails that she and her lawyers deemed to be "personal and private, about matters that I believed were within the scope of my personal privacy, and that particularly of other people. They had nothing to do with work, but I didn't see any reason to keep them."

Follow Jason Leopold on Twitter: @JasonLeopold

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