When Do Official Documents Belong to the Public?

Hillary Clinton is hardly the first government officer to try to keep her correspondence private. The fight over her emails echoes battles that stretch back to the inception of government archives.

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. For centuries, debate has flared around state officials’ use of new record-keeping technologies, or new applications of old technologies. Do official documents belong to the public or are they the private property of the government employees who produce them? Is the government itself a public trust, or a collection of petty fiefdoms, each waging information warfare against the others? Technologies change, as do the answers to these questions, but the pursuit of political ends through the control of archives persists.

In the world of seventeenth-century statecraft, ministers jealously guarded their collections of documents and correspondence, the information bases of their power. Today, we continue to negotiate and renegotiate the boundaries between private documents and public records. Though these negotiations become particularly visible—and acrimonious—at times of technological change, the politicization of state archives runs far more deeply, through centuries of history.

Here was how archives, and state secrecy, worked in the seventeenth century: “In the fourth Treasurie, being in the Cloyster of the said Abbey of Westminster, locked with five Lockes and Keyes, beeing within two strong double Doores, are kept these Records with others…Item, a bag of Cordover, sealed with a seale of Privy Councellers, and it is not to be opened, but by the Prince and those of the privie Councell, wherein are secret matters.”

The “bag of Cordover,” or Cordovan leather, to be opened only by the King or his closest counselors, was just one of many items listed by English record-keeper Arthur Agard in his 1631 Repertorie of Records. The book described state records and archives that lay scattered across several royal sites, including Westminster Abbey and the Tower of London. Agard outlined the information technology of his day: a Spanish leather bag, closed up with a wax seal embossed with the mark of the monarch’s closest counselors, placed behind a double set of quintuple-locked doors.

This is what corresponded, as closely as anything can across four centuries, to the email accounts, the cloud storage, the massive server farms of our day, protected with various combinations of PINs, alphanumeric passwords, security questions, biometric data, and computer chips embedded in key fobs and debit cards. Though accessed now through screens and keyboards, these systems, with their files, folders, documents, and threaded chains of correspondence, owe something of their basic forms and structures to methods of paper record-keeping developed in Agard’s day.

Not only have we inherited certain technological forms, certain ways of keeping archives: We have inherited, too, the political conundrums that government archives present. Even as many of us now assume that government records are rightly the property of the public—and should be accessible to journalists, historians, and individual citizens—we live in a world shaped by an earlier historical reality in which government officials’ primary loyalties were to their sovereigns and to themselves. Though many of them acted according to their view of the “public good,” they never would have accepted that “the public” had a right to scrutinize their actions, or their documents.

The record-keeping system that Arthur Agard described was meant to be comprehensive. The State Paper Office, an archive for the papers of royal councilors, had been founded in 1575, under Queen Elizabeth I. By statute, all the queen’s ministers were required to deposit their official papers with the archive. Government was understood to be founded on a historically continuous stream of information: In order to properly advise the monarch, present-day ministers needed to be able to ride the wave back through history, tracing decisions that had been made; precedents that had been set. This couldn’t be done efficiently or accurately unless papers were deposited in centrally accessible offices.

Yet order was difficult to maintain. 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.

And that bag of cordover, set behind two strong doors, locked with five locks and keys, what did it contain? What was so secret that it could be opened only by the sovereign and the Privy Council? According to Francis Palgrave, the first head of the Public Record Office, the bag lay musting in the archives until, in 1696, falling apart, it was brought to the Privy Council. Inside were the dies for stamping coins, along with “trial pieces of gold and silver, wedges of silver, and other articles relating to the coinage”: the means to make the stuff upon which the country ran, that which minted the nation’s fortunes. But by then, what was the value of these materials? The metal could still be used, but the dies were outdated, rusted: of interest only to historians.