Petition — Kissinger v. Reporters Committee for Freedom of the Press

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CHAEL RO

IN THE ———_—,,

Supreme Court of the United States

OCTOBER TERM, 1978

No. 8-1088

HENRY A. KISSINGER,

Petitioner,

Vv.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et al.,

Respondents.

HENRY A. KISSINGER,

Petitioner,

Vv.

MILITARY AUDIT PROJECT, et ai.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DAVID GINSBURG

JAMES E. WESNER

MARTHA JANE SHAY

GINSBURG, FELDMAN AND BRESS

1700 Pennsylvania Ave., N.W.

Washington, D.C. 20006

J anuary 8, 1979 Attorneys for Petitioner

TE AME ROT TRI RC NE EES A er a ce

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Weshington, D. C.-223-1220

AK, JR., CLE RK

— eee enema

— —~

(i)

TABLE OF CONTENTS

Page

TABLE OF CASES AND AUTHORITIES ................... iii

Se a tl wean eece 2

EN PF IE AIEEE 2

ERE EN ge ee Ol Re 2

STATUE ee AINE) MUNN csc cece cc eweceencs 3

STATEMENT OF THECASE ...............,.. clea 3

PEE RENT ES Soy rt Psi a CP 3

i arch auch ane ale okach ont, y Aavih gasp 4,00 ds 0.00 0-0 |

Ee Te CTE eee EE 5

arate ae ah hs Ween b ba e'sc cep cjaeees 8

a es a eee ee ee 9

REASONS FOR GRANTING THE WRIT .................. 11

Summary: This Case Presents Novel

And Substantial Issues Concerning

The Scope Of The Freedom of Infor-

mation Act, The Relationship Between

That Act And The Federal Records Act,

And The Constitutional Privacy Rights

Of Past And Present Federal Officials ................... 11

A. The Decision Below Misapplies

Bannercraft And Impermissibly

Extends The Scope Of FOIA To

Documents Not In The Custody

Or Control Of An Agency And To

Persons Who Are Not Agencies .............++ee00005 13

(ii)

Page

B. The Decision Below Improperly

Assumes That FOIA Authorizes De

Novo Review Of Agency Recordkeeping

Determinations And Adopts A Defini-

tion Of Agency Records Which Conflicts

With The History And Purposes

Of The Federal Records Act... ccc gcc ccccccccns

C. The Decision Below Invades Constitutional

Rights of cae GAR VIEA bly RPC ed OE Swe wed ie

NG he Sib a HUs Pea a Sip dis Selec er Sales eke ih

ee =

(iii)

TABLE OF CASES AND AUTHORITIES

CASES: Page

Bass Angler Sportsman Society v. United States Steel Corp.,

324 F. Supp. 412 (D. Ala.),

Off d, 447 F.26 1304 (Sth Cir. 1971)... 6. ccc ciscwcidowdecsacs

Ciba-Geigy Corp. v. Mathews,

CaP O, BN ae NT he ROT UR ic obo eed eh mccesneetes

Ciccone v. Waterfront Commission,

SE RET AFT ID sini gc asd sos ucecensséveuens

Connecticut Action Now, Inc. v.

Roberts Plating Co.,

ES BP Eg od nir'e'e ke 2° ASK a Cw eS Ake OR AS

Continental Casualty Co. v. United States,

167 F.2d 107 (9th Cir. 1948),

Cert. Denied, SST T.S. PROS) 0 Eb i WERT URS Coe ee

Cort v. Ash,

CRT a ke cee he ee AE SUSUR COCA i TRE

Department of Air Force v. Rose,

OE TD hoe 5 Uo ck 0 on kd 0s Pr ce WW eae EN ee ake O's

DiViaio v. Kelley,

tag ie ete Rf re ger es ee

Forsham v. Califano,

No. 76-1306 (D.C. Cir. July 11, 1978) 0. cee ccc ede ecccwces

In re Barnett,

EOE ee er ae Ca Re a a a ER EOE

In re Horowitz,

482 F.2d 72 (2d Cir.), :

Gant, edad. 404 U.S. GETOAGISD. bc i dee ee eRe ee es

Independent Investor Protective

League v. New York Stock Exchange,

367 F. Supp. 1376(S.D.N.Y. 1973) vic iac cee ceccccn tosses

(iv)

Lombardo v. Handler,

397 F. Supp. 792 (D.D.C. 1975),

aff d per curiam, S46 F.2d 1043 (D.C. Cir. 1976),

COGN, GRE, e. Wh FT Bac 6 oc tc ce bietedees W¥acaes 1S

Lybarger v. Cardwell,

Se ee I TEEN boo vs 0a bbs cow ekaeeekbedwns hee 22

Nichols v. United States,

325 F. Supp. 130(D. Kan. 1971),

aff d, 460 F.2d 671 (10th Cir.),

cert. denied, 409.U.S. 966 (1972)... 6... ee eee eee eee eee 14,16,23

Nixon v. Administrator of General Services

SIO GTI 6 we panes ae se acces hemeen aya 13,27

Nixon v. Sampson,

389 F. Supp. 107 (D.D.C.),

stayed sub nom. Nixon v. Richey,

$13 F.2d 427 (D.C. Cir. 1975),

dismissed as moot, 437 F. Supp. 654 (D.D.C. 1977),

rev'd and remanded for trial, No. 77-2123

SC, Ca ad SOO en bain 5 Ves pee Vetvas Caney Seances 23

N.L.R.B. v. Sears, Roebuck & Co.,

Ge Shae: SEG Uitte Wade ba coal chad bo ce kha bes 11,14

Piper v. Chris-Craft Industries, Inc.,

SEO Us GR a wit oar aa ea leds OMe tN ah eateetes 16

Porter County Chapter of the Izaak Walton League v. AEC,

SaO B. Dep. GOOGLED Week. FST 6 oes ccs descestewsets 23,25

Renegotiation Board v. Bannercraft Clothing Co.,

SED es BNE wwih's tN W4S: aubaepan a Ohde buen 11,13,14,15

Save The Dolphins v. Department of Commerce,

MOA F. Sepp. SEP GCI Cal. 107. ds cc ik chides daclideal 23

Schorr v. Universal Match Corp.,

417 F.2d 497 (2d Cir. 1969),

eave. Gated, SEP C.F: TERI bv iss Sasi edn dwell dled 21

_(y)

Page

See v. City of Seattle,

SOT TRS. SAR ARGGT, stirs espa dns Pe ete Seliger aac 27

Udall v. Tallman,

SP MATER onia dba ke cae ccles apes peas Piha mews 22

STATUTES AND REGULATIONS:

Freedom of Information Act,

LE oak | RCO ree eer ee teers Oe eee Te passim

S$ U.S.C. GSSMaNANB)... cers ccc e cp ecccncnsce 13,15,17

PRS oat ree ee ee ere tee ace ey 13

‘Privacy Act of 1974,

5 U.S.C. §552a

5 U.S.C. §5S52a(dM2MBM1) ww eee eee ee eee renee 22

5 U.S.C. §5S52a(gMIM2MA) 6c eee ce eee eee ee ee renee 22

28 U.S.C. BEEORE ss wails 6 cn Ven bin neh 04.0 Goes 2 Mieke Gace 2

Federal Records Act,

44 U.S.C. Chapters 21, 29, 31 and 33

44 U.S.C. §2902(3) 2... ec cee cee ce eee tree eee eneees 18

7S Oe OFX) ||) Se 18

44 U.S.C. §3106 0. cece etree e eee eeeneees 12,16

44 U.S.C. §3301 2... cece ce eee eee e renee ne eenes 18

Federal Property Management Regulations,

41 C.F.R. Part 101-11

41 C.F.R. §101-11.202-2(b) 2... cece ee ee eee eee 24

41 C.F.R. $101-11.202-2(d) .. 1... ccc cc cree rncrecccnces 24

41 C.F.R. §101-11.401-Hd) .. 0... cece cece cere eens 5,20

41 C.F.R. §101-11.406-(c). 2... cece eee eee eee 24

Foreign Affairs Manual,

5 FAM Part 400

EE GE © fie sheo'sis &. 3b 6 dyin 4 db ee wom nweeesy.eeeciea's 24,25

SUMP MMEEE iia ac See be ON ON reseeecn sever sees 19

SE obo bo Shik osc oboe t Wie cielgle ed sieleede aves’ 19

| | PP eer er ere ee ee te eT eee eC tee co 19

Cs & Se ere ee ire er 19,21,24

SARI ik cb a crc caer beceeufecccs pes Daveuds 19

REISS Si AIR er a ae Pe SO 19,24

(vi)

MISCELLANEOUS Page

Attorney General’s Memorandum on the

Public Information Section of the Administrative

ey Is Odile wb alunos lod-o.ns abide vie cca d &oee'g 14

S. Rep. No. 2140, 81st Cong.,

2d Sess., reprinted in

ERE RI CR BOT 5/6 6.65.66. b:0-p vr doves os wctopeicwsie 19

H.R. Rep. No. 559, 78th Cong.,

Ist Sess., reprinted in

RR MENG bck pense eke a pee ence ee bien ne 18

National Study Commission on Records and

Documents of Federal Officials

Pe DRED TTR AS Ss iia vine s.eie had Chace bulewapabekey 26

Memoraiidum of Findings on Existing

Custom or Law, Fact and Opinion (1977) ...............4. 5,6,19

Study of the Records of Supreme Court

PTET a aidin,s 44 os OR Ga) ov elew bl Be cus bs avanbaden 9

J. Broderick, Personal Papers of

Federal Officials (Library of Congress 1976) ................ 9

A. Schlesinger, Jr., Statement before

the Government Information and Individual

Rights Subcommittee of the House Committee on

Government Operations (March 2, 1978)................. 28,29

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

HENRY A. KISSINGER,

Petitioner,

v.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et ai.,

Respondents.

HENRY A. KISSINGER,

Petitioner,

v.

MILITARY AUDIT PROJECT, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Henry A. Kissinger respectfully petitions this Court to

issue a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia

Circuit.

2-

OPINIONS BELOW

The per curiam judgment of the Court of Appeals and an

accompanying memorandum, which will not be reported, is

reproduced in the Appendix. The opinion of the District

Court, which is reported at 442 F.Supp. 383, and its

unreported orders of January 25, 1978, and March 2, 1978,

are also reproduced in the Appendix (hereafter ‘‘App.”’).

JURISDICTION

The judgment of the Court of Appeals was entered on

November 7, 1978. The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Does the Freedom of Information Act authorize

district courts to order persons who are not agencies to

transfer to an agency documents which are not, and never

were, in the custody or control of the agency and which the

agency does not, and never did, claim as its records?

2. If the Freedom of Information Act does authorize this

type of suit, what standards should apply in determining

whether such documents are ‘‘agency records”’ within the

meaning of the Act?

3. If the documents reflect both personal conversations

and conversations that pertain to government business, is

it constitutionally permissible to authorize government

officials to possess, read and retain all of them?

STATUTES AND REGULATIONS

The relevant portions of the Freedom of Information Act,

5 U.S.C. §552, the Privacy Act, 5 U.S.C. §552a, the Federal

Records Act and related laws, 44 U.S.C. Chapters 21, 29,

31 and 33, the Federal Property Management Regulations,

41 C.F.R. Part 101-11, and the Foreign Affairs Manual of

the Department of State, S FAM Part 400, are reproduced

in the Appendix.

STATEMENT OF THE CASE

A. Introduction

At issue in this case are certain rough notes made of Dr.

Kissinger’s telephone conversations when he was Secretary

of State, which he donated upon leaving office to the

United States and deposited with the Library of Congress.

After the notes had been transferred to the Library, respon-

dents filed Freedom of Information Act (“‘FOIA’’) requests

with the Department of State seeking access to them. The

Department denied their requests, and respondents sued it

under FOIA to contest the denial. In this suit respondents

also joined Dr. Kissinger and the Librarian of Congress and

asked for an order directing them to transfer the notes to

the State Department., The decision below grants this

relief."

‘Plaintiffs below were two groups of FOIA claimants: (a) the Report-

ers Committee for Freedom of the Press, the American Historical

Association, the American Political Science Association, James

MacGregor Burns, Nat Hentoff, Donald G. Herzberg, William

Leuchtenburg, Arthur Link, and William Safire (the ‘““RCFP respon-

dents’’); and (b) the Military Audit Project and Felice D. Cohen (the

“MAP respondents’). The defendants below, in addition to Dr.

Kissinger, were the Department of State and its Secretary, Cyrus R.

Vance, the Librarian of Congress, Daniel J. Boorstin, and the Archivist

of the United States, James B. Rhoads.

4

FOIA requires the production of “‘agency records,” but

does not define the term. In this case, the State Department

concluded — both before and after the donation — that

under its rules the notes were not ‘‘records.”” The courts

below ignored the Department’s application and_ in-

terpretation of its rules, and found instead that the notes

are records because the Department had a common law

right to own and possess them. In so doing, they assumed,

without discussion, that FOIA permits private citizens to

challenge agency recordkeeping decisions, that courts may

review such decisions de novo, and that in such cases agen-

cy rules and practices need be given no weight.

Dr. Kissinger believed when the notes were made that

they would not be treated as official records. That belief

was based on the Department’s established practice and

regulations, as confirmed by a written opinion of its Legal

Adviser. The decision below retroactively reclassifies the

notes as records. It is undisputed that the notes contain

purely private conversations and other unofficial matters

intermingled with discussions of government business. Yet

the order below requires that all of the notes must be trans-

ferred to permanent State Department custody and that

all of them must be read by its personnel to determine

which are subject to FOIA disclosure.

No court has ever before held that FOIA applies to

documents not in the custody or control of an agency, or to

persons who are not’ ‘‘agencies.”” No court has ever before

held that FOIA authorizes de novo review of agency record-

keeping determinations. No court has ever before sanc-

tioned government seizure of private papers to serve the in-

terests of FOIA claimants.

We believe the decision below is wrong both in law and in

principle. We ask this Court to grant certiorari so that the

important issues of federal law which it presents may be

reviewed.

2

B. Facts

The legal issues are novel and substantial. The facts, by

contrast, are neither complicated nor disputed.’

The Telephone Notes

The documents at issue in this case came into being as

the result of a common practice known as monitoring, in

which a third party listens to and takes notes of a govern-

ment official’s telephone conversations. This procedure has

been used for decades by senior officials to assist in the in-

ternal management of their offices. The notes serve as a

rough log or daily diary to which the official and his im-

mediate staff can refer in carrying out the ongoing work of

the office. This work includes the production of correspon-

dence, memoranda and other formal documents which are

filed as official records of the agency. The notes are not

filed, because they have traditionally been regarded as

preliminary working papers that have no official signi-

ficance after the records are created.’

2Most of the facts appear in an uncontroverted affidavit which Dr

Kissinger filed in the District Court. App. 73a. Other references are to

the Joint Appendix (“JA”) filed in the Court of Appeals.

*Notes, drafts, preliminary worksheets and similar papers fall within

a general class of informal documents known as “‘non-record

materials.” Such materials need not and, indeed, should not be filed as

records. See 41 C.F.R. §101-11.401-3(d) and pp. 18-20, infra. A recent

study prepared for the National Study Commission on Records and

Documents of Federal Officials (hereafter “‘National Study Com-

mission’”’) states that

[flederal < fficials in all branches of government accumulate

information in the form of memoranda of conversations,

transcripts, speeches, taped conversations, diaries, and

correspondence reflecting the private opinions and advice of

colleagues and others. Such records are not “personal” in

that they do not deal with strictly private affairs and they

are not “official” in the sense that they do not directly

document the transactions and policies of federal

The same procedures were followed in Dr. Kissinger’s

case. During his years in government, a secretary generally

listened to and took notes of Dr. Kissinger’s telephone con-

versations. The notes were then used by his Executive

Secretary to make up his appointments calendar. His

Senior Special Assistant also read them to keep abreast of

his activities in order to know whether any matters

discussed by telephone required follow-up or im-

plementation. The function of the notes was to ease the ad-

ministrative burdens of the office; they had no other pur-

pose. App. 73a-74a. The notes were not official records of

Dr. Kissinger’s oral commitments and decisions; the of-

ficial records were the formal documents that were

produced, circulated and filed in the ordinary course of

business as part of the follow-up process.‘

The notes were never circulated outside Dr. Kissinger’s

office, never intermingled with the State Department’s of-

ficial records, and never seen by anyone other than Dr.

Kissinger’s immediate aides. Throughout his years at the

State Department, the notes were kept in Dr. Kissinger’s

office with his personal papers in files marked “‘personal.”’

App. 74a-7Sa. This treatment was consistent with his un-

derstanding that the notes were ‘‘workaids which I could

organizations. Such material has usually been treated as

personal correspondence.

National Study Commission, Memorandum of Findings on Existing

Custom or Law, Fact and Opinion 59 (1977).

“The official records of Dr. Kissinger’s oral transactions are

voluminous. One of the FOIA requests filed in this case asked for all

“memoranda, aide memoirs, memoranda of conversation . . . or other

written”’ records of conversations “conducted by Mr. Kissinger in his

capacity as Secretary of State. .. ."" JA 84. The Department denied this

request as overly broad, stating it “apparently includes aide memoires,

diplomatic notes, memoranda of meetings, memoranda of telephone

conversations and correspondence between the former Secretary and

persons both within and without the Department of State — a very

large and undifferentiated volume of material.” JA 90.

retain or discard as I chose as had several of my predeces-

sors and many other officia. App. 74a.

Because the notes were not designed to serve as official

records, no effort was made to restrict monitoring to purely

business calls. The notes therefore reflect not only official

but also many non-official and private conversations.*® App.

74a. Nor were the notes edited for accuracy and com-

pleteness or to remove personal and other irrelevant mat-

ters. There was no need for this. Those who had access to

them — Dr. Kissinger and his closest aides — already knew

the substance of the conversations and could obtain the

limited information they needed from the unedited

materials. App. 7Sa.

~

Had Dr. Kissinger known the notes might be viewed as

official records, he would have been obliged to put them in

proper form for filing.® Since he had no duty to create a

*Respohdents argued below, and the District Court found, that the

notes necessarily related to official matters because State Department

policy prohibited monitoring except when ‘absolutely essential to the

conduct of business.”” App. 56a. This conclusion is based on a

misreading of a letter from the Department's Acting Assistant

Secretary for Congressional Relations to former Congresswoman Bella

Abzug. In fact, the letter states that the general prohibition is subject to

an exception which permits ‘‘a third party to listen to the telephone

conversations of the senior principal officers of the Department for the

purpose of taking notes or making appointments and to improve the

general efficiency of operations.”’ App. 85a-86a.

*Dr. Kissinger’s affidavit makes clear that, while some of the notes

bstantially verbatim,

thers are only rough approximations of what was

taining] misspelled names, omissions, garbled pas-

utright errors of transcription. Although the

notes are.usef0l reshing my recollections of particular

conversations in which I participated, I do not believe they

could be regarded as accurate records of my conversations

unless they were first corrected and placed in proper form

for filing as records. App. 78a.

8

record of every telephonic statement uttered during his

tenure as Secretary of State, he would probably have chosen

to discontinue the note-taking altogether rather than un-

dertake this arduous and time-consuming task. App. 75a.

The Donation

Near the end of his term, Dr. Kissinger decided to donate

papers relating to his career ix. government and earlier

years to the United States. He chose the Library of

Congress as depository because it already had an extensive

collection of papers donated by previous Secretaries of

State. App. 7Sa.

The donation included personal materials collected

during his years at Harvard, copies of official documents on

which he had worked, aad the contents of personal files he

had accumulated while in government. App. 75a. To

donate the papers relating to his activities as Secretary of

State, it was necessary for him to comply with State Depart-

ment security regulations and other rules applicable to

removal of papers by retiring officials. This he did. App.

7Sa-76a, 80a-83a.

As part of this process, Dr. Kissinger sought and received

a written opinion of the Department's Legal Adviser con-

cerning the status of the telephone notes. This opinion con-

firmed previous oral advice that the notes were not State

Department records.’ However, to assure completeness of

the Department’s records, the Legal Adviser recommended

that the notes be reviewed and extracts made of any

discussion of a significant government activity or decision

not otherwise reflected in the official files. App. 67a. This,

too, was done; the extracts were then delivered to the

’The oral advice was first given in January 1976, when the State

Department rejected a FOIA request for a portion of the notes on

the ground that they were not records subject to the Act. This advice

was repeated on a number of occasions thereafter, JA 271-72, and

reduced to writing on November 11, 1976. App. 6Sa, 76a.

Department and are presently filed there with the other

records of Dr. Kissinger’s service as Secretary. App. 77a.

The donation was made in November and December

1976, pursuant to deed of gift agreements signed by Dr.

Kissinger and the Librarian of Congress. The donation

agreements restrict access to most of the collections for a

term of years. Since the telephone notes affect Dr.

Kissinger’s privacy and the privacy of those with whom he

spoke, the agreements restrict access to these materials

during the lives of both parties to the conversations.®

App. 77a-78a.

C. Proceedings Below

After the donation was completed and publicly an-

nounced, two sets of claimants filed FOIA requests with the

State Department seeking access to them.’ The State

Department denied the requests on two grounds: first, that

the notes were not ‘‘agency records’’ subject to FOIA, and

second, that the documents were not in any event within its

custody or control. Following denial of their requests,

respondents brought separate suits — later consolidated —

not only against the State Department but also against the

Librarian of Congress and Dr. Kissinger.

On cross-motions for summary judgment filed by respon-

dents and by Dr. Kissinger, the District Court held that the

notes made of Dr. Kissinger’s conversations when he was

Secretary of State were State Department agency records

*Such restrictions are common. See, e.g., J. Broderick, Personal

Papers of Federal Officials 15-17 (Library of Congress 1976); National

Study Commission, Study of the Records of Supreme Court Justices 46-

SO (1977).

*The RCFP respondents requested access to all the notes, including

those made when Dr. Kissinger was a Presidential Assistant. The MAP

respondents limited their request to notes made when Dr. Kissinger

was Secretary of State.

10

which must be returned to its custody.’® App. 58a. Since the

notes had never previously been part of the Department’s

record system, the District Court’s order directed the

Department to take possession of them, to read them to

determine which portions are subject to FOIA disclosure

and, thereafter, to release all non-exempt portions to res-

pondents."' App. 60a-61a. ,

On appeal, the Court of Appeals affirmed in a per

curiam order entered seven days after oral argument. In

a memorandum, which under Local Rule 8(f) is not

published, the court stated it was “‘in full agreement on all

issues with the opinion of the District Court . . . and its or-

ders issued pursuant thereto... .”'? App. 49a.

‘The District Court denied the portion of the RCFP motion which

related to notes made when Dr. Kissinger was a Presidential Assistant.

App. 59a-60a. The decision on this point was affirmed on appeal, A

49a-S0a, and is not here at issue. ppeal, App.

"The government defendants did not move for summary judgment;

they advised the District Court that none of their rights were foreclosed

by a decision in the case and they had no objection to decision of the

case on the basis of Dr. Kissinger’s motion. Transcript of Oral

Argument 26 (September 28, 1977). They also did not appeal, but in-

stead submitted an amicus curiae brief supportive of Dr. Kissinger’s

position.

"This Court stayed the District Court's order pending the Court of

Appeals’ decision. The Court of Appeals has stayed issuance of its man-

date pending the filing of Dr. Kissinger’s petition for writ of certiorari.

11

REASONS FOR GRANTING THE WRIT

Summary: This Case Presents Novel And

Substantial Issues Concerning The Scope Of

The Freedom Of Information Act, The

Relationship Between That Act And The

Federal Records Act, And The Constitutional

Privacy Rights Of Past And Present Federal

Officials.

The courts below held, on the authority of Renegotiation

Board v. Bannercraft Clothing Co., 415 U.S. 1 (1974), that

FOIA authorizes declaratory and injunctive relief against

persons who are not ‘‘agencies.”’ This unprecedented con-

clusion is bottomed on the assumption that FOIA applies

to any document originated by a government employee,

whether or not the agency has it within its custody or con-

trol. That assumption conflicts with the language of the

Act. FOIA authorizes courts to order agencies to cease

withholding records they are obliged to produce. It does not

authorize courts to order agencies to create documents, or

to direct agencies to procure documents they do not have.

See N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132 (1975).

Nothing in Bannercraft suggests that a court may require

third parties to deliver documents to an agency in order to

cure what otherwise would be a lack of subject matter

jurisdiction.

The relief granted below was predicated on the con-

clusion that the notes were State Department “‘agency

records.” That conclusion was based not on a finding that

the State Department’s records management rules were in-

valid or improperly applied, but cn the theory that the

Department had a common law property right in all

documentary materials produced by Dr. Kissinger within

the scope of his employment. The assumption that FOIA

grants courts de novo authority to decide whether

documents sought under the Act are ‘‘agency records,” and

12

to disregard agency rules and practices in maxing such

decisions, opens a new and very broad avenue for citizen

suits to second-guess agency recordkeeping determinations.

We believe Congress intended no such result.’

The decision below also raises more fundamental

questions. Dr. Kissinger legitimately believed when the

notes were made that they would not be treated as official

State Department records. The decision below retroactively

reclassifies the notes as records in a manner which invades

Dr. Kissinger’s constitutional privacy rights and threatens

the privacy rights of many other past and present govern-

ment employees. The order below goes further. Although

the District Court found the notes were ‘‘personal in some

respects,” App.S8a, it nonetheless directed the State

Department to take possession of and to icad them all.

"In the memorandum accompanying its judgment, the Court of Ap-

peals says that, because the Government did not appeal, ‘a judgment

affirming the District Court on the ownership issue may make con-

sideration of most of the other issues Mr. Kissinger raises unneces-

sary.”’ App. 49a. If this cryptic remark was intended to imply that the

Government is the only proper party to argue the above issues, it is

surely wrong.

It is not possible to affirm the District Court without accepting its

assumption that FOIA provides de novo review of agency record-

keeping determinations, nor is it possible to render any judgment

against Dr. Kissinger without first establishing respondents’ right to

assert that the notes belong to the State Department. Cf. 44 U.S.C.

§3106; see note 16, infra.

It is clear that a party affected by a judgment may, on appeal, urge

any grounds sufficient to secure reversal, even though reversal also

benefits non-appealing parties. Jn re Barnett, 124 F.2d 1005, 1008-1011

(2d Cir. 1942); see also Continental Casualty Company v. United

States, 167 F.2d 107 (9th Cir. 1948), cert. denied, 337 U.S. 940 (1949).

The decision below was based on FOIA, but FOIA provides no foun-

dation for judgment against any of the defendants. Dr. Kissinger is

fully entitled to urge this defect as grounds for reversal, whether or not

the Government defendants appeal. The Government agrees. See Brief

of the United States as Amicus Curiae, filed in the Court of Appeals, at

22-23.

>?

13

None — regardless of content — is to be returned. Respon-

dents argued below that Nixon v. Administrator of General

Services, 433 U.S. 425 (1977), provides support for this ex-

traordinary procedure. If Nixon was, indeed, the in-

spiration for the order, we believe the courts below seriously

misapplied it. And if Nixon does not support the order,

there is no decision of this or any other court which could

possibly justify it.

A.The Decision Below Misapplies Bannercraft

And Impermissibly Extends The Scope of FOIA

To Documents Not In The Custody Or Control

Of An Agency And To Persons Who Are Not

Agencies.

We begin with a self-evident proposition: FOIA does not

apply to Dr. Kissinger, a private citizen, or to the Library of

Congress, which is not an “agency.” See 5 U.S.C. §552(e).

Yet the relief granted was an injunction directing these par-

ties to transfer the notes to the State Department. The

threshold question ‘s whether FOIA authorizes remedial

orders of this sort. The courts below held that it does, on

the rationale that the objective of the injunction was to

assist in enforcing the Act.

But this reasoning creates new difficulties. FOIA requires

agencies to produce their records on proper demand, and

provides in paragraph (aX4XB) that a district court

has jurisdiction to enjoin the agency from

withholding agency records and to order the

production of any agency records improperly

withheld from the complainant. . . (emphasis ad-

ded).

Does an agency “‘withhold’”’ documents when it does not

have them? Does the Act give a district court jurisdiction to

order the agency to procure the documents? If not, can a

14

court order parties who are not “‘agencic. to deliver

documents to the agency so the Act will apply?

It is settled that the Act does not require an ager cy

create records, even though this might weil serve the pu“! .

interest in obtaining more information about the agency -

actions. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. at 161-

62. The logic of Sears would appear to apply equally tc

situations where documents exist, but are not ‘“‘withhel | ’

because the agency has no capacity to produce them."*

The District Court, of course, recognized the Ae. could

not apply unless the State Department firs’ obtained

possession of the notes, just as it evidently <cognized its

lack of authority to order the Department .o procure them.

But the court thought it could av sid this statutory

limitation by invoking its “‘broad ‘.quitable powers” to

compel third parties to deliver th. notes to the Department

so the Act would apply. App. Sva.

The District Court said its solution was supported by this

Court’s opinion in Renegotiation Board v. Bannercraft

“The Attorney General and several lower courts have concluded that

it does. See Attorney General’s Memorandum on the Public In-

formation Section of the Administrative Procedure Act 23-24 (1967)

(the Act “refers, of course, only to records in being and in the

possession and control of an agency. . . . [It] imposes no obligation

to compile or procure a record in response to a request”’); Nichols v.

United States, 32S F. Supp. 130, 137 (D.Kan. 1971), aff'd, 460 F.2d 671

(10th Cir.), cert. denied, 409 U.S. 966 (1972) (“the Court may not

require production of records not in the custody or control of an agen-

cy”); Ciba-Geigy Corp. v. Mathews, 428 F. Supp. 523, 531 (S.D.N.Y.

1977) (“the Government cannot be compelled to obtain possession of

documents not under its control or to furnish an opinion where none is

written”’). The District of Columbia Circuit has also noted the logical

connection between creating and procuring records..See Forsham v.

Califano, No. 76-1308, Maj. Op. at 15 (D.C. Cir., July 11, 1978) (“The

Freedom.of Information Act only gives a right of access to agency rec-

ords in existence. It does not confer a right to have the government

generate agency records, either by creation, subpoena or contract

demand”’).

1S

Clothing Co., 415 U.S. 1 (1974). But Bannercraft says

nothing whatever about the power of a district court to or-

der an agency to procure a document it does not have, or to

order persons not subject to the Act to deliver such

documents to an agency.

The documents at issue in Bannercraft were official agen-

cy records in the custody of the Renegotiation Board. The

only question was whether FOIA section 552(aX4XB)

authorized the district court to enjoin further Board

proceedings until such time as the Board produced records

it was wrongfully withholding. The Court held the in-

junction was improper in the case before it because this

would interfere with established procedures for

renegotiating government contracts. However, it also said

that an injunction against withholding documents was not

the sole equitable remedy authorized to aid in enforcing the

Act. 415 U.S. at 17-20. The District Court below read this

passage as a blanket authorization to employ any form of

equitable relief which furthered its ‘‘role as the ‘en-

forcement arm’ of the Freedom of Information Act.”

App. 55a. We believe this is an egregious misreading of

Bannercratt.

Respondents had no legally enforceable claim against the

State Department, or any right to sue Dr. Kissinger or the

Librarian of Congress under FOIA."* The District Court

had no subject matter jurisdiction under that or any other

statute to enter an order against any of these parties. The

notion that it could use its “equitable powers’’ to create

‘SOther lower courts have dismissed FOIA complaints against per-

sons who are not “agencies.”” See Ciccone v. Waterfront Commission,

438 F.Supp. 55 (S.D.N.Y. 1977); Lombardo v. Handler, 397 F.Supp.

792 (D.D:C. 1975), aff'd per curiam, 546 F.2d *%43'(D.C. Cir. 1976),

cert. denied, 431 U.S. 932 (1977); Independent Investor Protective

League v. New York Stock Exchange, 367 F.Supp. 1376 (S.D.N.Y.

1973).

16

jurisdiction where none exists is nonsense. Remedies derive

from rights, not rights from remedies. There is no in-

dication whatever in Bannercraft of an intention to aban-

don this fundamental juridical principle.'*

The decision below represents a hopeless confusion of

ideas. Had respondents sued only Dr. Kissinger and the

Librarian, it would have been obvious that they had no

standing to act as the State Department’s surrogate in

asserting an ownership claim the Department did not

choose to make. Cf. Nichols v. United States, 460 F.2d at

674-75. Had they sued only the State Department, it would

have been equally clear they could not use FOIA or man-

damus or any other form of action to compel it to assert its

ownership interests against Dr. Kissinger. Why respon-

dents’ claim is improved by indiscriminately mixing

separate claims in a single count was not explained, and in

our view cannot be explained.

Respondents’ complaints should have been dismissed for

failure to state a claim. The refusal to do so raises a sub-

'*This case is concerned not with ‘the Government’s authority to

recover illegally removed records, but with the authority of FOIA

litigants to assert such claims independently of the Government. Dr.

Kissinger’s successor in office is expressly authorized by 44 U.S.C.

§3106 to request the Attorney General to commence suit for recovery of

the notes, if he believes they are ‘‘unlawfully removed”’ records of his

agency. Respondents plainly have no private right to enforce that

statute, either directly, see Piper v. Chris-Craft Industries, Inc., 430

U.S. 976 (1977); Cort v. Ash, 422 U.S. 66 (1975), or by mandamus. See

Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d

Gx, J1972) Bass Angler Sportsman Society v. United States Steei

‘orp., 324 F.Supp. 412 (D. Ala.) (three judge court), aff'd, 447 F.2d

1304 (Sth Cir. 1971). The District Court acknowledged the existence of

the statutory remedy, but ignored its exclusivity and concluded that

respondents ‘‘need not wait for institution of the statutory retrieval ac-

tion” when Government action “‘appears unlikely.”” App.SSa. Why

private citizens should be entitled to invoke FOIA to retrieve docu-

ments which the responsible agency head does not seek or claim was

not explained.

17

stantial question concerning the scope of FOIA, which this

Court should review.

B. The Decision Below Improperly Assumes That

FOIA Authorizes De Novo Review Of Agency

Recordkeeping Determinations And Adopts A 7

Definition Of Agency Records Which Conflicts

With The History And Purposes Of The

Federal Records Act.

FOIA provides in paragraph (aX4XB) that when “agency

records” have been “improperly withheld” from a com-

plainant, the court shall

in such case . . . determine the matter de novo,

and may examine the contents of such agency

records in camera to determine whether such

records or any part thereof shall be withheld un-

der any of the exemptions set forth in subsection

(b) of this section... .

The provision for de novo review clearly applies when the

agency withholds records on a claim of exemption under

subsection (b). Department of Air Force ‘v. Rose, 425 U.S.

352, 379 (1976). Does it also apply when the agency has no

“records” to ‘‘withhold”’ because it denies the documents

the complainant seeks are records? If so, what law should

the court apply in making its independent determination

that the documents are or are not ‘‘agency records’? And

how, as a practical matter, can courts make these deter-

minations without detailed knowledge of the agency’s

operations and needs?

These are serious and substantial questions. FOIA allows

any member of the public access to agency records, without

regard to the usual standing requirements. It also dispen-

ses, at least in some circumstances, with the traditional rule

that a court may not substitute its judgment for that of an

18

agency unless the agency’s action is arbitrary, capricious, an

abuse of discretion, or otherwise contrary to law. If in ad-

dition the Act affords private litigants the right of

unlimited judicial review of agency recordkeeping deter-

minations, the result will be to thrust courts into the

business of deciding what documents an agency should or

should not keep in its files. And if courts may, in deciding

such questions, define “agency records’ by reference to

common law property theories, there is serious danger that

the records management functions assigned to agencies by

the Congress will be subverted. Whether Congress intended

such far-reaching consequences requires, we think, more

reasoned analysis than the courts below chose to provide.

The Federal Records Act (“‘“FRA’’) defines ‘‘records’’ in

general terms as any documentary materials

made or received by an agency . . . under

Federal law or in connection with the trans-

action of public business and preserved or ap-

propriate for preservation by that agency . . . as

evidence of the organization, functions,

policies, decisions, procedures, operations, or

other activities of the Government or because of

the informational value ofdateinthem. ...44

U.S.C. §3301.

It also provides that each agency shall have the respon-

sibility for creating an ‘‘adequate and proper documen-

tation” of its “essential transactions,” 44 U.S.C. §3101,

and states that one of the objectives of records management

is to “‘prevent the accumulation of unnecessary records.” 44

U.S.C. §2902(3).

The history of this legislation makes clear that FRA

places “responsibility in the first instance upon the agen-

cies for determining what documentary materials should

and what should not be preserved”’ as records. H.R. Rep.

No. 559, 78th Cong., 1st Sess., reprinted in [1943] U.S.

Cong. Ser. 2140, 2141. It also makes clear that

19

[rlecords come into existence, or should do so, not

in order to fill filing cabinets or occupy floor /

ce, or even to satisfy the archival needs of this

and future generations, but first of all to serve the

udministrative 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. S.

Rep. No. 2140, 81st Cong., 2d Sess., reprinted in

[1950] U.S. Cong. Ser. 3547, 3550 (emphasis ad-

ded).

Rules adopted by the State Department under FRA

reflect the same concerns.'? The Department’s general

policy on records creation recognizes that there is a need

both to “insure that important policies, decisions and

operations are adequately recorded’ and to prevent the

“‘accumulation of unnecessary files.” 5 FAM §422.1. Its

specific recordkeeping rules repeatedly emphasize that

their objective is to record ‘important,’ “necessary,”

“essential,” “significant,” and ‘‘pertinent” information.

See S FAM §§422.1, 423.1, 423.2, 423.2-1, 432. Consistenily

with that objective, the rules expressly provide that

[rlough drafts and working papers, such as

preliminary notes, do not constitute required

documentation unless they form an integral part

of the finished document or show changes in

policy. S FAM §423.2-8.

‘The State Department’s recordkeeping rules and practices are con-

sistent with those of other federal agencies. See National Study Com-

raission, Memorandum of Findings on Existing Custom or Law, Fact

and Opinion 75-99 (1977).

20

These rules confirm what common sense suggests: govern-

ment employees routinely generate large quantities of

written materials which, though made or received in per-

formance of their cfficial duties, are nonetheless not treated

as “records.” Such “‘non-record materials” are not filed

because they do not constitute ‘required documentation.”

Indeed, tle Federal Property Management Regulations,

which provide guidance to all federal agencies, af-

firmatively require that

non-record materials, such as . . . preliminary

worksheets and similar papers that need not be

made a matter of record, shall not be incor-

porated in the official files of the agency. 41

C.F.R. §101-11.401-3(d) (emphasis added).

The notes of Dr. Kissinger’s telephone conversations bear

no resemblance to official government records. They are

rough, unedited typescripts used only as workaids and

never made part of the State Department’s records system.

They were not intended as permanent records of Dr.

Kissinger’s official actions, and cannot even be said to be

accurate summaries of his conversations. They contain

many personal and irrelevant matters which have no place

in government files. They are at best ‘“‘non-record ma-

terials” which, though accumulated as part of the records

creation process, have no official significance after that

process has been completed.

The State Department concluded, on the basis of its

regulations and established practices, that the notes were

not its records. The opinion of its Legal Adviser explains in

detail why that decision was proper. App.65a. When the

District Court reached a contrary result, it did not hold the

State Department’s regulations were invalid, or find that

the Department had improperly applied them, or explain

why the Legal Adviser’s opinion was wrong. It ignored these

matters altogether, and held instead that the notes were the

21

“property of the United States’’ because they were

produced “‘on government time with the aid of department

employees, equipment, materials, and other public resour-

ces.”” App. 58a. This holding rests solely on what the court

called ‘a basic rule of copyright law that work created by

an employee within the scope of employment is the property

of the employer.” App.S6a.

This conclusion cannot even be accepted as an adequate

statement of the ‘‘basic rule” it purports to apply.'* But the

question for this Court is whether FOIA authorizes federal

judges so lightly to disregard agency rules, practices and

decisions as they relate to recordkeeping. We believe the

comprehensive scheme which Congress created for records

management matters, the history of that legislation, and

the widespread practice of agencies in treating various

types of informal documents as “‘non-record materials,” all

demonstrate that no such result can be justified.’

'°The copyright cases the District Court cites make clear that the un-

derlying question is whether the employee had an express or implied

contractual obligation to create the contested literary or artistic work

for his employer's use. See, e.g., Schorr v. Universal Match Corp., 417

F.2d 497, 500 (2d Cir. 1969), cert. denied, 397 U.S. 936 (1970). Whether

Dr. Kissinger had an obligation to create the notes can only be deter-

mined by reference to the Department’s rules and practices. Dr.

Kissinger’s duty as a government employee was to document his

significant oral decisions, commitments and discussions. 5 FAM

§423.2-1. This he did — not with the notes but with memoranda and

other official documents and with the extracts he later made from the

notes to assure completeness of the official files. The notes used in the

preliminary stages of this documentation process were of no interest to

his “employer,”’ and he was free under the Department's interpretation

of the employment relation to retain or discard them as he chose.

'°FOIA has been amended twice, in 1974 and again in 1976. In

neither case did Congress authorize private citizens to challenge agency

recordkeeping determinations. The same committees that considered

these amendments were simultaneously at work on the substantial

revisions to FRA which were adopted in 1976. These revisions contain

22

FOIA assumes the existence of ‘‘agency records,”’ without

defining what they are, because Congress expected the

agencies to make that detefmination. If an agency has

classified a document as a record, it must produce it on

proper demand unless one or more of the FOIA exemptions

justifies its being withheld. The agency’s claim of exemp-

ticn is subject to de novo review, but the agency’s decision

to create a record or to procure a record or to file a

document as a record is not. Cf. Lybarger v. Cardwell, 557

F.2d 764, 766-67 (Ist Cir. 1978). FOIA — despite its im-

portant public information function — was never intended

as a device to usurp agency recordkeeping decisions.

‘Agency records” means documents an agency has chosen

to incorporate into its records system — not documents

that journalists, historians, political scientists or other

members of the general public think the agency should

have in its files.

The State Department’s decision here was based on an

application of its own rules, as it interpreted them. That

decision should have been accepted unless found to be ar-

bitrary, capricious or contrary to law. Udall v. Tallman, 380

U.S. 1 (1965S). No such finding was made. Even if FOIA

implies some standard of review less restrictive than is

no hint that agency recordkeeping decisions should be subject to

judicial review at the instance of private citizens. In 1974, these same

committees considered, and Congress adopted, the Privacy Act. 5

U.S.C. §SS2a. This statute — unlike FOIA and FRA — expressly per-

mits a private citizen to request amendment of records relating to him,

and provides for de novo review of an agency's refusal to grant the

request. See S U.S.C. §§SS2a(dX2MbX1); SS2a(gX1X2KA).

The careful and essentially contemporaneous consideration which

has been given to these three interrelated statutes shows that Congress

knew how to provide for judicial review of agency recordkeeping deter-

minations when it wished to do so. It also belies any suggestion that

FOIA was intended to afford private citizens with a virtually unlimited

right to contest such determinations in situations far removed from the

limited circumstances defined in the Privacy Act.

23

usually required, it could not possibly authorize a court to

ignore an agency’s determination altogether. Yet that is

what happened here. And it is inconceivable that the Act

could ever justify the conclusion below that analogies to

copyright law provide a better measure of what records are

than agency regulations adopted pursuant to the Federal

Records Act.”° FOIA applies to ‘‘agency records’’; it does

not apply to ‘‘property”’ even if the “‘property’’ is documen-

tary material.”'

The District Court’s analysis of the issues is plainly

inadequate. The Court of Appeals did not choose to ad-

dress them. We ask this Court to provide the mature con-

sideration these important questions of federal law deserve,

but have not as yet received.

°None of the lower courts that have been called upon to interpret

the term “agency records” as used in FOIA has ever thought the com-

mon law is the proper source to consult for an answer. See DiViaio v.

Kelley, 571 F.2d 538 (10th Cir. 1978); Nichols v. United States, 325

F.Supp. 130 (D. Kan. 1971), affd, 460 F.2d 671 (10th Cir.), cert.

denied, 409 U.S. 966 (1972); Save The Dolphins v. Department of Com-

merce, 404 F.Supp. 407 (N.D. Cal. 1975); Porter County Chupter of the

Izaak Walton League v. AEC, 380 F. Supp. 630(N.D. Ind. 1974).

"The District Court's conclusion on this point has other disturbing

implications. The rationale adopted below — that any document

produced by a federal employee on government time is government

property — applies with equal force to unofficial but work-related

papers created by Executive branch employees, by the President and

Vice-President, by Congressmen, and by members of the Judiciary.

Some of these federal employees have, like cabinet officers, donated

collections of papers to libraries with no suspicion whatever that the act

of donation represented an illegal alienation of government property.

See note 8, supra. If the decision below stands, all restrictive covenants

relating to such donations are vulnerable to challenge on the theory

that the donor did not ‘‘own”’ the papers and thus had no right to con-

trol the manner of their disposition. See Nixon v. Sampson, 389

F.Supp. 107, 120-23, 133-45 (D.D.C.), stayed sub nom. Nixon v.

Richey, 513 F.2d 427 (D.C. Cir. 1975), dismissed as moot, 437 F.Supp.

654 (D.D.C. 1977), reversed and remanded for trial, No, 77-2123 (D.C.

Cir., Dec. 21, 1978).

24

C. The Decision Below Invades Constitutional

Rights of Privacy.

The decision below also raises serious questions of con-

stitutional law — questions that affect not only Dr.

Kissinger but also many other past and present government

employees.

Government employees, like other citizens, have — or

ought to have — a right to think, to explore, to discard, to

develop ideas without fear that their thoughts will be

prematurely published. Agency recordkeeping rules and

practices recognize this fundamental right.

Agencies require employees to document decisions, com-

mitments and significant discussions, see S FAM §423.2-1;

41 C.F.R. §101-11.202-2(b), but they do not require that

every thought and every utterance be recorded. Rough

drafts and working papers are not records; preliminary

notes are not records; uncirculated papers filed as personal

are not records. Such documents are not available to other

employees unless the author commits them to the official

files. :

Agencies permit employees to keep personal papers in

their offices, and to remove them when they retire or

change positions. See S FAM §§432, 417.1; 41 CFR §§101-

11.202-2(d), 101-11.406-6(c). Agencies may discipline em-

ployees who fail to keep proper records of their activities;

they do noi, however, search for records in their employees’

desk drawers and private files. Unfiled and uncirculated

papers are presumptively private; they may not be in-

spected by anyone unless constitutional procedures are

followed .”?

“Respondents argued below that Dr. Kissinger should have sub-

mitted the telephone notes — which were stored in his personal files —

for review by the Department's records officers before removal. There is

no such requirement. The Department's regulations expressly

recognize that papers which have been “explicitly designated and filed

as personal at the time of origin or receipt may be removed. . . without

25

In Porter County Chapter of the Izaak Walton League v.

AEC, 380 F.Supp. 630 (N.D.Ind. 1974) — a case the courts

below chose to ignore — the issue was whether notes made

by Atomic Energy Commission staff members ‘‘i}n

executing their responsibilities relating to AEC’s health

and safety environmental reviews,” id. at 633, were “agency

records”’ subject to the Act. The court held they were not:

Such materials are not circulated to nor used by

anyone other than the‘authors, and are discarded

or retained at the author’s sole discretion for their

own individual purposes in their own personal

files. The AEC does not in any way consider such

documents to be ‘‘agency records’, nor is there

any indication . . . that anyone other than the

author exercises any control over such documents.

. . . [T]he Court finds that these materials are

personal notes, rather than agency records.

Disclosure of such personal documents would in-

vade the privacy of and impede the working

habits of individual staff members; it would

preclude employees from ever committing any °

thoughts to writing which the author is un-

prepared, for whatever reason, to disseminate

publicly. . . . [TJheir disclosure would be akin to

revealing the opinions, advice, recommendations

and detailed mental processes of government of-

ficials. Jd.

It is undisputed here that some of the telephone notes

contain purely personal conversations having no connection

—

approval of the Director, Foreign Affairs Document and Reference

Center.”” S FAM §417.1a. The Department’s chief administrative of-

ficers — including the Director of FADRC— knew the telephone notes

were in Dr. Kissinger’s personal files when those files were transferred

to the Library of Congress. JA 273. Each expressly approved the

transfer. App. 81a, 83a.

26

with government business. Other notes, though business-

related, reflect personal observations, thoughts, opinions,

and beliefs. Many also include expressions of privately held

views about politics, personal details concerning third par-

ties, and information relating to Dr. Kissinger’s associ-

ations with individuals and organizations. This is equally

true of statements made by those with whom he spoke.

Such matters have no place in public records.

Dr. Kissinger had no duty to make notes of his telephone

conversations. His decision to make and keep them was

predicated on the belief that they were private papers — a

belief which was consistent with the State Department’s

rules, policies and practices. If the position adopted by the

courts below had been the law when he was in office, he

either would not have made the notes at all or would have

edited and corrected them before they were filed as official

records. The retroactive — and unprecedented — decision

below that these papers are “‘agency records” frustrates Dr.

Kissinger’s legitimate expectations of privacy. No court

should tolerate such a result.”

The District Court’s order raises even more serious

questions. Although the District Court acknowledged that

the notes were “personal in some respects,”” App. 58a, it

nonetheless directed the State Department to possess and

read all of them. None — regardless of content — is to be

returned. This procedure would not have been available un-

der the State Department’s own regulations and, indeed,

The Final Report of the National Study Commission recommends

that Congress adopt legislation to clarify ambiguities in current prac-

tices concerning the right of agency officials to retain non-record

materials. National Study Commission, Final Report 19, 32-33 (1977).

However, it stresses that any such legislation should be made prospec-

tive to “avoid legal problems. . . and provide notice to Federal Officials

as to changes necessary to comply with the recommendations.” /d. at 8.

The Commission's sensible — and sensitive — approach sharply con-

trasts with the total disregard for privacy rights that is reflected in the

decision below. See Id. at 124.

27

would have been unconstitutional had the Department at-

tempted it when Dr. Kissinger was its employee. It is no less

unconstitutional when ordered by a court.

Respondents argued below that this Court’s decision in

Nixon v. Administrator of General Services, 433 U.S. 425

(1977), could justify seizure and processing of the notes so

they would become available for public disclosure under

FOIA.” The District Court cited no authority to support its

order. If Nixon was, indeed, its inspiration, we believe the

court misapplied it.

Nixon sustained the constitutionality of special legislation

which applied only to the former President ‘‘as a legitimate

class of one.” 433 U.S. at 472, 486, 491. This Court held in

Nixon that the intrusion into privacy which the legislation

made necessary did not for that reason invalidate it, because

this was the least intrusive means of accomplishing

national interests of overriding importance. Jd. at 456-57,

467. It certainly did not hold that inspection of private

papers by government employees is appropriate in any and

all cases involving former public officials.

The rationale of Nixon has no application here. Here, the

Government does not claim the documents. Here, no

criminal laws are involved. And here, no provision has

been made for the return of admittedly private and per-

sonal materials. There is no precedent or justification for

seizing, searching and retaining any of the notes. The order

entered below is supported neither by Nixon nor by any

other judicial decision. It is unconstitutional and it should

be set aside.

“No other authority was cited, because none exists. The general rule

in civil cases is that a party need deliver only those documents “relevant

in purpose” to the inquiry after his own review of the documents. See v.

City of Seattle, 387 °).S. 541, 544 (1967); In re Horowitz, 482 F.2d 72,

78 (2d Cir.), cert. denied, 414 U.S. 867 (1973). Disputed documents

must be reviewed by an impartial judicial officer, not an Executive

branch employee. No court has ever held that private citizens may com-

pel another private citizen to submit his papers for Executive branch

review in order to facilitate their desire to read them,

\

‘

28

CONCLUSION

That Dr. Kissinger kept notes of his telephone con-

versations is not unusual; senior government officials have

for decades followed the same practice. Nor is it unusual

that the notes were kept in private files; materials of this

type have always been treated by the State Department and

by other agencies as personal papers which the authors

could discard or retain at their discretion.

When Dr. Kissinger left office, he did not simply remove

his private files and do with them as he pleased. Instead, he

donated his personal papers and other documents relating

to his years in government to the Library of Congress so

that the entire record of his period would be collected in

one place for the convenience of future scholars. This was

done openly, with the knowledge and approval of the State

Department’s principal administrative officers and in full

compliance with its rules and policies.

Respondents candidly admitted below that their reason

for instituting this lawsuit was to gain access to what they

characterized as an ‘‘invaluable’’ collection of

“background materials’ on American foreign and

domestic policy. That respondents want access to the notes

is perhaps understandable, if short-sighted.** But the

*The decision below, if sustained, is unlikely to enhance the long-

range interests of history. As a prominent historian recently said:

[some of the republic’s most precious historical sources

have been the diaries . . . of cabinet ministers from Gideon

Welles and Salmon P. Chase to Harold Ickes and Henry

Wallace — diaries bearing on the discharge of official

duties, written on government foolscap or dictated to govern-

ment secretaries, often no doubt during working hours.

The Smith standard, by making these invaluable documents

the property of the state, not of the person who, beyond

any official requirement, kept them, would thereby insure

that they would never have Leen kept. . . . Surely, it would be

better for historians to wait a few years and have this

ee

29

question here is whether FOIA supports their claim. We

think it does not. FOIA applies to ‘‘agency records” — not

to ‘‘background materials’’ or to personal papers.

The notes now belong to the United States by reason of

Dr. Kissinger’s voluntary gift to the Library of Congress.

They will become publicly available when the privacy in-

terests of Dr. Kissinger and those with whom he spoke no

longer require protection, and when the whole historical

record of Dr. Kissinger’s time in government can be viewed

dispassionately. That the notes may contain materials

which respondents would like to re or might profit by

reading — provides no reason to ihe th law or the Con-

stitution.

We ask this Court to grant certiorari so that the im-

portant questions here presented may be reviewed and

decided in accordance with the law.

Respectfully submitted,

DAVID GINSBURG

JAMES E. WESNER

MARTHA JANE SHAY

GINSBURG, FELDMAN AND BRESS

1700 Pennsylvania Ave., N.W.

Washington, D.C. 20006

Attorneys for Petitioner

valuable collection than, by insisting on immediate access, —

discourage all Kissinger’s successors from following his

example.

Statement of Arthur Schlesinger, Jr., before t'xe Government In-

formation and Individual Rights Subcommittee of the House Com-

mittee on Government Operations 2-4 (March 2, 1978),