From Unredacted In a widely circulated article for Vox.com entitled “Against Transparency: Government Official’s Email Should be Private, Just Like Their Phone Calls,” Matthew Yglesias writes that because of the frequency of digital communication by government officials, “Treating email as public by default rather than private like phone calls does not serve the public interest.” He did not mention that the Freedom of Information Act is now based upon “Presumption of Openness” that requires all executive branch records to be subject to release unless they qualify for one of nine** FOIA exemptions.
Yglesias is wrong on many of his arguments beginning with his hazy recap of the 1787 Constitutional Convention. He implies that no “complete and accurate record” exists to bolster his claims that transparency harms effective deliberation. But this is contrary to the rather voluminous existent record of the Convention showing how the framers thought and the justifications which they cited. Also factually incorrect is his assertion that phone calls are inherently “private.” Dean Acheson documented his conversations; they’re available on the Truman Library’s website. Eisenhower’s Secretary of State Christian Herter documented his as well. The National Security Archive, after a decades-long fight, has won the release of more than 16,700 Kissinger Telcons, transcripts of his telephone calls.
His argument that “Email isn’t mail” –along with being incorrect– is also not novel. It is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989. Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation. Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion. After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43. Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.