Following up on my musings on the Clinton e-mail fiasco, one of the Clinton camp’s principal arguments in defense of her shadow e-mail account is that the law did not plainly forbid this conduct until 2013–14, when Congress enacted a statute that prohibited the use of private e-mails to conduct official business unless the official forwarded to or copied an official e-mail account to preserve the record in a federal records system.
But that claim is plainly bogus, since the National Archives and Records Administration (NARA) adopted regulations in 1995 which required the preservation of official e-mails created on non-official accounts. The Archivist interpreted the Federal Records Act to apply to e-mail records and further provided that “[a]gencies with access to external electronic mail systems shall ensure that federal records sent or received on these systems are preserved in the appropriate recordkeeping system . . .” So as early as 1995, all federal agencies were required to preserve official e-mails, including those created or maintained on “external electronic mail systems.”
Later NARA regulations merely clarified this requirement. In 2009, after a Government Accountability Office report indicated that certain agencies had lax e-mail practices, the NARA adopted new regulations that provided that any emails created on private e-mail accounts must be preserved. But that regulation merely restated, in perhaps slightly different language, what the 1995 regulation had already mandated, requiring that “[a]gencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.”
When Congress later, after Mrs. Clinton left office, enacted amendments to the Federal Records Act to prohibit private e-mail use where the official fails to preserve the records, it was merely addressing the process which the employee had to follow — by requiring the employee to copy or to forward the email to an official account within a 20 days – and providing the agency authority to discipline the employee (short of criminal sanctions) for failing to comply (see 44 U.S.C. 2911). In no way did the congressional enactment change the law, which has addressed the preservation of official e-mails from not-so-official accounts since the early days of e-mail in the federal government.