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Compliance, eDiscovery and Email Management

Did Hillary Clinton Flout the Federal Records Act?

“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.”  – Jason R. Baron, Esq., Drinker Biddle & Reath

Hillary Clinton and Personal Email – Did She or Didn’t She?

Hillary Rodham Clinton is being accused of flouting the Federal Records Act—the law that requires federal officials to retain all incoming and outgoing hard copy and email correspondence as part of the agency record.

According to The New York Times, Secretary Clinton used her personal email account while she was Secretary of State, an act which may have violated the Federal Records Act.

Key Issues and Lessons for Email Archiving for Politicians

The question of compliance aside, several other issues make this case one from which lessons about email archiving and politics take center stage.

Security of Emails:

The emphasis is on the exclusivity of the use of a personal email account. Why? Aside from legal implications, it is considered to be less secure than a government issued email account would have been. For the position of Secretary of State, the security of email correspondence reigns as a key issue.

The New York Times mentions that they do not know whether Secretary Clinton took any steps, such as encryption, to secure her email correspondence.

Timing when Personal Emails were Used:

During Mrs. Clinton’s service as Secretary of State, none of her email correspondence was preserved on the agency’s servers. Therein lays the rub. It was only owing to the State Department’s recent steps to comply with The Federal Records Act and a House Committee’s research on the Benghazi attacks that a spotlight was shone on Mrs. Clinton’s absent email correspondence.

Although the correspondence has now been made available, had the former Secretary or her staff made sure that her email correspondence was preserved on State Department servers while she still held office as a Cabinet-level official, the scenario may have been perceived in a whole different light.

Who Had Access to the Emails:

The two most significant reasons for the Federal Records Act are security and access. Who typically has access to these records? The New York Times lists “congressional committees, historians and members of the news media.” Since the enactment of the Freedom of Information Act (FOIA), however, we all have the option of requesting access to official records.

Two more issues related to access arise in this scenario:

  • The other correspondents: While Secretary Clinton’s email correspondence to other governmental staff and top officials may have been retained if she sent her correspondence to their government email accounts, there is no knowing what foreign officials may have done, if anything, to preserve such correspondence. Preservation aside, there also is no knowing whether specific emails might be able to be retrieved, nor who may have access.
  • Retrieval of the documents: Because Mrs. Clinton apparently used only one personal email account, separating official documents from purely personal ones most likely was inefficient at best—Mrs. Clinton held office for four years—and inaccurate at worst. How many official documents were missed and which ones, if any, may never come to light.

Questions of email compliance, security, access, and retrieval occur with regularity in business. It’s best to be prepared and prevent costly, embarrassing scenarios.

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