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

Supreme Court brief1979

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What actually matters in this document.

Text

il 1979

. INTHE es

MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

= 48-1088

HENRY A. KISSINGER,

Petitioner,

Vv .

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et ai.,

Respondents.

HENRY A. KISSINGER,

Petitioner,

Vv.

MILITARY AUDIT PROJECT, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPENDIX d

DAVID GINSBURG

JAMES E. WESNER

MARTHA JANE SHAY

GINSBURG, FELDMAN AND BRESS

1700 Pennsylvania Ave., N.W.

Washington, D.C. 20006

January 8, 1979 Attorneys for Petitioner

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

(i)

TABLE OF CONTENTS

Appendix A

Freedom of Information Act,

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Appendix B

Privacy Act of 1974, ,

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Appendix C

Federal Records Act and Related Laws,

44 US.C. §2111, 44 U.S.C. Chapters 29,

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Appendix D

Federal Property Management Regulations,

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Appendix E

- Department of State Records Management Rules

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Appendix F 4

dgment and Memorandum of the Court of Appeals

or the District of Columbia Circuit,

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Appendix G

Opinion of the District Court for the District

of Columbia, December 8, 1977 ...............cccccssscscsceee tab cccesseescees Sla

Appendix H

Order of the District Court for the District of

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Appendix I

Order of the District Court for the District

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(ii)

Appendix J

Memorandum Opinion of the Department of State

Legal Adviser, November 11, 1976 :

Appendix K

Second Affidavit of Henry A. Kissinger

Appendix L

Letter from the Department of State Acting

Assistant Secretary for Congressional

Relations to The Honorable Bella Abzug,

October 7, 1976

FREEDOM OF INFORMATION ACT,

5 U.S.C. § 552

§ 552. Public information; agency rules, opinions, orders,

records, and proceedings

(a) Each agency shall make available to the public in-

formation as follows:

(1) Each agency shall separately state and currently

publish in the Federal Register for the guidance of the

public—

(A) descriptions of its central and field organization

and the established places at which, the employées

(and in the case of a uniformed service, the members)

from whom, and the methods whereby, the public may

obtain information, make submittals or requests, or

obtain decisions;

(B) statements of the general course and method by

which its functions are channeled and determined, in-

cluding the nature and requirements of all formal and

informal procedures available;

available or the places at which forms may be ob-

tained, and instructions as to the scope and contents of

ail papers, reports, or examinations;

(D) substantive rules of general applicability

adopted as authorized by law, and statements of

general policy or interpretations of general ap-

plicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the

foregoing.

Except to the extent that a person has actual and timely

notice of the terms thereof, a person may not in any manner

be required to resort to, or be adversely affected by, a mat-

ter required to be published in the Federal Register and not

so published. For the purpose of this paragraph, matter

reasonably available to the class of persons affected thereby

is deemed published in the Federal Register when in-

corporated by reference therein with the approval of the

Director of the Federal Register.

(2) Each agency, in accordance with published rules,

shall make available for public inspection and copying—

(A) final opinions, including concurring and dis-

senting opinions, as well as orders, made in the ad-

judication of cases;

(B) those statements of policy and interpretations

which have been adopted by the agency and are aot

published in the Federal Register; and

staff that affect a member of the public;

unless the materials are promptly published and copies of-

fered for sale. To the extent required to prevent a clearly

unwarranted invasion of personal privacy, an agency may

delete identifying details when it makes available or

publishes an opinion, statement of policy, interpretation.

or staff manual or instruction. However, in each case the

justification for the deletion shall be explained fully in

writing. Each agency shall also maintain and make

available for public inspection and copying current indexes

providing identifying information for the public as to any

matter issued, adopted, or promulgated after July 4, 1967,

and required by this paragraph to be made available or

published. Each agency shall promptly publish, quarterly

or more frequently, and distribute (by sale or otherwise)

copies of each index or supplements thereto unless it deter-

mines by order published in the Federal Register that the

publication would be unnecessary and impracticable, in

which case the agency shall nonetheless provide copies of

such index on request at a cost not to exceed the direct cost

of duplication. A final order, opinion, statement of policy,

interpretation, or staff manual or instruction that affects a

member of the public may be relied on, used, or cited as

precedent by an agency against a party other than an agen-

cy only if—

(i) it has been indexed and either made available or

published as provided by this paragraph; or

(ii) the party has actual and timely notice of the

terms thereof.

(3) Except with respect to the records made available un-

der paragraphs (1) and (2) of this subsection, each agency,

upon any request for records which (A) reasonably

describes such records and (B) is made in accordance with

published rules stating the time, place, fees (if any), and

procedures to be followed, shall make the records promptly

available to any person.

(4XA) In order to carry out the provisions of this section,

each agency shall promulgate regulations, pursuant to

notice and receipt of public comment, specifying a uniform

schedule of fees“applicable to all constituent units of such

agency. Such fees shall be limited to reasonable standard

charges for document search and duplication and provide

for recovery of only the direct costs of such search and

duplication. Documents shall be furnished without charge

or at a reduced charge where the agency determines that

waiver or reduction of the fee is in the public interest

because furnishing the information can be considered as

primarily benefiting the general public.

(B) On complaint, the district court of the United States

in the district in which the complainant resides, or has his

principal place of business, or in which the agency records

are situated, or in the District of Columbia, has jurisdiction

to enjoin the agency from withholding agency records and

to order the production of any agency records improperly

withheld from the complainant. In such a case the court

shall 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

under any of the exemptions set forth in subsection (b) of

this section, and the burden is on the agency to sustain its

action.

defendant shall serve an answer or otherwise plead to any

complaint made under this subsection within thirty days af-

ter service upon the defendant of the pleading in which

such complaint is made, unless the court otherwise directs

for good cause shown.

(D) Except as to cases the court considers of greater im-

portance, proceedings before the district court, as

authorized by this subsection, and appeals therefrom, take

precedence on the docket over all cases and shall be

assigned for hearing and trial or for argument at the

earliest practicable date and expedited in every way.

(E) The court may assess against the United States

reasonable attorney fees and other litigation costs

reasonably incurred in any case under this section in which

the complainant has substantially prevailed.

(F) Whenever the court orders the production of any

agency records improperly withheld from the complainant

and assesses against the United States reasonable attorney

fees and other litigation costs, and the cou~ additionally

issues a written finding that the circumstances surrounding

the withholding raise questions whether agenc’ personnel

acted arbitrarily or capriciously with respect to the

withholding, the Civil Service Commission shall promptly

initiate a proceeding to determine whether disciplinary ac-

tion is warranted against the officer or employee who was

primarily responsible for the withholding. The Com-

mission, after investigation and consideration of the evi-

dence submitted, shall submit its findings and recom-

mendations to the administrative authority of the agency

concerned and shall send copies of the findings and recom-

mendations to the officer or employee or his representative.

The administrative authority shall take the corrective ac-

tion that the Commission recommends. ~

(G) In the event of noncompliance with the order of the

court, the district court may punish for contempt the

responsible employee, and in the case of a uniformed ser-

vice, the responsible member.

(S) Each agency having more than one member shall

maintain and make available for public inspection a record

of the final votes of each member in every agency

proceeding.

(6XA) Each agency, upon any request for records made

under paragraph (1), (2), or (3) of this subsection, shall—

(i) determine within ten days (excepting Saturdays,

Sundays, and legal public holidays) after the receipt of

any such request whether to comply with such request

and shall immediately notify the person making such

request of such determination and the reasons

therefor, and of the right of such person to appeal to

the head of the agency any adverse determination; and

(ii) make a determination with respect to any appeal

within twenty days (excepting Saturdays, Sundays, and

legal public holidays) after the receipt of such appeal.

If on appeal the denial of the request for records is in

whole or in part upheld, the agency shall notify the

person making such request of the provisions for

judicial review of that determination under paragraph

(4) of this subsection.

(B) In unusual circumstances as specified in this sub-

paragraph, the time limits prescribed in either clause (i) or

clause (ii) of subparagraph (A) may be extended by written

notice to the person making such request setting forth the

reasons for such extension and the date on which a deter-

mination is expected to be dispatched. No such notice shall

specify a date that would result in an extension for more

than ten working days. As used in this subparagraph,

“unusual circumstances” means, but only to the extent

reasonably necessary to the proper processing of the par-

ticular request—

(i) the need to search for and collect the requested

records from field facilities or other establishments

that are separate from the office processing the

request; —

(ii) the need to search for, collect, and appropriately

examine a voluminous amount of separate and distinct

records which are demanded in a single request; or

(iii) the need for consultation, which shall be con-

ducted with all practicable speed, with another agency

having a substantial interest in the determination of

the request or among two or more components of the

agency having substantial subject-matter interest

therein.

cords under paragraph (1), (2), or (3) of this subsection shall

be deemed to have exhausted his administrative remedies

with respect to such request if the agency fails to comply

with the applicable time limit provisions of this paragraph.

If the Government can show exceptional circumstances

exist and that the agency is exercising due diligence in

responding to the request, the court may retain jurisdiction

and allow the agency additional time to complete its review

of the records. Upon any determination by an agency to

comply with a request for records, the records shall be made

promptly available to such person making such request.

Any notification of denial of any request for records under

this subsection shall set forth the names and titles or

positions of each person responsible for the denial of such

request.

(b) This section does not apply to matters that are—

(1A) specifically authorized under criteria

established by an Executive order to be kept secret in

the interest of national defense or foreign policy and

(B) are in fact properly classified pursuant to such

Executive order;

(2) related solely to the internal personnel rules and

practices of an agency;.

(3) specifically exempted from disclosure by statute

(other than section 552b of this title), provided that

such statute (A) requires that the matters be withheld

from the public in such a manner as to leave no

discretion on the issue, or (B) establishes particular

criteria for withholding or refers to particular types of

matters to be withheld;

(4) trade secrets and commercial or financial in-

formation obtained from a person and privileged or

confidential;

(S) inter-agency or intra-agency memorandums or

letters which would not be available by law to a party

other than an agency in litigation with the agency;

(6) personnel and medical files and similar files the

disclosure of which would constitute a clearly un-

warranted invasion of personal privacy;

(7) investigatory records compiled for law en-

forcement purposes, but only to the extent that the

production of such records would (A) interfere with en-

forcement proceedings, (B) deprive a person of 2 right

to a fair trial or an impartial adjudication, (C) con-

stitute an unwarranted invasion of personal privacy,

(D) disclose the identity of a confidential source and, in

the case of a record compiled by a criminal law en-

forcement authority in the course of a criminal in-

vestigation, or by an agency conducting a lawful

national security intelligence investigation, con-

fidential information furnished only by the con-

fidential source, (E) disclose investigative techniques

and procedures, or (F) endanger the life or physical

safety of law enforcement personnel;

(8) contained in or related to examination, oper-

ating, or condition reports prepared by, on behalf of,

or for the use of an agency responsible for the

regulation or supervision of financial institutions; or

(9) geological and geophysical information and

data, including maps, concerning wells.

Any reasonably segregable portion of a record shall be

provided to any person requesting such record after

deletion of the portions which are exempt under this sub-

section.

formation or limit the availability of records to the public,

except as specifically stated in this section. This section is

not authority to withhold information from Congress.

(d) On or before March 1 of each calendar year, each

agency shall submit a report covering the preceding calen-

dar year to the Speaker of the House of Reptesentatives and

President of the Senate for referral to the appropriate com-

mittees of the Congress. The report shall include—

(1) the number of determinations made by such

agency not to comply with requests for records made to

such agency under subsection (a) ane the reasons for

each such determination;

(2) the number of appeals made by persons under

subsection (aX6), the result of such appeals, and the

reason for the action upon each appeal that results in a

denial of information;

(3) the names and titles or positions of each person

responsible for the denial of records requested under

this section, and the number of instances of par-

ticipation for each;

(4) the results of each proceeding conducted pur-

suant to subsection (aX4XF), including a report of the

disciplinary action taken against the officer or em-

ployee who was primarily responsible for improperly

withholding records or an _ explanation ~of why

disciplinary action was not taken; )

(S) a copy of every rule made by such agency re-

garding this section;

(6) a copy of the fee schedule and the total amount

of fees collected by the agency for making records

available under this section; and

(7) such other information as indicates efforts to ad=—

minister fully this section. -

The Attorney General shall submit an annual report on or

before March 1 of each calendar year which shall include

for the prior calendar year a listing of the number of cases

arising under this section, the exemption involved in each

case, the disposition of such case, and the cost, fees, and

penalties assessed under subsections (aX4XE), (F), and (G).

Such report shall also include a description of the ‘efforts

undertaken by the Department of Justice to encourage

agency compliance with this section.

(e) For purposes of this section, the term ‘‘agency”’ as

detined in section 551(1) of this title includes any executive

10a

department, military department, Government cor-

poration, Government controlled corporation, or other

establishment in the executive branch of the Government

(including the Executive Office of the President), or any in-

dependent regulatory agency.

lla

PRIVACY ACT OF 1974, 5 U.S.C. § 552a

§ 552a. Records maintained on individuals

(a) Definitions. — For purposes of this section —

(1) the term “‘agency’”’ means agency as defined in

section 552(e) of this title;

(2) the term “‘individual’’ means a citizen of the

United States or an alien lawfully admitted for per-

manent residence;

(3) the term ‘“‘maintain”’ includes maintain, collect,

use or disseminate;

(4) the term “record” means any item, collection, or

grouping of information about an individual that is

maintained by an agency, including, but not limited

to, his education, financial transactions, medical

history, and criminal or employment history and that

contains his name, or the identifying number, sym-

bol, or other identifying particular assigned to the in-

dividual, such as a finger or voice print or a

photograph;

(S) the term ‘system of records’’ means a group of

any records under the control of any agency from

which information is retrieved by the name of the in-

dividual or by some identifying number, symbol, or

other identifying particular assigned to the individual;

(6) the term “‘statistical record” means a record in a

system of records maintained for statistical research or

reporting purposes only and not used in whole or in

part in making any determination about an iden-

tifiable individual, except as provided by section 8 of

title 13; and

(7) the term “routine use”’ means, with respect to

the disclosure of a record, the use of such record for a

12a

purpose which is compatible with the purpose for

which it was collected.

(d) Access to records. — Each agency that maintains a

system of records shall —

(1) upon request by any individual to gain access to

his record or to any information pertaining to him

which is contained in the system, permit him and upon

his request, a person of his own choosing to ac-

company him, to review the record and have a copy

made of all or any portion thereof in a form com-

prehensible to him, except that the agency may require

the individual to furnish a written statement

authorizing discussion of that individual’s record in

the accompanying person’s presence;

(2) permit the individual to request amendment of a

record pertaining to him and —

(A) not later than 10 days (excluding Saturdays,

Sundays, and legal public holidays) after the date

of receipt of such request, acknowledge in writing

such receipt; and

(B) promptly, either —

(i) make any correction of any portion

thereof which the individual believes is not ac-

curate, relevant, timely, or complete; or

(ii) inform the individual of its refusal to

amend the record in accordance with his

request, the reason for the refusal, the

procedures established by the agency for the in-

dividual to request a review of that refusal by

the head of the agency or an officer designated

by the head of the agency, and the name and

business address of that official;

13a

(3) permit the individual who disagrees with the

refusal of the agency to amend his record to request a

review of such refusal, and not later than 30 days (ex-

cluding Saturdays, Sundays, and legal public holidays)

from the date on which the individual requests such

review, complete such review and make a final deter-

mination unless, for good cause shown, the head of the

agency extends such 30-day period; and if, after his

review, the reviewing official also refuses to amend the

record in accordance with the request, permit the in-

dividual to file with the agency a concise statement set-

ting forth the reasons for his disagreement with the

refusal of the agency, and notify the individual of the

provisions for judicial review of the reviewing official’s

determination under subsection (gX1XA) of this sec-

tion;

(4) in any disclosure, containing information about

which the individual has filed a statement of

disagreement, occurring after the filing of the

statement under paragraph (3) of this subsection,

clearly note any portion of the record which is disputed

and provide copies of the statement and, if the agency

deems it appropriate, copies of a concise statement of

the reasons of the agency for not making the amend-

ments requested, to persons or other agencies to whom

the disputed record has been disclosed; and

(S) nothing in this section shall allow an individual

access to any information compiled in reasonable an-

ticipation of a civil action or proceeding.

* *¢ #

(gX1) Civil remedies — Whenever any agency

(A) makes a determination under subsection

(dX3) of this section not to amend an individual’s

14a

record in accordance with his request, or fails to

make such review in conformity with that sub-

section;

(B) refuses to comply with an individual request

under subsection (dX1) of this section;

individual with such accuracy, relevance,

timeliness, and completeness as is necessary to

assure fairness in any determination relating to

the qualifications, character, rights, or op-

portunities of, or benefits to the individual that

may be made on the basis of such record, and

consequently a determination is made which is

adverse to the individual; or

(D) fails to comply with any other provision of

this section, or any rule promulgated thereunder,

in such a way as to have an adverse effect on an

individual,

the individual may bring a civil action against the

agency, and the district courts of the United States

shall have jurisdiction in the matters under the

provisions of this subsection.

(2XA) In any suit brought under the provisions of sub-

section (gX1XA) of this section, the court may order the

agency te amend the individual’s record in accordance with

his request or in such other way as the court may direct. In

such a case the court shall determine the matter de novo.

(B) The court may assess against the United

States reasonable attorney fees and other

litigation costs reasonably incurred in any case

under this paragraph in which the complainant

has substantially prevailed.

(3XA) In any suit brought under the provisions of sub-

section (gX1XB) of this section, the court may enjoin the

15a

agency from withholding the records and order the produc-

tion to the complainant of any agency records improperly

withheld from him. In such a case the court shall determine

the matter de novo, and may examine the contents of any

agency records in camera to determine whether the records

or any portion thereof may be withheld under any of the

exemptions set forth in subsection (k) of this section, and

the burden is on the agency to sustain its action.

(B) The court may assess against the United

States reasonable attorney fees and other lit-

igation costs reasonably incurred in any case

under this paragraph in which the complainant

has substantially prevailed.

(4) In any suit brought under the provisions of subsection

(gX1XC) or (D) of this section in which the court determines

that the agency acted in a manner which was intentional or

willful, the United States shall be liable to the individual in

an amount equal to the sum of —

(A) actual Camages sustained by the in-

dividual as a result of the refusal or failure, but in

no case shall a person entitled to recovery receive

less than the sum of $1,000; and

(B) the costs: of the action together with

reasonable attorney fees as determined by the

court.

(5) An action to enforce any liability created under this

section may be brought in the district court of the United

States in the district in which the complainant resides, or

has his principal place of business, or in which the agency

records are situated, or in the District of Columbia, without

regard to the amount in controversy, within two years from

the date on which the cause of action arises, except that

where an agency has materially ar1 willfully misrepre-

sented any information required under this section to be

disclosed to an individual and the information so

16a

misrepresented is material to establishment of the liability

of the agency to the individual under this section, the action

may be brought at any time within two years after discovery

by the individual of the misrepresentation. Nothing in this

section shall be construed to authorize any civil action by

reason of any injury sustained as the result of a disclosure

of a record prior to September 27, 1975.

17a

FEDERAL RECORDS ACT

AND RELATED LAWS

44 U.S.C. §2111, 44 U.S.C. Chapters 29, 31, and 33.

§ 2111. Reports: correction of violations

(a) When the Administrator of General Services con-

siders it necessary, he may obtain reports from Federal

agencies on their activities under chapters 21, 25, 27, 29,

31, and 33 of this title.

(b) When the Administrator finds that a provision of

chapter 21, 25, 27, 29, 31, or 33 of this title has been or is

being violated, he shall inform in writing the head of the

agency concerned of the violation and make recom-

mendations for its correction. Unless corrective measures

satisfactory to the Administrator are inaugurated within a

reasonable time, the Administrator shall submit a written

report of the matter to the President and the Congress.

* * *

Chapter 29.—Records Management By

Administrator of General Services

§ 2901. Definitions

As used in this chapter, and chapters 21, 25, 27, 31, and

33 of this title —

(1) the term “records” has the meaning given it by

section 3301 of this title;

(2) the term “records management’’ means the

planning, controlling, directing, organizing, training,

promoting, and other managerial activities involved

with respect to records creation, records maintenance

and use, and records disposition;

(3) the term “records creation” means the produc-

tion or reproduction of any record;

18a

(4) the term “‘records maintenance and use’’ means

any activity involving —

(A) location of records of a Federal agency;

(B) storage, retrieval, and handling of records

kept at office file locations by or for a Federal

agency;

(D) selection and utilization of equipment and

supplies associated with records and copying;

(S) the term “records disposition” means any ac-

tivity with respect to—

(A) disposal of temporary records no longer

necessary for the conduct of business by destruc-

tion or donation;

(B) transfer of records to Federal agency

storage facilities or records centers;

United States of records determined to have suf-

ficient historical or other value to warrant con-

tinued preservation; or

(D) transfer of records from one Federal agency

to any other Federal agency;

(6) the term ‘‘records center” means an establish-

ment maintained and operated by the Administrator

or by another Federal agency primarily forthe storage,

servicing, security and processing of records which

need to be preserved for varying periods of time and

need not be retained in office equipment or space;

(7) the term ‘‘records management study”’ means an

investigation and analysis of any Federal agency re-

cords, or records management practices or programs

(whether manual or automated), with a view toward

19a

rendering findings and recommendations with respect

thereto;

(8) the term ‘“‘inspection’’ means reviewing any

Federal agency’s records or records management prac-

tices or programs with respect to effectiveness and

compliance with records management laws and

making necessary recommendations for correction or

improvement of records management;

(9) the term “‘servicing’’ means making available for

use information in records and other materials in the

custody of the Administrator, or in a records center —

(A) by furnishing the records or other

materials, or information from them, or copies or

reproductions thereof, to any Federal agency for

official use, or to the public; or

(B) by making and furnishing authenticated or

unauthenticated copies or reproductions of the

records or other materials;

(10) the term “‘unauthenticated copies” means exact

copies or reproductions of records or other materials

that are not certified as such under seal and that need

not be legally accepted as evidence;

(11) the-term ‘‘National Archives of the United

States’” means those official records which have been

determined by the Archivist of the United States to

have sufficient historical or other value to warrant

their continued preservation by the Federal Govern-

ment, and which have been accepted by the Ad-

ministrator for deposit in his custody;

(12) the term ‘‘Administrator’’ means the Ad-

ministrator of General Services;

(13) the terms ‘executive agency’’ and ‘‘Federal

20a

agency”’ shall have the meanings given such terms by

subsections (a) and (b), respectively, of section 3 of the

Federal Property and Administrative Services Act of

1949 (40 U.S.C. 472(a) and (b)).

§ 2902. Objectives of records management

It is the purpose of this chapter, and chapters 21, 31, and

33 of this title, to require the establishment of standards

and procedures to assure efficient and effective records

management. Such records management standards and

procedures shall seek to implement the following goals:

(1) Accurate and complete documentation of the

policies and transactions of the Federal Government.

(2) Control of the quantity and quality of records

produced by the Federal Government.

(3) Establishment and maintenar.ce of mechanisms

of control with respect to records creation in order to

prevent the creation of un::2cessary records and with

respect to the effective and economical operations of

an agency.

(4) Simplification of the activities, systems, and

processes of records creation and of records main-

tenance and use. :

(S) Judicious preservation and disposal of records.

(6) Direction of continuing attention on records

from their initial creation to their final disposition,

with particulat.emphasis on the prevention of un-

necessary Federal paperwork.

(7) Establishment and maintenance of such other

systems or techniques as the Administrator considers

necessary to carry out the purposes of this chapter and

chapters 21, 31, and 33 of this tit!e.

2la

§ 2904. GenerafteSponsibilities of Administrator

The Administrator shall provide guidance and assistance

to Federal agencies with respect to records creation, records

maintenance and use, and records disposition. In pro-

viding such guidance and assistance, the Administrator

shall have responsibility to—

(1) promote economy and efficiency in the selection

and utilization of space, staff, equipment, and supplies

for records management;

(2) promulgate standards, procedures, and

guidelines with respect to records management and

records management studies;

(3) conduct research with respect to the im-

provement of records management practices and

programs;

(4) serve as a clearinghouse for information with

respect to records management and as a central source

for reference and training materials with respect to

records management;

(5S) establish such interagency committees and

boards as rhay be necessary to provide an exchange of

information among Federal agencies with respect to

records management;

(6) disserninate information with respect to

technological\development in records mangement;

(7) direct the continuing attention of Federal agen-

cies and the Congress on the burden placed on the

Federal Government by unnecessary paperwork, and

on the need for, adequate policies governing records

creation, maintenance and use, and disposition;

(8) conduct records management studies and, in his

discretion, designate the heads of executive agencies to

‘

22a

conduct records management studies with respect to

establishing systems and techniques designed to save

time and effort in records management, with par-

ticular attention given to standards and procedures

governing records creation;

(9) conduct inspections or records management

studies which involve a review of the programs and

practices of more than one Federal agency and which

examine interaction among and relationships between

Federal agencies with respect to records and records

management; and

(10) report to the Congress and to the Director of the

Office of Management and Budget each year, at such

time or times as he may deem desirable, on the results

of the foregoing activities, including evaluations of

responses by Federal agencies to any recommen-

dations resulting from studies or inspections con-

ducted by him.

§ 2905. Establishment of standards for selective retention

of records; security measures

The Administrator of General Services shall establish

standards for the selective retention of records of con-

tinuing value, and assist Federal agencies in applying the

standards to records in their custody. He shall notify the

head of a Federal agency of any actual, impending, or

threatened unlawful removal, defacing, alteration, or

destruction of records in the custody of the agency that

shall come to his attention, and assist the head of the agen-

cy in initiating action through the Attorney General for the

recovery of records unlawfully removed and for other

redress provided by law.

23a

§ 2906. Inspection of agency records

(aX1) In carrying out his duties and responsibilities un-

der this chapter, the Administrator of General Services or

his designee may inspect the records or the records

management practices and programs of any Federal agency

solely for the purpose of rendering recommendations for

the improvement of records management, practices and

programs. Officers and employees of such agencies shall

cooperate fully in such inspections, subject to the provisions

of paragraphs (2) and (3) of this subsection.

(2) Records, the use of which is restricted by law or for

reasons of national security or the public interest, shall be

inspected, in accordance with regulations promulgated by

the Administrator, subject to the approval of the head of

the agency concerned or of the President.

(3) If the Administrator or his designee inspects a record,

as provided in this subsection, which is contained in a

system of records which is subject to section 552a of title 5,

such record shall be—

(A) maintained by the Administrator or his designee

as a record contained in a system of records; or

(B) deemed to be a record contained in a system of

records for purposes of subsections (b), (c), and (i) of

section 552a of title S.

(b) In conducting the inspection of agency records

provided for in subsection (a) of this section, the Ad-

ministrator or his designee shall, in addition to complying

with the provisions of law cited in subsection (a) (3), comply

with all other Federal laws and be subject to the sanctions

provided therein.

24a

beeee rite 31 — Records Management

By Federal Agencies

§ 3101. Records management by agency heads; general

duties

The head of each Federal agency shall make and preserve

records containing adequate and proper documentation of

the organization, functions, policies, decisions, procedures,

and essential transactions of the agency and designed to

furnish the information necessary to protect the legal and

financial rights of the Government and of persons directly

affected by the agency’s activities.

§ 3102. Establishment of program of management

The head of each Federal agency shall establish and

maintain an active, continuing program for the economical

and efficient management of the records of the agency. The

program, among other things, shall provide for

(1) effective controls over the creation and over the

maintenance and use of records in the conduct of

current business;

(2) cooperation with the Administrator of General

Services in applying standards, procedures, and

techniques designed to improve the management of

records, promote the maintenance and security of

records deemed appropriate for preservation, and

facilitate the segregation and disposal of records of

temporary value; and

(3) compliance with sections 2101-2113, 2501-2507,

2701, 2901-2909, and 3101-3107, of this title and the

regulations issued under them.

25a

§ 3105. Safeguards

The head of each Federal agency shall establish safeguar-

ds against the removal or loss of records he determines to

be necessary and required by regulations of the Ad-

ministrator of General Services. Safeguards shall include

making it known to officials and employees of the agency —-

(1) that records in the custody of the agency are not

to be alienated or destroyed except in accordance with

sections 3301-3314 of his title, and

(2) the penalties provided by law for the unlawful

removal or destruction of records.

§ 3106. Unlawful removal, destruction of records

The head of each Federal agency shall notify the Ad-

ministrator of General Services of any actual, impending,

or threatened unlawful removal, defacing, alteration, or

destruction of records in the custody of the agency of which

he is the head that shall come to his attention, and with the

assistance of the Administrator shall initiate action through

the Attorney General for the recovery of records he knows

or has reason to believe have been unlawfully removed from

his agency, or from another Federal agency whose records

have been transferred to his legal custody.

Chapter 33. — Disposal of Records

§ 3301. Definition of records

As used in this chapter, “records” includes all books,

papers, maps, photographs, machine readable materials, or

other documentary materials, regardless of physical form

or characteristics, made or received by an agency of the

United States Government under Federal law or in con-

26a

nection with the transaction of public business and preser-

ved or appropriate for preservation by that agency or its

legitimate successor as evidence of the organization, func-

tions, policies, decisions, procedures, operations or other

activities of the Government or because of the in-

formational value of data in them. Library and museum

material made or acquired and preserved solely for referen-

ce or exhibition purposes, extra copies of documents

preserved only for convenience of reference, and stocks of

publications and of processed documents are not included.

§ 3302. Regulations covering lists of records for disposal,

procedure for disposal, and standards for

reproduction

The Administrator of General Services shall promulgate

regulations, not inconsistent with this chapter,

establishing—

(1) procedures for the compiling and submitting to

him of lists and schedules of records proposed for

disposal,

_ (2) procedures for the disposal of records authorized

for disposal, and

(3) standards for the reproduction of records by

photographic or microphotographic processes with a

view to the disposal of the original records.

§ 3303. Lists and schedules of records to be submitted to

Administrator of General Services by head of each

Government agency

The head of each agency of the United States Govern-

ment shall submit to the Administrator of General Services,

under regulations promulgated as provided by section 3302

of this titlke—

(1} lists of any records in the custody of the agency

that have been photographed or micrcphotographed

under the regulations and that, as a consequence, do

27a

not appear to have sufficient value to warrant their

further preservation by the Government;

(2) lists of other records in the custody of the agency

not needed by it in the transaction of its current

business and that do not appear to have sufficient ad-

ministrative, legal, research, or other value to warrant

their further preservation by the Government; and

(3) schedules proposing the disposal after the lapse

of specified periods of time of records of a specified

form or character that either have accumulated in the

custody of the agency or may accumulate after the sub-

mission of the schedules and apparently will not after

the lapse of the period specified have sufficient ad-

ministrative, legal, research, or other value to warrant

their further preservation by the Government.

* ¢ *

§ 3314. Procedures for disposal of records exclusive

The procedures prescribed by this chapter are exclusive

and records of the United States Government may not be

alienated or destroyed except under this chapter.

29a

FEDERAL PROPERTY MANAGEMENT

REGULATIONS

41 C.F.R. Part 101-11

Part 101-11—Records Management

§ 101-11.000 Scope of part.

This part prescribes policies and promulgates standards,

procedures, and techniques for the economical and ef-

ficient management of records of Federal agencies.

Subpart 101-11.1—Federal Records; General

** *

§ 101-11.102 Agency records management

programs.

Section 506(b) of the Federal Records Act of 1950 (44

U.S.C. 396(b)) requires the head of each Federal agency to

establish and maintain an active, continuing program for

the economical and efficient management of the records of

the agency.

§ 101-11.102-2 Program content.

Agency programs shall, among other things, provide for:

(a) Effective controls over the creation, the organization,

maintenance and use, and the disposition of all agency

records.

(b) Cooperation with GSA in developing and applying

standards, procedures, and techniques designed to improve

the management of records, assure the maintenance and

security of records of continuing value, and facilitate the

segregation and disposal of all records of temporary value.

30a

cords Act of 1950 and with the regulations issued thereun-

(d) Compliance with § 101-25.104-2 in connection with

the moratorium on the purchase of new filing cabinets.

§ 101-11.102-3 Creation of records.

Adequate records management controls over the creation

of agency records shall be instituted to insure that im-

portant policies and decisions are adequately recorded;

that routine operational paper work is kept to a minimum;

and that the accumulation of unnecessary files is prevented.

Effective techniques to be applied in this area include the

application of systems for the control of correspondence,

forms, directives and issuances, and reports; the

minimizing of duplicate files; and the disposal without

filing of transitory material that has no value for record

purposes.

** *

§ 101-11.103 Agency program evaluation.

§ 101-11.103-1 Authority.

Section SOSc) of the Federal Records Act of 1950 (44

U.S.C. 39SXc)) authorizes the Administrator of General Ser-

vices to inspect or survey, personally or by deputy, the

records of any Federal agency, as well as to make surveys of

records management and records disposal practices in such

agencies.

§ 101-11.103-2 Evaluation by National Archives

and Records Service.

Agency programs for controlling the creation, main-

tenance, and use of current records; for the selective reten-

tion of records of continuing value; and for the disposal of

noncurrent records will be inspected periodically by the

* 3la

National Archives and Records Service. The objectives of

these inspections are to:

(a) Determine agency compliance with the provisions of

the Records Disposal Act and the Federal Records Act of

1950.

(b) Determine agency observance of the regulations set

forth in this Subpart 101-11.1.

management programs.

§ 101-11.202 Adequate and proper documentation.

§ 101-11.202-1 Statutory responsibilities.

(a) Section SOSa) of the Federal Records Act of 1950 (44

U.S.C. 39Xa), vests in the Administrator of General Services

responsibility for developing and issuing standards to im-

prove the management of records.

(b) Section 506(a) of the Federal Records Act of 1950 (44

U.S.C. 396(a)) requires that the head of each Federal agen-

cy ‘‘shall cause to be made and preserved records con-

taining adequate and proper documentation of the

organization, functions, policies, decisions, procedures,

and essential transactions of the agency and designed to

furnish the information necessary to protect the legal and

financial rights of the Government and of persons directly

affected by the agency’s activities.”

§ 101-11.202-2 Documentation standards.

To insure that adequate and proper records are made

and preserved in the Federal Government, the following

documentation standards will apply in each Federal

agency:

(a) The record of the transaction of public business by any

Federal official or employee is to be complete to the extent

required (1) to facilitate informal action by the incumbents

32a

and their successors in office; (2) to make possible a proper

scrutiny by the Congress, other duly authorized agencies of

the Government, and other persons properly and directly

concerned, of the manner in which public business has

been discharged; and (3) to protect the financial, legal, and

other rights of the Government and of persons affected by

the Government's actions.

(b) With particular regard to the formulation and

execution of basic Government policy, Federal officials are

responsible for incorporating in the records of their agen-

cies all essential information on their major actions.

Significant decisions and commitments reached orally (per-

son to person, by telephone, or in conference) should be

reduced to writing and included in the record. Minutes

should be taken at important board, committee, and staff

meetings, and these, together with a copy of the agenda and

all documents considered at or resulting from such

meetings, should be made a part of the record.

agencies are to be adequately documented in appropriate

directives. A record copy of each such directive (including

those superseded) will be maintained as a part of the of-

ficial files.

(d) Papers of a private or nonofficial character which per-

tain only to an individual’s personal affairs that are kept in

the office of a Federal official will be clearly designated by

him as nonofficial and will at all times be filed -eparately

from the official records of his office. In cases where mat-

ters requiring the transaction of official business are

received in private personal correspondence, the portion of

such correspondence that pertains to official business will

be extracted and made a part of the official files (see § 101-

11.406-6).

33a

§ 101-11.203-2 General requirements.

Positive action is to be taken to prevent the making of un-

necessary records. Existing and proposed office procedures

are to be subject to continuing examination by agency

management with a view to determining their effect on

recordmaking. Where justified, such procedures will be

revised, consolidated, or eliminated to keep recordmaking

to a minimum. In addition, the detailed program

requirements for correspondence, reports, forms, directives

management, and ADP records management set forth in

the following sections of this subpart are to be observed.

§ 101-11.401-3 Formulation of records control schedules.

The following steps shall be taken in the development of

records control schedules:

(a) Each Federal agency shall compile and maintain on a

current basis a records control schedule for all major

groups of records in its custody having importance in terms

of content, bulk, or space and equipment occupied. For all

newly created Federal agencies such schedules shall be

completed within 1 year after creation of the agency.

(b) Schedules shall clearly identify and describe the series

of records covered, and shall contain instructions that,

when approved, can be readily applied. Schedules must be

readily adaptable to use along organizational lines so that

each office will have standing instructions for the

disposition or retention of records in its custody.

arrangements in existence, so that disposition of records

can be physically accomplished in the largest blocks

possible.

(d) Nonrecord materials, such as extra copies of

documents preserved for convenience of reference, stocks of

processed documents, preliminary worksheets, and similar

34a

papers that need not be made a matter of record, shall not

be incorporated in the official files of the agency. To the

maximum extent possible, material not required for record

purposes shall be disposed of; it should not be sent to file.

In cases where transitory files of such materials are

established and maintained in filing equipment, such files

shall be controlled by means of instructions in the records

control schedule.

(e) Schedules shall be reviewed at least once annually to

effect changes necessary to maintain their current status.

§ 101-11.406-6 Mutilation and Destruction

of Records.

(a) The Administrator and the heads of Federal agencies

are responsible for preventing the unlawful removal,

defacing, alteration, or destruction of records (44 U.S.C.

2905, 3106).

(b) The penalties for the willful and unlawful destruction,

damage, or alienation of Federal records are contained in

the U.S. Criminal Code (18 U.S.C. 2071).

«35a

DEPARTMENT OF STATE

RECORDS MANAGEMENT RULES

5 Foreign Affairs Manual Part 400

410 General Program \

The regulations set forth in this chapter establish the basis

for an active, continuing program for the effective and

economical management of records within the Department

of State and all of its component elements in the United

States and abroad, as required by Federal statutes and

regulations. As used herein, the term ‘‘Department”’ or

“Departmental” covers personnel and records of the

Department at Washington, D.C., and its domestic field of-

fices in the United States; and the term ‘“‘post(s)’’ covers

personnel and records located at posts throughout the

world and U.S. missions to international organizations,

regardless of their geographical location.

411 Legislation and Regulations |

411.1 Federal Records Act of 1950 (

The Federal Records Act of 1950, ds amended (44 U.S.C.

3101-3107), requires the establishment of a records

management program. The act also provides that ‘The

head of each Federal agency shall establish safeguards

against the removal or loss of records he determines to be

necessary and required by regulations of the Administrator

of General Services. Safeguards shall include making it

known to officials and employees of the agency (1) that

records in the custody of the agency are not to be alienated

or destroyed except in accordance with the provisions of

sections 3301-3314 of this title, and (2) the penalties

provided by law for the unlawful removal or destruction of

records.”’ The act requires the Administrator of General

Services to be notified ‘‘of any actual, impending, or

threatened unlawful removal, defacing, alteration, or

36a

destruction of records in the custody of the agency. . .”’

Regulations implementing the provisions of the act regar-

ding removal of records are contained in section 417.

* * *

411.4 Federal Property Management Regulations (Sub-

chapter B, Archives and Records)

The Federal Property Management Regulations, which ap-

ply to all Federal agencies, are issued by the General Ser-

vices Administration. They establish the basic procedures

and standards applicable to records and paperwork

management. Those which are pertinent to the Department

of State and its component elements are incorporated in

these regulations.

413 Program Content

The Department’s records management program provides

for:

a. Effective controls over the creation, organization, main-

tenance, use, and disposition of all agency records.

b. Cooperation with GSA in developing and applying stan-

dards, procedures, and techniques designed to improve the

management of records, assure the maintenance and

security of records of continuing value, and facilitate the

segregation and disposal of all records of only temporary

value.

c. Compliance with the provisions of the Federal Records

Act of 1950, as amended, and with the regulations issued

thereunder.

d. Compliance with GSA regulations issued in connection

with the President’s moratorium on the purchase of new file

cabinets,

37a

414 Scope and Responsibility

414.1 Records Management Program

The records management program of the Department ap-

plies to all records produced, acquired, or maintained

throughout the Department and posts. The Foreign Affairs

Document and Reference Center (O/FADRC) is respon-

sible for the staff supervision, coordination, and direction

of the following functions: files management, records

equipment and supplies management, records disposition,

forms management (6 FAM 1350), administrative reports

management (2 FAM _ 140, 1230), correspondence

management (sections 100 and 200), directives

management (2 FAM 1100), and mail flow and procedural

studies.

Other functions of O/FADRC include maintenance and

operation of the central automated document storage and

retrieval system and its predecessor, the central foreign

policy file (section 434.1); operating the Records Service

Center (FADRC/RSC) (section 444); directing the vital

records program (section 460); providing authentications

services (2 FAM 1290); and developing standards to assure:

a. Adequate and proper documentation of the Depart-

ment’s activities;

b. Creation of only those records essential to the conduct of

current business; and

c. The efficient and economical management of all types of

records, including automated data processing records.

* * *

417 Removal of Records

417.1 Legal Restrictions

To implement the legal restrictions against the removal of

records by any employee leaving the service of a Federal

38a

agency, as set forth in the Federal Records Act of 1950, as

amended (see section 411.1), the following regulations and

procedures apply within the Department of State and its

component elements:

a. No papers kept in an employee’s office that have not

been explicitly designated or filed as personal at the time of

origin or receipt may be removed from the Department or a

post when the employee resigns, transfers to another

Federal agency, or is otherwise separated from the Depart-

ment or the Foreign Service, or at any other time, without

the approval of the Director, Foreign Affairs Document

and Reference Center.

b. In the case of papers not explicitly designated as per-

sonal at the time of origin or receipt, or filed as such, that

contain both personal and official matter, the Director,

Foreign Affairs Document and Reference Center, may

require extracts to be prepared of the official contents for

incorporation in the records of the Department or post con-

cerned.

c. Unclassified documents relating to the performance of

an employee’s official duties may be copied and privately

retained by an employee if approved by the Director,

Foreign Affairs Document and Reference Center.

417.2 Responsibility of Administrative Office

The administrative section of each Departmental office or

bureau and of each post has the responsibility for the

following actions:

(1) Reminding officials of the rank of assistant secretary

and above, or rank of ambassador, who are about to leave

the Department or the Foreign Service, of the laws and

regulations pertaining to the removal of records (sections

411 and 417).

(2) Insuring that a JF-4, Security Acknowledgment,

executed by each incoming official, and a JF-3, Separation

39a

Statement, executed by each departing official, are filed in

the official’s personnel folder (see 3 FAM 780).

(3) Suggesting to these departing officials the desirability

of consulting with National Archives representatives about

depositing personal papers that might be of historical in-

terest in the National Archives or a Presidential archival

depository, where specific restrictions may be placed on ac-

cess to such papers.

420 Records Creation

421 Legal Requirements

The Federal Records Act of 1950, as amended (44 U.S.C.

3101-3102), requires the head of each Federal agency to (a)

assure the making and preserving of records ‘‘containing

adequate and proper documentation of the organization,

functions, policies, decisions, procedures, and essential

transactions of the agency’’; and (b) provide for ‘‘effective

controls over the creation . . . . of records in the conduct of

current business.”

422 Control

422.1 Policy

Certain controls over the creation of records are essential to

insure that important policies, decisions, and operations

are ac2quately recorded, routine paperwork is kept to a

minimum, and the accumulation of unnecessary files is

prevented. Standards and techniques for achieving

economy and efficiency in the creation of records, including

correspondence, reports, forms, and directives, shall be

developed in accordance with the general criteria set forth

in regulations and handbooks issued by the General Ser-

vices Administration.

40a

422.2 General t:fethods and Procedures

The following methods and procedures should be followed

by all offices on a continuing basis:

a. Survey of Office Procedures

All existing and proposed office procedures should be sub-

ject to continuing examination for their effect on record-

keeping. Wherever possible, such procedures should be

revised, consolidated, or eliminated to prevent the creation

of unnecessary records.

b. Elimination of Duplicate Files

Every bureau, office, and post should take positive action to

prevent the establishment of, or to eliminate, duplicate files

not required for current operating purposes. Proliferation

_ of individual office working files can be controlled through

careful planning at the division or branch level and

maximum use of the central foreign policy file and the

automated document storage and retrieval system in

O/FARDRC.

c. Limitation on Number of Copies

The number of copies of communications and other

documents reproduced and distributed should be limited to

those required on a strict need-to-know basis. To the extent

feasible, control should be exercised over office copying

equipment to prevent the reproduction of unnecessary

copies. As a general rule, information copies of com-

munications should not be filed with official records but

rather maintained in a chronological, post, or other tem-

porary file which is retained for only a short period of time.

422.3 Specialized Programs

There are four types of records which require specialized

programs for their control: forms, reports, correspondence,

and directives. The regulations and procedures covering

4la

these programs are as follows: forms, 6 FAM 1350; reports,

2 FAM 140; correspondence, 5 FAM 100, 200, and the

Correspondence Handbook; and directives, 2 FAM 1100.

423 Documentation

423.1 Adequacy

The recording of activities of officials of the Department of

State and all of its component elements should be complete

to the extent necessary to (a) facilitate the making of

decisions and policies and the taking of actions by the in-

cumbents and their successors in office; (b) fulfill the

requirements of Federal statutes; (c) make possible a

proper scrutiny, by the Congress and by other duly

authorized agencies of the Government, of the manner in

which the functions of the Department of State have been

discharged; (d) protect the financial, legal, and other rights

of the Government and of persons affected by actions of the

Department of State; and (e) provide materials for research

and historical purposes. |

423.2 Types

In connection with the performance of functions assigned

to the Department of State, all essential information must

be made a part of its documentation. A large portion of this

documentation will be in the established communications

forms, such as telegrams, airgrams, letters, memorandums,

and diplomatic notes. In addition, the following types of

transactions and records also constitute official agency

documentation:

Decisions, commitments, and discussions of any signifi-

cance which are oral in nature (for example, person-to-

person, by telephone, in staff meetings, or in conferences)

must be made a matter of record. The information should

42a

be written in the form of aide-memoire, memorandums of

conversation, or memorandums to the file.

423.2-2 Treaties, Conventions, and

Other International Agrecinents

The signed originals or certified copies of treaties, con-.

ventions, and other international agreements effected by

exchanges of diplomatic notes, and also full powers and

other documents authorizing signature, resolutions of ap-

proval of treaties by the Senate, ratifications, notifications

of adherence or approval, proclamations of treaties and

other international agreements by the President, protocols

of exchange or deposit of ratifications, and notifications of

termination are part of the Department’s documentation.

Also included are original documents of formal

negotiations conducted by officials of the Department,

delegates to international conferences, or by delegates to in-

* ternational organizations in which the U.S. Government

participates.

423.2-3 Committee and Conference Documentation

Decisions and commitments on U.S. foreign policy are

reached through participation in Departmental, in-

terdepartmental, and international committees and in U.S.

governmental, national, and international conferences and

organizations. Committee and conference documentation

pertaining to this participation should include agenda and

minutes of each meeting; documents considered or presen-

ted for consideration; reports and other documents

resulting from the meetings; records created by or for

Departmental or U.S. Government participation before or

during the meetings; and records resulting from the im-

plementation of decisions and commitments.

43a

423.2-4 Position Papers, Briefing Books,

and Background Data

Position papers (whether used or not), briefing books, and

other background data are part of the documentation of

the Department’s activities. Each item should indicate

clearly the meeting or purpose for which it was prepared. A

master copy of each is a part of the Department’s records.

423.2-5 Special Missions

Activities of any missions either established by or respon-

sible to the Department or post for carrying out special

assignments should be fully documented. This documen-

tation should cover the establishment and functioning of

the mission and the implementation of its recom-

mendations.

423.2-6 Regulations, Directives, Delegations, etc.

Programs, policies, and procedures, and organizational

changes of the Department of State should be adequately

documented in regulations, directives, circulars,

delegations of authority, designations, legal opinions, and

similar material. A master set of each shall be maintained

as a part of the Department’s records.

423.2-7 Reports and Studies

Reports and studies prepared by Departmental or post per-

sonnel or at the request of the Department or any post for

its use are a part of the documentation of its activities.

Master sets of all such reports and studies are to be main-

tained as a part of the Department’s records. One copy will

be sent to the Document and Reference Division

(FADRC/DR) for centralized control.

444

423.2-8 Drafts and Working Papers

Rough 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.

423.2-9 © ADP Records

With increasing use of automated data processing

techniques, adequate documentation of the following types

of ADP records is essential: computer programs, machine

readable records, functional and operational flow charts,

job specifications, records showing basic coding structure,

record layouts, printout plans (formats), and basic run in-

structions (run books).

430 Organization and

Maintenance of Files

431 General Organization

Department and post files consist of three main types: cen-

tral files; authorized decentralized files; and operating,

reference, and working files. It is essential to efficient

operation that files be physically located with full con-

sideration given to use, security, space, equipment, content

of records, and control.

432 Separation of Personal From

Official Records

Papers of a personal character which pertain only to an in-

dividual’s private affairs and which are kept in the office of

a Departmental or post employee are to be clearly

designated as personal. They are to be filed separately from

the official records of the office at all times. When official

policy matters are discussed in personal correspondence,

that portion pertaining to functions or activities of the

—

oes”

45a

Department or a post is to be extracted and made a part of

the official records. Official-informal letters are official

records and as such are subject to the same laws,

regulations, and legal restrictions governing their main-

tenance and disposition as those relating to any official

documents. (See section 417 for regulations on removal of

records.)

445 Disposal of Records

445.1 Legal Provisions

No official Government records may be destroyed without

authorization of the National Archives, as set forth in the

Records Disposal Act of July 7, 1943, as amended (44

U.S.C. 3301-3314). The law further provides that the head

of each Federal agency is responsible for the preparation of

disposal lists and schedules as the basis for obtaining such,

authorization.

445.2 Authority to Dispose of Records

The Foreign Affairs Document and Reference Center has

been assigned responsibility for preparing the necessary

disposal lists and schedules for submission to the National

Archives for approval. Such schedules and lists are based

on a careful survey and evaluation of the records concerned

with appropriate consultation and clearance with officials

having custody and responsibility for the records. Certain

categories of records which are common to many agencies

have been scheduled by the General Services Admin-

istration and published as “General Records Sched-

ules.”” These authorizations may be applied to Depart-

mental and post records only upon specific instructions

from the Foreign Affairs Document and Reference Center.

Information material, working papers, and stock copies of

processed documents may be destroyed without formal ©

clearance through the National Archives. To the extent

possible, such material should not be incorporated in of-

ficial files.

47a

NOT TO BE PUBLISHED — SEE LOCAL RULE 8 (f)

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1207 September Term, 1978

THE REPORTERS COMMITTEE FOR Civil Action

FREEDOM OF THE PRESS, et al. No. 77-0220,

CYRUS R. VANCE, Individually and

as Secretary of State, et al.

HENRY A. KISSINGER, Appellant

No. 78-1208

MILITARY AUDIT PROJECT, et al. Civil Action

Vv No. 77-0391

DEPARTMENT OF STATE, et al.

HENRY A. KISSINGER, Appellant

No. 78-1315

THE REPORTERS COMMITTEE FOR Civil Action

FREEDOM OF THE PRESS, et al. ‘No. 77-0220

Appellants

CYRUS R. VANCE, Individually and

as Secretary of State, et al.

Appeals and Cross-Appeal from the United States

District Court for the District of Columbia.

Before: WRIGHT, Chief Judge, LUMBARD,* Senior

Circuit Judge, and TAMM, Circuit Judge.

*Of the Second Circuit, sitting by designation pursuant to 28 U.S.C.

§ 294(d) (1976).

48a

JUDGMENT

These casues came on to be heard on the record of ap-

peals (Nos. 78-1207 and 78-1208) and cross-appeal (No. 78-

1315) from the United States District Court for the District

of Columbia and were argued by counsel.

For the reasons stated in the attached memorandum, it

is ORDERED and ADJUDGED by this court that the

judgments of the District Cofirt appealed from in these

causes are hereby affirmed. ,

Per Curiam

For the Court

/s/ George A. Fisher

George A. Fisher

Clerk

Filed: November 7, 1978

49a

78-1207 et al.—Reporters Committee v. Vance

MEMORANDUM

The principal issue presented by this Freedom of In-

formation Act appeal is the ownership and appropriate

treatment of transcripts of appellant Kissinger’s telephone

conversations made when he was National Security Advisor

to the President and Secretary of State. Phe Government

defendants below, the present Secretary of State and the

Librarian of Congress, did not appeal. Thus a judgment af-

firming the District Court on the ownership issue may

make consideration of most. of the other issues Mr.

Kissinger raises unnecessary. Nevertheless, we find our-

selves in full agreement on all issues with the opinion of the

District Court filed December 8, 1977, 442 F.Supp. 383

(D.D.C. 1977), and its orders issued pursuant thereto filed

January 25, 1978 and March 2, 1978. Copies of the orders

are attached.

The District Court’s consideration of that portion of the

Reporters Committee’s request which sought notes of

telephone conversations in which Kissinger participated at

the White House prior to his appointment as-§ecretary of

State was apparently truncated because that court was un-

der the impression that the plaintiffs had withdrawn their

claim to such documents. Before this court the Reporters

Committee cross-appealed from Judge Smith’s resolution

of this question, arguing that it had never withdrawn its

claim and that these records should be produced. We

disagree. Even if Judge Smith misinterpreted the Reporters

Committee’s position as to Mr. Kissinger’s White House

transcripts, the result he reached in denying their produc-

tion was proper for the following reasons: (1) The Freedom

of Information Act does not extend to those of the

President’s advisors who are so close to him as to be within

the White House rather than the Executive Office of the

President (see S U.S.C. §552(e) (1976); 5. Conf. Rep. No.

50a

93-1200, 93d Cong., 2d Sess. 15 (1974); Nixon v. Sampson,

389 F.Supp. 107, 145-147 (D.D.C. 1975), entry of order

stayed, 513 F.2d 430 (D.C. Cir. 1975); cf: Soucie v. David,

448 F.2d 1067, 1074-1076 (D.C. Cir. 1971)). (2) The mere

relccation of these documents to the State Department

without any indication that they were used by that agency

does not render them State Department records obtainable

via an FOIA request to that department. (3) The

speculation that some of these earlier transcripts concerned

the affairs of the National Security Council adds nothing to

plaintiffs’ claim because no FOIA request was made of the

Security Council and, as mentioned above, the transfer of

the notes to the State Department does not change their

character.

Affirmed.

Note: The orders referred to above are found at App. 59a

and 63a.

nn ae — ee

Sla

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE REPORTERS COMMITTEE FOR _ )

FREEDOM OF THE PRESS. et al.. )

: Plaintiffs Civil Action

) No. 77-220

CYRUS R. VANCE, et al., )

Defendants )

MILITARY AUDIT PROJECT. et al., )

Plaintiff

; sect Civil Action

) No. 77-391

DEPARTMENT OF STATE , et al. )

Defendants )

OPINION

In these two Freedom of Information Act cases, the

Reporters Committee for Freedom of the Press, the

American Historical Association, the American Political

Science Association, and nine authors and journalists,

along with the Military Audit Project, seek access to records,

now in the custody of the Library of Congress, of Dr.

Henry Kissinger’s official telephone conversations during

his service as Assistant to the President for National

Security Affairs and as Secretary of State. Defendants are

the Department of State, Dr. Kissinger, his successor,

Cyrus Vance, Librarian of Congress Daniel Boorstin, and

Archivist James Rhoads. Motions for Summary Judgment

have been filed and argued on behalf of Dr. Kissinger and

all plaintiffs.’

~ ‘At argument, the government reported that, while it did not join Dr.

Kissinger’s motion, it did not oppose it.

52a

Dr. Kissinger served as National Security Adviser from

January 20, 1968 until his resignation on November 3, 1975.

He assumed office as Secretary of State on September 22,

1973 and remained in that position until the end of the

Ford Administration in January, 1977. Thus, for a period of

nearly two years, he served in two capacities —- as Secretary

of State and as staff adviser to the President.

Throughout Dr. Kissinger’s tenure in the Nixon and Ford

Administrations, his secretaries, both at the White House

and at the State Department, monitored his telephone con-

versations and took shorthand notes of what was said.

Transcriptions of these notes were prepared for Dr.

Kissinger and his staff.? No distinction was drawn between

conversations relating primarily to official government

business and those of a more personal nature. All were

monitored, transcribed, and the records thereof stored in

Dr. Kissinger’s office, apart from official agency files.

Prior to leaving office, Dr. Kissinger décided to donate to

the United States his personal papers and copies of various .

official documents relating to his activities while in office.

In early 1976 the State Department’s Legal Adviser in-

formed Dr. Kissinger that the secretarial notes were not

State Department doctments but were his own personal

papers. This advice was affirmed in writing in a memoran-

dum dated November 11, 1976.

On October 29, 1976, Dr. Kissinger transferred the notes

from his State Department office to a vault at the estate of

Vice President Nelson Rockefeller in Pocantico Hills, New

York. Dr. Kissinger requested Deputy Undersecretary

*In the Secretary's own words: “[mly purpose in causing the notes to

be made was to create a rough record of those of my daily telephone

conversations to which I or my immediate staff might wish to refer in

order tc follow up on matters discussed orally." SECOND AF-

FIDAVIT OF HENRY KISSINGER 93. In his supporting papers, Dr.

Kissinger reports that only his staff reviewed the notes. He never read

them, but kept them as a diary.

53a

Lawrence Eagleburger to review all the telephone records,

including those compiled during his service at the White

House, and to prepare written extracts of ‘any significant

policy decisions or actions not otherwise reflected in the

Department’s records’’.’ These extracts are now filed at the

State Department.‘

Finally, on December 24, 1976, the notes were deeded to

the United States; in the custody of the Library of Congress.

Under the terms of the deed, public access to the papers

was restricted to Dr. Kissinger and his appointees for twen-

ty-five years or until five years after his death, whichever is

later. Thereafter the notes would be available for public in-

spection with the consent or upon the death of the other

party to the conversation. On December 28, 1976, the

records were delivered from Pocantico Hills to the

Librarian, of Congress. Subsequently, defendant Rhoads,

citing his responsibility as Archivist of the United States to

oversee the preservation of “records of a permanent

historical value,”’ requested permission to inspect the notes.

By letter dated January 18, 1977, Dr. Kissinger rejected

that request.

The Freedom of Information Act grants this Court

authority to “enjoin [an] agency from withholding agency

records and to order the production of any agency records

improperly withheld.” 5 U.S.C. §552(aX4XB). Dr. Kissinger

contends that the Act is inapplicable for,three reasons.

First, he asserts, the fact that the notes are in the custody of

the Library of Congress, which is not subject to the Act,°

*Compare AFFIDAVIT OF MONROE LEIGH 415 with SECOND

AFFIDAVIT OF HENRY KISSINGER 413.

*Plaintiffs are aware of the existence of these extracts but have not

sought access to them under the Freedom of Information Act.

*Compare 5 U.S.C. §552(e) with 2 U.S.C. §132. While the Library of

Congress receives executive agency treatment for some purposes, see,

e.g.. 5 U.S.C. §5596, plaintiffs have conceded that it is not subject to

requests for information under FOIA. See U.S.C. §SS1(1 MA).

54a

renders meaningless any court order prohibiting the State

Department from withholding documents. He argues that

FOIA imposes no obligation upon an agency to gather

records no longer in its possession® and that, in any event,

plaintiffs lack standing under the Federal Records Act to

challenge the transfer from the Department.’

The Federal Records Act provides the exclusive

procedure for disposal of government records, which are

defined to include:

“documentary materials . . . made or received by

an agency of the United States Government under

Federal law or in connection with the transaction

of public business and preserved or appropriate

for preservation as evidence of the organization,

functions, policies, decisions, procedures,

operations, or other activities of the Government

or because of the informational value of data in

them.” 44 U.S.C. §3301 (emphasis added).

Prior disposal of its records, an agency must submit to the

Administrator of General Services a list of those intended

for disposal. 44 U.S.C. §3302. Only if the Administrator

then determines that the records are no longer appropriate

for preservation may they be destroyed. 44 U.S.C. §3303a.

When, as here, records have been removed from an agency

outside this statutory framework, the agency head must so

notify the Administrator and, together with him, initiate

*See 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); Ciba-Geigy

Corporation v. Matthews, 428 F.Supp. 523 (S.D.N.Y. 1977). See also,

ATTORNEY GENERAL'S MEMORANDUM ON THE PUBLIC IN-

FORMATION SECTION OF THE ADMINISTRATIVE

PROCEDURE ACT 23-24 (1967).

"See Nichols v. United States, 460 F.2d 671, 674-75 (10th Cir.), cert.

denied, 409 U.S. 960 (1972). See generally, Cort v. Ash, 422 U.S. 66, 78

(1975).

Pete’ ttm ‘tin 2 DP ie

4 ane Se

ee ee ee el el

55a

action through the Attorney General for their recovery. 44

U.S.C. §3106. This, suggests Dr. Kissinger, is plaintiffs’

sole remedy.

There is, however, an alternative. Rather than wait for in-

stitution of the statutory retrieval action, plaintiffs may first

invoke the broad equitable powers granted the district

courts in aid of their role as the “enforcement arm” of the

Freedom of Information Act. See Renegotiation Board v.

Bannercraft Clothing Co., 415 U.S. 1, 19 (1974). Accord,

Nixon v. Sampson, 389 F. Supp. 107, 121-22 n.34 (D.D.C.),

stayed sub nom. Nixon v. Richey, 513 F.2d 430 (D.C. Cir.

1975), dismissed as moot, (D.D.C. September 21, 1977).

The courts may draw on those powers to order the return of

wrongtully removed agency documents where a statutory

retrieval action appears unlikely.

Secondly, Dr. Kissinger urges that notes of those con-

versations conducted in his White House capacity cannot

be considered “‘agency records’’. At oral argument, plain-

tiffs withdrew their challenge to this position.

Dr. Kissinger’s final argument, based on the proposition

that creation of the extracts fully satisfied the State Depart-

ment’s record-keeping requirements, is that the notes are

personal working papers,® not “‘agency records’’ and not

subject to an FOIA request. He maintains that he con-

sidered and treated the notes as personal property from

their inception.’ Circulation was restricted to his immediate

*See S Foreign Affairs Manual [FAM] §432.2-8.

*See S FAM §432, which reads: “Papers of a personal character which

pertain only to an individual's private affairs and which are kept in the

office of a Departmental or post employee are to be clearly designated

as personal. They are to be filed separately from the official records of

the office at all times. When official policy matters are discussed in per-

sonal correspondence, that portion pertaining to functions or activities

of the Department or a post is to be extracted and made a part of the

official records.”’. By its terms, the regulation applies exclusively to

56a

staff. The records were stored in filing cabinets in his of-

fice."° Dr. Kissinger asserts that had he thought that the

notes would be determined to be official records, he would

have edited them for errors in transcription. Since that

would have been a long and arduous process, he would have

abandoned the entire project.

State Department regulations require documentation of

all official activities in order to ‘‘facilitate the making of

decisions and policies and the taking of actions’”’ by Depart-

ment employees and “‘to provide materials for research and

istorical purposes.” S Foreign Affairs Manual [FAM]

§423.1. See 41 C.F.&. §101-11.202-2(a). This requirement

extends to all ‘decisions, commitments, and discussions of

any significance which are oral in nature.’’ 5 FAM §423.2-

1. See 41 C.F.R. §101-11.202-2(b). Involved here are high-

level conversations of the Secretary of State. The signifi-

cance of the commitments, decisions, and discussions em-

bodied in these conversations is apparent from the stature

of the other parties to them (two presidents, heads of state,

cabinet officers, diplomats, legislators, scholars, jour-

nalists, and others) and is underscored by a Department

policy which prohibits monitoring of telephone con-

versations except when “absolutely essential to the conduct

of business.’"' Consequently, under his own regulations,

Dr. Kissinger had no alternative but to document the mat-

ters discussed in the conversations.

It is a basic rule of copyright law that work created by an

employee within the scope of employment is the property of

the employer. See, e.g., Scherr v. Universal Match Corp.,

417 F.2d 497, S00 (2d Cir. 1969), cert. denied, 397 U.S. 936

“[plapers . . . which pertain only to an individual's private affairs” and

to “personal correspondence.”

ld.

"The policy is set forth in an undated letter from the Department's

Acting Assistant Secretary for Congressional Relations to former

Congresswoman Bella Abzug. But see 41 C.F.R. §101-35.308-%f).

2 oot ania

57a

(1970); Brattleboro Publishing Co. v. Winmill Publishing

Corp., 369 F.2d 565, 567-68 (2d Cir. 1966). This principle

applies equally in the government sphere.

In First Trust Company of St. Paul v. Minnesota

Historical Society, a federal trial court rejected a govern-

ment claim to journals compiled by Lieutenant William

Clark during his exploration of the Missouri River with

Captain Meriwether Lewis. 146 F.Supp. 652 (D.Mian.

1956). The court noted that Captain Lewis, not Lieutenant

Clark, had been charged by President Jefferson with the

responsibility of creating a log of the expedition. On ap-

peal, the Eighth Circuit framed the issue as follows:

“If Clark’s notes are the written records of a

government officer executed in the discharge of

his official duties, they are public documents and

ownership is in the United States.” United States

v. First Trust Company of St. Paul, 251 F.2d 686,

690 (1958) (emphasis added).

On the basis that the diary contained ‘‘a great many per-

sonal and private notations or letters, details of personal

illnesses, social engagements, and other such items as

might not be expected to be found in notes of official

character or in an official record,” the Court concluded

that the notes could not be classified as government proper-

ty. Id.

Similarly, in Public Affairs Associates, Inc. v. Rickover,

this Court held that Admiral Hyman Rickover, not the

federal government, was the owner of two speeches

authored and. delivered by the Admiral. 268 F.Supp. 444

(D.D.C. 1967). Determinative factors in that case were that

the speeches had been prepared by Admiral Rickover while

fiot on duty and during his leisure time at home. Both

speeches contained his personal views on subjects unrelated

to his official responsibilities and were delivered at private

functions before private audiences.

58a

Although personal in some respects, Dr. Kissinger’s

secretarial notes were compiled under circumstances unlike

those surrounding the creation of either Lieutenant Clark’s

journals or Admiral Rickover’s speeches. The records in

dispute here were produced not only in accordance with

Department regulations but also on government time and

with the aid of department employees, equipment,

materials, and other public resources. Having been

prepared and transcribed “‘in the discharge of his official

duties’’, the notes are property of the United States.'? The

Court further finds that the records were wrongfully

removed and should be returned to the State Department.

Plaintiffs* Motions for Summary Judgment will be gran-

ted, and defendant Kissinger’s Motion for Summary

Judgment will be denied. Counsel will submit an ap-

propriate order within ten days.

/s/ John Lewis Smith, Jr.

United States District Judge

December 8, 1977

"Dr. Kissinger suggests that the creation of the extracts transformed

the original notes from federal records into personal property. Depart-

ment regulations do not envision such a metamorphosis. Section 432 of

the regulations requires extraction of official matter contained in ‘‘per-

sonal correspondence.” See note 9, supra. It does not permit agency

employees to extract personal matter from official correspondence and

to then treat the correspondence as personal.

59a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS, et al.,

)

Plaintiffs )

) ,

)» Civil Action

) No. 77-0220

CYRUS R. VANCE, et al., )

)

Defendants )

MILITARY AUDIT PROJECT, et al., )

)

Plaintiffs )

: ) Civil Action

) No. 77-0391

DEPARTMENT OF STATE, et al., )

)

Defendants )

ORDER

This cause came on to be heard on motions of the plain-

tiffs in Nos. 77-0220 and 77-0391 for summary judgment

and on cross-motion of defendant Henry A. Kissinger for

summary judgment, pursuant to Rule 56 of the Federal

Rules of Civil Procedure, and the Court having considered

the pleadings, affidavits and admissions on file, and having

stated its findings of fact and conclusions of law in its

Opinion filed on December 8, 1977, it is hereby

ORDERED THAT

1. Defendant Kissinger’s cross-motion for summary

judgment is denied to the extent that it relates to

transcribed secretarial notes which reflect telephone

60a

conversations made in his capacity as Secretary of State,

and granted to the extent that it relates to transcribed

secretarial notes which reflect telephone conversations

made in his capacity as Assistant to the President for

National Security Affairs.

2. The motion of plaintiffs in No. 77-0220 for summary

judgment is granted to the extent that it relates to tran-

scribed secretarial notes which reflect telephone con-

versations made by defendant Kissinger in his capacity as

Secretary of State, and denied to the extent that it relates to

transcribed secretarial notes which reflect telephone con-

versations made by defendant Kissinger in his capacity as

Assistant to the President for National Security Affairs.

3. The motion of plaintiffs in No. 77-0391 is granted to

the extent that it relates to transcribed secretarial notes

which reflect official telephone conver-secretarial notes

which reflect telephone conversations made by defendant

Kissinger in his capacity as Secretary of State, and denied

to the extent that it relates to any documents other than

such transcribed secretarial notes. [sic]

4. As soon as practical after the effective date of this or-

der, defendants Kissinger, Daniel J. Boorstin, Cyrus R.

Vance, and the Department of State, or their agents and

employees, shall cause the original transcribed secretarial

notes, or portions thereof, which reflect conversations made

by defendant Kissinger in his capacity as Secretary of State

to be transferred to the custody of the Department of State.

S. Upon receipt of the notes transferred pursuant to

paragraph 4 above, the Department of State shall deter-

mine which of the notes, or portions thereof, are required to

be released to plaintiffs pursuant to the Freedom of In-

formation Act, 5 U.S.C. §522.

6. After making the determination required by

paragraph 5 above, the Department of State shall make

available to defendant Kissinger that portion of the notes

SEW Acct. pt ama d

—

6la

deemed subject to disclosure in order to afford him a

reasonable opportunity to apply to this Court for an order

restraining disclosure of any such notes which defendant

Kissinger believes are exempted from disclosure under 5

U.S.C. §552(bX6). A similar opportunity shall be afforded

to any person who was a party to a conversation which is

proposed to be disclosed, provided (a) such person gives the

Department of State written notice of his desire to examine

such conversation prior to its disclosure; and (b) such notice

is received before the disclosure takes place.

7. Upon completion of the procedures set forth in

paragraph 6 above, the Department of State shall make

available to plaintiffs all notes which are required to be

disclosed pursuant to the Freedom of Information Act, sub-

ject to any order of this Court entered in response to any ap-

plication to restrain disclosure made by defendant

Kissinger or other persons entitled thereto.

8. The court will retain jurisdiction of this cause for the

purpose of adjudicating any disputes which may arise

respecting claims of exemption made by defendant

Kissinger or other persons identified in paragraph 6 above

or by the Department of State.

9. The effectiveness of this judgment and order is

suspended for a period of 10 days following the entry

thereof to permit any defendant desiring to do so to move

for a stay pending appeal, and shall be further suspended

pending determination of any such motion or motions.

DATED: January 25, 1978

/s/ John Lewis Smith, Jr.

UNITED STATES DISTRICT JUDGE

=~ %

Dies Deabania R! Meialeaaceaah nian

RA Be Ze a oo

ane e

63a

IN THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

THE REPORTERS COMMITTEE FOR )

FREEDOM OF THE PRESS, et al., )

Plaintiffs )

y ) Civil Action

) No. 77-220

CYRUS R. VANCE, et al., )

Defendants )

MILITARY AUDIT PROJECT, et al., )

Plaintiffs )

v ) Civil Action

) No. 77-391

DEPARTMENT OF STATE, et al., )

Defendants )

ORDER

Upon consideration of defendant Kissinger’s motion for

stay, the arguments offered in support thereof and the

arguments offered in opposition thereto; it is hereby

ORDERED that paragraphs 7 and 8 of the final Order

entered herein on January 25, 1978, is hereby stayed and

suspended pending a final determination of the merits on

appeal; and it is

FURTHER ORDERED that the procedures con-

templated by paragraph 6 of such Order do not require any

person referred to in such paragraph to make application

to the Court for any order restraining disclosure of

materials proposed to be disclosed by the Department of

State sooner than 60 days following the final determination

of all appeals pending herein; and it is

FURTHER ORDERED that, during the pendency of any

appeal in this case, the Department of State shall hold the

64a

notes transferred to it pursuant to paragraph 5 of the

Court’s Order of January 25, 1978, solely for the purposes

specified in paragraphs 5 and 6 thereof; that access to such

notes shall be limited to State Department records officers

specifically designated by it to make the determinations

called for by such paragraph S, to their superiors within the

Department with whom consultation is necessary for such

purpose and to the Department of Justice attorneys having

specific responsibility for the conduct of this litigation; that

the Department of State shall maintain a list of all persons

having access io the notes and shall make such list available

to defendant Kissinger; that, except as provided herein, no

person having access to the notes shall reveal the contents

thereof to any other person; and that such person shall,

before obtaining access to the notes, be furnished with a

copy of this Order; and it is

FURTHER ORDERED that the defendant Kissinger

shall have access to the notes to the extent permitted by

established State Department regulations and policies.

/s/ John Lewis Smith, Jr.

UNITED STATES DISTRICT JUDGE

Dated: March 2, 1978.

li tli, “Cla te Ran LECT tL Nae ie v0 Some

j 65a

DEPARTMENT OF STATE

LEGAL ADVISER

WASHINGTON

November 11, 1976

Limited Official Use

MEMORANDUM TO THE SECRETARY

Legal Status of Transcribed Notes

of Your Telephone Conversations

In light of today’s story in the Washington Post (copy at-

tached), I thought it would be useful if I summarized the

advice and opinions I have given over the last eleven

months on the question of whether the transcribed sec-

retarial notes of your telephone conversations should be

considered as the records of any government agency, or as

essentially personal papers that you are entitled to retain

when you leave office.

The question first arose last January, when a request was

filed under the Freedom of Information Act for some of

these papers. At that time, I expressed my opinion that

these papers were not ‘‘agency records” within the meaning

of the Freedom of Information Act. Instead, they had con-

sistently been treated as personal in nature, and there were

rights of privacy at issue if telephone conversations between

two people had to be disclosed to third parties or to the

public. For these reasons, I was of the opinion that these

papers were personal rather than agency records.

In February, I raised the Freedom of Information Act

questions with the Assistant Attorney General for the

Decontrolled under

5S FAM 900 et seq.

12/22/76 MS

66a

Office of Legal Counsel at the Department of Justice. He

concurred in my view that the pending Freedom of In-

formation Act requests for the transcribed notes of your

telephone conversations could’ properly be denied on the

basis that they were not agency records.

Finally in March, I was callifd upon to review an appeal of

the Department’s denial of|the initial Freedom of In-

formation Act request for {hese papers. I advised the

Department’s Council on sification Policy that there

was “very strong support”’ fo# concluding that these papers

are not agency records. Incidentally, 1 gave this advice

despite an assumption that some of the transcriptions con-

tained classified material. The Council on Classification

Policy reviewed the requested papers and found that they

did not contain classified information.

Independently of these formal occasions when my legal

opinion was sought by bureaus of the Department, I have

on several occasions discussed with you my view that you

would be entitled to retain the transcribed notes of your

telephone conversations when you leave office. The detailed

basis for my opinion is the following:

1, The papers have been expressly designated and filed

as personal from the time they were originated. Under

Department of State regulations (S FAM 417.1a), a retiring

official may retain papers expressly designated or filed as

personal from their time of origin or receipt.

2. The papers have not been circulated within any agency,

but have been continuously held in your possession and in

that of your immediate assistants. They were retained solely

at your discretion as work aids to help you recall prior con-

versations and events. Recent authority support the view

that such papers are personal rather than agency records.

In Porter County Chapter v. A.E.C., 380 F. Supp. 630(N.D.

Ind. 1974), certain handwritten notes and materials of

A.E.C. staff members were sought under the Freedom of

ee eee ees

67a

Information Act. The Court concluded that since ‘such

materials [were] not circulated to nor used by anyone other

than the authors, and [were] discarded or retained at the

author’s sole discretion for their own individual purposes in

their own files,”’ the materials were ‘‘personal notes and not

agency records.” Jd. at 633. The OMB guidelines on the

Privacy Act are in accord. They state that the Privacy Act

extends only to records under the control of an agency and

not to “uncirculated personal notes, papers and records

which are retained or discarded at the author’s discretion

and over which the agency exercises no control or

dominion’’ — even if such materials are ‘‘in the possession

of agency employees and used by them in performing of-

ficial functions.” 40 F.R. 28952 (1975).

3. The transcriptions that I reviewed in connection with

the Freedom of Information Act requests did not contain

any government decisions or policy actions. In the event

that other transcriptions should reflect such decisions or

actions, it is highly probable that they would have been in-

corporated in other papers at the time the decisions were

implemented — and those latter papers would certainly

have become government records. Nevertheless, as a pre-

caution, you should review the papers. If any discussion

of a significant government activity or decision is found, an

extract or summary of it should be prepared and submitted

to the appropriate records officials. This procedure is con-

templated in the Department’s regulations (S FAM 432).

Although technically these regulations apply only to “‘per-

sonal correspondence”’ and not to transcribed secretarial

notes, the preparation of a summary or extract will assure

. that government records are complete.

4. There are expectations of privacy when two people

have a telephone conversation. Although either party could

well make a record of a conversation, one assumes that

what was said will be revealed to others only at the

discretion of the other party. Treating what was said as a

68a

government or public record would violate these ex-

pectations.

5. The fact that the papers were retained for personal

use, that they were not required to be prepared, that they

have been consistently treated as personal, and that they

contain personal and private matter, support the view that

they are personal in nature. Similar factors were relied on

in United States v. First Trust Co. of St. Paul, 251 F.2d 686

(8th Cir. 1958), on reaching a conclusion that private notes

made on an official government expedition (the Lewis and

Clark expedition) were personal papers and not govern-

ment property of the United States.

6. The fact that these transcriptions were prepared by

government-paid secretaries using government paper and

typewriters is not, in my opinion, controlling, in view of the

factors discussed in paragraphs 1 through 5 above.

Moreover, it is accepted practice that senior officials who

must devote extraordinary amounts of time to government

duties may make use of government office resources to

prepare private correspondence and other personal

materials.

7. Whether future judicial decisions concerning the

Nixon papers might have some effect on the notes of your

telephone conversations cannot yet be determined. But I

am of the view that the Presidential Recordings and

Materials Preservation Act of 1974 does not apply to these

transcribed notes because that statute on its fact applies to

“the Presidential historical materials of Richard M. Nixon”

and not to personal papers of individuals who served under

him.

Today’s article in the Washington Post suggests that a

“U.S. eourt restraining order’’ in the Nixon papers

litigation may apply to the transcribed notes of your

telephone conversations. That court order, however, ex-

pressly applies only to ‘‘defendants”’ in that litigation and

ee ee -

69a

“their superiors, agents and assigns.” Nixon vy. Ad-

ministrator of General Services, 408 F. Supp. 321, 375

(D.D.C. 1976). Since you do not come within any of these

categories, this court order does not apply to the trans-

cribed notes of your telephone conversations.

In summary, it is my opinion that under Department of

State regulations atid other legal criteria, these particular

papers are personal and may be retained by you when you

leave office.

Monroe Leigh

Kissinger Hints He’s Ready for Talks on His Future

By Don Oberdorfer

Washington Post Staff Writer

One of the world’s hot literary properties — Henry A.

Kissinger — passed the word yesterday that he plans to

meet with ‘‘a few people”’ in the coming weeks about his

work after leaving public office.

This announcement, from spokesman Robert L. Funseth,

superseded an earlier statemeut from the Secretary of State

that he would consider it ‘‘improper’’ to discuss financial

offers while still in government.

Nobody would identify the persons who Kissinger plans

to meet about his future. However, friends said Kissinger

expects to write a book within the next two or three years,

and is exploring a quasi-independent role as an adviser and

consultant, possibly combined with an academic ap-

pointment.

Kissinger may well go onto corporate boards of directors,

according to one friend, but will definitely not take a gov-

ernment post. Those familiar with his thinking said there is

70a

little chance he will accept reported offers to be a television

commentator, considering such a post to be beneath the

dignity of a former diplomatic wizard.

Former Under Secretary of State Carlyle E. Maw, who

was Kissinger’s personal lawyer before joining the govern-

ment, said yesterday he has been accepting “offers,

suggestions and proposals” on behalf of Kiselbiger in recent

weeks, but that } Renee has not yet given them his at-

10 ~ f \ 7

tention. dee? | \é

Maw confirmed that he received a number of proposals

for a book, which is expected to be one of Kissinger’s major

activities — and a major source of income — in the next

several\ years. However, the lawyer said he had seen no

tine i that he does not believe Kissinger has started

drafting. Maw, who returned to private law practice last

September, denied a published report that Kissinger has

aa a literary agent.

N New York literary source said the Kissinger memoirs

were considered to have potential as)*‘a very big book of our

time,” though nobody knows what Kissinger would cover in

his writings, or how frank or incisive he would be. This

source said publishing houses have submitted offers over

many months, with no response from agents of Kissinger

except to receive the offers.

European publishers are said to be particularly en-

thusiastic about a Kissinger memoir. A rumor, sub-

sequently denied, swept European literary circles last week

that the book was to be put up for auction in London within

a few days.

Because of Kissinger’s extraordinary importance in the

history of the present era and his highly personalized and

secretive methods of operation, his files and recollections

may be of great importance to his successors in government

as well as extremely valuable to historians and the public.

—_

7Tla

Lawrence S. Eagleburger, Kissinger’s executive secretary,

said yesterday that the originals of Kissinger’s government

papers will rest in the files of the State Department or, in

the case of papers generated during his tenure as presiden-

tial national security affairs assistant, in the White House.

As with other retired secretaries of state, access to his State

Department documents after his departure from govern-

ment will be arranged, Eagleburger sa

Eagleburger said extensive ‘“‘memoranda of conver-

sations”’ covering talks between Kissinger and foreign and

U.S. leaders are part of this official file.

However, he said Kissinger obtained a State Department

legal adviser’s ruling last January that secretarial notes of

his telephone conversations are ‘‘personal papers’’ which

may be taken with him when he leaves government.

Some of Kissinger’s most important transactions with

presidents and foreign leaders are believed to have taken *

place by telephone. Some private attorneys believe the

records of telephone conversations monitored during the

Nixon presid may be covered by the U.S. court

restraining order which requires public preservation of the

Nixon papers.

According to State Department regulations, no papers

which have not been explicitly designated or filed as per-

sonal at the time of origin or receipt may be removed when

an official resigns.

The line between official records and personal papers is

the subject of a memo, awaiting final clearance, which the

National Archives and Records Service plans to send within

a few days to all government departments.

Rep. Bella Abzug (D—N.Y.) chairman of the sub-

committee on governme7t information of the House Govern-

ment Operations Committee, is reported to be considering

72a

an appeal to have a moratorium on the removal of any

papers by departing Ford administration officials until the

ownership questions can be resolved and the removal of

documents supervised by the National Archives and the

subcommittee.

Eagleburger said yesterday he expects Kissinger to be

“very conservative” in determining what might be of a per-

sonal nature. “1. there is a question about it, it will stay

here,” Eagleburger said.

In all of his dealings with senior Chinese officials in

Peking and some of his dealings with Soviet diplomats,

Kissinger has departed from the traditional practice of

utilizing his own interpreter, relying instead exclusively on

interpreters supplied by the other sides. There have been

reports that this was done by’Kissinger for purposes of

keeping dealings secret from the U.S. government

bureaucracy and that no other U.S. official could be sure

of what was said in some extremely important meetings.

Eagleburger quoted Kissinger yesterday as saying there

was always a U.S. note-taker during his Chinese and Soviet

conversations. Eagleburger said the use of Chinese rather

than American interpreters in Peking was at Chinese in-

sistence.

+ Li

tint a cnet te a ta te Re

73a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUER

(Caption omitted in printing) \

SECOND AFFIDAVIT hm A. KISSINGER

HENRY A. KISSINGER, being duly sworn, deposes and

says:

1. I am one of the defendants in the above-captioned

actions. This affidavit is given in support of my Cross-

Motion for Summary Judgment filed herein, and states

facts within my own knowledge.

2. From January 20, 1969, until September 22, 1973, I

served in the White House as Assistant to the President for

National Security Affairs. From September 22, 1973, until

November 3, 1975, I served both as Assistant to the

President for National Security Affairs and as Secretary of

State. After November 3, 1973, I continued to serve as

Secretary of State until January 20, 1977.

3. During the period of my government service, my

secretaries generally monitored my telephone conversations

and took shorthand notes of what was said. These notes

were later transcribed and filed in my personal files; the

shorthand notes were not kept. My purpose in causing the

notes to be made was to create a rough record of those of

my daily telephone conversations to which I or my im-

mediate staff might wish to refer in order to follow up on

matters discussed orally. There was nothing unusual about

this; many other high-level officials at the White House, the

State Department, and other departments of the govern-

ment have for decades followed: the same practice of tran-

scribing telephone conversations and filing them with their

private papers.

74a

4. In my case, the notes served as work aids to ease the

administrative burdens of my office. For example, my

executive secretary checked them periodically in order to

prepare my appointments schedule and keep it current.

The notes were also read by my Senior Special Assistant so

at he could keep abreast of my activities. This saved time,

as it enabled him to know whether any matters I had

discussed required follow-up or implementation without

waiting for me to report the substance of my telephone con-

versations. The notes had no other functionyafd were used

for no other purposes.

5. The monitoring of my conversations was not limited

to discussions of official business, but included most of my

conversations without regard to their subject matter or the

identity of the other party to the conversation. It was not

practical to limit the monitoring to official conversations,

because [ would not always know the character of a con-

versation until after it had begun. Thus, the transcribed

notes give details of my conversations with friends, jour-

nalists, diplomats, government officials, two Presidents,

scholars, Congressmen, and other people. Many of these

conversations were of a purely personal character; this is

true of conversations with diplomats, Congressmen and

other government officials as well as convérsations with

others. Other conversations were of a mixed character, in

which discussions of personal and official matters were in-

termingled. Even formal business conversations would con-

contain humorous and other personal and non-official

remarks.

6. I always regarded the telephone transcripts as work

aids which I could retain or discard as I chose as had

several of my predecessors and many other officials. They

were not filed among the official records of any agency, but

were stored along with the test of my personal papers in

personal files located in my office. The notes were not to my

~*~

75a

knowledge circulated outside my office, and only I and my

immediate personal staff had access to them. I did not edit

the notes as they were made, or at any other time. There was

no need to do so, because no one other than my immediate

staff used them and they could obtain the limited in-

formation they neededyfrom the rough notes themselves.

Had I believed the telephone transcripts would be treated

»” as official records, I would have been obliged to edit them

~as they were made in order to assure that the stenographers

had understood correctly and that the notes were accurate

and complete and in suitable form for filing as official

records. Since this would have required a substantial com-

mitment of my time, I probably would have decided the

notes were not worth the effort, and thus would not have

made them at all.

7. As the end of my term as Secretary of State drew

near, I began to make plans for leaving public office. I

believed that the papers relating to my years in government

should be preserved, and decided to donate them to the

United States. I chose the Library of Congress as the

custodian of these papers, because I knew it had been used

as a depository by many other Secretaries of State.

8. In making this donation, I wanted to include not only

my personal papers, but also copies of official State Depart-

ment records relating to my activities. I believed that such a

collection of personal and official papers would provide a

unique opportunity for future historians by assembling in

one place all the papers ‘relating to my years of association

with government.

9. To accomplish this objective, it was necessary to ob-

tain State Department approval to transfer-my working

files, which contained copies of official documents con-

nected: with my activities, to the Library. This approval

was required because the State Department’s policies do

not permit a retiring official to retain copies of classified

documents unleé$s it is satisfied that the documents will be

stored in facilities suitable for the receipt of such materials.

To satisfy this requirement, it was sceiedly to secure ap-

proval bythe Department’s Office of Security ‘for the

proposed storage facilities at the Library and to establish

procedures for review of the working files to assure that

they did not contain any original records whith should have

been filed in the Department’s Central Files. The steps

taken in meeting these requirements are described in a

Donation Procedures Memorandum, dated November 12,

1976, a copy of which is attached hereto.

10. The procedures adopted in connection with transfer

of my working files to the Library of Congress did not apply

to my personal files, because Department of State

regulations presume that papers which were designated

and filed as personal from the date of origin or receipt may

be removed by a retiring official without further processing.

The telephone s at issue here met this description,

‘ because they had originally been part of my personal files

transferred from the White House to the State Department

and had continued to be maintained in separate perscaal

files during my years at the Department.

11. In addition, I had been advised by the Department’s

Legal Adviser, Monroe Leigh, that the telephone notes were

not records of the State Department, but rather were my

personal papers which I would be free to retain when I left

office. He first gave me this advice in early 1976, and

repeated it in a number of subsequent discussions. Mr.

Leigh summarized the substance of that advice in a written

memorandum, dated November 11, 1976, a copy of which is

attached as Exhibit B to the complaint filed in No. 77-0220

herein.

12. In October 1976, I decided to remove the telephone

notes from my office in the State Department. Since I had:

no suitable place of my own in which to store the notes, I

ade Oe wren een ok

77a

received permission from then Vice President Rockefeller

to place them in a large bank-type vault at his estate in

Pocantico Hills, New York. The removal and transfer oc-

curred on October 29, 1976; it was arranged for me by

Lawrence M. Eagleburger, at my request.

13. At about the same time, I asked Mr. Eagleburger to

-review the notes to determine whether extra¢ts should be

made of any portion of the notes for inclusion among the

Department’s official records. I chose Mr. Eagleburger

because he had worked with me during most of the time I

had been in government, was familiar with my activities,

and therefore could identify the portions of the notes ap-

propriate for extracting. My instructions to Mr.

Eagleburger were that he should read all the telephone

notes, including those from the White House period, and

extract everything he believed was necessary in order to

comply with the regulations and Mr. Leigh’s advice. He

subsequently reported to me that the extracts had been

made and delivered to the Director of the Department of

State Records Center and to the Staff Secretary of the

National Security Council.

14. The agreement donating my State Department

working files and personal papers from my years at Har-

vard University to the Library of Congress was executed on

or about November 12, 1976. A copy of that agreement is

attached as Exhibit A to the complaint filed in No. 77-0220

herein. In mid-December 1976, I decided that the

telephone notes should also be part of the Library’s collec-

tion. I executed a separate agreement relating to this

donation on December 24, 1976. A copy of this agreement

is attached as Exhibit C to the complaint filed in No. 77-

0220 herein.

15. The notes were treated separately in a second

agreement because I concluded that the access restrictions

stated in the original agreement were not adequate to deal

78a

with the special privacy problems presented by the notes.

Many of the notes contained statements made in con-

fidence which the speakers could reasonably assume would

not be made public. Some of these statements might affect

the reputations of prominent individuals still active in

politics or foreign affairs. I believed there was a need to

preserve the confidentiality of these conversations until suf-

ficient time had passed to assure that they would be a part

of history rather than of contemporary politics. Since it was

necessary to protect not only my privacy, but the privacy of

the persons with whom I spoke, I decided the second

agreement should restrict access to these notes for the lives

of both parties to the conversations.

16. At about the time the second agreement was signed, I

asked Mr. Eagleburger to arrange for transfer of the notes

from Pocantico Hills to the Library of Congress. I un-

_ derstand that this transfer was made on December 28,

1976.

17. Since this litigation began, I have had an opportunity

to examine the notes. This limited inspection confirms my

previous understanding that the notes are rough memoran-

da which vary considerably in quality according to the skill

of the secretary who made thein. Although some of the

notes appear to be substantially verbatim, many others are

only rough approximations of what was said. Quite a few of —

the notes I saw contained misspelled names, omissions,

garbled passages, and outright errors of transcription.

Although the notes are useful in refreshing 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.

18. Future historians, who will have the opportunity of

comparing the notes to official records after these records

have been declassified, may find the notes useful. However,

79a

_ I believe it would be highly inappropriate to release them

now, when the full historical record of the period is still in-

complete, and when many of the participants in the con-

versations are still active in public life.

HENRY A. KISSINGER

(Jurat omitted in printing)

80a

DEPARTMENT OF STATE

ACTION MEMORANDUM

S/S

November 12, 1976

LIMITED OFFICIAL USE

TO: The Secretary

FROM: M— Lawrence S. Eagleburger

Donation Procedures

Attached (Tab 1) is a proposed Deed of Gift and

Agreement, which would be the legal instrument by which

the collection of papers from your years in Government and

from other periods of your life would be donated to the

Library of Congress.

Paragraphs 2 and 3 of the proposed Deed of Gift and

Agreement refer to Government review and approval of

copies of Government papers that would be included in the

collection. If you concur, papers will be reviewed in the

Department of State in the following manner:

1. The Director of the Department of State Documents

Center (FADRC) will designate up to three FADRC em-

ployees to review your Department of State files, which may

include some personal papers which were not expressly

designated or filed as personal from their time of origin or

receipt. This is in accordance with Department regulations

(S FAM 417.1).

2. In reviewing these papers, the FADRC employees will

crosscheck all Department documents in yaur files against

the Central Foreign Policy File of the Department and

those files retained in the Executive Secretariat, to ensure

Pals at Acer ree actin ade in Be ss PD

fad re en Se

ait nr Bs Mics sams Wace tin teh Le

8la

that the central file is complete and that the Secretary’s

files do not include any original or record copies. If a

Department record is found in your file that is not present

in the central file, the FADRC employees will (a) make a

duplicate of the paper, (b) place the duplicate in your files,

and (c) take the necessary steps to include the document in

the Department’s record system. In some cases, certain

documents may be temporarily retained in the Executive

Secretariat rather than the Department’s Central Foreign

Policy File.

3. If the FADRC employees locate any paper which they

consider to be personal or of a non-record nature, they will

simply leave that paper in the file and take no action to in-

clude such items in the Department’s central records. In

the case of any document containing both personal and of-

ficial matter, an extract of official contents will be prepared

for inclusion in the Department’s record system. In making

determinations between personal, record, and non-record

material, FADRC employees will be guided by the Director

of FADRC, who will, as need arises, consult with one of

your assistants and/or the Department’s Legal Adviser in

making a final decision. If you so desire, all documents or

portions of documents duplicated for the central files can

be so annotated on your copy.

4. After the Department’s Document Center has com-

pleted its review of a file or group of files, it may be

deliveredto the Libarary of Congress under paragraph 3 of

the Deed of Gift and Agreement at Tab 1.

S. Under the Department’s regulations (5 FAM 417.1a),

you are entitled to retain papers that have been expressly

designated or filed as personal from their time of origin or

receipt. In accordance with paragraph 3 of the Deed of Gift

and Agreement, these personal papers may be transferred

to the Library of Congress at any time within three months

after the Deed of Gift and Agreement is signed.

82a

6. The Department of State’s Office of Security has com-

pleted an inspection of the storage facilities at the Library

of Congress to be used for the storage of your collection of

papers. It has been determined that they satisfy the

requirements for storage of all classified or controlled in-

formation, provided the Library of Congress takes certain

steps with respect to the storage area (see Tab 3). The

Library of Congress has undertaken to complete these steps

within the coming week. No copies of Government papers

wilt be delivered to the Library until these steps are com-

pleted.

7. At the time you resign your position as Secretary of

State and leave the Department, you will be required (un-

der S FAM 417.2) to sign a Separation Statement, Form JF-

3. A copy of the Statement you will be required to sign ap-

pears at Tab 2.

As noted below, the procedures discussed in this

memorandum, as well as the provisions in the Deed of Gift

and Agreement pertaining to the Department of State, have

been approved by the Department officers concerned. If

you concur, the procedures discussed in this memorandum

will be implemented.

Recommendation:

That you concur in the procedures described in this

memorandum.

Approve __ Disapprove

Attachments:

1. Proposed Deed of Gift and Agreement.

2. Copy of Separation Statement, Form JF-3.

3. Memorandum from the Office of Security con-

, cerning the storage area at the Library of Congress.

- A Fai LN ait APA OO RE ig tt NINE Bea oe

83a

4. Excerpt of Department of State Regulations.

Clearances:

L — Monroe Leigh

A — John Thomas

A/O/FADRC — Jack Pruden

(Attachments omitted in printing)

j 85a

DEPARTMENT OF STATE

Washington, D.C. 20020

October 7, 1976

Dear Mrs. Abzug:

‘Our study has now been completed and the Secretary has

asked me to reply to the questions contained in your letter

of July 14 on the telephone monitoring practices of the

Department of State. Basically, the Department is subject

to the Federal Property Management Regulations (FPMR

Boe 101-35.308). Your specific questions are answered as

\ follows:

1. Q: Does the agency presently permit monitoring of

incoming or outgoing telephone calls? (for the

purpose of this inquiry, ‘‘Monitoring”’ includes,

but is not limited to, a secretary or any third

person listening in on the line, either covertly or P th

overtly.)

\ A: * The Department prohibits the monitoring of

a telephone’calls except for the most limited pur-

poses.

la). Q: For what purpose and under what cir-

cumstances does monitoring occur?

A: The only exception to the general

prohibition is to permit a third party

to listen to the telephone con-

versations of the senior principal of-

- ~ ) ficers of the Department for the

purpose of taking notes or making

The Honorable

Bella S. Abzug, Chairwoman,

Government Information and

Individual Rights Subcommittee

j House of Representatives

86a

appointments and to improve the

general efficiency of operations. This

is done only at the express request of

the officer — whose calls are those

being monitored.

1b.) Q: Do agency employees consent to

monitoring of their telephone con-

versations and, if so, are their con-

sents given in writing?

A: Again, employees’ telephone con-

versations are not monitored; this is

rohibited by the Department. In ac-

py secu with the provisions of FP-

MR 101-35.308, monitoring is per-

mitted only when an exception to the

general prohibition is deemed ab-

solutely essential to the conduct of

business. Only principals have been

permitted to have a monitoring

device; in such cases the exception

has been granted at his own request to

monitor his own telephone con-

versations.

ic.) .Q: To what extent are the employees and

outside callers aware of the presence

of another party on the line?

A: As noted above, monitoring occurs

only in the most limited cir-

cumstances. In some of these cases,

the other party may not be aware that

the call was being monitored.

Is tape recording of telephone conversations on

the agency’s lines presently permitted? If so, do

any warning or consent requirements ac-

company or limit this practice?

———_

fk ein

+ 6s Cg ee Bai ee

* aime -

87a

Only in its Operations Center does the Depart-

ment have equipment for taping telephone con-

versations. Activation of this equipment is

permitted in only two cases: 1) when an in-

coming caller requests that his conversation be

recorded for later transmission to a third party;

2) in the event of a threatening call such as a -

bomb threat or warning of terrorist attack. The

equipment operates without any ‘‘beep’’ or

warning device, since it is used only when the

calling party has voluntarily requested its use or

in instances when criminal activity is suspected.

Does the agency take any measures to minimize

its listening time to portions of conversations

which are relevant to the purposes of the

monitor?

Monitoring is authorized only when the prin-

ine determines that monitoring by the third

party is relevant or necessary to the transaction

of business.

Are there any regulations controlling the agen-

cy’s telephone monitoring practices? If so,

please include a copy with your reply. Is the

agency affected by any general regulations

issued by the General Services Administration,

the Office of Telecommunications Policy, or the

Federal Communications Commission? If so,

please cite the regulations.

As noted above, the Department is subject to

the provisions of the Federal Property

Management Regulations (FPMR 101-35.308.)

Under what statutory authority does the agency

monitor the telephone conversations of its em-

ployees and outside callers?

6. Q:

8, Q:

9. Q:

88a

Once again, the Department does not monitor

the telephone conversations of its employees.

The limited monitoring of outside calls

described in 2 above, of course, is not done pur-

suant to specific statutory authority but under

the general authority of the Department to

conduct its business.

Does the agency employ any automatic devices

which record dialing impulses or observe ser-

vice quality? Does use of this equipment fall

within the agency’s definition of telephone

monitoring?

The Department of State does not have any

equipment which records dialing impulses or /

observes Service quality. a

What does the agency do with tieindtioe

regarding illegal activity which comes into its

hands in the course of telephone monitoring for

service or supervisory purposes?

The Department of State does not monitor

telephone calls for service quality or supervisory

purposes.

Do the agency’s practices ever conflict with

State or Federal law? Where and when has this

occurred? In the event of a conflict between

State and Federal law, which law controls the

agency?

We are not aware of any instance in which the

Department’s practices have been in conflict

with state or federal law.

Does AT&T service the agency’s monitoring

equipment? Does any AT&T policy constrain

the agency’s monitoring practices? Do you have

=e...

89a

any reason to believe that AT&T has ever par-

ticipated in any independent or outside

monitoring of the agency’s lines?

The small amount of telephone monitoring

equipment at the Department is the property

of the C&P Telephone Company and was in-

stalled and is maintained by their service

representatives. The Department of State has

agreed in writing to abide by the regulations of

the C&P Telephone Company regarding the

operation of these devices. These regulations

are based upon applicable FCC regulation. The

Department is not aware of any monitoring of

the agency’s lines by AT&T.

10. Q: Does the agency receive requests to monitor

pursuant to court order or for national security

_. purposes? How often has this occurred in the

past 10 years, and to what extent does the agen-

cy comply with these requests?

We are not aware of any instance in which the

Department has received a request to monitor

calls pursuant to court order or for national

security purposes.

I hope that these answers are responsive to your ques-

tions.

Sincerely yours,

Kempton B. Jenkins

Acting Assistant Secretary

for Congressional Relations

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.