A federal appeals court judge ruled on Tuesday that under the Federal Records Act (FRA), Secretary of State John Kerry was required by law to ask Attorney General Loretta Lynch to “initiate enforcement proceedings” to help him and U.S. Archivist David Ferriero recover emails that his predecessor, Hillary Clinton, kept on her private accounts.
The ruling by Senior Circuit Judge Stephen Williams for the D.C. Court of Appeals for the District of Columbia pointed out that not only does the FRA “strictly limit the circumstances under which records can be removed from federal custody or destroyed,” the statute also gives agency heads “no discretion to determine which cases to pursue.”
The decision was the result of a lawsuit filed by Judicial Watch in May 2015 that sought to compel Kerry’s compliance with the FRA after he refused to ask Lynch to help him retrieve tens of thousands of emails sent by Clinton and her top aides while she was secretary of state that had not been turned over to the State Department.
“Secretary of State Clinton used private email accounts during her time at the State Department. As a result, some emails were not preserved in government recordkeeping systems,” according to Judge Williams’ December 27 ruling
“Although the current Secretary (with the help of the National Archivist) has made efforts to recover those emails, neither the Secretary nor the Archivist has asked the Attorney General to initiate enforcement proceedings, as provided for in the (FRA),” the judge wrote.
The law states: “The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency…”