The Federal Records Act, FOIA, and those pesky Email "Records"

Perhaps one of the harshest critiques hurled at presidential candidate Hillary Clinton, by the current State Dept Inspector General, was this:

"At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department's policies that were implemented in accordance with the Federal Records Act."

Any Government Employee knows (should know) that everything you do as a Government Employee IS, and one day will (presumptive) become 'a permanent' Public Record. That is what the National Archives is all about. This is because you are working on the public's dime, so the public "has a right to know" what you are actually doing. In theory anyways ... that is what the Freedom of Information Act (FOIA) is supposed to be all about -- the public's "right to know" ... holding our Government "accountable", ... Sunshine is the best disinfectant, etc. etc.

Apparently Hillary Clinton, missed that day of training.

It's not really an "Official Record" if no one knows it exists, right?

As Wikipedia goes to great lengths to explain, "official government records" are not that fungible ...

The Federal Records Act of 1950 is a United States federal law enacted in 1950. It provides the legal framework for federal records management, including record creation, maintenance, and disposition.[1]

The Federal Records Act came following the recommendations of the Hoover Commission (1947-49).[1] The act, and its related regulations, require each federal agency to establish an ongoing program for records management and to cooperate with the National Archives and Records Administration (NARA).[1] A 1985 NARA pamphlet describes the Federal Records Act as the "basis for the Federal Government's policies and procedures for creating, maintaining, and disposing of Federal records. The act and its related regulations define Federal records, mandate the creation and preservation of those records necessary to document Federal activities, establish Government ownership of records, and provide the exclusive legal procedures for the disposition of records."[1] The Second Hoover Commission (1953-55) addressed paperwork management and recommended the adoption of program relating to "directives management, reports management, paperwork quality control, and clerical work measurement." [...]

The Federal Records Act was amended over time. Amendments in 1976 emphasized paperwork reduction and information lifecycle management.[1] The Paperwork Reduction Act of 1980, which followed the issuance of the report of the Commission on Federal Paperwork in 1977, introduced information resources management and gave responsibility to the Office of Management and Budget for creating federal information policy standards.[1]

In December 2014, the Presidential and Federal Records Act Amendments of 2014 was signed into law by President Barack Obama.[2][3] This bipartisan act, which followed the 2011 President's Memorandum on Managing Government Records, modernizes the Federal Records Act.[2][3] The act expressly expands the definition of federal records to include electronic records (the first change to the definition of "Federal record" since the enactment of the act in 1950).[2][3] The act also grants the Archivist of the United States the final determination as to what constitutes a Federal record; "authorizes the early transfer of permanent electronic federal and presidential records to the National Archives, while legal custody remains with the agency or the president"; "clarifies the responsibilities of federal government officials when using non-government email systems"; and "empowers the National Archives to safeguard original and classified records from unauthorized removal."[2][3]

But, but emails are "electronic records" -- so they were not explicitly covered until after Ms Clinton ended her public service as Secretary of State.

Well, not really.

These recent Federal Records Act Amendments, which Obama signed, extended the definition of what an "electronic record" is, how they will be handled, and the preeminent role of National Archivists to decide what is an "official record", and what it not.

But even prior to these clarifications and codifications (necessary because of 'the abuse of some' ...), the State Dept already had its own regulations -- since 1995 -- regarding the significance and importance of emails AS RECORDS.

So much so, it has prompted the National Review has bluntly and plainly ask: Did Hillary Commit a Felony?

[...]
There is also little doubt, given this functional definition, that e-mail has been covered by the Federal Records Act since its adoption by the federal government during the Clinton administration. As Ian Tuttle correctly notes, the State Department’s own manual has plainly provided, since 1995, that e-mail records must be preserved under the Federal Records Act.
[...]

But Mrs. Clinton did something here that went well beyond occasional or incidental use of private e-mail accounts. She eschewed the use of an official account entirely, and deliberately established a private e-mail account, apparently maintained on a server in the Clintons’ New York home. As a result, her e-mails were at no time during her tenure in office subject to the Federal Records Act. (She provided some of the e-mails only after she left office, and only when the Department of State asked for them back.) As our friends at Judicial Watch will no doubt remind everyone, there were plenty of Freedom of Information Act requests that would have implicated her e-mails. But they were never searched, even though a reasonable search of all responsive federal records must be made in response to FOIA requests. And the records would have been relevant to congressional inquiries as well, including continuing investigations of the Benghazi attacks.

Why does that matter? Well, a federal criminal law makes it a felony when any custodian of official government records “willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same.”
[...]

Yet Hillary's continued "feigned cluelessness" about the IG unflinching report, just goes to show how thin her defense of "mistakes were made", yeah but "I had permission", have been up til now:

Huh? What's a little "careless" and unwitting "shredding" (and server wiping) among friends? It's not like anything nefarious was going on, that needed any some serious "track covering" (on public vs private information basis).

Besides what does the Chief Information Officer at State know about which are records 'worth keeping' ... and which are emails better left 'unread'? (historically speaking.) Only Clinton's internal staffers are wise enough to make that call.

And pay no attention to these other "record keeping" anomalies, that happened on Hillary Clinton's Watch as Secretary of State -- it's not like they are reassuring harbingers of how she would actually govern, once she gets that "promotion" she's been angling for ...

[...]
According to the Office of the Inspector General report made in 2014, the State Department's records failed to properly account for some $6 billion in contracts over the prior six years, including around $2 billion for the department's mission in Iraq. The report said, "The failure to maintain contract files adequately creates significant financial risk and demonstrates a lack of internal control over the Department's contract actions," and added that investigators and auditors had found "repeated examples of poor contract file administration" which it had characterized as having been one of the department's "major management challenges" for several years.[315]

During 2014, the State Department failed to turn over documents to the Associated Press that it had asked for through a Freedom of Information Act request based on the possibility of Clinton running for president in 2016. The department said it "does its best to meet its FOIA responsibilities" but that it was under a heavy administrative load for such requests.[316]

The ethics agreement between the State Department and Bill Clinton and the Clinton Foundation that was put into force at the beginning of the secretary's tenure came under scrutiny from the news media during early 2015. A Wall Street Journal report found that the Clinton Foundation had resumed accepting donations from foreign governments once Secretary Clinton's tenure had ended.[317]

What's $6 Billion in unaccounted for funds, when it comes to War-waging endeavors. Heck you should have seen what we wasted on the initial Iraq War conflict. Another Hillary "mistake", that probably will never be rightly accounted for by History (and Historians.) "Pish, Posh. History's Mysteries." Sometimes you got to 'break some eggs' ...

And when it comes to those "private" (and overly generous) Clinton Foundation's donors: There's Nothing to see here ... Nothing at all.

We should all just TRUST HER ... because after all She's No Donald Trump ... (Hillary sticks to her stories, no matter how flimsily they may get -- unlike The Donald, who changes rifts, like he changes suits.)

Hillary would never do THAT! ... Change Lies Horses, in the middle a stream ...

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Damnit Janet's picture

You know, when my kid's try to lawyer their way out of an explanation for why they did something they knew they should not have done or or trying to fandangle an excuse as to why they didn't do something... it just frustrates me how they are acting like little Democrats.

Seriously, Hillary is someone I wouldn't want to work for let alone be President. Hell, I said that about the Arnold when he ran for Gov in Ca.

And damnit I don't even know if me and my husband's registration fraud will be cleared up by the "election". But if I can vote... Bernie or Bust. Because fuck this shit.

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"Love One Another" ~ George Harrison

jamess's picture

thing like FOIA, like the National Archives, like the Federal Records Act,
as Secretary of State,

I shudder to think of what she will "disregard"
as President of the United States.

OMG. The Imagination reels.

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Damnit Janet's picture

(couldn't resist one for the greatest movies made in Oregon... not Goonies, but Animal House. Biggrin

Honestly, I never liked her. I never felt connected to the feminist movement because of her pantsuit super secret shenanigans.

Secret, Conniving, Condescending Entitlement
"What do you want me to do, stay home and bake cookes?"
The way she screwed the pooch as First Lady with the supersecret HMO bake off.
did I mention her condescending voice, eye rolls and nature???

Then I got to protest her as much as I protested Bush/Cheney. To me, she is nothing but a grifter from Arkansas who has a hard on for appearing tough on crime, war, terra, poverty, people on welfare. While she applauds drones, fracking and TPP.. If that's the Dem way, the feminist way... I just don't see myself ever labeling myself a Democrat again.

OH my.. is it sexist of me to say "shenanigans?" LOL

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"Love One Another" ~ George Harrison

She's from Chicago.

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www.Angie4Congress.com
#StrongerTogether for a better future for OUR posterity

Damnit Janet's picture

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"Love One Another" ~ George Harrison

riverlover's picture

of the South, which I can acquire again, in context. Formative years in KY, Hoosier-born of Hoosier and NJ-ite expat. Never picked up the drawl, except in chameleon situations of extreme.

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Hey! my dear friends or soon-to-be's, JtC could use the donations to keep this site functioning for those of us who can still see the life preserver or flotsam in the water.

She's from Park Ridge, a place Republicans used to shell Chicago immune from retaliation by the Chicago PD. No real Chicagoan would ever admit to being from there.

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Vowing To Oppose Everything Trump Attempts.

If one looks deeply enough, could not one find something similar on any President?

In some cases, one might excuse the violation based on the intent and extent of the violation. But I have yet to see any such instance in Hillary's record.

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Vowing To Oppose Everything Trump Attempts.

Steven D's picture

They share the same high opinion of themselves, and the same low opinion of their adversaries, bear grudges, have enemies lists, and cheat to obtain more money, all while wrapping themselves in this perverse overriding paranoia matched to relentless ambition for more power. Then they lie to cover-up little mistakes which then become bigger mistakes, and when inevitably the shit hits the fan it is never their fault, it was a conspiracy, they were betrayed, stabbed in the back, etc. The similarities are striking.

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"You can't just leave those who created the problem in charge of the solution."---Tyree Scott

Nixon gave us the EPA, however flawed and hamstrung. What's Hillary ever delivered?

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Vowing To Oppose Everything Trump Attempts.

Remember, Nixon LOST in 1960, and Richard Daley managed to have at least 100,000 dead people in Chicago vote for JFK, so JFK "won" Illinois, and the election.
That was documented in so many books.

Nothing Nixon could do about it.

Lots of us supporting Bernie Sanders now, know how he felt. Sad

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TheOtherMaven's picture

The popular vote decides nothing in Presidential elections - the Electoral College decides everything. JFK won by 303 electoral votes to 219, and Illinois' 29 electoral votes would not have been enough to change the outcome. (Illinois plus Texas, possibly, but with a Texan Democratic Vice-Presidential candidate, how likely was that?)

Senator Harry Flood Byrd Sr., of Virginia, got handed 15 electoral votes even though he wasn't an official candidate.

Edit: Here's a map you can play with and see what changes would have had to take place.
http://www.270towin.com/1960_Election/interactive_map

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There is no justice. There can be no peace.

http://www.salon.com/2016/05/28/this_is_why_people_dont_trust_hillary_cl...

Hesitate to use the word paranoia, but can't think of another one. Hubris. They've (always a plural, it's both of them wanting to get back in the White House) surrounding themselves with sycophants, TRAINED them to be sycophants, if they want to stay in the Circle of Power, so Clintons can do anything they want to do. ANYTHING. Cheryl Well, Huma Abedin, and then all the elected Democrats they control.

Lies. WTF. Just deny, deny, deny, deny - then it's "old business" and "we've already dealt with that" and "it's a distraction from the issues" - and, and, and - it's been that way for decades. They've gotten away with it, so far.

Enough is Enough.

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divineorder's picture

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A truth of the nuclear age/climate change: we can no longer have endless war and survive on this planet. Oh sh*t.

jamess's picture

appreciate that.

It felt a little "ranty" to me, lol.

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GreyWolf's picture

"Did Hillary Commit a Felony?" was very sane and informative. (Though they do just link to yet another interpretation of the law, albeit a good interpretation, rather than just directly to the law.)

Concealment, Removal, or Mutilation of Records
(18 U.S.C. § 2071)

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

There's no doubt she broke the law, but, as the article points out, "... the fact that Loretta Lynch would ultimately decide whether to bring prosecution, makes it doubtful that charges would be filed." As everybody realizes, and is repulsed by, if the 'sheriff' is your friend you can break laws all you want ...

EDIT: Note that the law reads "Whoever willfully and unlawfully conceals ..." and not "Whoever knowingly and with intent willfully and unlawfully conceals ..."

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jamess's picture

are so sick of our Two Systems of Justice;

One for Jay-walkers and Whistle-blowers,
and another for those Insiders, who 'can do no wrong'.

NO ONE should be Above the Law. Not even former Administration Officials.

Thanks GreyWolf for the further analysis,
and for digging into the Regulations, behind the Two-tiered abuses.

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They want to establish their position in the mind of the public before the system can act, tainting the process. The perp they thus protect is as likely to be one of their own as not.

I am so tired of the so-called media taking the position that they have the right to try anyone -even Hillary- in their publications and broadcasts just because they deem it newsworthy. One can express one's opinion without resorting to declaring guilt or innocence. They have NO legal standing in any such proceeding, and it should be illegal -even to the loss of any licensing- for them to usurp the functions of the courts for doing so.

We'd have shut FOX down long ago if this were so. Imagine how much better the world would now be if we had.

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Vowing To Oppose Everything Trump Attempts.

Would constitute a record. 30,000 some records just in the emails she did turn over.

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featheredsprite's picture

it looks to me like "laws are only for little people."

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Life is strong. I'm weak, but Life is strong.

jamess's picture

has a poster of Leona Helmsley and her words of wit,
hanging on wall, in one of her secret offices?

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Both ARE Republicans, after all!

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Vowing To Oppose Everything Trump Attempts.

Once a Goldwater Girl, always a Goldwater Girl. Now a felon, in the politest sense of the word, of course

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Yahoo

How much more controlling could she be?

Remember in that video, we were "everyday Americans" - until people started to make fun of it sounding like "everyday prices." Ooops, relaunch. Jeez, how many relaunches have they had?

This whole email started with her stating at a UN presser, that "it was her private email and was going to stay that way." Ooops, remember at another presser when journalist asked about her emails, and she walked away, saying "nobody but you is interested in that." She really is used to saying anything she wants to say, and EXPECTS/DEMANDS? to be believed.
"How dare you question me" is the look she gives, when she's not doing that wide open mouthed look of fake astonishment as if she "recognizes" someone & wants to appear "friendly" - last resort,
The CACKLE. We all know what that sounds like.

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high5104's picture

on account they were "private"; don't we need to know if she conducted "private" business with the Clinton foundation on the tax-payer dime? I want her to be held accountable for those "private" emails also.

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pending...

jamess's picture

Private Business -- is NOT -- supposed to be conducted on Public Time.

There is no excuse for deleting those Foundation-related emails.

She was suppose to have left those responsibilities behind, when she became SOS.

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And we can be sure that the FBI is intrigued by the magical disappearance of virtually all of Pagliano's .gov emails reflecting 4 years of well-compensated employment. That appears to be "destruction of government records" in spades. Since Pagliano is now cooperating, the FBI likely knows how and why that happened.

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Mark F. McCarty

Because she violated federal rules.

Her private server indeed was to prevent the press/public from having access to her emails--she functions very much like a dictator.

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jamess's picture

these "mistakes", "faux paus", and blatant disregard of the Rules,

doesn't disqualify her from becoming President however.

If we were Denmark,
foreign observers would be saying "something smells" ...

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Steven D's picture

and then there are the Clinton Rules (not that dissimilar to the Bush Rules).

It doesn't matter what the written law, rule, regulation, or policy may say, if a Clinton is involved there is an implied exemption for them from its application. Or so it seems. Maybe for once in my life I will be surprised and finally someone with authority will act to indict Hillary, or at a minimum deny her the nomination, for breaking all the rules that the rest of us would be crucified for breaking.

Thanks James. Good work.

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"You can't just leave those who created the problem in charge of the solution."---Tyree Scott

jamess's picture

I tried to explain how this latest IG report is more serious than it looks.

Now if only we could get the Corporate Media to care,
about those "public service" nuances.

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jorogo's picture

administration, as yet another broken Obama promise, has slowed the FOIA process greatly, and stopped it altogether in many areas, one area being so-called "national defense".

I spent over 2 years trying to obtain a response to a properly-filed FOIA request with the US Air Force, to determine if they corrected a maintenance procedural screw-up that resulted in a US Air Force F-16 crash (they jokingly refer to it in newspeak as a "mishap") reducing a residence about 2 miles from my house to toothpicks and a smoldering crater (family with 2 girls had left an hour proir), right here in war-zone Wisconsin (where they regularly practice air-to-air combat, a situation no US F-16 has ever engaged in at anytime in their 40-year lifespan).

It took the help of 4 US Senators to eventually pry out a "letter" explaining maintenance upgrades from some low-level supervisor. In other words, they never complied with the FOIA law, and will never account for why not.

So much for that "most transparent" Obama bullcrap!

There's more detail in the "elsewhere" diary I wrote on the matter, if you want to wade through even more crap to see it.

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"If I sit silently, I have sinned." - Mossadegh

jamess's picture

that Oligarchy has overtaken our "Open" Democracy.

Just look at what happens to Govt "Whistle-Blowers"
for another stark example of this. (career suicide, character smears, and likely personal indictments -- for those who dare to speak up.)

Thanks jorogo for sharing the stone walls you've run into,
with respect to exercising your citizen rights, through FOIA.

It's truly frightening what our country is rapidly becoming ... devolving into.

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a victim of Obama's "transparency" lie, is housed about a mile down the street from me at a federal prison. Whenever we get another example of the presidency that has been worse than GWB's , I'm reminded that a whole lot of people in this country think Obama is wonderful because of the way he's been able to control the message. We're now being reminded that Hillary is special. Yeah, she broke the law, lied, and who knows what all else, but because she's so much more special than you funny little people, she's planning on getting away unscathed.

Of course, that might not work if she doesn't get her poll numbers above Trump's. We'll see just how much the Dems like a loser.

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HoundDog's picture

In the OIG report we learned that the State Department as determined that Clinton's server was "unauthorized" and in an "unauthorized location" for classified documents.

In January, two Inspector Generals testified that the Clinton server contained over 2,000 classified doc with 22 at the level of Top Secret or SAP.

Her website continues even now false asserts the server was authorized.
When do we conclude that she has tried to pull a John Edwards on the Democratic Party.
She knows exactly what she did and where this is going. She needs to come clean.

Cornell University Law School

18 U.S. Code § 1924 - Unauthorized removal and retention of classified documents or material

(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year, or both.

18 U.S. Code § 793 — Gathering, transmitting or losing defense information

(f)

Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g)
If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

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jamess's picture

for helping to "throw the book" at her.

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Most voters are uniformed, so repeating a lie is a way to affect perception.

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