One of my more thoughtful Facebook friends (who is far more conservative than me) asked some very interesting questions about the leak of former FBI Director James Comey's memos to the New York Times. In particular, he asked an interesting question: Are the memos federal records? Since others have gone even further to argue that the leak was a federal crime, I thought that it might be useful to discuss the issue here.
A key place to start is with guidance from the agency that is responsible for the laws governing federal records--the National Archives. They have a very interesting discussion of the issue here. As it discusses, writings about even work-related issues (such as diaries, memos etc.) that are intended for private use are not federal records:
Work-related materials, such as diaries, journals, notes, personal calendars, and appointment schedules, that are not prepared, received, or used in the process of transacting agency business. Although these materials contain work-related information, they are personal papers if they are claimed as such and serve only the individual's own purpose (e.g., as reminders and personal observations about work-related and other topics). This category is the most difficult to distinguish from agency records because of its work-related content.It is not uncommon for senior officials to record their work-related activities (either for use in a future book or simply to help them personally recall what was said during a meeting the previous weeks). It is also not uncommon for employees worried about a personnel action to do memos recording their meetings with their managers.. These are generally not federal records.
As the NARA document, discusses, however, these personal papers can be found to be federal records in certain circumstances. For example, if an official gave an employee a copy of a diary entry, and asked them to follow-up on the action items discussed in the diary, at least that part of the diary could become part of the public record. The NARA document does a good job laying out some of the factors. Some of the critical factors include purpose, distribution and use::
Purpose. Was the document created to facilitate agency business? If so, then it may be an agency record, depending on its distribution and use by other agency employees. Or was it created solely for the employee's personal convenience? If so, it is unlikely to be an agency record.
Distribution. Was the document distributed to other employees for an official purpose? If so, it may be an agency record.
Use. Did this employee or others actually use the document to conduct agency business? Materials brought into the agency for reference use do not become agency records merely because they relate to official matters or influence the employee's work. However, if the employee relies on such materials to conduct agency business or if other employees use them for agency purposes, then the materials are more likely to be agency records.I think we need to get more information before coming to a conclusion, but I suspect that the classic CYA nature of the memos put them in the personal papers category. Here the purpose is quite consistent with that of a subordinate concerned about a meeting with his boss. Moreover, while Comey may have distributed the memo to others in the FBI, it does not appear that they were used for FBI business.
The more interesting issue, is what are the consequences if they are federal records. Generally, the focus of federal records law is on the maintenance of records and their disclosure to the public (FOIA). There is no general prohibition against disclosure. There may be FBI policies that were violated, but as a former employee, they are of no consequence to Comey.
There is a potentially relevant criminal statute that has gotten some attention on conservative blogs (18 U.S.C 641), but it has proved to be a wholly inadequate tool for the prosecution of leakers. Indeed, the U.S. Attorney Manual pretty much dismisses the statute as useless against leakers (stating that the statue "Fails to protect the Government's interest" in protecting records) . The main problem is that a felony conviction requires that the intrinsic value of the purloined record (the cost of the paper and toner) be over $1000. This is hardly ever the case, and certainly not the case here. Other problems include that the document seems to requires stealing of the actual "record" and under the federal records law, copies are not records--only the official original.
In short, I doubt that the Comey memos qualify as federal records. As such, they really cannot be said to have been leaked at all. Any even if they do qualify as federal records, an argument that Comey violated federal law in providing the contents (indirectly) to the New York Times is dubious at best.