FOIA rules to guide review of Clinton emails for publication

AP News
Posted: Mar 06, 2015 5:07 PM

WASHINGTON (AP) — The Obama administration said Friday it will apply the legal provisions of the Freedom of Information Act to determine what parts of Hillary Rodham Clinton's official emails when she was secretary of state will be released publicly from her private account. The law contains nine exemptions to censor or withhold parts of records.

The decision means that any finding by State Department reviewers that her private emails included classified or otherwise sensitive data would be indicated, even if the information is marked out. Under that law, reviewers need to specify which of the nine exceptions they're citing to censor a passage.

Clinton's extensive use of her own email account and private server has raised questions in the buildup to her expected presidential campaign about whether she adhered to the letter or spirit of accountability rules. Clinton has asked for the full ledger of her work-related correspondence to be made public, a process the State Department said could take months. The emails comprise 55,000 pages.

On Friday, State Department spokeswoman Marie Harf said the agency was focused solely on facilitating the emails' public release, not on any examination of possible wrongdoing by Clinton.

She said no law prohibited the former first lady from using her own email account while in government, even exclusively for official business. She suggested a 2011 cable sent from Clinton's office offered only a general recommendation to staff about not using private accounts.

The cable read: "Avoid conducting official Department business from your personal e-mail accounts."

Harf said, "This cable, in general, is talking about guidance on best practices, colloquial guidance for people when it came to personal email."

"This is certainly not a regulation or a policy," Harf said, calling the suggestion that Clinton didn't follow her own best practices an "oversimplification of what's going on here."

The issue may be more pertinent to politics than law. The idea of the secretary of state failing to follow recommendations that applied to the rest of her department could reinforce perceptions among some voters that Clinton played by a different set of rules. It could open her to criticism about how she fulfilled a legal requirement to preserve all her emails.

Clinton's private email practices gave her unusually large control over access to her message archives, potentially complicating the State Department's legal responsibilities in finding and turning over official emails in response to any investigations, lawsuits or public records requests.

On Wednesday, Clinton said on Twitter: "I want the public to see my email. I asked State to release them."

Under the Freedom of Information Act, also known as FOIA, the government can censor or withhold emails to protect information that would hurt national security, violate personal privacy or expose business secrets or confidential decision-making in certain areas. It cannot block documents merely on the basis that they are embarrassing or expose government incompetence or malfeasance.

If members of the agency's existing FOIA staff are assigned to Clinton's emails, it could set back a department already overwhelmed by 11,000 pending requests under the open records law. Some have languished unfulfilled for years.

Clinton aides and the State Department say she never received or transmitted classified information on her private email account. However, even alluding to a classified secret in a follow-up email with an aide, for example, would implicate the same classification standard under the government's "derivative" classification rules. And unclassified diplomatic details and internal matters are sometimes considered sensitive and can be targeted by hackers and foreign governments.

Harf on Friday declined to say whether anyone in government examined Clinton's private email server and network before it began operating, or whether it was subsequently reviewed during her tenure. Federal regulations subject the computer systems of some contractors and other organizations to federal oversight when they interact with government systems to ensure they are protected.

"I'm not the spokesperson for her office," Harf said at one point during Friday's questioning over the emails, which lasted more than 35 minutes. "People may have been confused about that this week."