The Clinton email situation has me thinking: What communications are part of the public record?

[Skinner]

I've been thinking about the Hillary Clinton email thing, and it got me wondering what types of communication by our government officials we are ethically entitled to see? To be clear, I'm not talking about the law here. I'm not even talking about Hillary Clinton specifically. What I'm wondering is how we decide what communications are part of the public record and must be made public?

I think it is safe to say that we all agree on the following two statements:
- Official documents printed on government letterhead are public record.
- Phone calls made from government telephones are not part of the public record.

So those are, I think, the two poles of the public records continuum. There are other things we would probably agree on -- like the fact that face-to-face discussions between people are not public records -- but I think that is beyond the two poles of the continuum I am laying out here.

So, we have our two areas of agreement -- official paper letterhead on one side, and phone calls on the other. My first question is this: How exactly do we decide what counts as public record? At this point our existing technology would make it simple to set up a system that automatically records all telephone calls involving government officials. Since we have the technology to save a phone call permanently, why is a telephone call different from a document which has been printed out on paper? Is it the act of transferring words into letters? Why do we automatically assume that telephone calls should not be saved, but also automatically assume that paper documents should? Is it something about our gut-level sense of inherent permanence?

This, of course, brings us to email. In our daily lives, email holds a position which is neither that of a paper document nor a phone call. Because it is being written, do we therefore have a right to know what is in all the work-related emails of our government officials? Is it like a paper document? Or, is email a less formal way of communicating -- like a phone call or a face-to-face communication -- which we do not necessarily have a right to know?

So, the question is this: Do we decide that a particular form of communication should be public record based on whether it is written/unwritten? Or do we decide based on whether it is formal/informal?

Which brings me to my next question: Does the public have a right to read all of a public official's text messages? What, exactly, is the difference between a text message and a phone call that would make one a public record and the other not?

We have already established that government officials do have the right to communicate with each other directly (by phone or face-to-face) without it being a public record. So where does that right end? Does it end the the moment the communication is expressed as written words?

I believe that we have a right to know some of the communications involving our government officials. But I also believe we do not have a right to all of their communication. I believe that the proper functioning of government requires that some of the communication between government officials ought not be public record. The public does not need to know what was in your phone call, and the public does not need to know what you said in your text message. If a government official knew that their phone calls and text messages were public record, then phones and texts would immediately become much less useful. It would become harder to get work done.

Again, not asking about the law, but rather what is our ethical right to know. Where do we draw the line?

[Agschmid]

1. It's a really good question...

I think the text question is very important, I'm finding that as technology changes more rapidly the lines are becoming more blurred.

Hard to answer, good post and I'm going to have to think about it for a bit.

[musiclawyer]

45. I hate to break it to you all but there is no single comprehensive law

The law that governs public records of federal employees is different than the 50 different state laws, none of which are the same. Right now in CA the CA Supreme Court is deciding if emails and text on private devices of elected officials are public record. Most of us in the business think the court will say that such data IS public record if particular mail or text concerns public business.

"Honey I'm going to pick up the milk " will never be deemed a public record because it has nothing to do with the peoples business. But by using a private device even once for business, the elected official opens themselves up to a judge making the call. That's why I tell all my government clients to use a government issued device and no other when doing business. Have the spouse call the private phone and email the private iPad ....etc

[bigtree]

2. agree with your line of thinking, but

...I'm thinking of instances where there is some need established to determine the content of conversations with some suspected criminality involved. Subpoenas would be issued and efforts would be made to impel answers from principles about the content of conversations. That's at least one possibility where the right to know what's in an email would come in to play.

But, you're correct, I think, in expecting that, in the absence of some probable cause of criminality (or possibly wrongdoing associated with some congressional probe), there should not be some blanket assumption that email conversations would be part of the public record.

Of course, there's the 'Benghazi' inquiry which is undoubtedly driving the fishing expedition and much of the republican questions into Hillary Clinton's email communications. Still, as I understand it, the committee already has the relevant communications in their possession, voluntarily turned over by the former Sec. of State. What they obviously want is for the implication that there's more being concealed in whatever communications they don't have to hang over her head in an expected presidential campaign. However, they've been curiously resistant to releasing those emails they currently posses for the public to see for themselves what they actually contain.

[Autumn]

3. I think that if they are working for the American people in any capacity that any

phone calls, recorded meetings, emails or text message should be saved and archived if it is on government owned or paid for by the government and that communication device is used in any official capacity. Now it may be classified and we may not know for years, because there is information that should not be made public until the time is deemed right to do so. But IMO that communications on the people business belongs to the American people and as such should be saved and archived. All of it. If it becomes harder to get work done, then try face to face, more might get done that way.

Now we are told the government has shitty out dated equipment and it's too hard and too difficult to use. My question is. Why? My comment on that excuse is bull *cough* shit, if it's that bad it's because they want it to be that bad.

Do I trust Hillary? Yes I probably do. I don't think that there was really anything underhanded about this situation but I think that it shows poor judgment, I expect better from Democrats. My line is that there are a lot of people working in the government that I don't trust at all. I don't trust their motives. I want Boners and his staffs phone calls, emails and any messages to anyone about that farce with Bibi yesterday saved, archived and available. There's my line.

[BainsBane]

15. This is not the first we've heard about retrograde government equipment

We learned that intelligence officials lacked modern-day, efficient communication systems in the aftermath of 9-11. It seems to be an ongoing problem.

Other than that, I agree with you.

[Autumn]

18. The money that the gov blows on wars etc would purchase and pay for the upkeep

of any technology for an efficient communication system. The fact that they don't have one IMO is that they don't want one. My SIL is a private contractor for the gov. I know what they are capable of.

[BainsBane]

20. Either that or intractable government inefficiency

Working for a large university, I have some sense of enormous bureaucracies, but it sounds like we're a model of efficiency compared to the federal government.

[2naSalit]

44. You most likely are.

I work on fed computers as a low GS worker but the system we have is on Windows XP and Wondows7. We have the option to use our private email and phones for work. But we also have ethics training in the use of our .gov email and I am sure that everything I type on a system computer is saved. That being said, unless it's official business, there should not be exposure of conversations or communications through other means. But then, who decides what qualifies?

In my experience, it's official if on an official device, if it gets routed through a private system then there is likely some collection of content going on. I think this is a fishing expedition regarding HRC's email.

But to respond to Skinner's question, I think work related interactions should be among those retained as public possession even if conducted through private communications systems or in writing. Wouldn't it have been a good thing and in the public interest if Cheney's private consultations with the oil and mining industries were made public? He claimed they were private because they were held outside the actual white house but they were all about the public trust and well-being, or the deviant usurping of them in reality. So, work related conversations and deal-making conversations should be collected for record-keeping regardless of their mode of transmission interaction. Sometimes we make personal calls or communications on work systems because those are the only systems available due to location, like ordering a pizza for dinner when we get back to town and the like... not really work related though I am sure some bean counter would be interested in how many times we ordered pizza on agency phones.

I think we need to get upgraded systems in our government offices but it's a big task and will cost a lot. I agree that if we took the $$ from one of our recent wars we could fix nearly everything this country needs to be top of the line in communications tech as well as all the other needs of our country at present. So sad that those who hold the power to do just that refuse to do so because they want to be emperors and kings while stepping on our faces to get there.

[Stargazer09]

28. Where do we draw the line?

There are an incredible number of people working for the federal government. How do we decide who gets 100% scrutiny (all calls recorded, all emails saved, etc.) and who gets less?

For instance, my husband used to be a defense contractor. He worked for the federal government, but do we really need to record all of his phone calls, including the ones he made to tell me that he will be late for dinner? If he's not important enough, then how do we decide who is?

I just don't see the point in recording every single aspect of people's lives. Even if that person is the President of the United States.

[Autumn]

32. My line is that people who make policy, the people who make decisions for the American people

The people who handle our relations with other countries, the people who make policies in the military. Senators, Congress, their aides. If your Husband made policy that impacted the American people then yeah, someday we should get to read that he was late for dinner. Otherwise personal business should be done on your own cell phone. We don't need to record every single aspect of people's lives not even the President of the United States, but when the President is doing his job on the clock so to speak, then that's my business. When he's working out deals, that's my business He's having a beer with Biden after a long day? Not my business.

[CreekDog]

5. Let's start with one very obvious thing that isn't as obvious as it should be

The stricter portions of the law came into being after she left the position.

She was not required to preserve all "emails", just all "records". Not all emails are records, records have a specific definition and arguably, most emails may fall outside that, depending on what is in them.

[joshcryer]

10. I like this answer.

It's not an official memo if it's scribbled on a paper napkin and passed across at a dinner table.

But text messages and other emails of that kind might fall under that.

That's actually a sad insight. No wonder the Republicans are going after personal emails now.

[CreekDog]

12. pretty much the opposite of what I was saying

if the scribbled paper napkin is a record, then it needs to be preserved.

the point is that it's not the medium that matters, it's what is on it that matters --if there was a decision or other noteworthy thing on it, that is what warrants preservation.

[joshcryer]

16. "most emails may fall outside that"

When you look at any Presidential library filling I have not once seen a paper napkin message or note recorded as a record. That's what I was going at.

Note, in my other post I said I think everything should be preserved, for historical reasons, but there has to be some line drawn about what gets scrutinized while alive. Personal emails should be left alone.

[CreekDog]

21. I think so too

But I don't think personal communications are protected anyway once lawsuits start getting filed. To some extent they should be.

But I don't know what the answer is.

[joshcryer]

33. I think that's why Clinton didn't want to "keep records of intimate thoughts."

Despite these legacy fears, Blair wrote that Clinton was hardly eager to record her thoughts and memories of her time in the White House.

“She told me she does not keep a diary and thinks it best not to keep one,” Blair wrote about Clinton in June 1994.

Blair later wrote in January of 1995 that Clinton said “she dare not… keep records of inti9mate (sic) thoughts and conversations” for fear of “subpoenas.”

http://politicalticker.blogs.cnn.com/2014/02/12/confidants-diary-clinton-wanted-to-keep-records-for-revenge/

"Subpoenas" are pretty much a staple of the Clinton's entire public life. This personal email server thing may in fact be a mistake if she wasn't absolutely sure to make sure that the third party holding the data was retaining everything including a paper trail of some sort (at least a handful of IT people vouching for the integrity of the databases). Not that I think she didn't do that, in fact, I'd argue that the use of a third party personal email thing was specifically so that she could keep a record of everything.

But yeah, I agree, nothing should be off the record, but responding to Skinner, I think it's unethical for the Republicans to be trying to dredge shit up by going after it while they're alive.

There is this idea of the Clinton's hiding stuff but after over a decade of investigations and nothing (regarding government actions) has been found to be hidden I think it's unfounded. Surely Ken Starr could've come up with something other than a stained dress and an intern with the $70 million he wasted...

[William769]

6. Kicking for visibility.

[NightWatcher]

7. I demand they release all their text messages

I want to know what they had for dinner and who was responsible for picking up the gallon of milk from the store.


In all seriousness, I think we should only get access to official communications. I don't know if most emails fall into that category. If we are going to get access to all emails, will that include all emails from their assistants and underlings, or other employees who relay info on their behalf?

[joshcryer]

8. I think only government related business.

Which is why the Republicans subpoenaing the Clinton's private emails is unethical. But, then, the Clintons have been dealing with these sorts of privacy invasions their whole public lives.

I believe the whole problem was technical in nature and I believe the reports that the State Department has been lagging behind technologically. NASA, for example, is still using Windows XP. That's not necessarily wrong for the government to be lagging behind, but when you're looking at a high traffic communication medium like the State Department, it is bad to lag so much. And we can blame Bush for this technological deficiency.

But, I think that, historically speaking, after a time, everything should be released. Unethical before death, historical afterward. This is how the Clinton's handled Diane Blair's personal diaries.

What bothers me the most about this is that the Clinton's keep everything, they don't hide anything, if they had a practice of hiding anything, it would have been discovered by now, after more than a decade of overzealous scrutiny.

We're likely going to hear about Clinton's personal emails to Chelsea, text messages, and whatnot, and it will be astoundingly unethical even if it's much to do about nothing. That's private messaging, that's personal stuff.

[ismnotwasm]

9. I keep thinking about Snowden and Assauge

In their cases, releasing documents not meant for public consumption (apparently) was celebrated by many.

In Ms. Clinton's case, I can't quite get a handle on what she did wrong. If she was using her server for both governmental and personal use-- as seems the case, anything that fall under the public information act as a government official should be available, and she did release records pertaining to government work. Personal is personal, and remains so, no matter what server she used. In the case of criminal activity, they would be subject to subpoena like anybody else.

[YoungDemCA]

30. Don't look for consistency from those who celebrate Snowden/Assange while concern trolling...

...about Hillary's emails.

Snowden and Assange clearly committed crimes (whether you agree with what they did or not). Hillary Clinton? Not really.

Make of that what you will.

[AtomicKitten]

11. She used the private email account to duck FOIA requests.

WEDNESDAY, MAR 4, 2015 07:15 AM PST

Hillary’s email mess deepens: New evidence raises big questions about adherence to federal rules. While Clinton allies insist she was on the up and up with use of private email account, evidence suggests otherwise.

LUKE BRINKER
link: http://www.salon.com/2015/03/04/hillarys_email_mess_deepens_new_evidence_raises_big_questions_about_adherence_to_federal_rules/

Allies of former Secretary of State Hillary Clinton are in full defensive mode following the New York Times’ revelation Monday night that Clinton exclusively used a private email account to conduct official business during her four-year tenure at the State Department, maintaining that Clinton’s use of the account was consistent with both precedent and federal rules. But evidence that Clinton flouted federal rules continues to mount, with new reports laying bare the lengths to which Clinton and her team went to skirt disclosure requirements, despite records-keeping regulations in place while she was the nation’s top diplomat.

In the wake of the Times’ report, the Daily Beast’s Michael Tomasky and Media Matters for America (disclosure: I once worked for the latter, writing about LGBT issues) assailed the paper for failing to note that the current set of regulations pertaining the use of outside email accounts did not take effect until after Clinton left the State Department in early 2013. But as Mother Jones’ David Corn points out, a 2009 regulation from the National Archives and Records Administration (NARA) requires officials “using a system not operated by the agency” to preserve their correspondence within the “appropriate agency record-keeping system.”

“This rule is clear,” Corn writes. “If Clinton used personal email to conduct official business—which apparently did not violate any federal rules at the time—all of those emails had to be collected and preserved within the State Department’s recordkeeping system.”

Despite the explicit language of the rule, however, Clinton and her aides evidently failed to preserve all business-related correspondence. Gawker reported in 2013 that even though the Obama administration had vetoed Clinton’s effort to give the sycophantic and viscerally anti-Obama Sidney Blumenthal a State Department job, Clinton nevertheless received emails from Blumenthal concerning official government business, including the 2012 attack on the American consulate in Benghazi, Libya. As Gawker noted at the time, screenshots of the hacked emails did not make clear whether Clinton responded to Blumenthal’s missives. But we may never know; when Gawker filed a Freedom of Information Act (FOIA) request seeking the release of the Clinton-Blumenthal correspondence, the State Department replied that “it could find no records responsive to our request,” Gawker’s J. K. Trotter related yesterday.

The Blumenthal case is the clearest sign yet that Clinton used her private account to avoid legitimate FOIA requests. It also exposes the absurdity of Clinton spokesman Nick Merrill’s defense that Clinton’s emails to other State Department officials went to their official state.gov accounts, so the correspondence was preserved anyway. Not only does that fail to account for Clinton’s apparent non-compliance with the 2009 NARA regulations, but it also conveniently glides over the fact that Clinton was corresponding with plenty of people — foreign leaders, civil society figures, and the like — who did not have government email accounts. What’s more, one source informs Gawker that top Clinton aides — including longtime assistant Huma Abedin, who simultaneously worked for the secretary and did corporate consulting — also used private accounts on the same domain Clinton employed. As pathetic as Merrill’s excuse already was, it’s rapidly becoming even more of a joke.

- snip

In response to a State Department records-keeping request two months ago, Clinton aides turned over 55,000 pages of emails. But her aides personally reviewed the correspondence and decided which emails were worth sending to the department. The Clinton camp has yet to elaborate on the process aides used to review the emails.

[Blue_Tires]

26. Although this is much more commonplace than we think

I've seen local/state politicians caught doing this, all the way up to "governor" Sarah Palin...

[AtomicKitten]

38. Exactly.

We reamed the Repulicans for this but apparently it's IOKIURC ("C' = Clinton).

[glowing]

31. So, your in a meeting, cell phone on your desk, and a husband or

child has an emergency of some sort... They shouldn't call the office to get you wheat he cell phone didn't work? People have real lives. Perhaps, we need to issue govt workers separate phones, iPads, computers that are unrelated to someone's "home" life... But how do we know if someone isn't using their personal lines to go around the system?

Honestly, if you want to be an underhanded scumbag and harm the citizens of this country, a law regulating communications isn't something that you care about interfering with your "evil" intentions anyway. So, unless we crash the 4th amendment completely and have the NSA keep everyone's communications for any active device from anywhere and anybody, then, assholes will still get away with bad shit.

I can only imagine what the "public" would say if all of my communications were saved and archived... I mean bitching about a boss or an assignment to my husband would look horrible... Or communications in general looking bad against a custody case for my step son. We need to have better politicians and better people to trust at the heads of these agencies... On the other hand, we should have the right to know what's going on in our name with foreign leaders and private corporations...

Tough questions ethically, morally, and constitutionally. Definitely in the philosophical and judicial discussion arena.

[Lars39]

35. Goodness, no! Desk phones are fine, just not as private, especially in a cubicle setting.

[BainsBane]

14. I think we have a right to know all of it

Eventually. Some things are protected for national security and the ability of officials to operate effectively, but ultimately historians should be able to look at them in the future. Anything related to governance, their jobs, as opposed to private personal information, belongs in the public realm. I think that is the point of the procedures of the National Archives and Records Administration. If there is any kind of information trail--whether text, audio, or video--it should be preserved for the public record.

My tech knowledge is extremely limited, to say the least, but I don't understand why those emails from a non state.gov email account can't be archived as well. We have written correspondence from previous presidents available to historians, even their diaries. It doesn't have to be an official government document on official government email to be preserved or part of the public record. Wouldn't State's computer systems back everything up? Ours does at work, and our email system is integrated into gmail.

[NCTraveler]

17. This is a question that would take a lot of thought.

The only way it wouldn't take too much thought is when it comes to the mind set that all communication should be public record with respect to certain government officials. I am not saying "wouldn't take too much thought" in a disrespectful way or demeaning that line of thought, just saying it is more black and white.

What if a situation arose where the SOS was working out some details in a negotiation. There is a chance that those negotiating with the SOS might be reserved in their tactics if they knew the conversation would become public at some point. So, the ethical dilemma. If said negotiations might help the greater good if there was a final resolution wouldn't it be best for the negotiation to be open and honest between those heading up the negotiation. Those records won't become public right away under current law so it wouldn't be as if the public would be immediately aware of them.

The question itself covers such vast ground. I have never been of the belief that we are constitutionally bound to know everything our elected officials do. That doesn't mean I don't support numerous pieces of legislation that are directly related to transparency.

[BainsBane]

27. The scenario you describe is a reason it shouldn't be released now

or anytime soon, but not why it couldn't be made available in say, 75 yrs. The only value isn't for what we can know today but for history, which holds value for future generations.

[NCTraveler]

29. I understand what you are saying.

In my scenario it would have to be an extended period of time. Said leaders would have to know they would be long gone.

[Capt. Obvious]

19. I believe most of it should be public record

Phone records too.

[Luminous Animal]

25. I agree

[Agschmid]

42. Agree.

[B2G]

22. The issue here is that she chose to conduct official business

on a private email account and server.

That opens the entire thing up to scrutiny and review. She made a conscious decision to do that.

[Autumn]

34. Yes that is the issue, and now we get the pukes doing a fishing expedition

and nothing gets done and we get to hear their shit 24/7 on what we call a "media" which is nothing more than a RW propaganda machine. Yes, she made a conscious decision to do that and that was a poor decision. She damn well knew what the pukes did and are capable of doing, she and Bill lived it.

[AtomicKitten]

40. constant drama, constant conflict

I am not up to that shit again.

[AngryAmish]

23. If there is any sort of record it belongs to us.

Our phones, our computers, ours. Not theirs.

You want to do political stuff? Use your own damn computers. You want to ring your proctologist or dominatrix? Using our stuff means we get to hear or read about it. Think that is unfair? Get another job.

[AngryAmish]

24. I have a lot of friends in the securities industry

All communications including phone calls are recorded. It helps clear trades and allows enforcement.

[TheKentuckian]

36. Private communications should be done on private systems

Public business should all be a matter of record, you call your ISP and the lowly phone rep has every call recorded and everything they do in the systems are logged.

Yeah, every letter to every text. Send "I'm going to be late to supper" on your personal like everyone else in the world.

[leveymg]

39. That's exactly why public business shouldn't be done on private systems.

[TheKentuckian]

46. Agreed

[leveymg]

37. The difference is that between speech and documents. One has some right to privacy, the other is

a public record that all citizens have a right to examine, petition for redress, or challenge in court. It's been that way since the early 1800s, and that seems to be consistent with traditional conceptions of Constitutional rights.

[Rex]

41. Phone calls made from government telephones are not part of the public record.

Are we sure about this? I thought all government conversations (on government property) were recorded, maybe I am getting that confused with the retail business. If so then I apologize beforehand.

Those are good questions, I really do not know where the line is drawn...my response would be - if the taxpayer is footing the bill, there should be some record of it somewhere.

What shocks me is that they spend over 200 million a year, yet Kerry is the first SOS to use government email? What year is this again?

[HereSince1628]

43. It's all defined on the National Archives website.

As we little people on DU say...Google can be your friend.

I recommend something like National Archives definition Federal Records

[Blue_Tires]

47. I'd say anything done in the official capacity of the office...