Former Secretary of State and presidential hopeful Hillary Clinton is currently under fire from Republican opponents and transparency advocates for her (alleged) circumvention of Federal recordkeeping laws. While this particular scandal (or pseudo-scandal) may soon pass, as have numerous other such scandals, the anticorruption community should take this opportunity to voice its support for a badly-needed reform to recordkeeping laws, to ensure that official emails sent by people in a position of public trust should be immutably preserved.
It seems almost too obvious, but “lost” and “misplaced” emails are often a major impediment in corruption investigations. At least three ongoing corruption investigations are touched by email deletions, to say nothing of past investigations:
- New York Governor Andrew Cuomo instructed his government to begin purging un-archived emails after 90 days, even as controversy and a Federal investigation swirls around his dismantling of the Moreland Commission. (He has now altered his policy somewhat)
- A Federal investigation into hundreds of millions of procurement dollars spent by the Delaware River Port Authority (DRPA) has been dragging on for years, crippled in part by missing emails that were “compromised” before the DRPA could turn them over to the U.S. Attorney. The DRPA (partly overseen by New Jersey Governor Chris Christie whose own history with deleted communications is muddled) lost 18 months worth of emails received by a single key official during a key period of time, due to a “software malfunction” with their in-house email system. DRPA’s Inspector General has since resigned in frustration.
- In a glimmer of hope, although recently-resigned Oregon Governor John Kitzhaber instructed members of his government to delete emails ahead of an FBI and IRS corruption probe, they refused to do so.
This is an absurd state of affairs, and entirely unnecessary. There is absolutely no compelling reason to not automatically preserve every email sent and received by civil servants. This is 2015: it is literally more expensive to take the time to actively delete emails than it is to simply keep them. Either governments haven’t realized this yet, or their claim that emails should be deleted for the sake of “efficiency” is in fact a red herring. I suggest the latter. The continued absence of appropriate email preservation rules for public servants, which would be incredibly easy to implement, will continue to frustrate anticorruption efforts.
Today, government record-keeping laws as applied to email are utterly senseless. They were drafted at a time when it actually cost a significant amount of money to preserve and retain communications. Back then there was indeed a good reason to let government agencies destroy their memos other correspondence after a certain period of time had passed. There was even a good reason to let government employees make their own determination as to which documents needed to be preserved and which could be thrown away or destroyed. The more time the agencies had to hold on to these mountains of paper, and the more paper they had to hold on to, the more it would cost them in time and money. This rationale didn’t change significantly with the advent of electronic records because government agencies still needed to spend considerable money maintaining their own IT systems.
But times have changed. The cost of storing documents like emails has plummeted, to the point where cloud service providers like Microsoft and Amazon barely even compete on storage offerings — storage is basically given away for free. Nevertheless, government officials routinely justify deleting emails on the grounds of saving money. What these officials aren’t telling you is that if the rules were reformed to say “all emails will be preserved by default and copied over to the archives,” there would be no extra cost at all.
Take, for example, Governor Cuomo’s policy of deleting un-archived emails after 90 days. Maggie Miller, Mr. Cuomo’s deputy in charge of implementing this policy, has justified it on the grounds that the government is saving $3 million dollars a year on IT licensing fees by switching to a unified, Microsoft Office 365 system. While she is surely right that switching to a single cloud service provider will save money, it is disingenuous to imply that deleting emails after 90 days has something to do with cost. As explained by the watchdog group Reinvent Albany, New York’s service contract already includes 50 GB of data storage for each employee, which is enough for about 40 years worth of emails per employee.
To be sure, there are real costs in keeping government records; it’s just that they’re all caused by the current legal regime. Two major costs stand out:
- The first is the enormous cost imposed on the time and patience of government employees who are forced by the current rules to decide whether or not something is a “record,” and often exactly what type of record it is. Better let them do their real jobs and leave such tasks for others, and only when there is an actual need to distinguish between relevant and irrelevant documents. A specialized type of civil servant, like an archivist with the National Archives and Records Administration or an attorney in an agency’s internal FOIA office, would be best.
- The second cost is imposed on corruption investigators, including journalists and prosecutors. In the current regime, individual government actors have too much latitude to decide what happens to their own emails. Ordinary government employees are often told to determine for themselves what constitutes a “public record” and what the public has no interest in seeing. And powerful government actors (like the U.S. Secretary of State or the Governor of New York) have the power to alter email-retention policies and even, apparently, to use their own personal email server. The responsibility to determine what emails are in the public interest, and how to preserve them, should not fall to someone who has such a strong conflict of interest. Indeed, if only Governor Kitzhaber had the foresight of Secretary Clinton and maintained his own server, he would have had no problem deleting his emails to obstruct the federal corruption investigation that is still unfolding. Other governors aren’t so careless with their emails: Mitt Romney made sure to take personal possession over his emails after his tenure as Massachusetts Governor, and Jeb Bush maintains his own personal server as well.
By law, all government communications should be handled by a centralized system that is set to keep permanent records and is maintained by a disinterested set of professionals. Since cloud-based email services function by maintaining innumerable redundant sets of data and must be specifically programmed to delete data if that is the user’s wish, it would be trivial to implement a law that requires permanent retention of emails. There are, of course, obvious complications with respect to a government official’s “personal” communications versus those undertaken on behalf of the government. If some emails shouldn’t be shared with the archives, fine: at least they still can’t be deleted from the government’s own system, and won’t be “lost” when a FOIA request or subpoena comes around. But if government officials continue to have the power to set their own email retention policies and use personal servers, they will continue to abuse it at the expense of corruption investigations.