Matt Topic is an American attorney who specializes in Freedom of Information and governmental transparency. The Freedom of Information Act (FOIA) allows citizens to access records generated by public institutions; for this reason, FOIA is of particular importance to journalists. Last week, The New York Times reported thatHillary Clinton “exclusively used a personal email account to conduct government business as secretary of state”, despite the law requiring her to use a government email for government business. Her exclusive reliance on a private email account made it impossible for journalists or anyone else to access any contents of her emails eligible for public acquisition under FOIA.
Ken Klippenstein: What’s the relevance of the Hillary Clinton email scandal to the Freedom of Information Act (FOIA)? What does that say about how seriously she takes it?
Matt Topic: I think she has absolutely zero respect for the Information Act or for transparency generally; at least, that’s the way it would appear. I haven’t seen her put out any explanation other than a one or two sentence tweet. It seems very cavalier that she believed that she can conduct government business through her own personal email server.
There’s questions whether that’s legal or whether that complies with rules and laws; but even setting all that apart, what’s the possible rationale for doing that? You’re putting emails that may be classified, may be at least sensitive–we don’t really know what any of these are–but if this is where all of her emails took place, I’ve got to believe there’s probably at least sensitive material in there. It’s been put on a server that wouldn’t seem to have any of the controls and securities that a government email server would have.
It was wrong when Sarah Palin did it, it was wrong when George W. Bush did it, and it’s wrong when she does it. It’s wrong when anyone else in the government does it–or knew about it.
If she’s sending emails to other officials, they would seem to be able to have seen that she was doing this, too; but it’s only coming out now.
Even if she’s been doing emails on a private server, I think they still need to be treated as public record. If there were FOIA requests that have been made for which those emails were never searched or produced, the State Department needs to go back and redo their responses to all those FOIAs because those should’ve been included.
Ken Klippenstein: What would some motives be for an official to use a private account?
Matt Topic: One thing is, it gives that public official control over those emails, and the ability to delete emails that they choose to delete–which they may not be able to accomplish on a government email server.
A motivation seems to be the ability to control access to these emails in a way that you couldn’t control if you followed the proper protocols. There could’ve been an attempt also to have those emails excluded from any FOIA searches: if somebody made a request for emails related to a subject matter, and those emails were only between Hilly Clinton and somebody outside of the State Department, then those never would’ve gotten
caught in a search for records responsive to that FOIA request. Or at least it would seem that way.
I don’t think there’s any good justification for this. There can really only be bad motivations.
Ken Klippenstein: How serious has the Obama administration taken FOIA?
Matt Topic: I think it’s just continuing on a path where there’s a lot of talk about transparency but not a lot of action. This is an administration that’s been sued countless times in order to produce records that it apparently thinks are too sensitive or too embarrassing to be released to the public. This is most certainly not the most transparency administration in history. It does do a great job of affirmatively putting out the information that it wants to put it, but does not do a good job of releasing the records that it ought to be releasing.
There definitely have been great strides made on making more data available to the public and to researches. That’s a good thing. But when it comes to records that might be embarrassing to the administration, I think they fight just as hard or even harder than their predecessors.
There continues to be an unacceptable backlog of FOIA requests. The deadlines in the statute are routinely violated by all kinds of government agencies, and the courts are not doing a very effective job of policing that. So I think we have an overall lack of commitment to meeting the statutory obligations to produce records in response to requests.
If you couple that also with the administration’s track record of very aggressively prosecuting journalists and whistleblowers–if you couple that with a lack of transparency, I think there’s a real problem. This doesn’t seem to be an administration that wants to allow transparency into potentially embarrassing issues; and it will go to great lengths to try to avoid the public being able to have ample transparency and know how the administration is operating.
Ken Klippenstein: What are some of the tactics the government employs in order to circumvent FOIA?
Matt Topic: An inadequate level of funding to have enough FOIA officers and technology in place to properly respond to the requests. You’re creating an incentive for the government to devote inadequate resources when the courts don’t hold an administration accountable for not meeting deadlines.
Why on earth would an agency want to hire more FOIA officers or attempt to clear out the backlog? They would just as soon have a really long backlog, knowing that they can get away with it; and then things that are important issues of the day, we won’t have transparency on until 2 years later. That’s not a terrible exaggeration in many instances.
It’s almost comical: there’s been a practice where really old FOIA requests that the government still hasn’t managed to satisfy, they’re going back the requesters and saying, “Do you still want this information now after this long delay?” That’s pretty telling about how diligently they seem to have been going about this.
Inadequately funding FOIA compliance is one way to make it more difficult for people to get information. We’re at the mercy of public officials to comply with these requests. The courts and the statute afford the government a lot of leeway and allow the government to put in affidavits explaining what they did to search for records, and those are generally treated more or less as conclusive–the courts give an awful lot of deference. I don’t know why that deference would be considered justified.
I think there’s enough of a history of misconduct and dishonesty by public officials in all kinds of administration and all kinds of agencies, that the idea that government affidavits should be presumptively accepted as true, I think is not consistent with a properly functioning democracy.
There are things that can be done [to circumvent FOIA]. The scope of a search could be inadequate in a way that’d be difficult for the requester to know; there could be deliberate efforts to not search in areas that are likely to have more sensitive information. There are also issues with how requests get interpreted: are they deemed broadly interpreted or is the government looking for gaps or loopholes in order to defeat the intent of the requests.
Ken Klippenstein: What could have been FOIA’d had Clinton not used a private account?
Matt Topic: There’s certainly been a lot of talk and scrutiny over Benghazi. I would imagine that there have been FOIA requests made by lots of news agencies for things related to Benghazi. It’s now come to light that, I think, there were 55,000 emails that her office concluded needed to be turned over to Congress as part of the Benghazi investigation. Many of those might be records that are exempt under FOIA, but I would be shocked if there no records anywhere in there in which there was no information that was not exempt.
I think it’s going to come to light that there are records in whatever is being produced to congress that were probably responsive to FOIA requests that people made but weren’t produced. I haven’t heard anything said yet about what they’re going to do about that. What they ought to do is go back to every request within that time period.
I think it’s also troubling that we’re seemingly leaving it up to her office to determine which emails on her server qualify as public records or not. I don’t think that’s appropriate at all. I think an independent third party should be appointed and should have the entire server–not just the records that are public records subject to FOIA. Somebody needs to do their own work in the entirety of that server.
If she’s co-mingling personal emails, political emails, government emails on the same server and same account, then that’s sort of the price you pay if you choose to do business that way. I just don’t think it’s acceptable that it should be left to her discretion or her office’s discretion to decide which records are going to be turned over to the government. They should all be turned over to the government and it should be to some independent party.
Ken Klippenstein: Why did it take so long for this to be exposed? One would think that, as the Secretary of State, there would’ve been all these journalists FOIA’ing her emails.
Matt Topic: That’s a great question. I don’t know what happened here.
I think we need to have a statue passed that forbids public officials from conducting public business on any email account other than a government email account.
If you look back at the Sarah Palin issue, while it’s clearly illegal to hack into someone’s email account, the fact that Ms. Palin put her in that position isn’t an excuse for someone to go in and hack her emails. But the reality is, when you put your emails onto your own server or a commercial server or something other than a secure government server, you’re asking for trouble.
Given the fact that someone was able to hack into Sony’s emails, what’s to say that no could hack into these emails? Or still could?
We have these protocols for a reason. I think it’s unacceptable that somebody in that position would not follow the proper protocols.
Ken Klippenstein is an American journalist who can be reached on Twitter @kenklippenstein or by email: firstname.lastname@example.org