Former National Security Advisor Berger was caught trying to smuggle classified documents out of the National Archives and Records Administration (NARA). (The Los Angeles Times, 3/27/2016) Berger took five copies of a memorandum called the “Millennium Alert After Action Report” and later destroyed three of them. (Real Clear Politics, 1/15/2007) (The Washington Post, 4/1/2005)
The National Archives and Records Administration (NARA) issues Bulletin 2008-05, which states that every government email system is supposed to “permit easy and timely retrieval,” and all work emails are supposed to be permanently preserved. Additionally, in the case of a cabinet secretary, permanent records are to be sent to the department’s Records Service Center “at the end of the Secretary’s tenure or sooner if necessary” for safekeeping. (The Washington Post, 3/27/2016)
In 2004, The National Archives and Records Administration (NARA) issued a bulletin noting that officials and employees “must know how to ensure that records are incorporated into files or electronic recordkeeping systems, especially records that were generated electronically on personal computers.”
In 2009, NARA amends its regulations explicitly to address official emails on personal accounts: Departments that allow employees to send and receive work-related emails using a system not operated by the department must ensure that all such emails are preserved in the appropriate department recordkeeping system. (US Department of State, 5/25/2016)
The US Code of federal regulations on handling electronic records is updated: “Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.” (The Washington Post, 3/10/2015)
In 2015, Jason Baron, former director of litigation at the National Archives and Records Administration (NARA), will comment that the rules get stricter in 2013. But even prior to that, “the use of a private [email] account was to be rare and occasional, and not to be the norm.” Using a private account “without using an official account is inconsistent with the Federal Records Act.” He adds, “To solely use a personal e-mail for four years [as Clinton did] is something that is highly unusual.” (Bloomberg News, 3/3/2015)
The National Archives and Records Administration (NARA) issues guidelines to the heads of all federal agencies, including Secretary of State Clinton, stating that all emails and email attachments relating to government business are considered records to be preserved under the Federal Records Act. (The Wall Street Journal, 9/30/2015)
Clinton gives a speech to inaugurate the Open Government Partnership, an international initiative to promote government transparency. “When a government hides its work from public view, hands out jobs and money to political cronies, administers unequal justice, looks away as corrupt bureaucrats and businessmen enrich themselves at the people’s expense, that government is failing its citizens. And most importantly, that government is failing to earn and hold the trust of its people. And that lack of trust, in a world of instantaneous communication, means that the very fabric of society begins to fray and the foundation of governmental legitimacy begins to crumble.”
In 2015, Danielle Brian, the executive director of the nonpartisan Project On Government Oversight (POGO), will say that Clinton’s comments “demonstrate extraordinary hypocrisy given that while Clinton was giving this speech she had created essentially a second set of books where her communications were not being captured for the National Archives [and Records Administration (NARA)].” Furthermore, keeping all of her emails out of reach “undermines the whole point of the Open Government Partnership.” (US Department of State, 7/12/2011) (Bloomberg News, 3/5/2015)
Clinton is less than two months away from ending her term as secretary of state. Paul Wester, chief records officer for National Archives and Records Administration (NARA), writes to his NARA co-workers, “We need to discuss what we know, and how we should delicately go about learning more about the transition plans for Secretary Clinton’s departure from State.” He says he has been warned of an effort to move Clinton’s files to Bill Clinton’s presidential library in Little Rock, Arkansas.
He adds that a co-worker is “asking questions about what we are doing to make sure everyone leaving the Administration does not leave with Federal records. I told him we are aware of the issue and are working on it.”
Officials at Clinton’s presidential library will later say they never heard of such an effort, and it wouldn’t have been appropriate for the library to house Hillary’s records in any case.
Wester will be interviewed in 2015 and will say the concern was over paper records only. “We had no information or no inkling of any issues with the email matters that have come to our attention more recently.” (Politico, 5/21/2015)
State Department staff reviewing material to possibly give to Congressional committees examining the September 2012 Benghazi terrorist attack discover emails sent by former Clinton aide Jake Sullivan to a personal email address belonging to Clinton.
In ensuing weeks, senior department officials discuss if the Federal Records Act (FRA) requires the department to turn over emails from such personal accounts. In fact, the act does require emails to be turned over if they are work-related. However, an internal investigation will later determine that the department does not notify the National Archives and Records Administration (NARA) of a potential loss of records at any point in time. Furthermore, none of Clinton’s emails are given to any Congressional committee in 2013, nor are they provided in response to any Freedom of Information Act (FOIA) requests that year.
According to department official Heather Higginbottom, Secretary of State John Kerry is not a part of these discussions or decisions. (US Department of State, 5/25/2016)
Around this debate period, on August 7, 2013, department officials find 17 FOIA requests relating to Clinton in their records, with some of them specifically requesting Clinton emails. But none of the requesters are told about any of Clinton’s emails apparently due to the result of this debate.
Clinton’s personal email address will be rediscovered in May 2014 after a document request from the new House Benghazi Committee.
NARA’s (The National Archives and Records Administration) new regulations state, “While agency employees should not generally use personal email accounts to conduct official agency business, there may be times when agencies authorize the use of personal email accounts, such as in emergency situations when Federal accounts are not accessible or when an employee is initially contacted through a personal account.” (The Washington Post, 3/10/2015) The change comes after it was revealed that Gary Gensler, the head of the Commodity Futures Trading Commission, and officials at the Department of Energy had used private email addresses for government business.
(Bloomberg News, 3/3/2015)
Jason R. Baron, former director of litigation at the National Archives and Records Administration (NARA) comments on that day’s news report that Clinton used a private email account on a private server for all her email communications while secretary of state: “It is very difficult to conceive of a scenario – short of nuclear winter – where an agency would be justified in allowing its cabinet-level head officer to solely use a private email communications channel for the conduct of government business.”
Baron, who worked at NARA from 2000 to 2013, adds, “I can recall no instance in my time at the National Archives when a high-ranking official at an executive branch agency solely used a personal email account for the transaction of government business.” (The New York Times, 3/2/2015)
National Archives and Records Administration (NARA) spokesperson Laura Diachenko says that since 2009, federal regulations have stated that “agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that federal records sent or received on such systems are preserved in the appropriate agency record-keeping system.” (The New York Times, 3/3/2015)
Jason R. Baron, a former director of litigation at the National Archives and Records Administration (NARA), tells the Senate Judiciary Committee that he believes Clinton’s use of a private server was against NARA’s rules. Baron claims that “the setting up of and maintaining a private email network as the sole means to conduct official business by email, coupled with the failure to timely return email records into government custody, amounts to actions plainly inconsistent with the federal recordkeeping laws.” (The Washington Post, 3/27/2016)
He adds that “any employee’s decision to conduct all email correspondence through a private email network, using a non-.gov address, is inconsistent with long-established policies and practices under the Federal Records Act and NARA regulations governing all federal agencies.” (US Senate Judiciary Committee, 5/1/2015)
John Fitzpatrick, who heads the Information Security Oversight Office in the National Archives and Records Administration (NARA), says that government agencies train officials with security clearances to spot sensitive material and then to look up the proper classifications, such as “confidential,” “secret” or “top secret.”
“If you write an email, you are expected to distinguish the classified from the unclassified. If you say ‘the CIA reports’ something—writing that sentence should set off alarm bells.” However, Fitzpatrick says that issue is somewhat academic given that Clinton had all her emails on a private server. “The rules require conducting any official business on an official system. There are many reasons for that—including assuring the security of the information, regardless of its classification. There is no argument to have those conversations in a private email.” (The Washington Post, 8/14/2015)
That means they were classified from their creation. A Reuters analysis concludes, “In the small fraction of emails made public so far, Reuters has found at least 30 email threads from 2009, representing scores of individual emails, that include what the State Department’s own ‘classified’ stamps now identify as so-called ‘foreign government information.’ The US government defines this as any information, written or spoken, provided in confidence to US officials by their foreign counterparts.” Although unmarked, Reuters’ analysis suggests that these emails “were classified from the start.”
J. William Leonard, a former director of the NARA Information Security Oversight Office, said that such information is “born classified” and that “If a foreign minister just told the secretary of state something in confidence, by US rules that is classified at the moment it’s in US channels and US possession.” According to Reuters, the standard US government nondisclosure agreement “warns people authorized to handle classified information that it may not be marked that way and that it may come in oral form.”
The State Department disputes Reuters’ analysis but does not elaborate or explain why. (Reuters, 8/21/2015)
When former Clinton chief of staff Cheryl Mills testified to the House Benghazi Committee in a private session on September 3, 2015, her comments remained secret.
However, on this day, a State Department inspector general’s report makes one portion of her testimony public. Mills was asked by the committee, “Was anyone consulted about Secretary Clinton exclusively using a personal email address for her work?”
Mills replied, “I don’t recall that. If it did happen, I wasn’t part of that process. But I don’t believe there was a consultation around it, or at least there’s not one that I’m aware of…”
Mills then was asked if Clinton consulted with “private counsel,” or “the general counsel for the State Department,” or “anybody from the National Archives [and Records Administation (NARA)],” or “anyone from the White House.”
Mills replied she wasn’t aware of any consultation from any of those people either.
The inspector general’s report also included comments from many other senior department officials about this, and “These officials all stated that they were not asked to approve or otherwise review the use of Secretary Clinton’s server and that they had no knowledge of approval or review by other Department staff. These officials also stated that they were unaware of the scope or extent of Secretary Clinton’s use of a personal email account, though many of them sent emails to [her] on this account.” (US Department of State, 5/25/2016)