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Why open records laws may not apply to all of Hillary Clinton’s State Dept.-era e-mails

Open records laws probably won't help those looking to access all of Clinton's e-mails. (AP Photo/Alex Brandon, File)
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Can open records laws be used to access all of the e-mails sent by Hillary Clinton during her time as secretary of state?

A new court ruling this week suggests: probably not.

A federal judge ruled on Tuesday that the Competitive Enterprise Institute, a conservative organization, could not use the Freedom of Information Act to gain access to the private email of a government official. The judge reasoned that the act can be used only to get email that is held by a government agency.

CEI had sought emails from a private account used by Office of Science and Technology Policy Director John Holdren -- specifically, e-mails he sent using an account given to him by a former employer. U.S. District Court Judge Gladys Kessler found that the group could only use FOIA to get e-mails that were held by the government agency. Holdren's private e-mails didn't qualify.

U.S. State Department officials have said Clinton used a private account exclusively while secretary of state but has now turned over 55,000 pages of material in response to a request from the State Department that she provide all public records in her possession. Kessler's ruling would suggest that the e-mails released by Clinton to the State Department are subject to open records laws, but that those that remain in her possession are not.

In her opinion, Kessler wrote that any fear that "agency officials will escape FOIA coverage altogether by conducting government business with their personal accounts" is "misplaced" since the Federal Records Act provides "administrative remedies to safeguard against wrongful removal of agency records."

In other words, Kessler was indicating that the Federal Records Act would not allow officials to entirely remove their email from agency possession, as Clinton apparently did until last year. Indeed, Kessler wrote that her ruling came in part because Holdren issued had issued a memo to his agency in 2010 that required that work-related emails exchanged on private accounts be "promptly copied" to the agency.

[As House panel issues subpoenas, questions mount over Clinton e-mails]

A State Department spokeswoman said Wednesday that the Federal Records Act puts no time limit on its requirement that officials turn over materials to agency possession, suggesting that Clinton is in compliance since she gave over records in 2014.

Almost anyone can sue the government if they believe there has been a violation of the Freedom of Information Act, said Hans Bader, an attorney for CEI. However, he said violations of the Federal Records Act are much harder to address. Courts have severely limited who is allowed to sue over the issue, and even in cases in which a violation is proven, the typical remedy is merely that another government agency, like the archives, is directed to explore the matter.

"Hillary Clinton could easily have violated the Federal Records Act and not FOIA," he said. "But what do you do about it after the fact?"

He said, too, that other judges -- especially at the state level -- have expressed different opinions than Kessler about the status of private e-mail accounts, describing an area of the law that is very much in flux. Plus, the few court cases that do exist have typically dealt with the e-mails of sitting employees and not former officials like Clinton.