FOIA — You Can't Always Get What You Want
FOIA is intended to "foster democracy by ensuring public access to agency records and information" in a timely manner. Journalists often use the law to procure public documents. The process can be a cumbersome one, and depending on the sensitivity of the information, much of the information may be redacted.
In Clinton's case, she says she turned over some 30,000 relevant emails, totaling 55,000 pages, and wants those all made public. "I took the unprecedented step of asking that the State Department make all my work-related emails public for everyone to see," Clinton said at her news conference on the emails last month. (Gawker Media and The Associated Press have announced they are suing to have a Clinton spokesman's and Clinton's emails released.)
Clinton was the filter for what was relevant to work and what was not. Of course, before electronic communication, federal records were routinely filtered by individuals, who sorted their papers before handing over boxes to archivists. And, many federal workers, Capitol Hill staff, etc., use personal email accounts — in addition to their official accounts — and choose what, if anything, is turned over from those.
Nonetheless, Dan Metcalfe, who was the head of the Justice Department's Office of Information and Privacy from 1981 to 2007, blasted Clinton in an op-ed in Politico. He said what was "unprecedented" actually was Clinton's exclusive use of private email and her own Internet service provider in lieu of an official account "so that the records of her email account would reside solely within her personal control at home."
That means "she managed successfully to insulate her official emails, categorically, from the FOIA, both during her tenure at State and long after her departure from it — perhaps forever." He called that "a blatant circumvention of the FOIA by someone who unquestionably knows better."
But was it "probably ... a violation of law," as Grassley charged?
The Justice Department weighed in, calling it "sheer speculation" that "Clinton withheld any work-related emails from those provided to the Department of State." What's more, Justice wrote, "FOIA creates no obligation for an agency to search for and produce records that it does not possess and control."
In fact, the department refers to a past fight over former Secretary of State Henry Kissinger's notes, as Josh Gerstein points out. Notes and tapes of Kissinger's conversations were sent to the Library of Congress — rather than leaving them to the State Department — restricting their public access. FOIA requests were denied by the State Department because they were under the aegis of the Library of Congress. Kissinger declined to turn the documents over to archivists' requests.
What's more, the Supreme Court held that the Kissinger documents did not have to be turned over under FOIA — even though they were notes taken while Kissinger was at State — because State did not have possession of them.
Then-Chief Justice William Rehnquist, writing for the majority in 1980:"We hold today that, even if a document requested under the FOIA is wrongfully in the possession of a party not an 'agency,' the agency which received the request does not 'improperly withhold' those materials by its refusal to institute a retrieval action. When an agency has demonstrated that it has not 'withheld'requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA."
