Justice Department officials may soon be forced to publish the thousands of undisclosed emails discovered on Hillary Clinton’s private servers thanks to a court ruling that could expose the work-related messages to open records requests.
The same day FBI Director James Comey announced his team had recovered an unspecified number of deleted emails from Clinton’s network, a federal appeals court decided personal inboxes could no longer be considered safe spaces for records that would otherwise require disclosure under transparency laws.
The federal court ruled Tuesday that work-related emails hidden in private email accounts could be requested under the Freedom of Information Act, a decision that overturned a previous ruling made in U.S. District Court.
The judge ruled that “an agency cannot shield its records from search or disclosure under FOIA by the expedient of storing them in a private email account controlled by the agency head,” according to court documents.
While the case was unrelated to the Clinton email controversy, it could open the door for media outlets and watchdog groups to obtain the official emails that FBI agents recovered from Clinton’s private servers.
Mark Zaid, a national security lawyer who regularly handles FOIA cases, said the Justice Department has likely lost its ability to hide behind exemptions in the open records law that protect documents related to an ongoing investigation from disclosure.
“They’re in the possession of the FBI, so they’re agency records as far as I’m concerned and should be subject to FOIA, especially because a number of those were work emails that were deleted by the lawyers,” Zaid said.
He said Clinton’s legal team “failed” in their duty to provide the government with all of the former secretary of state’s official communication, although he stopped short of attributing those omissions to “malicious thought.”
“I think it really calls into question the role of the attorneys in this case who did not bother to read all the emails and only searched by headings and fell grossly short of doing their job [of] upholding the secretary of state’s obligation under the federal records laws,” Zaid noted. “I think it really shows a woeful deficiency on her part to have ensured that every email was reviewed properly.”
Comey said his agents had identified “several thousand work-related emails” that Clinton failed to provide the government in 2014, when she turned over roughly 30,000 emails compiled by her legal team.
“We have a very thorough review process that we conducted, and my attorneys supervised it, they went through everything and what we had available at the time was turned over,” Clinton had said previously of the process by which her team selected emails for submission to the State Department.
Her campaign had even clarified that lawyers for Clinton read each individual email in her possession to determine which should be given to the government. Clinton submitted an affidavit in federal court last year swearing that she had turned over all work-related emails.
But the FBI discovered several problems with Clinton’s assertions.
First, Comey said Clinton had deleted or neglected to preserve thousands of emails from her time at the State Department, including three that should have been treated as classified when they were written.
Next, Comey said Clinton’s legal team failed to sort the records individually, as the former secretary has repeatedly implied. Instead, her attorneys relied on keyword searches to compile emails for production and thus left thousands of emails behind when they put together the tranche that was ultimately given to the government.
