Our Public Records Laws are Broken

I’ve seen a few conversations going back and forth on the Internet about “the Bush email scandal was old news and they got those emails back anyway”.  Also, “The Bush email scandal wasn’t anything like this Clinton one”.  See here, and here for examples (astonishing spoiler alert: Karl Rove tells untruths.)

I’ve followed the story somewhat thoroughly since it broke, so I can unpolish some of the rhetoric.

There are a couple incidences of Freedom of Information Act (FOIA) or Public Records Act (PRA) controversies in the George W. Bush Administration.

The most notable were this one (alternatively reported on as “Bush Administration loses 22 million emails“, or “Bush Administration loses 5 million emails“, among other titles), and in a different incident when Dick Cheney asserted (IMO ridiculously) that the Vice President’s office was not covered under the PRA.

But that’s a story worth rehashing all on its own.

Regarding this one, and whether or not it is analogous to Hillary Clinton’s use of a private email server:

This specific incident involved several members of the George W. Bush Administration allegedly using a non-governmental email service, specficially one run by the RNC.

This story came about when it was revealed that some members of the Administration were using this to (again allegedly) discuss the dismissal of several attorneys.  Originally the reports were “a few”, then “a handful” of Administration folks were using these accounts.

During the course of the investigation, it was revealed that a total of 88 accounts were given to members of the Administration, and it was also reported that at least one of those members (Karl Rove) used his RNC account almost exclusively, and finally that an unreported but possibly substantial amount of administration business had been done using those accounts rather than White House information systems (no, Karl, the RNC server was never “swept and copied” to the Administration).

The number “lost” has been alleged at various times to be between 5,000,000 and 22,000,000.

The “lost” definition is important. They were never really “lost” in the way most people understand the term.

It has been reported that, by policy, the RNC did not back up at least 51 of the 88 accounts given to Administration officials.

It has also been reported that until 2004, the RNC email policy was to delete anything older than 30 days.

You can square those two reports in lots of different technical ways, so I’m uncertain what the RNC policy actually was, at a programmatic level. There are lots of ways to schedule archives, backups, and auto-removal of data.

Now.

Two groups sued the RNC, under the understandable logic that even if the RNC *did* delete the mails on the server when the age of those individual emails hit a 30 day window, that backups running on schedule *inside* that window would have preserved some or all of those emails, during the snapshots of those backup windows.

To describe how this works, imagine your server is set to back up some or all of its data archive on the 15th of every month. You receive an email on the 10th. You read it, but you don’t delete it. On the 15th, the backup runs, and it makes an archive that includes that email. Fifteen days later, that email is deleted by the mail server, because it was 30 days old. However, the email server does not delete copy of the email in the backup.

Now, this gets very much more complicated, because your email backups can be scheduled to over-write previous backups, or you can keep a certain number of backups but not all of them (say, you keep the last three, but only the last three and throw older ones out, etc.)

But in practice, very often your official policy (delete emails every 30 days) is not actually what the technical policy encodes.

(Protip for the non-technical: it is very difficult to force the Internet to forget things.)

So, back to the story, the two groups sued and the RNC settled.

The settlement agreed upon was reported by CNN:

“Monday’s settlement allows for 94 days of e-mail traffic, scattered between January 2003 to April 2005, to be restored from backup tapes. Of those 94 days, 40 were picked by statistical sample; another 21 days were suggested by the White House; and the groups that filed suit picked 33 that seemed ‘historically significant,’ from the months before the invasion of Iraq to the period when the firings of U.S. attorneys were being planned.” [1]

It isn’t clear from the CNN reporting if the “94 days” are 94 discrete backups, or if they are restores of those particular days’ incoming and outgoing mail, or what.

I don’t have the text of the actual settlement, so I can’t assess the technical value of what they settled *for*. CNN reported, in that same story, that “22 million emails were recovered”, as did Wired and the Associated Press… but that’s not necessarily accurate at all (in fact, it’s very likely inaccurate).

Why?

If those “94 days” were “94 discrete backups”, there may or may not be a lot of overlap in the number of emails (the same email may be counted multiple times)… and there may be emails that weren’t in any of the individual backups… and of course the likelihood that the 22 million figure came out of the reporter’s head rather than the technical number of restored records is… pretty high. I doubt the tech guys actually reported that all of the emails were “found”, because they… wouldn’t know, for a while.

The two groups (Citizens for Responsibility and Ethics in Washington and some other group I can’t recall off the top of my head) then were reported to have handed all of that off to the National Archives, which would handle processing all of the mail.

This is actually appropriate, because it’s the job of the National Archives to archive the Executive Branch communications under the PRA, but not their job to archive or disseminate any *non* Presidential-office-related material… and it is certainly likely that the 94 days worth of archive files that the RNC provided included things like fundraising and RNC-specific communications, which would have to be removed from the record (probably explicitly by the terms of the settlement agreement).

It was reported that this would take “several years”, at least until 2014, but I haven’t seen any actual evidence of what the end result of the restore looked like, and as near as I’ve been able to determine it hasn’t been reported on in years.

The story went into the hole of things that are no longer reported upon by the national media.

Now, the $64,000 question, of course:”Is this like or not like what Hillary Clinton was doing with her email server?”

First, it is not credibly arguable that Alberto Gonzalez didn’t know that they were doing this, which was pretty clearly in violation of the Presidential Records Act (IMO). This was one of his (many in my opinion) clear breaches of ethical duty.  It also strains my credulity to the breaking point that every person involved knew that the RNC email server was set to delete everything older than thirty days (although they were undoubtedly all very surprised to find out that backups existed of some of that material).

Abramoff actually was reported to have said that the reason they were using the RNC server was that it wasn’t subject to the same legal process as the official White House communication network, so there’s a pretty obvious indicator that this wasn’t accidental.

The assertion that this was “an archive problem” is not at all currently supported by the record. Sorry, Darrell Issa.  I misbelieve you.

The actual record is that

• The RNC had a specific policy of actually deleting information on a routine basis, and

• There is more than some evidence to suggest (credibly) that this was the reason those 88 accounts were created in the first place, and finally

• This was pretty clearly a direct attempt to circumvent the PRA and the FOIA.

It was, in my opinion, essentially, precisely the same thing Hillary Clinton did: use a non-governmental service rather than an administration one primarily to retain control over which pieces of information were accessible to the National Archives or via a PRA or FOIA request.

Plain and simple.

This is independent to the question of handling of classified information, certainly. One can regard the Clinton case as egregious because she was handling national security documents, but there is (at the present time) no reason to clear the GWB administration of the possibility that they were doing that, either. Karl Rove was kept from testifying before Congress on Executive Privilege grounds, so unless/until all of that email is made public, we have no idea what folks were sending on the RNC server, either.

The assertion that “they’ve all been restored”, which is currently going on in the right-o-sphere, is also not currently supported by evidence. The results of the settlement were reported, but not the results of the analysis of the data that was handed over by the RNC in accordance with the settlement.

On the other hand, it’s entirely possible that most of them have been restored, I just don’t know. But nobody who is claiming that they have been does, either.

On the other, other hand, it is very very likely that immediately following that settlement all other backups that weren’t in the agreed-to-be-handed-over list were immediately and securely destroyed, so if something is still missing, we will very likely never get it back.

So.

What to do?

Well, what do we have?  We have a collection of bipartisan cases of elected and appointed officials using non-government communication services to bypass public records laws.

I will note that public records laws are not criminal statutes, so elected and appointed officials bypassing public records laws are a poster child for “relatively toothless legislation”.

A very large number of American citizens, interested in open and transparent government, would very likely roundly applaud Congress actually producing a bill that makes it explicitly illegal for any federal government official to engage in official communications using email or telephone services that are not owned and operated by the federal government.

I don’t know if Congress has just failed to notice this, but there has been no workable, explicit federal law to this effect, for a while now (!) and both parties have had multiple opportunities to initiate changes to the law.