Kissinger v. Reporters Committee for Freedom of the Press

445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267, 1980 U.S. LEXIS 19, 6 Media L. Rep. (BNA) 1001
CourtSupreme Court of the United States
DecidedMarch 3, 1980
Docket78-1088
StatusPublished
Cited by879 cases

This text of 445 U.S. 136 (Kissinger v. Reporters Committee for Freedom of the Press) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267, 1980 U.S. LEXIS 19, 6 Media L. Rep. (BNA) 1001 (1980).

Opinions

Mr. Jtjstice'Rehnqtjist

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 [140]*140to 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.1 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 Nat’onal 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 [141]*141papers which he would be free to take when he left office.2

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 [142]*142of 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 [143]*143removal 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.

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Bluebook (online)
445 U.S. 136, 100 S. Ct. 960, 63 L. Ed. 2d 267, 1980 U.S. LEXIS 19, 6 Media L. Rep. (BNA) 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kissinger-v-reporters-committee-for-freedom-of-the-press-scotus-1980.