Over the past year, Hillary Clinton’s use of her own email server while secretary of state has been tremendously controversial and has sparked FBI, congressional and journalistic investigation. Some of the attention has been on whether an unsecured server was used to exchange classified information. Meanwhile, if you recall, observers were originally outraged about the private server because, some claimed, Clinton had used a private server to avoid records requests for her emails.
But members of Congress could be investigating themselves for all the same reasons. As a body, Congress has exempted its office files from public records requests — and in fact, almost no regulations govern their record-keeping.
Members of Congress need never open their files for examination — and if they do, the amount of material they make available, and the timing of when they do it, is entirely up to them. What’s more, when they do make their files available, classified material regularly turns up in it. Most congressional collections are boxes of paper, but as current members retire, more and more will be “born digital” and can include emails sent to and from a congressional office.
What are the standards for members of Congress’s records?
Even though members of Congress are elected officials, scholars interpret the “speech and debate clause” of the Constitution to mean that most office records are considered “personal” and legally belong to the individual representative, not the public.
Congress has passed nonbinding resolutions encouraging former members to preserve their papers, but, except for committee papers and classified documents, members have left themselves generally free to do whatever they want with the vast majority of letters, emails and other documents that pass through their offices. Members are under no obligation to make their papers public at any time.
When Congress passed the Freedom of Information Act in 1966 that enabled public records requests, the goal was to provide access to information from independent regulatory agencies and the executive branch. Thus it declined to make its own members’ records subject to those requests. Federal courts have also ruled repeatedly against FOIA requests for congressional papers.
Each member of Congress makes his or her own decision about records of their time in public service. As a result, what members release varies tremendously.
After leaving Congress, some leave collections to their alma maters or other public archives, or even occasionally create private institutions. The National Archives does not maintain member collections. Some collections contain mostly constituent correspondence, while others contain memos marked “destroy after reading.”
Since members can use the franking privilege one time to ship their papers free, some collections come directly from the member’s congressional office upon, or soon after, retirement. Others may sit — for instance, in a member’s basement — for a decade or more before being donated to or solicited by a suitable repository. In some instances, former members — including Republican vice-presidential candidate Mike Pence — will not make their papers available to the public until after they die.
Here’s how we know about variations in congressional record-keeping
At the Carl Albert Congressional Research and Studies Center, a public archive at the University of Oklahoma, we possess the papers of 60 former members of Congress from seven states spanning more than 100 years. Our repository, which is one of the largest in terms of total members, takes up roughly 7,000 feet of shelf space. All told, over 12,000 individuals have served in Congress since 1789, so the total universe of congressional papers would be vast if everything was saved.
Speaker Carl Albert, our center’s namesake, made public enough records to fill roughly 75,000 folders covering his 30 years in office — or more than 700 boxes. Another member, by contrast, will release only three boxes of documents to cover more than seven years in the House. In both cases, members donated their papers to us but restricted public access for five to 10 years before the collections could be opened to researchers.
Having processed, filed and housed these documents, we know that, like Clinton, members of Congress regularly handle classified information. While such files should be returned to the government, sometimes they are filed away with everything else. We have come across classified material in many of the collections here at the center.
Exactly how much classified information existed in our repository? That’s hard to quantify precisely — but one recent project gives a hint. We processed the papers of a member who served in the 1980s and ’90s, consisting of just under 200,000 items housed in more than 350 boxes. During the project, the archives’ staff examined each of the individual items in the collection, looking for various types of protected information, from Social Security numbers to documents marked classified.
All told, the archivists identified 42 classified items wrongly included in the collection. (Classified materials include any item in the collection marked “confidential,” “secret,” or “top secret.”)
Broadly speaking, the 42 documents described above involve a range of topics, from national security to committee work. Our archivists do not evaluate whether classified documents are actually sensitive or timely. Rather, we work closely with the Center for Legislative Archives at the National Archives; officials there assess the documents to determine their fate.
How do classified items slip into members’ public papers? The variety of records and their placement in the collection make it difficult, if not impossible, to guess. Few if any identifiable patterns tie together those 42 classified items. In most cases, the member or a staffer placed a document or cover sheet over the classified document. Maybe it was just overlooked when someone else filed the folder away for long-term storage.
What steps might Congress take to ensure transparency and careful record-keeping?
What can be done to ensure that classified records are kept classified and the records of members are properly maintained? Members and their staff can be sure to learn and follow best practices and established protocol when it comes to overseeing records and keeping classified material secure. Of course, congressional offices are often overburdened and understaffed.
At the very least, the House and Senate history offices are available to train every member of Congress’s staff in proper record-keeping — to forestall the need for a congressional investigation of why members of Congress improperly store classified material or disposed-of records. Or Congress could make itself subject to some of the same laws and regulations that govern executive branch records.
Otherwise, congressional record-keeping will continue to suffer and depend on the whims of individual members. And the public will be denied the full history of the nation’s business.
Michael H. Crespin is associate director and Nathan Gerth is assistant curator and archivist at the Carl Albert Congressional Research and Studies Center.