Transparency groups want Clinton's emails preserved electronically for public

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A broad-based coalition of non-profit advocates for greater transparency and accountability in the federal asked Secretary of State John Kerry and Archivist of the United States David Fierro to make publicly available in electronic format all of Hillary Clinton's private emails dealing with official business.

"Because it is of the utmost importance that all of former Secretary Clinton's emails are properly preserved and transferred back to the State Department for accountability and historical record purposes, we are asking that you verify that Secretary Clinton's emails containing federal records are transferred to the Department of State in their original electronic form, so that all such emails may be accessible pursuant to the Freedom of Information Act," the coalition said in a letter to the officials.

The coalition includes Cause of Action, Defending Dissent Foundation, Electronic Frontier Foundation, MuckRock, National Coalition for History, National Security Archive, National Security Counselors, OpenTheGovernment.org, Pirate Times, Project on Government Oversight, Society of Professional Journalists and the Sunlight Foundation.


"The Archivist and State Department are authorized by the Federal Records Act to seek the recovery of records that may have been improperly removed, and the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton's personal aides," the coalition told Kerry and Fierro.

"Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity. To the extent that it is ascertained that any record emails were deleted, they should be retrieved if technically possible," the coalition said.

The coalition's letter was made public Tuesday, the same day a State Department spokesman said the department has no record of the former secretary of state and heavy favorite to win the 2016 Democratic presidential nomination signing a mandatory form when she resigned in 2013.

The OT 109 form is required of all department State Department employees and affirms that the departing person has turned over all classified and non-classified government documents, as well as all private emails concerning official business. Signing the document falsely is punishable by fines and/or jail terms.

Clinton said she used a private server located in her New York residence for a personal email account on which she conducted government business as a matter of personal convenience. Clinton also claimed to have complied with all relevant federal laws and State Department guidance.

She said she deleted more than 30,000 emails from the server that were personal and turned over to the government 55,000 pages of emails dealing with official business. She declined to agree to allow an independent entity like a federal judge to supervise an examination of all the emails to ensure the return of all the official business emails.

The Associated Press and Fox News Anchor Megyn Kelly first raised the issue of whether Clinton signed the OF 109 form. Clinton's personal spokesman, Nick Merrill, declined to say last week when asked by AP, Kelly and the Washington Examiner whether she signed the form.

Clinton's use of the private email made it all but impossible for the State Department to respond properly to congressional oversight and media Freedom of Information Act requests for copies.

The coalition cited as an example "a 2012 FOIA request from Citizens for Responsibility and Ethics in Washington [that] sought 'records sufficient to show the number of email accounts of or associated with Secretary Hilary Rodham Clinton.' No documents were ever produced to CREW, and State Department FOIA logs released in 2013 show that the request was closed."

The coalition also said "the notion that Mrs. Clinton – or any federal employee – was under no duty to preserve her official emails on a federally-managed electronic records system from the time period of Jan. 21, 2009 to Feb. 1, 2013, is false" because "all agencies are bound by the National Archives and Records Administration's regulations interpreting the Federal Records Act."

The letter also pointed out that Clinton was obligated by Department of State's Foreign Affairs Manual regulations to make certain upon leaving the government that she returned all classified documents and gave copies of official business emails to the department.

"Secretary Clinton's exclusive use of a private email system during her tenure as the head of the State Department potentially violated the Federal Records Act, was a clear breach of the State Department's internal rules governing electronic communication and may have been a deliberate attempt to circumvent public oversight," Cause of Action President Dan Epstein said.

"The only way to ensure a transparent and open government is for public officials to follow the letter of the law. Secretary Clinton failed to adhere to that standard, and that is why our coalition is asking the secretary of state and the national archivist to take action," he said.

In a related development Tuesday, Judicial Watch officials asked a federal judge to schedule a status conference "as soon as possible to avoid further undue delays, prejudice and potential spoliation" of Clinton email records the non-profit requested in a July 2014 FOIA request for documents concerning the Sept. 12, 2012, terrorist attack on the U.S. consulate in Benghazi, Libya.

"Because Secretary Clinton was at the center of the State Department's official statement blaming the online video for the attack in Benghazi, her emails and those of her staff within the Office of the Secretary about the talking points given to Ambassador [Susan] Rice are clearly responsive to Judicial Watch's request," the group told U.S. District Court Judge Royce C. Lamberth.

Judicial Watch told Lamberth the State Department said nothing about Clinton's private email use in its November 2014 response to the group's FOIA.

"More egregiously, the State Department omitted that Secretary Clinton had apparently just turned over 55,000 pages of her agency emails that had not been searched or included in the Department's draft Vaughn index…These omissions are material and were apparently made in the process of settlement discussions to induce dismissal," the group told Lamberth.

Lamberth has a long record of rulings on behalf of strict application of the FOIA and related laws mandating government transparency.

Mark Tapscott is executive editor of the Washington Examiner.
Copyright 2015 Washington Examiner
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