Kissinger v. Reporters Committee for Freedom of the Press
1980 U.S. LEXIS 19, 100 S. Ct. 960, 445 U.S. 136 (1980)
Rule of Law:
Under the Freedom of Information Act (FOIA), an agency does not "improperly withhold" agency records if those records have been removed from the agency's possession prior to the FOIA request and the agency no longer has custody or control over them; nor does FOIA apply to documents created by an individual acting solely as a personal advisor to the President.
Facts:
- Henry Kissinger served as Assistant to the President for National Security Affairs (National Security Adviser) from January 1969 to November 1975, and as Secretary of State from September 1973 to January 1977.
- Throughout his government service, Kissinger's secretaries generally monitored his telephone conversations and recorded their contents, creating detailed summaries or verbatim transcripts which discussed both official business and personal matters.
- The summaries and transcripts were stored in Kissinger's 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 without consulting the State Department’s Foreign Affairs Document and Reference Center or the National Archives and Records Service.
- Kissinger had obtained an opinion from the Legal Adviser of the Department of State, advising him that the telephone summaries were not agency records but were his personal papers he could take when he left office.
- After removing the notes, Kissinger entered into two agreements with the Library of Congress in November and December 1976, deeding his private papers, including the telephone notes, to the United States in care of the Library of Congress, with specific restrictions on public access.
- On December 28, 1976, the transcripts were transported directly from the Rockefeller estate to the Library of Congress, unreviewed by the Department of State.
- William Safire filed a FOIA request on January 14, 1976, asking the State Department to produce transcripts of Kissinger’s telephone conversations between January 21, 1969, and February 12, 1971 (when he was National Security Adviser).
Procedural Posture:
- William Safire, a New York Times columnist, filed a FOIA request with the Department of State on January 14, 1976.
- The Department of State denied Safire's request on February 11, 1976, reasoning that the requested notes were not agency records, and this denial was affirmed on administrative appeal.
- The Military Audit Project (MAP) filed a FOIA request with the Department of State on December 28 and 29, 1976, which was denied on January 18, 1977, on the grounds that the notes were not agency records and the Department lacked custody and control, a denial affirmed on administrative appeal.
- The Reporters Committee for Freedom of the Press (RCFP) and others filed a FOIA request on January 13, 1977, which was denied for the same reasons given to the MAP requesters.
- On February 8, 1977, the RCFP requesters and Safire instituted an action under the FOIA in the United States District Court for the District of Columbia.
- On March 8, 1977, MAP filed a similar suit in the same District Court, naming Kissinger, the Library of Congress, the Secretary of State, and the Department of State as defendants.
- The District Court ruled in plaintiffs' favor as to transcripts produced while Kissinger was Secretary of State, finding them "agency records" wrongfully removed, and ordered the Library of Congress to return them to the Department of State for FOIA processing; relief was denied for transcripts of conversations produced while Kissinger was Special Assistant to the President.
- Both Kissinger and the private parties appealed from the District Court's judgment to the United States Court of Appeals for the District of Columbia Circuit.
- The Court of Appeals affirmed the trial court's judgment ordering production of the summaries made while Kissinger was Secretary of State, and also affirmed the denial of production of summaries made during Kissinger’s service as National Security Adviser, reasoning that the FOIA does not cover close Presidential advisers and relocation to the State Department did not bring them within its disclosure responsibilities.
- Kissinger filed a petition for certiorari with the Supreme Court requesting review of the Court of Appeals’ determination regarding the State Department records, and 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; the Supreme Court granted both petitions.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
1. Does a federal agency "improperly withhold" agency records under the Freedom of Information Act (FOIA) when the requested documents are no longer in the agency's physical possession at the time of the request, even if they were wrongfully removed? 2. Are telephone conversation summaries created by a high-ranking official while serving as a personal advisor to the President considered "agency records" subject to disclosure under FOIA, even if later stored in a different agency's office?
Opinions:
Majority - Mr. Justice Rehnquist
No, a federal agency does not "improperly withhold" records under FOIA if the requested documents are not in its possession or control at the time of the request, even if they were wrongfully removed. No, telephone summaries created by a Presidential advisor are not "agency records" under FOIA. For the requests filed after the documents were moved to the Library of Congress (MAP and RCFP requests), the Court held that a federal agency cannot "withhold" documents it does not possess or control. The act of "withholding" presupposes the actor’s possession or control of the item withheld. The FOIA’s structure, including requirements for quick response times (10 days) and cost recovery limited to "search and duplication," indicates that Congress did not intend to obligate agencies to initiate lawsuits to retrieve documents. The Federal Records Act (FRA) and Records Disposal Act provide the exclusive administrative remedies for wrongful removal of records, empowering the agency head to notify the Attorney General, who may then bring suit. No private right of action can be implied under these Acts. Therefore, the State Department did not "withhold" the documents at the time these requests were received. For the request filed before the documents were removed (Safire's request), the Court concluded that the documents sought were not "agency records" within the meaning of the FOIA. Safire requested notes from a period when Kissinger was Assistant to the President (National Security Adviser). While the "Executive Office of the President" is an agency subject to FOIA, the "Office of the President" itself, including the President’s immediate personal staff whose sole function is to advise and assist the President, is not. Since Kissinger was acting in his capacity as a Presidential adviser during the relevant period, his telephone notes were not "agency records" when they were made. The physical location of these notes in the State Department office did not transform them into "agency records" of the State Department, as they were not generated there, entered its files, or used by the Department for any purpose.
Concurring in part and dissenting in part - Mr. Justice Brennan
No, an agency's failure to retrieve wrongfully removed records might constitute an improper withholding under FOIA, but the specific legal standard for when this duty arises is complex and should ideally be defined by Congress. Yes, records which should have been retained for FOIA purposes may be reached even if beyond the agency's control. Justice Brennan agreed that FOIA’s reach should not be conditioned upon the legality of a transfer under the Federal Records and Records Disposal Acts, as these acts establish a scheme for internal records management serving administrative interests, which are distinct from FOIA's goal of public access. However, he argued that FOIA must necessarily incorporate some restraint on an agency's powers to move documents beyond the reach of a FOIA requester. He suggested that an agency would be improperly withholding documents if it failed to take steps to recover papers removed deliberately to evade an FOIA request or if it devised a routing system to frustrate requests. He believed that if the purpose of FOIA is to provide public access to records integral to Government decision-making, then agencies may have a responsibility to retain possession or control over those records. While recognizing the difficulty for courts to define an adequate standard for document retention, he concluded that records which should have been retained for FOIA purposes could be reached under FOIA even if they had passed beyond the agency's physical control. He therefore agreed with Justice Stevens' approach, which links "improper withholding" to the document retention criteria of the Records Acts, and dissented from Part II of the Court's opinion.
Concurring in part and dissenting in part - Mr. Justice Stevens
Yes, a federal agency can "withhold" agency records under FOIA even if it lacks physical possession, provided it has a legal right to possess or control them. No, the telephone summaries made by Kissinger as a Presidential adviser were not "agency records." Justice Stevens disagreed with the majority's conclusion that "custody" and "control" can be equated with mere physical possession. In his view, a "withholding" occurs within the meaning of FOIA whenever an agency declines to produce agency records which it has a legal right to possess or control. He argued that if documents were wrongfully removed from agency files (which he believed the State Department summaries were, assuming they were agency records under the Federal Records Act criteria), and the agency then refuses to take any steps to demand or request their return, the agency is "withholding" those documents. Whether this withholding is "improper" depends on the agency's reasonable explanation for its inaction. If the agency offers no reasonable explanation for failing to retrieve valuable documents it has a right to, a presumption arises that the inaction is motivated by a desire to shield documents from FOIA scrutiny. He concurred with the majority that the summaries made while Kissinger was a Presidential adviser were not "agency records." However, regarding the State Department notes, he believed the District Court’s decision was premature because the State Department's informed opinion, after reviewing the documents, of their status and value was relevant to determining if its inaction was "improper." He would have remanded the case to allow the government to complete its examination of the documents.
Analysis:
This case significantly narrowed the scope of agency responsibility under FOIA, establishing that agencies are generally not required to retrieve documents they do not possess at the time of a request, even if those documents were wrongfully removed. This ruling creates a potential incentive for outgoing officials to remove sensitive documents to escape FOIA scrutiny, though the Court hinted that purposeful evasion might be an exception. The decision also clarified the distinction between an "agency" for FOIA purposes and the "Office of the President," largely insulating the latter's purely advisory records from disclosure. This outcome reinforces the idea that FOIA is primarily a disclosure statute for records an agency possesses, rather than a mandate for record creation or retrieval, effectively shifting the burden of recovering wrongfully removed records to administrative enforcement mechanisms like the Federal Records Act rather than private FOIA litigants.
