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Judge could review Clinton emails State Department kept from public

A federal judge signaled this week that he may conduct a private review of more than 1,000 Hillary Clinton emails the State Department is withholding from the public as personal in nature.

The National Archives said in a letter last year that it concurred with State's determination that 1,246 of the roughly 30,490 emails Clinton turned over to State in 2014 were entirely personal in nature and, therefore, should not be considered government records at all.

A key side effect of that conclusion: State is not processing those emails for release under the Freedom of Information Act.

The courts have yet to bless or reject that decision in connection with the Clinton emails. However, in a ruling Monday, U.S. District Court Judge Rudolph Contreras said he's open to the idea of checking up on such decisions.

Ruling in a case the conservative group Citizens United brought seeking emails State Department officials traded with the Clinton Foundation and a consulting firm close to the Clintons, Teneo Holdings, Contreras declined to order State to compile an index of the records it was withholding as duplicative, nonresponsive, or entirely personal in nature. But, in his order, the judge said he might take a look at records in the latter category to check State's work.

"The Court is not prepared to create a completely new indexing requirement from scratch. However, the Court will consider a request that it conduct an in camera review of documents that are not produced on the basis that they are not agency records," Contreras wrote.

Contreras also happens to be the judge overseeing the FOIA case that set deadlines for the release of the Clinton emails—a suit filed by Vice News reporter Jason Leopold. It seems likely that the question of how to handle Clinton messages turned over to State, but deemed entirely personal will arise in the case before him, as well as several other FOIA suits involving the former secretary of state's emails.

At least one other interested party has made an effort to get the 1,246 (or more) messages deemed personal by State: Hillary Clinton's attorney, David Kendall.

Back in June of last year, Kendall sent Deputy Secretary of State for Management Patrick Kennedy a letter asking him to give back those records.

"We would be grateful for the return of the 1246 emails which the Department, in consultation with the National Archives and Records Administration, has determined not to be federal records," Kendall wrote.

There's no indication the Clinton attorney ever got a reply on that point. He declined to comment for this post.

The number of Clinton emails designated as "non-agency records" may have grown somewhat in the past year, since the State Department obtained more messages from Clinton's server that weren't turned over by her in 2014 but were recovered during the FBI investigation into her email arrangement.

The original set that State and the Archives deemed personal appears to have ended up in State's possession because some searches Clinton's lawyers did while seeking work-related messages in her archive were overinclusive, pulling in emails that weren't actually related to government business. FBI Director James Comey has also said the search was underinclusive in some respects,

"It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server," Comey said in July, while adding that he had "reasonable confidence there was no intentional misconduct in connection with that sorting effort."