Henry Kissinger served as an Assistant to the President for
National Security Affairs from 1969 to 1975 and as Secretary of
State from 1973 to 1977. Throughout these periods, his secretaries
monitored his telephone conversations and recorded their contents
either by shorthand or on tape. The stenographic notes or tapes
were used to prepare summaries and sometimes verbatim transcripts
of the conversations (hereafter notes or telephone notes). In 1976,
after the notes had been moved from Kissinger's office in the State
Department to a private estate in New York, he donated them to the
Library of Congress, subject to an agreement restricting public
access to them for a specified period, and they were transported to
the Library. Three requests for the notes were made to the State
Department under the Freedom of Information Act (FOIA): (1) a
request by a newspaper columnist (Safire), at a time when the notes
were still located in Kissinger's State Department office, for any
notes covering certain dates in which Safire's name appeared or in
which Kissinger discussed information "leaks" with certain White
House officials; (2) a request by the Military Audit Project, after
the notes had been transferred to the Library of Congress, for all
notes made while Kissinger was Secretary of State; and (3) a
request at about the same time by the Reporters Committee for
Freedom of the Press and others for notes made both while Kissinger
was Presidential Assistant and while he was Secretary of State. The
State Department denied the first request on the ground that the
requested notes had been made while Kissinger was Presidential
Assistant, and therefore were not agency records subject to FOIA
disclosure. The second and third requests were denied on the
grounds both that the requested notes were not agency records and
that their deposit with the Library of Congress prior to the
requests terminated the State Department's custody and control.
During this period when he was no longer Secretary of State,
Kissinger refused the Government Archivist's
Page 445 U. S. 137
requests for return of the notes. Suits were filed by the
various FOIA requesters against Kissinger, the Library of Congress,
the Secretary of State, and the State Department, seeking
enforcement of the FOIA requests and a declaratory judgment that
the telephone notes were agency records that had been unlawfully
removed and were being improperly withheld. The District Court
ruled in the plaintiffs' favor as to the notes made while Kissinger
was Secretary of State, but denied relief as to the notes made
while he was Presidential Assistant, finding that the former notes
were "agency records" subject to disclosure under the FOIA, and
that Kissinger had wrongfully removed them from the State
Department in violation of the Federal Records Disposal Act. An
order was entered requiring the Library of Congress to return the
Secretary of State notes to the State Department and requiring the
Department to determine which of the notes are exempt from
disclosure under the FOIA and to provide the required materials to
the plaintiffs. The Court of Appeals affirmed.
Held:
1. The District Court had no authority to order transfer of the
notes, including those made while Kissinger was Secretary of State,
from the Library of Congress to the State Department at the behest
of the named plaintiffs. Pp.
445 U. S.
146-155.
(a) No provision of either the Federal Records Act of 1950,
which establishes a records management program for federal
agencies, or the complementary Records Disposal Act, which provides
the exclusive means for record disposal, expressly confers a right
of action on private parties, nor can such a right of action be
implied. The language of these Acts merely "proscribes certain
conduct," and does not "create or alter civil liabilities,"
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U. S. 11,
444 U. S. 19,
and the Records Act also expressly provides administrative remedies
for violations of the Act. Moreover, the legislative history of the
Acts confirms that congressional silence as to a private right of
action was purposeful, indicating that their purpose was not to
benefit private parties, but solely to benefit the agencies
themselves and the Federal Government as a whole. Thus, regardless
of whether Kissinger had violated these Acts, Congress has not
vested federal courts with jurisdiction to adjudicate that question
upon suit by a private party, such responsibility being vested in
the administrative authorities. Pp.
445 U. S.
147-150.
(b) Nor does the FOIA furnish the congressional intent to permit
private actions to recover records wrongfully removed from
Government custody. Under this Act, federal jurisdiction is
dependent upon a showing that an agency has (1) "improperly" (2)
"withheld" (3) "agency
Page 445 U. S. 138
records." Here, the State Department, a covered agency, has not
"withheld" agency records within the meaning of the FOIA, since
Congress did not mean that an agency improperly withholds a
document that has been removed from the agency's possession prior
to the filing of the FOIA request, the agency in such case having
neither the custody nor control necessary to enable it to withhold.
And an agency's failure to sue a third party to obtain possession
is not a withholding under the Act. This conclusion that possession
or control is a prerequisite to FOIA disclosure is reinforced by an
examination of the Act's purposes, from which it is apparent that
Congress never intended, when it enacted the FOIA, to displace the
statutory scheme embodied in the Federal Records and Records
Disposal Acts providing for administrative remedies to safeguard
against wrongful removal of agency records as well as to retrieve
wrongfully removed records. Pp.
445 U. S.
150-154.
(c) Under the circumstances of this case, where Kissinger had
refused the Archivist's requests for return of the documents and he
and the Library of Congress as his donee are holding the documents
in question under a claim of right, the State Department cannot be
said to have had possession or control of the documents at the time
the requests were received, and therefore it did not withhold any
agency records, an indispensable prerequisite to liability in a
suit under the FOIA. Pp. 154-155.
2. Safire's request sought disclosure of documents that were not
"agency records" within the meaning of the FOIA. While the FOIA
makes the "Executive Office of the President" an agency subject to
the Act, the legislative history makes it clear that the "Executive
Office" does not include the Office of the President. Thus, since
Safire's request sought notes made by Kissinger while acting in his
capacity as Presidential Assistant, the requested notes were not
"agency records" when they were made. Pp.
445 U. S.
155-157.
191 U.S.App.D.C. 213, 589 F.2d 1116, affirmed in part and
reversed in part.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, and POWELL, JJ., joined. BRENNAN,
J.,
post, p.
445 U. S. 158,
and STEVENS, J.,
post, p.
445 U. S. 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.
Page 445 U. S. 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
Page 445 U. S. 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. [
Footnote 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
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
Page 445 U. S. 141
papers which he would be free to take when he left office.
[
Footnote 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
Page 445 U. S. 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
Page 445 U. S. 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. [
Footnote
3]
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
Page 445 U. S. 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
Page 445 U. S. 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,
Page 445 U. S. 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 papers were "agency
records" and that they had been wrongfully removed from State
Department custody in violation
Page 445 U. S. 147
of the Federal Records Disposal Act, 44 U.S.C. § 3303. We need
not, and do not, decide whether the telephone notes are agency
records, or were wrongfully removed, for even assuming an
affirmative answer to each of these questions, the FOIA plaintiffs
were not entitled to relief.
The question must be, of course, whether Congress has conferred
jurisdiction on the federal courts to impose this remedy. Two
statutory schemes are relevant to this inquiry. First, if Congress
contemplated a private right of action under the Federal Records
Act and the Federal Records Disposal Act, this would, in itself,
justify the remedy imposed if Kissinger in fact wrongfully removed
the documents. In the alternative, the lower court order could be
sustained if authorized by the FOIA.
A
The Federal Records Act of 1950, 44 U.S.C. § 2901
et
seq., authorizes the "head of each Federal agency" to
establish a "records management program" and to define the extent
to which documents are "appropriate for preservation" as agency
records. The records management program requires that adequate
documentation of agency policies and procedures be retained. The
Records Disposal Act, a complementary records management Act,
provides the exclusive means for record disposal. 44 U.S.C. §
3314.
Under the Records Disposal Act, once a document achieves the
status of a "record" as defined by the Act, it may not be alienated
or disposed of without the consent of the Administrator of General
Services, who has delegated his authority in such matters to the
Archivist of the United States. 44 U.S.C. §§ 3303, 3303a, 3308-3314
(1976 ed. and Supp. II); GSA, Delegations of Authority Manual, ADM
P. 5450.39A. Thus, if Kissinger's telephone notes were "records"
within the meaning of the Federal Records Act, a question we do not
reach, then Kissinger's transfer might well violate the Act, since
he did not seek the approval of the Archivist prior to
Page 445 U. S. 148
transferring custody to himself and then to the Library of
Congress. We assume such a wrongful removal
arguendo for
the purposes of this opinion.
But the Federal Records Act establishes only one remedy for the
improper removal of a "record" from the agency. The head of the
agency is required under 44 U.S.C. § 3106 to notify the Attorney
General if he determines or "has reason to believe" that records
have been improperly removed from the agency. The Administrator of
General Services is obligated to assist in such actions. 44 U.S.C.
§ 2905. At the behest of these administrators, the Attorney General
may bring suit to recover the records.
The Archivist did request return of the telephone notes from
Kissinger on the basis of his belief that the documents may have
been wrongfully removed under the Act. Despite Kissinger's refusal
to comply with the Archivist's request, no suit has been instituted
against Kissinger to retrieve the records under 44 U.S.C. §
3106.
Plaintiff requesters effectively seek to enforce these
requirements of the Acts by seeking the return of the records to
State Department custody. No provision of either Act, however,
expressly confers a right of action on private parties. Nor do we
believe that such a private right of action can be implied.
This Court has spent too many pages identifying the factors
relevant to uncovering congressional intent to imply a private
cause of action to belabor the topic here. [
Footnote 4] Our most recent pronouncement on the
subject,
Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U. S. 11
(1979), readily disposes of the question. First, the language of
the Records Acts merely "proscribes certain conduct," and does not
"create or alter any civil liabilities."
Id. at
444 U. S. 19.
The Records Act also expressly provides administrative remedies for
violations of the duties
Page 445 U. S. 149
it imposes, implicating our conclusion in
Transamerica
Mortgage that it is
"an elemental canon of statutory construction that, where a
statute expressly provides a particular remedy or remedies, a court
must be chary of reading others into it."
Ibid. Finally, the legislative history does not detract
from the inference to be drawn from congressional silence, but
rather confirms that such silence is purposeful.
The legislative history of the Acts reveals that their purpose
was not to benefit private parties, but solely to benefit the
agencies themselves and the Federal Government as a whole. The
Senate Report to the Federal Records Act of 1950 reveals this
focus. S.Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). The Report
states:
"It is well to emphasize that records come into existence, or
should do so, not in order to fill filing cabinets or occupy floor
space, or even to satisfy the archival needs of this and future
generations, but first of all to serve the administrative and
executive purposes of the organization that creates them. There is
danger of this simple, self-evident fact being lost for lack of
emphasis. The measure of effective records management should be its
usefulness to the executives who are responsible for accomplishing
the substantive purposes of the organization. . . . [The] first
interest is in the establishment of a useful system of
documentation that will enable [the executive] to have the
information he needs available when he needs it."
Congress expressly recognized the need for devising adequate
statutory safeguards against the unauthorized removal of agency
records, and opted in favor of a system of administrative standards
and enforcement.
See U.S. Commission on Organization of
the Executive Branch of the Government, Task Force Report on
Records Management 27 (1949). Thus, regardless of whether Kissinger
has violated the Records and Records Disposal Acts, Congress has
not vested federal
Page 445 U. S. 150
courts with jurisdiction to adjudicate that question upon suit
by a private party. That responsibility is vested in the
administrative authorities. [
Footnote 5]
B
The plaintiff requesters contend that, even though the Federal
Records and Records Disposal Acts do not contemplate a private
right of action, the FOIA nevertheless supplies what was missing
from those Acts -- congressional intent to permit private actions
to recover records wrongfully removed from Government custody. We
are, however, unable to read the FOIA as supplying that
congressional intent.
The FOIA represents a carefully balanced scheme of public rights
and agency obligations designed to foster greater access to agency
records than existed prior to its enactment. That statutory scheme
authorizes federal courts to ensure private access to requested
materials when three requirements have been met. Under 5 U.S.C. §
552(a)(4)(b), federal jurisdiction is dependent upon a showing that
an agency has (1) "improperly"; (2) "withheld"; (3) "agency
records." Judicial authority to devise remedies and enjoin agencies
can only be invoked, under the jurisdictional grant conferred by §
552, if the agency has contravened all three components of this
obligation. We find it unnecessary to decide whether the telephone
notes were "agency records," since we conclude that a covered
agency -- here the State Department -- has not "withheld" those
documents from the plaintiffs. We also need not decide the full
contours of a prohibited "withholding." We do decide, however, that
Congress did not mean that an agency improperly withholds a
document which has been removed from the possession of the agency
prior to the filing of the FOIA request. In such a case, the agency
has neither
Page 445 U. S. 151
the custody nor control necessary to enable it to withhold. In
looking for congressional intent, we quite naturally start with the
usual meaning of the word "withhold" itself. The requesters would
have us read the "hold" out of "withhold." The act described by
this word presupposes the actor's possession or control of the item
withheld. A refusal to resort to legal remedies to obtain
possession is simply not conduct subsumed by the verb
"withhold."
The Act and its legislative history do not purport to define the
word. An examination of the structure and purposes of the Act,
however, indicates that Congress used the word in its usual sense.
An agency's failure to sue a third party to obtain possession is
not a withholding under the Act.
Several sources suggest directly that agency possession or
control is prerequisite to triggering any duties under the FOIA. In
the debates, the Act was described as ensuring "access to the
information
possessed by [Government] servants." (Emphasis
added.) 112 Cong.Rec. 13652 (1966), reprinted in Freedom of
Information Act Source Book, S. Doc. No. 93-82, p. 69 (1974)
(remarks of Rep. Monagan) (hereinafter Source Book I).
Following FOIA's enactment in 1966, the Attorney General issued
guidelines for the use of all federal departments and agencies in
complying with the new statute. The guidelines state that FOIA
"refers, of course, only to records in being and in the
possession or control of an agency. . . . [It] imposes no
obligation to compile or procure a record in response to a
request."
Attorney General's Memorandum on the Public Information Section
of the Administrative Procedure Act 23-24 (June 1967), Source Book
I, pp. 222-223.
Most courts which have considered the question have concluded
that the FOIA is only directed at requiring agencies to disclose
those "agency records" for which they have chosen
Page 445 U. S. 152
to retain possession or control. [
Footnote 6]
See also NLRB v. Robbins Tire & Rubber
Co., 437 U. S. 214,
437 U. S. 221
(1978), describing the Act as reaching "records and material in the
possession of federal agencies. . . ."
The conclusion that possession or control is a prerequisite to
FOIA disclosure duties is reinforced by an examination of the
purposes of the Act. The Act does not obligate agencies to create
or retain documents; it only obligates them to provide access to
those which it, in fact, has created and retained. [
Footnote 7] It has been settled by decision
of this Court that only the Federal Records Act, and not the FOIA,
requires an agency to actually create records, even though the
agency's failure to do so deprives the public of information which
might have otherwise been available to it.
NLRB v. Sears,
Roebuck & Co., 421 U. S. 132,
421 U. S.
161-162 (1975);
Renegotiation Board v. Grumman
Aircraft Engineering Corp., 421 U. S. 168,
421 U. S. 192
(1975).
If the agency is not required to create or to retain records
under the FOIA, it is somewhat difficult to determine why the
agency is nevertheless required to retrieve documents which have
escaped its possession, but which it has not endeavored to recover.
If the document is of so little interest to the agency that it does
not believe the retrieval effort to be justified, the effect of
this judgment on an FOIA request seems little different from the
effect of an agency determination
Page 445 U. S. 153
that a record should never be created, or should be discarded.
[
Footnote 8]
The procedural provisions of the Act, in particular, reflect the
nature of the obligation which Congress intended to impose on
agencies in the production of agency records. First, Congress has
provided that agencies normally must decide within 10 days whether
to comply with an FOIA request unless they can establish "unusual
circumstances" as defined in the Act. 5 U.S.C. §§ 552(a)(6)(A),
(b). The "unusual circumstances" specified by the Act include
"the need to search for and collect the requested records from
field facilities and other establishments that are separate from
the office processing the request."
This exception for searching and collecting certainly does not
suggest that Congress expected an agency to commence lawsuits in
order to obtain possession of documents requested, particularly
when it is seen that where an extension is allowable, the period of
the extension is only for 10 days. Either Congress was operating
under the assumption that lawsuits could be waged and won in 10
days or it was operating under the assumption that agencies would
not be obligated to file lawsuits in order to comply with FOIA
requests.
A similarly strong expression of congressional expectations
emerges in 5 U.S.C. § 552(a)(4)(A), providing for recovery of
certain costs incurred in complying with FOIA requests. This
section was included in the Act in order to reduce the burdens
imposed on the agencies. The agency is authorized to establish fees
for the "direct costs" of "document search and duplication." The
costs allowed reflect the congressional judgment as to the nature
of the costs which would be incurred. Congress identified these
costs, and thus the agency burdens, as consisting of "search" and
"duplication." During
Page 445 U. S. 154
the enactment of the 1974 amendments to the FOIA, it was
emphasized that agencies generally are not obligated to provide
extensive services in fulfilling FOIA requests. S.Rep. No. 93-854,
p. 12 (1974), reprinted in House Committee on Government Operations
and Senate Committee on the Judiciary, Freedom of Information Act
and Amendments of 1974: Source Book, 94th Cong., 1st Sess., 164
(Joint Comm.Print 1975) (hereinafter Source Book II). When agencies
do provide additional services in conducting a search, they are
clearly authorized to allocate that cost to the requester.
Ibid. It is doubtful that Congress intended that a
"search" include legal efforts to retrieve wrongfully removed
documents, since such an intent would authorize agency assessment
to the private requester of its litigation costs in such an
endeavor.
It is therefore clear that Congress never intended, when it
enacted the FOIA, to displace the statutory scheme embodied in the
Federal Records Act and the Federal Records Disposal Act providing
for administrative remedies to safeguard against wrongful removal
of agency records, as well as to retrieve wrongfully removed
records. This result is buttressed by our decisions in
Renegotiation Board v. Bannercraft Clothing Co.,
415 U. S. 1 (1974),
and
NLRB v. Robbins Tire & Rubber Co., supra, both
demonstrating reluctance to construe the FOIA as silently departing
from prior longstanding practice.
Bannercraft, supra, of
course held that Congress intended federal district courts to
retain traditional equitable jurisdiction in adjudicating FOIA
actions. But historic equitable practice has long recognized that
an individual does not improperly withhold a document sought
pursuant to a subpoena by his refusal to sue a third party to
obtain or recover possession.
Amey v. Long, 9 East 473,
482, 103 Eng.Rep. 653, 657 (K.B. 1808).
C
This construction of "withholding" readily disposes of the RCFP
and MAP requests. Both of these requests were filed after
Kissinger's telephone notes had been deeded to the Library
Page 445 U. S. 155
of Congress. [
Footnote 9]
The Government, through the Archivist, has requested return of the
documents from Kissinger. The request has been refused. The facts
make it apparent that Kissinger, and the Library of Congress as his
donee, are holding the documents under a claim of right. Under
these circumstances, the State Department cannot be said to have
had possession or control of the documents at the time the requests
were received. It did not, therefore, withhold any agency records,
an indispensable prerequisite to liability in a suit under the
FOIA.
III
The Safire request raises a separate question. At the time when
Safire submitted his request for certain notes of Kissinger's
telephone conversations, all the notes were still located in
Kissinger's office at the State Department. For this reason, we do
not rest our resolution of his claim on the grounds that there was
no withholding by the State Department. As outlined above, the Act
only prohibits the withholding of "agency records." We conclude
that the Safire request sought disclosure of documents which were
not "agency records" within the meaning of the FOIA.
Safire's request sought only a limited category of documents. He
requested the Department to produce all transcripts of telephone
conversations made by Kissinger from his White House office between
January 21, 1969, and February
Page 445 U. S. 156
12, 1971, in which (1) Safire's name appeared; or (2) in which
Kissinger discussed the subject of information "leaks" with General
Alexander Haig, Attorney General John Mitchell, President Richard
Nixon, J. Edgar Hoover, or any other official of the FBI.
The FOIA does render the "Executive Office of the President" an
agency subject to the Act. 5 U.S.C. § 552(e). The legislative
history is unambiguous, however, in explaining that the "Executive
Office" does not include the Office of the President. The
Conference Report for the 1974 FOIA Amendments indicates that "the
President's immediate personal staff or units in the Executive
Office whose sole function is to advise and assist the President"
are not included within the term "agency" under the FOIA.
H.R.Conf.Rep. No. 93-1380, p. 15 (1974), reprinted in Source Book
II, p. 232. Safire's request was limited to a period of time in
which Kissinger was serving as Assistant to the President. Thus,
these telephone notes were not "agency records" when they were
made.
The RCFP requesters have argued that, since some of the
telephone notes made while Kissinger was adviser to the President
may have related to the National Security Council, they may have
been National Security Council records, and therefore subject to
the Act.
See H.R. Rep No. 93-876, p. 8 (1974), Source Book
II, p. 128, indicating that the National Security Council is an
executive agency to which the FOIA applies. We need not decide when
records which, in the words of the RCFP requesters, merely "relate
to" the affairs of an FOIA agency become records of that agency. To
the extent Safire sought discussions concerning information leaks
which threatened the internal secrecy of White House policymaking,
he sought conversations in which Kissinger had acted in his
capacity as a Presidential adviser only.
Nor does his request for conversations in which his name
appeared require a different conclusion. Safire never
identified
Page 445 U. S. 157
the request as implicating any National Security Council
records. The request did not mention the National Security Council
or any subject relating to the NSC. To the contrary, he requested
to see transcripts Kissinger made from his White House office.
Moreover, after the State Department denied the request on the
grounds that these were White House records, Safire's appeal argued
these were State Department records, again never suggesting they
were NSC records. The FOIA requires the requester to adequately
identify the records which are sought. 5 U.S.C. § 552(a)(3)(A).
Safire's request did not describe the records as relating to the
NSC or in any way put the agency on notice that it should refer the
request to the NSC.
See 5 U.S.C. § 552(a)(6)(b)(iii).
Therefore, we also need not address the issue of when an agency
violates the Act by refusing to produce records of another agency,
or failing to refer a request to the appropriate agency.
The RCFP requesters nevertheless contend that, if the
transcripts of telephone conversations made while adviser to the
President were not their "agency records," they acquired that
status under the Act when they were removed from White House files
and physically taken to Kissinger's office at the Department of
State. We simply decline to hold that the physical location of the
notes of telephone conversations renders them "agency records." The
papers were not in the control of the State Department at any time.
They were not generated in the State Department. They never entered
the State Department's files, and they were not used by the
Department for any purpose. If mere physical location of papers and
materials could confer status as an "agency record," Kissinger's
personal books, speeches, and all other memorabilia stored in his
office would have been agency records subject to disclosure under
the FOIA. It requires little discussion or analysis to conclude
that the lower courts correctly resolved this question in favor of
Kissinger.
See also Forsham v. Harris, post, p.
445 U. S. 169.
Page 445 U. S. 158
Accordingly, we reverse the order of the Court of Appeals
compelling production of the telephone manuscripts made by
Kissinger while Secretary of State and affirm the order denying the
requests for transcripts produced while Kissinger served as
National Security Adviser.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of these cases.
MR. JUSTICE BLACKMUN took no part in the decision of these
cases.
* Together with No. 78-1217,
Reporters Committee for Freedom
of the Press et al. v. Kissinger, also on certiorari to the
same court.
[
Footnote 1]
Tapes and stenographic notes were always destroyed immediately
after they were summarized or transcribed.
[
Footnote 2]
This conclusion was premised on the Adviser's finding that the
notes were covered by a Department regulation providing that a
retiring official may retain papers "explicitly designated or filed
as personal at the time of origin or receipt." 5 FAM § 417.1(a)
(1974).
[
Footnote 3]
Safire filed an administrative appeal from this decision,
contending that the notes were agency records by virtue of their
relocation to the State Department. The appeal was denied.
[
Footnote 4]
See Touche Ross & Co. v. Redington, 442 U.
S. 560 (1979);
Cannon v. University of Chicago,
441 U. S. 677
(1979).
[
Footnote 5]
We need not decide what remedies might be available to private
plaintiffs complaining that the administrators and the Attorney
General have breached a duty to enforce the Records Act, since no
such action was brought here.
See 5 U.S.C. §§ 704,
701(a)(2), 706(1).
[
Footnote 6]
See Nolen v. Rumsfeld, 535 F.2d 890, 891 (CA5 1976)
(suit "seeking production of missing records . . . is not within
the purview of the Freedom of Information Act"),
cert.
denied, 429 U.S. 1104 (1977);
Nichols v. United
States, 325 F.
Supp. 130, 137 (Kan.1971) ("the Court may not require
production of records not in [the] custody or control of an
agency"),
aff'd, 460 F.2d 671 (CA10),
cert.
denied, 409 U.S. 966 (1972);
Ciba-Geigy Corp. v.
Mathews, 428 F.
Supp. 523, 531 (SDNY 1977) ("[T]he government cannot be
compelled to obtain possession of documents not under its control
or furnish an opinion when none is written") .
[
Footnote 7]
Congress has imposed some very limited record-creating
obligations with regard to indexing under the FOIA.
See 5
U.S.C. § 552(a)(2).
[
Footnote 8]
This is not to suggest that this discretionary determination by
the agency relieves it of other obligations imposed by the records
management Acts. The observation goes only to the nature of the
public right of access provided by the FOIA.
[
Footnote 9]
There is no question that a "withholding" must here be gauged by
the time at which the request is made, since there is no FOIA
obligation to retain records prior to that request. This temporal
factor has always governed requests under the subpoena power,
Jurney v. MacCracken, 294 U. S. 125
(1935), as well as under other access statutes.
See
Fed.Rules Civ.Proc. 34, 45. We need not decide whether this
standard might be displaced in the event that it was shown that an
agency official purposefully routed a document out of agency
possession in order to circumvent a FOIA request. No such issue is
presented here. We also express no opinion as to whether an agency
withholds documents which have been wrongfully removed by an
individual after a request is filed.
MR. JUSTICE BRENNAN, concurring in part and dissenting in
part.
Today's decision explores hitherto uncharted territory in a
complicated statutory scheme. I cannot agree with what is, to me,
the Court's crabbed interpretation of "improper withholding" under
the Freedom of Information Act (FOIA). At the same time, I am not
without some uncertainty about the contours of the "improper
withholding" standard. Accordingly, although the result reached by
my Brother STEVENS strikes me as the most workable for the present,
I write separately to articulate some ideas on this difficult
problem.
As an abstract matter, I concur in the Court's view that FOIA's
reach should not be conditioned upon the legality of a documents
transfer under the Federal Records and Records Disposal Acts. 44
U.S.C. § 2901
et seq.; 44 U.S.C. § 3301
et seq.
(1976 ed. and Supp. II). These Acts establish a fairly
comprehensive scheme for internal records management, one element
of which is an administrative process for regulating and enforcing
records disposal standards. Thus, the "legality" of a document
transfer for purposes of the Records Acts is, in a practical sense,
partly a matter of administrative discretion. Conceptually, it
seems strange to import such a discretionary factor into the legal
standards that govern
Page 445 U. S. 159
private rights of action under FOIA. And it is not
surprising that the Records Acts and FOIA fail to mesh: the former
scheme is evidently directed toward fostering administrative
interests, while the latter is definitely designed to serve the
needs of the general public. Consequently, the Records Acts either
may fail to promote the interests embodied in FOIA or may address
concerns that are irrelevant to FOIA. [
Footnote 2/1]
Although I agree that the Records Acts cannot be neatly
interpolated into FOIA, I part company with the Court when it
concludes that FOIA does not reach records that have been removed
from a federal agency's custody. If FOIA is to be more than a dead
letter, it must necessarily incorporate some restraint upon the
agency's powers to move documents beyond the reach of the FOIA
requester. Even the Court's opinion implies -- as I think it must
-- that an agency would be improperly withholding documents if it
failed to take steps to recover papers removed from its custody
deliberately to evade an FOIA request.
Ante at
445 U. S. 155,
n. 9. Beyond that minimal rule, I would think it also plainly
unacceptable for an agency to devise a records routing system aimed
at frustrating FOIA requests in general by moving documents outside
agency custody with unseemly haste.
Indeed, I would go further. If the purpose of FOIA is to provide
public access to the records incorporated into Government
decisionmaking,
see Forsham v. Harris, post at
445 U. S. 188
(BRENNAN, J., dissenting), then agencies may well have a
concomitant responsibility to retain possession of, or control
over, those records. [
Footnote 2/2]
But, as with so many questions that
Page 445 U. S. 160
the Court must resolve, the difficulty is where to draw the
line. We could hardly assume that Congress intended agencies to be
prevented from surrendering all documents that might be of interest
to requesters -- so broad a rule would not only swamp the agencies
with paper, but would also seem incompatible with the records
management goals of the Records Acts.
See S.Rep. No. 2140,
81st Cong., 2d Sess., 4 (1950). Perhaps the appropriate test would
take into account the importance of specific records; it might also
consider the length of time records would be held, and the
historical frequency of requests for documents of a particular
type. To suggest the elements of such a test, however, is to expose
how ill-suited a court is to define them adequately. It is Congress
which has the resources and responsibility to fashion a rule about
document retention that comports with the objectives of FOIA.
Although one might hope that Congress will soon address this
problem, we must decide the case currently before us. I have little
difficulty concluding that records which should have been retained
for FOIA purposes may be reached under FOIA even though they have
already passed beyond the agency's control. [
Footnote 2/3] In the absence of an analytically
satisfying standard for determining
which records should
be retained, however, it is necessary to resolve this case by
looking to an approach that is currently practicable. My Brother
STEVENS'
Page 445 U. S. 161
position fairly fits this prescription. While turning an FOIA
suit upon the Records Acts is, as I have recognized, conceptually
problematic, the records statutes do formulate document retention
criteria that are not unduly burdensome and that carry a
congressional imprimatur.
Accordingly, I agree with MR. JUSTICE STEVENS' conclusion with
respect to the "improper withholding" issue, and therefore dissent
from
445 U. S.
[
Footnote 2/1]
For example, a document transfer may comport with the formal
requirements of the Records Acts, and yet be motivated by the
desire to avoid a pending FOIA request.
[
Footnote 2/2]
This notion is not incompatible with
NLRB v. Sears, Roebuck
& Co., 421 U. S. 132,
421 U. S.
161-162 (1975), and
Renegotiation Board v. Grumman
Aircraft Engineering Corp., 421 U. S. 168,
421 U. S. 192
(1975), which held that FOIA does not compel agencies to write
opinions where not otherwise required. FOIA neither compels the
Government to conduct research on behalf of private citizens, nor
duplicates administrative law requirements of adequate explanation
for Government action,
see id. at
421 U. S.
191-192. What the Act does mandate is exposure of the
research and explanations which the Government has chosen to
memorialize; an agency's obligation to
retain records,
therefore, may be inferred from FOIA without contradicting the
principle that agencies need not
create records.
[
Footnote 2/3]
This will not necessarily entail the agency's litigating against
the third party in possession of the documents, as the Court
suggests. Rather, the third party might be joined in the FOIA suit.
Cf. Renegotiation Board v. Bannercraft Clothing Co.,
415 U. S. 1,
415 U. S. 18-20
(1974).
MR. JUSTICE STEVENS, concurring in part and dissenting in
part.
As the Court recognizes, the requesters are entitled to prevail
in this FOIA action if the State Department "has (1)
improperly'; (2) withheld'; (3) `agency records.'"
Ante at 445 U. S. 150.
The Court assumes, without deciding, that "agency records" have
been requested, and then concludes that no such records have been
"withheld." The Court states, and I agree, that an agency cannot
"withhold" documents unless it has either custody or control of
them. It then goes on, however, to equate "custody" and "control"
with physical possession, holding that FOIA is simply inapplicable
to any "document which has been removed from the possession of the
agency prior to the filing of the FOIA request." Ibid.
[Footnote 3/1]
I cannot agree that this conclusion is compelled by the plain
language of the statute; moreover, it seems to me wholly
inconsistent with the congressional purpose underlying the Freedom
of Information Act. The decision today exempts documents that have
been wrongfully removed from the agency's files from any scrutiny
whatsoever under FOIA. It thus creates an incentive for outgoing
agency officials to remove potentially embarrassing documents from
their files in order to frustrate future FOIA requests. It is the
creation
Page 445 U. S. 162
of such an incentive, which is directly contrary to the purpose
of FOIA, rather than the result in this particular case, [
Footnote 3/2] that prompts me to write in
dissent.
In my judgment, 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. A determination that
documents have been withheld does not end the inquiry, of course,
for a court must still determine whether the withholding was
"improper" for purposes of the Act. Thus, in my view, correct
analysis requires us to confront three separate questions in the
following order: (1) are any of the requested documents "agency
records"? (2) if so, have any of them been withheld because they
are in the legal custody of the agency? and (3) if so, was the
withholding improper?
I
Everyone seems to agree that the summaries of Dr. Kissinger's
State Department telephone conversations [
Footnote 3/3] should be considered "agency records"
subject to disclosure under FOIA if they were "agency records"
under the definitions set forth in the Federal Records Act (FRA).
The parties disagree,
Page 445 U. S. 163
however, as to the proper application of that Act to the facts
of this case. The requesters argue that the summaries were
"records" under the FRA because they were, documents "appropriate
for preservation" by the agency under 44 U.S.C. § 3301. Dr.
Kissinger, on the other hand, argues that the summaries were
personal papers which he could dispose of at will under the FRA and
which were never subject to disclosure under FOIA. The Government
takes an intermediate position, arguing that the summaries were
"agency records" only to the extent that they contained significant
information that was not reflected in other agency records.
[
Footnote 3/4]
I cannot accept Dr. Kissinger's argument that the summaries are
private papers. As the District Court noted, they were made in the
regular course of conducting the agency's business, were the work
product of agency personnel and agency assets, and were maintained
in the possession and control of the agency prior to their removal
by Dr Kissinger.
Page 445 U. S. 164
They were also regularly circulated to Dr. Kissinger's immediate
staff, and presumably used by the staff in making day-to-day
decisions on behalf of the agency. Finally, Dr. Kissinger himself
recognized that the State Department continued to have an interest
in the summaries even after they had been removed, since he had a
State Department employee review them in order to extract
information that was not otherwise in the agency's files. App.
248a. Under these circumstances, I find it difficult to believe
that none of the summaries was "appropriate for preservation" by
the agency. Thus, although a remand might be necessary, as the
Government suggests,
see 445
U.S. 136fn3/4|>n. 4,
supra, to determine which
summaries were agency records and which were not, it is clear that
at least some of them fell within that category at the time Dr.
Kissinger removed them from his files at the State Department.
[
Footnote 3/5]
II
The second question to be considered is whether the State
Department continued to have custody or control of the telephone
summaries after they were removed from its files, so that its
refusal to take steps to regain them should be deemed a
"withholding" within the meaning of the Freedom of Information Act.
As I stated at the outset, I do not agree with the Court that the
broad concepts of "custody" and "control" can be equated with the
much narrower concept of physical possession. [
Footnote 3/6] In my view, those concepts should be
applied to
Page 445 U. S. 165
bring all documents within the legal custody or control of the
agency within the purview of FOIA. Thus, if an agency has legal
right to regain possession of documents wrongfully removed from its
files, it continues to have custody of those documents. If it then
refuses to take any steps whatsoever to demand, or even to request,
that the documents be returned, then the agency is "withholding"
those documents for purposes of FOIA.
In this case, I think it is rather clear that the telephone
summaries were wrongfully removed from the State Department's
possession. [
Footnote 3/7] Under
these circumstances, the State
Page 445 U. S. 166
Department's failure even to request their return [
Footnote 3/8] constituted a "withholding"
for purposes of FOIA.
III
The third and most difficult question is whether the State
Department's "withholding" was "improper." In my view, the answer
to that question depends on the agency's explanation for its
failure to attempt to regain the documents. If the explanation is
reasonable, then the withholding is not improper. For example, I
would not find an agency's inaction improper in a case in which it
simply did not know where the documents were located, or had no
interest whatsoever in retrieving them. The FOIA does not require
federal agencies to engage in prolonged searches for documents or
institute legal proceedings that will not yield any appreciable
benefits to the agency.
On the other hand, if the agency is unable to advance a
reasonable explanation for its failure to act, a presumption arises
that the agency is motivated by a desire to shield the documents
from FOIA scrutiny. [
Footnote 3/9]
Thus, if the agency believed
Page 445 U. S. 167
or had reason to believe that it had a legal right to the
documents and that the documents were still valuable for its own
internal purposes, and nevertheless did not attempt to regain them,
its inaction should be deemed an improper withholding.
In this case, the State Department refused the FOIA requests on
the ground that the telephone summaries were not agency records
and, in any event, were no longer within the agency's custody or
control. By the time the FOIA actions were filed, there was
substantial reason for doubting the Department's resolution of the
first issue, inasmuch as the General Counsel of GSA had rendered a
legal opinion that the documents were probably agency records and
should be returned to the Government for proper archival screening.
[
Footnote 3/10] Because of their
very nature, there was also substantial reason for believing that,
if they were agency records, the summaries would have to be
considered valuable documents. Finally, the fact that the documents
had been removed by the head of the agency shortly before the
expiration of his term of office raised an inference that the
removal had been motivated by a desire to avoid FOIA
disclosure.
Page 445 U. S. 168
Under these circumstances, it is at least arguable that the
continued inaction of the State Department, contrary to the views
of the Archivist, was improper.
Accordingly, I believe the District Court had jurisdiction under
FOIA to determine (a) whether the telephone summaries were in fact
agency records and (b) if so, whether the State Department's
failure to seek return of the documents was improper. The court's
disposition of those issues seems to me to have been somewhat
premature, however. Once the litigation began, the State Department
changed its position and contended that it could not determine
whether it should seek return of the summaries without first
inspecting them. Pursuant to an agreement with Dr. Kissinger, the
Department and the Archivist began the process of sifting through
the records. That process had not yet been completed when the
District Court handed down its decision. Because the agency's
informed opinion of the documents' status and their value was, in
my view, relevant to a determination of whether its actions were
"improper," I think the court's order was premature. I would
therefore remand to give the Government an opportunity to finish
its examination of the documents.
[
Footnote 3/1]
The Court states that "[i]n such a case, the agency has neither
the custody nor control necessary to enable it to withhold."
Ante at
445 U. S.
150-151.
[
Footnote 3/2]
I do not mean to imply that there was any improper motive for
Dr. Kissinger's removal of the documents in this case. Nor do I
believe that the decision the Court reaches today will necessarily
lessen the requesters' access to the information contained in the
summaries of Dr. Kissinger's telephone conversations. Many, if not
all, of the significant decisions reflected in those summaries are
also reflected in other agency records, which are still in the
State Department's possession. Also, it is not clear how many of
the summaries, even if subject to FOIA, would be exempt from
production because they contain either classified or purely
personal information.
See 5 U.S.C. §§ 552(b)(1) and
(b)(6).
[
Footnote 3/3]
I agree with
445 U. S.
Kissinger's telephone conversations when he was a Presidential
adviser were not "agency records" subject to disclosure under FOIA
when they were created, and did not become "agency records" when
they were later stored in Dr. Kissinger's files at the State
Department.
[
Footnote 3/4]
The Government argues that Dr. Kissinger had an obligation under
the State Department's records management program to record
permanently all oral "[d]ecisions, commitments, and discussions of
any significance." 5 FAM § 423.2-1 (1974). Thus, he should have
extracted all significant information pertaining to agency business
from his telephone summaries and entered that information in the
agency's permanent records. To the extent that he did not do so,
the telephone summaries remain the sole written evidence of that
information, and thus should be considered "agency records."
However, to the extent that Dr. Kissinger saw to it that the
information was properly recorded elsewhere, the Government argues
that the summaries became "non-record materials" which could be
disposed of with the agency's permission. (The Government concedes
that some nonrecord materials may be subject to disclosure under
FOIA while in the agency's possession; it takes the position,
however, that such materials are not subject to either the FOIA or
the FRA after they have been relinquished.)
Because it believes that the degree of duplication between the
summaries and records still in the agency's possession cannot be
determined from the evidence presented in this case, the Government
argues that a remand would be appropriate if the issue of whether
the summaries were "agency records" must be decided.
[
Footnote 3/5]
The fact that extracts were not made until after the summaries
had been transferred to the Library of Congress indicates that,
even under the Government's view, some of the summaries must have
been "agency records" at the time they were removed from the State
Department. Moreover, during the course of the litigation, Dr.
Kissinger granted permission to the Archivist and the State
Department to review the summaries in order to determine whether
they should seek their return as "agency records" despite the
existence of the summaries. Brief for Federal Parties 14, n.
11.
[
Footnote 3/6]
The Court's reference to subpoenas is instructive.
See
ante at
445 U. S. 154.
Under Rule 34 of the Federal Rules of Civil Procedure, a party is
required to produce requested documents if they are within his
"possession, custody or control." The same standard applies to
subpoenas
duces tecum issued under Rule 45,
see 9
C. Wright & A. Miller, Federal Practice and Procedure § 2454,
p. 425 (1971). In construing these Rules, the courts have rejected
a narrow physical possession test, focusing instead on whether the
subpoenaed party has a legal right to custody or control of the
documents in question.
See, e.g., United States v.
International Business Machines Corp., 71 F.R.D. 88, 91 (SDNY
1976);
Buckley v. Vidal, 50 F.R.D. 271 274 (SDNY 1970); 8
C. Wright & A. Miller, Federal Practice and Procedure § 2210
(1970). Thus, if this case involved compliance with a discovery
request, rather than an FOIA request, I doubt very much that the
agency could justify its failure to produce the documents on the
ground that the agency head had wrongfully removed them from the
agency's physical possession just before the subpoena was
served.
[
Footnote 3/7]
Once Dr. Kissinger's argument that the summaries were private
papers is rejected, it becomes clear that the Federal Records Act
and Records Disposal Act were violated by the transfer of the
papers to the Library of Congress. If the summaries were agency
records, as the requesters argue, then the State Department could
not properly relinquish them without obtaining the approval of the
General Services Administration. Under the Records Disposal Act,
GSA's approval would be conditioned on a showing that the documents
were no longer needed in the "transaction of its current business,"
and did not have "sufficient administrative legal, research, or
other value to warrant their further preservation by the
Government." 44 U.S.C. §§ 3303, 3303a (1976 cd. and Supp. II).
If, on the other hand, the summaries could have been converted
from "records" to "non-record materials," as the Government
suggests, the State Department still would have been required to
take steps prior to relinquishing them to assure itself that all
significant information had been properly extracted for inclusion
in more formal State Department files. The fact that such steps
were not taken until
after the summaries had been deeded
over to the Library of Congress makes their removal from the agency
by Dr. Kissinger unlawful even under the Government's theory.
[
Footnote 3/8]
The Archivist did make several requests for the documents. App.
99a-116a. The fact that Dr. Kissinger refused those requests,
however, does not demonstrate that a similar request by the State
Department would also have been refused.
[
Footnote 3/9]
The Court recognizes that there might be situations where
documents were removed from the agency in order to avoid FOIA
requests, and suggests that its strict "physical possession"
standard might be "displaced" under these circumstances,
ante at
445 U. S. 155,
n. 9. As a practical matter, however, the Court's suggestion
provides little comfort to the intended beneficiaries of the Act.
For if an agency can make a sufficient response to a request by
simply denying physical possession, it will be a rare case indeed
in which the ordinary citizen can overcome that denial by proof of
improper motivation. Moreover, it would be unseemly to invite
litigation and discovery into the subjective motivation of agency
officials responsible for processing the flood of paper that
threatens to engulf today's bureaucracy. Focusing attention on the
agency's reason for not reacquiring the documents, rather than on
the individual employee's motive for removing them in the first
place, seems to me to be a preferable way of eliminating the
incentive to transfer documents to avoid disclosure under FOIA.
[
Footnote 3/10]
GSA, and in particular the Archivist, has supervisory
responsibility over the various agencies' records management and
disposal programs.
See, e.g., 44 U.S.C. §§ 2904, 2906,
3102, 3302, and 3303a (1976 ed. and Supp. II). Thus, an opinion by
GSA's General Counsel could be expected to give a more
authoritative and impartial view of the technical issue of what
constitutes an agency record than an opinion by the State
Department's legal counsel, given after the documents had already
been removed.