When Do Official Documents Belong to the Public?

Hillary Clinton’s use of a private email address and server to conduct government business as secretary of state attracted widespread criticism. Yet the uproar that has greeted this revelation is only the latest in a long line of such controversies [going back centuries]. ...
Many royal counselors failed to make a yearly deposit of their papers. Others borrowed important records, such as treaties, and were slow to return them. There was also the work of coming up with and maintaining a system for managing the flow of such papers as did make their way into the office. One chapter of The Repertorie of Records is headed, “A note of the severall Records in the Office of the Tower, placed in uncertaine places, but most commonly in the Study.” Even the archivists had trouble keeping track of where things were, and where they should have been.

Such troubles might seem haphazard: Perhaps ministers and their aides were simply absent-minded, forgetting to return the treaties they had borrowed, forgetting to deposit their records, year after year. Human error explains at least some of the entropy that afflicts all archival systems. But ministers also played archival politics: manipulating record-keeping systems in pursuit of their own goals. In the late seventeenth century, the British diplomat James Brydges, eighth Baron Chandos and ambassador to Turkey, tried to thwart his successor William Trumbull’s accession to the post by withholding key archival documents. Trumbull, in turn, amassed archival dossiers of his own, reams of correspondence and intelligence reports. Not until the 1990s did these migrate from his family’s archives and into public hands.

The master of early modern state secrecy and archive-keeping was Jean-Baptiste Colbert, principal minister and adviser to France’s Sun King, Louis XIV, in the latter half of the seventeenth century. Colbert amassed great power in his lifetime. At his height, he controlled the French navy, the foreign ministry, the royal library, and the ministry of finance, and served as Louis’s personal confidant, to the point where he brought up the children of the king’s mistresses in his own household. Louis’s power was founded on Colbert’s control of information: his precise knowledge of tax revenues, of the movement of goods, ships, and troops, of the schemes and plots of Louis’s courtiers. For himself, Colbert maintained a massive, two-story library of books and records. For the King, Colbert distilled state information into a series of richly illuminated and expensively bound pocket notebooks—sharing records with Louis as he deemed necessary.

In early modern France, state information—state records—were far from being public property. Colbert, whose loyalty was to Louis XIV, maintained that absolute secrecy was the key to absolute power, only to be violated if exposing information served a political end—the downfall of an overmighty rival courtier, for example, who threatened both Louis’s and Colbert’s hold on power. Yet such information control depended on Colbert’s unique position within the royal bureaucracy. After his death, his son, the marquis de Seignelay, attempted to take his place, but Louis redistributed Colbert’s administrative responsibilities among other ministers. Information streams were redirected away from the Colbert family, and their power withered. In a sense, the essentially personal, even private, nature of each government department’s archive was reconfirmed.

Leaky archives; porous boundaries between public and private; individuals more powerful than the offices they hold. This doesn’t just describe the seventeenth century; we still live in this world. Private interests and public duties intersect, converge, and diverge in predictable (and unpredictable ways), not only as individuals cross back and forth between public service and private employment, but as they develop relationships—friendships, marriages, partnerships—that crisscross those boundaries. Not only did Hillary Clinton use a private email address and server located in her home; aide Huma Abedin made use of that same server, part of an arrangement that allowed her to provide counsel to Hillary Clinton while being paid by a strategic consulting firm founded by a former aide to Bill Clinton. Conservative political action committees have used Freedom of Information Act requests targeting Clinton’s email and other records as a way of sussing out such relationships, and using them in political attacks on Clinton. Archival politics are a fact of life.

Since Agard, Colbert, and Trumbull’s day, the balance between personal and public control of archives has tipped such that we have a robust expectation, codified in our laws, that most government correspondence and other papers will be preserved and made accessible to the public, plus or minus the classification of those records. This balance began to tip in the eighteenth and nineteenth centuries.In 1838, Britain established its Public Record Office; the State Paper Office was absorbed into it in subsequent decades. In the history of control over government records, the shift in name, from an office for “state papers” to one for “public records,” is telling. It signaled the state’s growing understanding of government records as the public property of its citizens. Despite a longstanding legal commitment to the openness of government records—established shortly after the American Revolution—the United States was comparatively late to the party in creating an official body to look after them, with the National Archives and Records Administration only being established in 1934.

Yet there are still areas of muddy uncertainty, even outright restriction, where rules are manipulated—or they don’t conform to our expectations of public ownership. In the late 1980s and early 1990s, a court case was necessary to establish—over the objections of the first President Bush and Don Wilson, then National Archivist—that emails constituted government records that needed to be publicly archived. A technological question—whether official records, fundamentally, had to be on paper—lay at the heart of this case. Go another twenty years back, and we find Henry Kissinger exiting the office of Secretary of State while retaining control over transcripts of his phone conversations, arguing that they were his private property.

Only in 2009 was the rule that government employees must use an official email for public business instituted—allowing Hillary Clinton to claim that her use of a private email set-up followed the letter and spirit of the law. The use of FOIA requests for access to emails sent by Hillary Clinton and her aides suggests that the presumed openness of records can be another tool for those who use archives to achieve political ends. Archival politics may only come to a close when both archives and politics cease....