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KISSINGER v. REPORTERS COMMITTEE FOR FREEDOM PRESS ET AL.

decided*fn*: March 3, 1980.

KISSINGER
v.
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Powell, JJ., joined. Brennan, J., post, p. 158, and Stevens, J., post, p. 161, filed opinions concurring in part and dissenting in part. Marshall, J., took no part in the consideration or decision of the cases. Blackmun, J., took no part in the decision of the cases.

Author: Rehnquist

[ 445 U.S. Page 139]

 MR. JUSTICE REHNQUIST delivered the opinion of the Court.

The Freedom of Information Act (FOIA) vests jurisdiction in federal district courts to enjoin an "agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U. S. C. § 552 (a)(4)(B). We hold today that even if a document requested under the FOIA is wrongfully in the possession of a party not an "agency," the agency which received the request does not "improperly withhold" those materials by its refusal to institute a retrieval action. When an agency has demonstrated that it has not "withheld" requested records in violation of the standards established by Congress, the federal courts have no authority to order the production of such records under the FOIA.

I

This litigation arises out of FOIA requests seeking access to various transcriptions of petitioner Kissinger's telephone conversations. The questions presented by the petition necessitate a thorough review of the facts.

A

Henry Kissinger served in the Nixon and Ford administrations for eight years. He assumed the position of Assistant

[ 445 U.S. Page 140]

     to the President for National Security Affairs in January 1969. In September 1973, Kissinger was appointed to the office of Secretary of State, but retained his National Security Affairs advisory position until November 3, 1975. After his resignation from the latter position, Kissinger continued to serve as Secretary of State until January 20, 1977. Throughout this period of Government service, Kissinger's secretaries generally monitored his telephone conversations and recorded their contents either by shorthand or on tape. The stenographic notes or tapes were used to prepare detailed summaries, and sometimes verbatim transcripts, of Kissinger's conversations.*fn1 Since Kissinger's secretaries generally monitored all of his conversations, the summaries discussed official business as well as personal matters. The summaries and transcripts prepared from the electronic or stenographic recording of his telephone conversations throughout his entire tenure in Government service were stored in his office at the State Department in personal files.

On October 29, 1976, while still Secretary of State, Kissinger arranged to move the telephone notes from his office in the State Department to the New York estate of Nelson Rockefeller. Before removing the notes, Kissinger did not consult the State Department's Foreign Affairs Document and Reference Center (FADRC), the center responsible for implementing the State Department's record maintenance and disposal program. Nor did he consult the National Archives and Records Service (NARS), a branch of the General Services Administration (GSA) which is responsible for records preservation throughout the Federal Government. Kissinger had obtained an opinion from the Legal Adviser of the Department of State, however, advising him that the telephone summaries were not agency records but were his personal

[ 445 U.S. Page 141]

     papers which he would be free to take when he left office.*fn2

After Kissinger effected this physical transfer of the notes, he entered into two agreements with the Library of Congress deeding his private papers. In the first agreement, dated November 12, 1976, Kissinger deeded to the United States, in care of the Library of Congress, one collection of papers. Kissinger's telephone notes were not included in this collection. The agreement established terms obligating Kissinger to comply with certain restrictions on the inclusion of official documents in the collection and obligating the Library to respect restrictions on access. The agreement required that official materials in the collection would consist of "copies of government papers of which there is an original or record copy in government files." It also provided that all such materials must have been "approved for inclusion in the Collection" by "authorized officials."

Public access to the collection, under the terms of the deed, will not begin until 25 years after the transfer or 5 years after Kissinger's death, whichever is later. Until that time, access is restricted to (1) employees of the Library of Congress who have been jointly approved by the Library of Congress and Mr. Kissinger; (2) persons who have received the written permission of Mr. Kissinger; and (3) after Kissinger's death, persons who have received the written permission of a committee to be named in his will. Kissinger and all of his research assistants who have appropriate security clearance retain unrestricted access to the collection.

After this agreement was executed, the Department of State formulated procedures for the review of the documents and their transfer to the Library of Congress. Employees reviewed the collection and retained (a) original or record copies

[ 445 U.S. Page 142]

     of documents belonging to the agency, and (b) any materials containing classified information. In the donation process, Kissinger was also required to sign the Department's Standard Separation Statement affirming that he had "surrendered to responsible officials . . . documents or material containing classified or administratively controlled information furnished . . . during the course of [Government] employment or developed as a consequence thereof, including any diaries, memorandums of conversations, or other documents of a personal nature. . . ."

On December 24, 1976, by a second deed, Kissinger donated a second collection consisting of his telephone notes. This second agreement with the Library of Congress incorporated by reference all of the terms and conditions of the first agreement. It provided in addition, however, that public access to the transcripts would be permitted only with the consent, or upon the death, of the other parties to the telephone conversations in question.

On December 28, 1976, the transcripts were transported directly to the Library from the Rockefeller estate. Thus the transcripts were not reviewed by the Department of State Document and Reference Center with the first collection of donated papers before they were delivered into the possession of the Library of Congress. Several weeks after they were moved to the Library, however, one of Kissinger's personal aides did extract portions of the transcripts for inclusion in the files of the State Department and the National Security Council. Pursuant to the instructions of the State Department Legal Adviser, the aide included in the extracts, "any significant policy decisions or actions not otherwise reflected in the Department's records."

B

Three separate FOIA requests form the basis of this litigation. All three requests were filed while Kissinger was Secretary of State, but only one request was filed prior to the

[ 445 U.S. Page 143]

     removal of the telephone notes from the premises of the State Department. This first request was filed by William Safire, a New York Times columnist, on January 14, 1976. Safire requested the Department of State to produce any transcripts of Kissinger's telephone conversations between January 21, 1969, and February 12, 1971, in which (1) Safire's name appeared or (2) Kissinger discussed the subject of information "leaks" with certain named White House officials. The Department denied Safire's FOIA request by letter of February 11, 1976. The Department letter reasoned that the requested notes had been made while Kissinger was National Security Adviser and therefore were not agency records subject to FOIA disclosure.*fn3

The second FOIA request was filed on December 28 and 29, 1976, by the Military Audit Project (MAP) after Kissinger publicly announced the gift of his telephone notes to the United States and their placement in the Library of Congress. The MAP request, filed with the Department of State, sought records of all Kissinger's conversations made while Secretary of State and National Security Adviser. On January 18, 1977, the Legal Adviser of the Department of State denied the request on two grounds. First, he found that the notes were not agency records. Second, the deposit of the notes with the Library of Congress prior to the request terminated the Department's custody and control. The denial was affirmed on administrative appeal.

The third FOIA request was filed on January 13, 1977, by the Reporters Committee for Freedom of the Press (RCFP), the American Historical Association, the American Political Science Association, and a number of other journalists (collectively referred to as the RCFP requesters). This request also sought production of the telephone notes made by Kissinger both while he was National Security Adviser and

[ 445 U.S. Page 144]

     Secretary of State. The request was denied for the same reasons given to the MAP requesters.

The United States has taken some action to seek recovery of the notes for record processing. On January 4, 1977, the Government Archivist wrote to Kissinger, requesting that he be permitted to inspect the telephone notes so that he could determine whether they were Department records, and to determine whether Kissinger had authority to remove them from Department custody. The State Department Legal Adviser, however, analyzed the Archivist's request and issued a memorandum concluding that so long as extracts of the official business contained in the notes were filed as agency records, Kissinger had complied with the Department's regulations. The Legal Adviser also concluded that the inspection procedures suggested by the Archivist would compromise the Department's policy of respecting the privacy of such secretarial notes and would discourage the creation of historical materials in the first instance. On January 18, 1977, Kissinger replied to the Archivist, declining to permit access.

The Archivist renewed his request for an inspection on February 11, 1977, by which time Kissinger was no longer Secretary of State. With the request, he enclosed a memorandum of law prepared by the General Counsel of the GSA concluding that the materials in question might well be records rather than personal files and that the Archivist was entitled to inspect them under the Federal Records and Records Disposal Acts, 44 U. S. C. §§ 2901-2909, 3101-3107; 44 U. S. C. §§ 3301-3314 (1976 ed. and Supp. II). Kissinger did not respond to the Archivist's second request.

C

Proceedings in the United States District Court for the District of Columbia commenced February 8, 1977. The RCFP requesters and Safire instituted an action under the FOIA, seeking enforcement of their FOIA requests. On March 8, 1977, MAP filed a similar suit. Both suits named

[ 445 U.S. Page 145]

     Kissinger, the Library of Congress, the Secretary of State and the Department of State as defendants. The plaintiffs sought a judgment declaring that the summaries were agency records that had been unlawfully removed and were being improperly withheld. Plaintiffs requested as ultimate relief that the court require the Library to return the transcripts to the Department with directions to process them for disclosure under the FOIA.

Cross-motions for summary judgment were filed by all plaintiffs and by Kissinger. The District Judge ruled in plaintiffs' favor as to transcripts produced while Kissinger was Secretary of State, but denied relief as to transcripts of conversations produced while Kissinger was Special Assistant to the President. The court first found that the transcripts of telephone conversations were "agency records" subject to disclosure under the FOIA. The court also found that Kissinger had wrongfully removed these records by not obtaining the prior approval of the Administrator of General Services. The court recognized that the FOIA did not directly provide for relief since the records were in the custody of the Library of Congress, which is not an "agency" under the Act. Nevertheless, the court held that the FOIA permitted the court to invoke its equitable powers "to order the return of wrongfully removed agency documents where a statutory retrieval action appears unlikely."

An order was entered requiring the Library to return the documents to the Department of State; requiring the Department of State to determine which of the summaries are exempt from disclosure under the FOIA, and to provide the required materials to the plaintiffs. The court denied the production of summaries made during Kissinger's tenure as National Security Adviser on the basis of a mistaken assumption that plaintiffs had withdrawn their request for these summaries.

Both Kissinger and the private parties appealed from the lower court judgment. The Court of Appeals, without discussion,

[ 445 U.S. Page 146]

     affirmed the trial court judgment ordering production of the summaries made while Kissinger was Secretary of State. The Court of Appeals also held that the summaries made during Kissinger's service as National Security Adviser need not be produced. The court found that this request had not been withdrawn, and reasoned that three considerations supported nonproduction: (1) the FOIA does not cover those Presidential advisers "who are so close to him as to be within the White House"; (2) the relocation of the transcripts to the State Department did not bring them within its disclosure responsibilities under the FOIA; and (3) the fact that portions of the transcripts may reflect the affairs of the NSC, an agency to which the FOIA does apply, provided no basis for disclosure in the absence of an FOIA request directed to that agency.

Kissinger filed a petition for certiorari requesting this Court to review the Court of Appeals' determination that the State Department had improperly withheld agency records, thereby permitting their production from the Library of Congress. The RCFP requesters filed a cross-petition seeking review of that court's judgment denying production of the conversations transcribed while Kissinger served as National Security Adviser. We granted both petitions, 441 U.S. 904, and we now affirm in part and reverse in part.

II

We first address the issue presented by Kissinger -- whether the District Court possessed the authority to order the transfer of that portion of the deeded collection, including the transcripts of all conversations Kissinger made while Secretary of State, from the Library of Congress to the Department of State at the behest of the named plaintiffs. The lower courts premised this exercise of jurisdiction on their findings that the ...


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