The Independent View: Congress Can Have Private Email With No Archiving of Documents

In today hearing, House Oversight Committee Chairman Rep. Jason Chaffetz (R-UT) grilled FBI Director James Comey about his decision to recommend against indicting Hillary Clinton over her use of a private email server while she was Secretary of State. The hearing included a interesting fact: That Chaffetz and Congress uses a personal email address to conduct professional business.

The tidbit was brought up by Eleanor Holmes Norton, the Democratic delegate from the District of Columbia, who during the hearing noted that Chaffetz lists his personal email as his Primary contact on his business cards. “No one says that’s wrong,” Holmes Norton said. “I don’t know if it’s wrong or right. Because there’s no guidance.”

In light of intensified scrutiny on Clinton’s email practices, it seems a worthwhile question to answer: Why are members of agencies such as the State Department required to use Government email accounts, while members of Congress are not?

The answer lies in the Federal Open Records laws, most of which don’t apply to Congress.

Members of Congress aren’t required to “use official email accounts, or to retain, archive or store their emails, while in office or after.” The Freedom of Information Act (FOIA), the law that allows the public to request internal documents from Government agencies, does not cover members of Congress. Congress is also not subject to the Federal Records Act, which requires all Federal agency employees to keep accurate records of their activities.

The reason Congress is not subject to these rules, however, is because Congress makes its own rules. And Congress has never decided that it needs a law requiring its members to maintain records and make those records available to the public.

Some members of Congress want to keep open lines of communication with the people they represent. They fear members of the public might feel uncomfortable emailing their Representative if the knew that email could be subject to a Freedom of Information Act request.

Some argue that requiring members of Congress to make their correspondence public could chill their ability to communicate freely with constituents who might not want their views or requests widely exposed. “I don’t want to sound like we’re separating ourselves from other groups, but there is a reason that you protect constituent correspondence, so it’s a little different kettle of fish,” said Sen. Jeff Flake, R-Ariz.

There are some who have advocated for more transparency when it comes to Congressional email. Journalist Alexis Coe, for example, wrote in the New York Times last year that her inability to access now-deceased Sen. Joseph McCarthy's records is preventing the public from learning more about the people McCarthy accused of communist activities during the Cold War. Those records are in the public interest, Coe argued, and Congress "is perfectly capable of differentiating between personal and professional papers and formulating ethical, clear and enforceable policies."

"The legislative branch influences the evolution of our democracy, and the papers of its members explain how it happened," she wrote. "They’re a part of America’s collective memory, belonging to us all."

For now, however, the information contained in members of Congress' personal and professional email accounts, Chaffetz's included, belongs only to themselves.