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

Supreme Court brief1979

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Bupreme Court, U.S

FILED

JUL 2 1979

L_MICHAEL RODAK, JR., CLERK

APPENDIX 4

IN THE

Supreme Court of the United States

October Term, 1978

Nos. 78-1088 and 78-1217

= | HENRY A. KISSINGER,

Petitioner,

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et al.,

Respondents.

and

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et ai., \

Petitioners,

V. P wee

HENRY A. KISSINGER,

Respondent.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

' FOR THE DISTRICT OF COLUMBIA CIRCUIT

—

a eer I AE EE, CELLET ELE SE LA

Petitions For Certiorari

filed January 8, 1979 and February 5, 1979

Certiorari granted April 16, 1979

IN THE

Supreme Court of the United States

October Term, 1978

Nos. 78-1088 and 78-1217

HENRY A. KISSINGER,

Petitioner,

Vv.

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et al.,

Respondents.

and

REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et ai.,

Petitioners,

HENRY A. KISSINGER,

Respondent.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

TABLE OF CONTENTS

Page

List of Relevant Docket Entries — United

States District Court for the District of

Ck 0.6 bi 6d 8. RVR ERS CONS Beek Wotben la

List of Relevant Docket Entries — United

States Court of Appeals for the District

OE IEE, s Sv os bw Oe HWuleera at Ss Coe aa wae ek 9a

Plaintiffs’ Complaint For Access To Records;

Civil Action No. 77-0391 (March 8, 1977)... ...........085. 17a

THE CASILLAS PRESS, INC.-1717 K Street. N W.—Washington, 0. C.-223-1220

(ii)

Plaintiffs’ Amended Complaint; Civil Action

No. 77-0220 (March 21, 1977) 0... ee eee cece cere ee eeees 21a

Exhibit A to Amended Complaint - Deed of

Gift and Agreement; November 12, 1976

(Match 21,1977) ....ccccccccccccvccvesecsccccnsces 42a

Exhibit C to Amended Complaint - Second

Deed of Gift and Agreement; December 24,

1976 (March 21,1977) ...... cece ccc e eer erence reece: 46a

Exhibit D to Amended Complaint - Letter from

James Rhoads to Henry A. Kissinger; January 4

1977 (March 21,1977) ....sccccccccvccccvsscvesecess 47a

Exhibit F to Amended Complaint - Letter from

William Safire to the Secretary of State;

January 14, 1976 (March 21,1977) ....-- sees eeee ere eees 49a

Exhibit G to Amended Complaint - Letter

from William Safire to the Assistant

Secretary of State for Public Affairs;

February 24, 1976 (March 21 (1977) ... 6. ++ ee errr eee eees 52a

Exhibit H to Amended Complaint — Letter

from Charles A. Horsky, Esq. to the

Director of Freedom of Information Staff,

Department of State; January 13, 1977

(March 21,1977) .....ccccccccccscccevecersesevnces S6a

Exhibit I to Amended Complaint - Letter

from George Aldrich, Legal Adviser,

Department of State to Charles A. Horsky,

Esq.; January 28, 1977 (March 21, ED oe cepa mew Re we 6la

Plaintiffs’ Motion For Summary Judgment;

Civil Action No. 77-0391 (April 18, 1977)... -- +e eee rere 64a

Plaintiffs’ Statement of Material Facts As

to Which There is No Genuine Issue; Civil

Action No. 77-0391 (April 18, 1977) «0... cece ee eee renee 65a

(iii)

Exhibit 1 — Letier from William A. Dobrovir,

Esq. to Director, Freedom of Information Staff,

Department of State; December 28, 1976

(April 18, 1977)

Exhibit 2— Letter from William A. Dobrovir,

Esq. to Barbara Ennis; December 29, 1976

(April 18, 1977)

Exhibit 3 — Letter from Monroe Leigh, Legal Adviser,

Department of State, to William A.

Dobrovir, Esq.; January 18, 1977 (April 18,1977) .......... 73a

Exhibit 4 — Letter from William A. Dobrovir,

Esq. to Ambassador John E. Reinhardt,

Assistant Secretary of State for Public

Affairs; January 24, 1977 (April 18, 1977)

Exhibit S— Letter from William D. Blair, Jr.,

Acting Chairman, Council on Classification

Policy, Department of State, to William A.

Dobrovir, Esq.; March 4, 1977 (April 18, 1977)............ 78a

Exhibit 6 —— Memorandum from Monroe Leigh

Legal Adviser, Department of State,

to the Secretary, November 11, 1976, with attach-

ment; November 11, 1976 (April 18, 1977)

Exhibit 9— Letter from Henry A. Kissinger

to James B. Rhoads, with enclosures,

January 18, 1977 SAO SE NOT TE. s cool 88a

Exhibit 10 — Letter from James B. Rhoads to Henry A.

Kissinger; February 11, 1977 (April 18, 1977)

Exhibit 11 — Memorandum from Donald P. Young

General Counsel, General Services Administra-

tion to James B. Rhoads; February 3, 1977

(April 18, 1977)

(iv)

Exhibit 12 — Memorandum from American Law

Division, Congressional Research Service,

Library of Congress to House Subcommittee

on Government Information and

Individual Rights; January 19, 1977

(April 18,1977) 20... cc ccc reece ccc cre eeccccceenes

Exhibit 13 to Plaintiffs’ Statement of Material

Facts — Letter from Kempton P. Jenkins,

Acting Assistant Secretary for Congressional

Relations, Department of State, to Bella Abzug;

October 7, 1976 (April 18, 1977)... 6... eee ee eee ee ees

Exhibit 14 — Department of State Notice to

Employees; January 24, 1977 (April 18, 1977) ......--+-.

Answer of Defendants Vance and Boorstin to

Amended Complaint; Civil Action No. 77-0220

(April 19,1977) 0... ccc cece ee eee eee eer e eee eeeeees

Answer of Defendant Henry A. Kissinger to

Amended Complaint; Civil Action No. 77-0220

(April 19,1977) 2... . cc cece eee eee eee eee eee eeees

Plaintiffs’ Statement of Material Facts As to

Which There is No Genuine Issue to Be Tried;

Civil Action No. 77-0220 (April 19,1977) ........ esse eees

Appendix I — Extracts from Federal

Defendant Kissinger’s Responses to Plain-

tiffs’ First Set of Interrogatories and Deposition

of Henry A. Kissinger in

Halperin, et al. v. Kissinger, et al.;

Civil Action No. 73-1187 (April 19,1977) .........0500-

Appendix IX — ‘Kissinger Signs Book Contract

for Memoirs” from The Washington Post;

February 11, 1977 (April 19, 1977) .. 0.2... ee eee eee

Appendix XI — GSA Bulletin FPMR B-65;

November 15, 1976 (April 19, 1977)... 26... ee eee eee eee

Page

(v)

Appendix XII — Memorandum from Philip W.

Buchen to the White House Staff; November 30,

1976 (Apri! 19, 1977)

Appendix XIII — Statement by S/PRS;

December 28, 1976 (April 19, 1977)

Appendix XVI — Letter from Barbara Ennis,

Director, Freedom of Information Staff, Bu-

reau of Public Affairs, Department of State to

William Safire; February 11, 1976 (April 19, 1977)

Appendix XVIII — Letter from John Reinhardt,

Chairman, Council on Classification Policy,

Department of State, to William Safire;

March 29, 1976 (April 19, 1977)

Affidavit of William Safire in Support of

Plaintiffs’ Motion for a Preliminary Injunc-

tion; Civil Action No. 77-0220

SE DUPE bre Sis Na a's bibs co hbk) Wek were ees

Answer of Defendant Henry A. Kissinger;

Civil Action No. 77-0391 (April 26,1977) .............00.

Answer of Defendants Department of State,

Daniel J. Boorstin and James B. Rhoads;

Civil Action No. 77-0391 (April 26, 1977) .............0..

Affidavit of Henry A. Kissinger; Civil

Action No. 77-0220 (May 11, 1977) ......... 0... eee eeee

Defendant Henry A. Kissinger’s Statement of

Material FActs As to Which There is No Genuine

Issue to Be Tried Gene 17, 1977)... cc cwcncceccees

Appendices to Memorandum of Points and

Authorities in Opposition to Plaintiffs’

Motions for Summary Judgment and in Support

of Defendant Henry A. Kissinger’s Cross-Motion

for Summary Judgment (June 17, 1977):

Oe BS C66 18 2 Ce 6 Oe @ 4-6

So o'e 4.08

(vi)

Page

Appendix II - Department of State Memorandum

to The National Study Commission on Records

and Documents of Federal Officials; undated

RG Big SOUEE Kua che ee Se VER ele ap ear es ones

Appendix III - General Serviceds Administration

Report to the National Study Commission on

Records and Documents of Federal Officials;

August 2, 1976 June 17,1977) .... 6... cee cece ee eee

Appendix IV - Interim Report by the Department

of Defense, including Enclosure 1, ‘‘Non-record

Material;”’ and Enclosure 2, “Information to

Guide Presidential Appointees on the removal

of Documentary Materials and Papers;”’ undated

ee DRONE renee s Shoham Wee a ea

Appendix V - Federal Trade Commission Report

to The National Study Commission on Records

and Documents of Federal Officials; September

Bo 8 A oy, Poa ae eee eee ee eee ee

Appendix VI - Civil Service Commission Report

to The National Study Commission on Records

and Documents of Federal Officials; July 27,

Lad

rE a aR Sane See

Appendix VII - Department of the Interior Report

to The National Study Commission on Records

and Documents of Federal Officials; undated

CO Sr Oe Cer ee ee ee ee

Second Affidavit of Henry A. Kissinger, with

attachments; May 26, 1977 (June 17, 1977). ..........655.

Affidavit of Monroe Leigh; May 26, 1977

ee oy, Se ens Sree ree ae a eee ee }

Exhibit to Reply Memorandum of Points and

Authorities by Defendant Henry A. Kissinger

in Support of His Cross-Motion for Summary

(vii)

Judgment and in Opposition to Plaintiffs’

Motions for Summary Judgment: “Donation of

Personal Papers to the Richard Nixon Library,”

National Archives and Records Service,

General Services Administration; November 1972;

PUL Ty SUT OR pho 9 CV GMO HATA eee a akan’

Oral argument on Cross-Motions for Summary

Judgment, transcript pages 57-58

NEY NEED Wo raw chakras cicada Phe cays cia

Exhibits A and B to Plaintiffs’ Reply Memoran-

dum in Support of Their Motion for Clarification:

Excerpts from Government Organization Manuals

NE We NOIR ood ir hus Nika CA aR eink ea ies aye

Affidavits in Support of Opposition by Plaintiffs

to Defendant Kissinger’s Motion for a Stay

Pending Appeal (February 16, 1978):

William E. Leuchtenburg; February 1, 1978

cers, Ag ck i, BE Pe ee ee rae

Dr. Mack Thompson; February 9, 1978

I SUI cuir isa rec nati etyvests Lux,

Evron M. Kirkpatrick; February 15, 1978

(February 16, 1978)

OPINIONS:

Judgment and Memorandum of the Court

of Appeals for the District of Columbia Circuit

(November 7, 1978) appears in the Appendix to the

Petitions for Certiorari at page 47a.

Memorandum Opinion of the District Court

for the District of Columbia (December 8,

1977), appears in the Appendix to the Petitions for

Certiorari at page Sla.

(viii)

Order of the District Court for the

District of Columbia January 25, 1978)

appears in the Appendix to the Petitions

for Certiorari at page 59a

Order of the District Court for the

District of Columbia (March 2, 1978)

appears in the Appendix to the Petitions

for Certiorari at page 63a

Page

FE RR

LIST OF RELEVANT DOCKET ENTRIES

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 77-0220

THE REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et al., Plaintiffs

CYRUS R. VANCE, et al., Defendants

Date Nr. Proceedings

1977

Feb.08 COMPLAINT; exhibits A, B, C, D, E, F, G; ap-

Mar 21

Apr 19

pearance.

AMENDED complaint by pltf; Exhibits A thru

I; c/m 3-21-77.

ANSWER of defts Vance and Boorstin to

aménded complaint; c/m 4-19-77; Appearance

of Jeffrey Axelrad.

ANSWER of deft Henry A. Kissinger to amen-

ded c~. plaint; c/m 4-19-77. Appearances of

James E. Wesner and Martha Jane Shay.

CALENDARED. CD/N.

MOTION of pitfs for summary judgment and,

alternatively, a preliminary injunction;

statement of material facts; P &A’s; table of con-

tents; affidavit of William E. Leuchtenburg; af-

fidavit of Nat Hentoff; affidavit of William

Safire; Exhibit A; affidavit of Donald G. Herz-

May 02

May I11

May 12

May 13

May 20

May 26

berg; appendices to memorandum of points and

authorities; c/m 4-18-77. (fiat) Smith, J.

OPPOSITION of deft Kissinger to pltfs motion

for a preliminary injunction; P&A’s; table of

contents; table of authorities; c/m 5-2-77.

OPPOSITION of defts Vance and Boorstin to

pltfs motion for a preliminary injunction; af-

fidavit of John C. Broderick; memorandum; at-

tachment; c/m S-2-77.

REPLY MEMORANDUM of points and

authorities of pltfs in support of their motion

for a preliminary injunction; table of contents;

c/s 5/10/77.

SUPPLEMENT by deft #3 to opposition to

plfts motion for preliminary injunction; Af-

fidavit of Henry A. Kissinger;c/s 5-11-77.

SUPPLEMENT by defts #2 and #3 to op-

position to pltfs motion for preliminary in-

junction; Affidavit (2nd) of John C. Broderick;

Attachments A, B, C; c/s 05/12/77.

MOTION of pitf for a preliminary injunction

argued and taken under advisement. (Rep: D.

Copeland) Smith, J.

OPINION and Order denying plitfs motion for

preliminary injunction. (N). (See Opinion for fur-

ther details) Smith, J.

MOTION of defts to consolidate with 77-0391;

c/s and c/m 5-25-77.

June 17

June 20

Aug 05

Aug 08

OPPOSITION by defts Vance, Boorstin & the

Department of State to motions of pltfs. for sum-

mary judgment; affidavit of Jeffrey Axelrad;

memorandum; c/m 6-17-77.

REQUEST by defts Vance, Boorstin & the

Department of State for production of docu-

ments directed to deft Kissinger; c/m 6-17-77.

MOTION by defts Vance, Boorstin & the

Department of State for a protective order;

memorandum; c/m 6-17-77.

CROSS-MOTION by deft., Henry A. Kissinger

for summary judgment; statement of material

facts; P&A’s; appendices to P&A’s; second af-

fidavit of Henry A. Kissinger w/attachment; af-

fidavit of Monroe Leigh; c/m 6-17-77.

ORDER granting defts Vance, Boorstin and

Rhoads motion to consolidate C.A. Nos. 77-220

and 77-391 for all purposes. (N). Smith, J.

OPPOSITICN of pitfs Military Audit Project,

et al. to deft #3’s cross-motion for summary

judgment; c/m 8-4-77.

MEMORANDUM of points and authorities by

deft Henry A. Kissinger in response to the

Government’s opposition to summary judgment

and in opposition to its request for production of

documents pursuant to a protective order; table

of contents; table of authorities; c/m 8-8-77.

REPLY memorandum of plfts of points and

authorities in support of their motion for sum-

mary judgment, in opposition to deft Kissinger’s

Aug 09

Aug 22

Sept 28

Dec 08

Dec 16

Dec 19

cross-motion for summary judgment and in op-

position to the Government’s request for produc-

tion of documents; table of contents; c/m 8-8-77.

(fiat) Corcoran, J.

WITHDRAWAL of motion for protective order

by defts; c/m 8-9-77.

SUR-REPLY memorandum of points and

authorities in support of pltfs motions for sum-

mary judgment and in opposition to deft

Kissinger’s motion for summary judgment; table

of contents; c/m 8-22-77.

REPLY memorandum of points and authorities

by deft Kissinger in support of his cross-motion

for summary judgment and in opposition to pltfs

motions for summary judgment; table of con-

tents; table of authorities; Exhibit; c/m 8-22-77.

CROSS-MOTIONS for summary judgment

argued and taken under advisement. (Rep. J.

Blair) Smith, J.

OPINION granting pltfs motions for summary

judgment and deft Kissinger’s motion for sum-

mary judgment will be denied; counsel to submit

appropriate order within 10 days.(N) Smith, J.

MOTION of pitf for clarification of opinion;

P&A’s; attachment; c/s 12-16-77.

MEMORANDUM on proposed order by plitf;

c/m 12-16-77.

OPPOSITION by deft Henry A. Kissinger to en-

try of proposed order; P&A’s; c/m 12-19-77.

Dec 19

Dec 20

Dec 22

Dec 27

1978

Jan 05

Jan 09

Jan 13

Jan 19

Jan 25

MEMORANDUM of points and authorities

regarding pltfs proposed order effectuating the

Court’s December 8 Opinion; c/m 12-16-77.

TRANSCRIPT OF PROCEEDINGS, Sep-

tember 28, 1977; courts copy; pages 1-77; (Rep:

J. Blair)

RESPONSE of deft Kissinger to memorandum

of points and authorities regarding pltfs pro-

posed order effectuating the Court’s batt

ber 8 Opinion; c/s 12-22-77.

REPLY OF Henry A. Kissinger to Itfs motion

for clarification; Exhibit A; c/s 12-; 77.

MEMORANDUM in support of Government

defts proposed order; c/m 1-5-78.

REPLY memorandum of points and authorities

in support of pltfs motion for clarification and

proposed order; Exhibit A; c/s 1-9-78.

RESPONSE of deft Kissinger to reply memoran-

dum in support of pltfs motion for clarification;

c/m 1-13-78.

MEMORANDUM by deft #3 in support of

proposed order; c/m 1-19-78.

ORDER denying in part and granting in part

cross-motion of deft Kissinger for summary

judgment; granting in part and denying in part

motion of pltfs for summary judgment; direc-

ting that as soon as practical the defts transfer to

the custody of the Dept. of State the original

Feb 03

Feb 14

Feb 15

Feb 16

Feb 21

transcribed secretarial notes as set forth in this

order; further directing that the Dept. of State

make a determination which notes are required

to be released pursuant to the Freedom of In-

formation Act, the Court retains jurisdiction;

the effectiveness of this order is stayed for a

period of ten days. (see order for further details)

(N) Smith, J.

MOTION by deft Kissinger for stay; memoran-

dum, c/m 2-3-78.

MILITARY audit project by pltfs and Felice D.

Cohen’s opposition to motion for stay; c/m 2-13-

78.

RESPONSE by Government defts to deft

Kissinger’s motion for a stay; c/m 2-78.

OPPOSITION by pitf to deft Kissinger’s mo-

tion for a stay pending appeal; P&A’s; af-

fidavit of William E. Leuchtenburg; affidavit of

William Safire; affidavit of Dr. Mack Thomp-

son; affidavit of Nat Hentoff; affidavit of Evron

M. Kirkpatrick; affidavit of Donald G. Herz-

berg; affidavit of Jeremiah A. O’Leary; affidavit

of Richard Dudman; affidavit of Hedrick Smith;

c/m 2-15-78.

RESPONSE to pltfs oppositions to deft Kis-

singer’s motion for a stay pending appeal;

c/m 2-21-78.

NOTICE of appeal by deft Kissinger from Or-

der of 1-25-78. $5.00 paid and credited to U.S.

Copy of notice of appeal mailed to Robert M.

Sussman, Barbara Ward and William Dobrovir.

Feb 28

Mar 01

Mar 02

Mar 07

Mar 09

Apr 07

NOTICE of appeal by pltfs from order of 1-25-

78. $5.00 paid and credited to U.S. Copies

mailed to James Wesner, Barbara Ward and

William Dobrovir.

MOTION of deft Kissinger to Stay pending ap-

pealGRANTED IN PART.(OTBP) Smith, J.

ORDER paragraphs 7 and 8 of the Final Order

entered on Jan. 25, 1978 is hereby stayed and

suspended pending a final determination of the

merits on appeal and it is further ordered that

deft Kissinger shall have access to the notes to

the extent permitted by established State Dept.

regulations and policies. (N) Smith, J.

PRELIMINARY record on appeal delivered to

USCA; Receipt acknowledged. (USCA #78-

1207)

TRANSCRIPT OF PROCEEDINGS, March 1,

1978; courts copy; pages 1-34; (Rep: D.

Copeland)

RECORD on appeal delivered to USCA; Receipt

acknowledged 4-10-78. (USCA #78-1315)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 77-0391

MILITARY AUDIT PROJECT, et al., Plaintiffs

Vv.

DEPARTMENT OF STATE, et.al., Defendants

Date Nr. Proceedings

1977

Mar 08 COMPLAINT; appearance.

Apr 18 MOTION of plitfs for summary judgment;

statement of material facts; memorandum of

P&A; exhibits (14); c/m 4-14-77.

Apr 26 ANSWER of deft #2 to complaint; ap-

pearance; c/m 4-26-77.

Apr 26 ANSWER of defts #1, 3 & 4 to complaint;

appearnce; c/m 4-26-77.

Apr 26 CALENDARED. CD/N

May 26 MOTION of defts Vance, Boorstin &

Rhoads to consolidate CA 77-0220 & CA 77-

0391; c/m S-25-77.

June 21 COPY of order filed 6-20-77 granting defts

Vance, Boorstin & Rhoads motion to con-

solidate CA 77-220 & 77-391 for all purposes.

(N) (Original filed in CA 77-220). SMITH, J.

LIST OF RELEVANT DOCKET ENTRIES

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1207

THE REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et al.

CYRUS R. VANCE, individually and as

Secretary of State, et al.,

HENRY A. KISSINGER, Appellant

No. Below: Civil Action 77-0220

Judge Below: John Lewis Smith, Jr.

Date of Judgment: January 25, 1978

Notice of Appeal Filed: February 24, 1978

Date Filings — Proceedings Filed

(A)3-7-78 Certified Original Preliminary Record (no

transcripts) (n-4) 4-21

(A) 3-10-78 4-Appellant’s motion to consolidate with No.

78-1208 (p-10)

(A) 3-10-78 4-Appellant’s motion for stay (p-10)

(T) 3-16-78 4-Appellees (Military Audit Project) op-

position to motion for stay (m-15)

(E) 3-17-73 Clerk’s order granting Appellant’s motion to

consolidate with No. 78-1208

10a

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1208

MILITARY AUDIT PROJECT, et al.

DEPARTMENT OF STATE, et al.,

HENRY A. KISSINGER, Appellant

No. Below: Civil Action 77-0391

Judge Below: John Lewis Smith, Jr.

Date of Judgment: January 25, 1978

Notice of Appeal Filed: February 24, 1978

Date Filings — Proceedings Filed

(A) 3-7-78

transcripts) (n-4) 4-21

(A) 3-10-78 4-Appellant’s motion to consolidate with No.

78-1207 (p-10)

(A) 3-10-78 4-Appellant’s motion for stay (p-10)

(T) 3-16-78 4-Appellees’ (Military Audit Project, et al)

opposition to motion for stay (m-15)

(E) 3-17-78 Clerk’s order granting appellant’s motion to

consolidate with No. 78-1207

(A) 3-17-78 4-Appellee’s (Dept. of State) response to ap-

pellant’s motion for a stay (m-17)

Certified Original Preliminary Record (no

(A) 3-17-78

(A) 3-22-78

(A) 3-23-78

(E) 4-3-78

(A) 4-19-78

lla

4-Appellees’ (Reporters Committee for

Freedom of the Press, et al.) opposition to ap-

pellant’s motion for a stay (p-17)

4-Appellant’s response to oppositions to

motion for stay pending appeal (m-22)

Certified Original Record (2 vols.) (no tran-

scripts) (n-4)

(

Per Curiam order denying the motion for

stay pending appeal and that the defendant

Kissinger shall have access to the notes to the

extent permitted by established State De-

partment regulations and policies (See order

for details) CJ Wright and Fahy, Senior CJ

4-Appellant’s motion to consolidate with No.

78-1315 and for a briefing schedule (m-11)

Order per CJ Wright directing Clerk to

schedule case nos. 78-1207, 78-1208 & 78-

1315 argument on the merits as promptly af-

ter the briefs of the parties have been filed as

the business of the Court permits, and that

no. 78-1315 is consolidated with nos. 78-1207

& 78-1208 for consideration on the merits;

and that a briefing schedule is set as follows:

... and that the parties are directed to ad-

dress in their briefs, among any other mat-

ters counsel be so advised, the questions: (1)

whether the January 25, 1978 order of the

District Court is appealable as either a final

or an interlocutory decision pursuant to 28

U.S.C. Sec. 1291 and 1292 (a) (1); (2) if it is

an appealable interlocutory decision, the

scope of the Court’s review

(A) 4-24-78

(A) 4-25-78

(A) 5-24-78

(T) 6-29-78

(T) 7-13-78

(©)7-17-78

(T) 7-17-78

12a

15-Appellant’s brief (p-24)

3-Appellant’s appendix of statutes and

regulations (p-24)

7-Joint appendix (p-24)

1-Copy of letter from Clerk, Supreme Court

that application for stay of the order is

granted pending final disposition of this

court in SC No. A-856 on April 24, 1978

15-Appellees’ (Military Audit Project, et al.)

brief (m-24)

25-Appellees’ (Reporter’s Committee, etc., et

al.) brief (m-24)

15-Brief of the United States as amicus

curiae (m-29)

4-Letter from counsel for the United States

advising of additional authorities pursuant to

Local Rule &(g)

25-Reply brief cf Reporters Committee in

response to US amicus brief (m-17) & (m-3)

4-Appellee’s (Military Audit Project) me-

morandum in response to the brief of the

United States as amicus curiae (m-14)

Order per CJ Wright that the Clerk is direc-

ted to schedule 77-2123, 77-2124 & 77-2125

and 78-1207, 78-1208 & 78-1315 on the same

day and before the same panel.

(E) 9-18-78

(T) 10-16-78

(E) 10-19-78

(E) 10-31-78

(T) 11-3-78

(R) 11-7-78

(T) 11-14-78

(T) 11-22-78

13a

15-Appellant’s (Kissinger) reply brief (p-4)

4-Motion of United States for leave to lodge a

document with the Court in connection with

this case (m-29)

Clerk’s order granting the motion of US for

leave to lodge 15 copies of a letter of June

28th from Jay Solomon to Dr. Henry A.

Kissinger

15-Letter of June 28th from Jay Solomon to

Dr. Henry A. Kissinger

4-Motion of Military Audit Project for leave

to file material as appendix to brief (m-13)

Clerk’s order granting appellee’s motion for

leave to file appendix

Argued before CJ Wright*, Lumbard, US CJ

for the Second Circuit and Tamm, CJ

4-Letter from counsel for Reporters Com-

mittee, et al. advising of additional

authorities pursuant to Local Rule 8&(g)

Judgment affirming judgment of the District

Court, for the reasons set forth in the at-

tached memorandum (n)

1-Appellees’ (Military Audit Project) bill of

costs (m-13)

4-Appellant’s motion for stay of mandate

pending application for writ of certiorari (p-

22)

(T) 11-28-78

(T) 11-29-78

(D) 12-1-78

(E) 12-14-78

(E) 12-20-78

(T) 1-9-79 |

(T) 1-10-79

(T) 2-7-79

14a

4-Appellee’s (Reporters Committee) op-

position to appellant’s motion for stay of

mandate (p-28)

4-Appellant’s reply to appellee’s opposition

to appellant’s motion for stay of mandate (m-

29)

4-Appellee’s (Military Audit) motion for

leave to file response to motion for stay of

mandate time having expired (m-30)

Clerk’s order granting appellee’s motion for

leave to file response to motion for stay of

mandate, time having expired

4-Appellee’s response to motion for stay of

mandate (m-29)

Per Curiam order granting the motion for

stay of mandate and the Clerk is directed not

to issue the mandate prior to January 9,

1979; CJ Wright, Lumbard, Senior CJ for the

USA for 2nd Cir. and Tamm, CJ

Certified copy of order from Clerk, Supreme

Court that a petition for writ of certiorari was

filed in SC No. 78-1088 on January 8, 1979

and is now pending

Notice from Clerk, Supreme Court that a

petition for writ of certiorari was filed SC No.

78-1088 on January 8, 1979

Notice from Clerk, Supreme Court that a

petition for writ of certiorari was filed SC No.

78-1217 on February 5, 1979

15a

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 78-1315

THE REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS, et al., Appellants,

Vv.

Cy RUS R. VANCE, individually and as

Secretary of State, et al.

No. Below: Civil Action 77-0220

Judge Below: John Lewis Smith, Jr.

Date of Judgment: January 25, 1978

Notice of Appeal Filed: February 28, 1978

Date Filings — Proceedings Filed

(A)4-7-78 Certified Original Record (1 vol. transcript)

(2 vols. record) (n-4)

(A) 4-19-78

Order per CJ Wright directing Clerk to

schedule case nos. 78-1207, 78-1208 & 78-

1315 argument on the merits as promptly af-

ter the briefs of the parties have been filed as

the business of the Court permits, and that

nos. 78-1315 is consolidated with nos. 78-

1207 & 78-1208 for consideration on the

merits; and that a briefing schedule is set as

follows: . . . and that the parties are directed

to address in their briefs, among any other

matters counsel be so advised, the questions:

(1) whether the January 25, 1978 order of the

16a

District Court is appealable as either a final

or an interlocutory decision pursuant to 28

U.S.C. Sec. 1291 and 1292 (aX1); (2) if it is an

appealable interlocutory decision, the scope

of the Court’s review.

17a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MILITARY AUDIT PROJECT )

)

FELICE D. COHEN, Director )

Military Audit Project )

: Plaintiffs )

v. ) Civil

; ) Action

DEPARTMENT OF STATE ) No. 77-0391

)

HENRY A. KISSINGER )

)

DANIEL J. BOORSTIN )

Librarian of Congress )

)

JAMES B. RHOADS )

Archivist of the United )

States )

Defendants )

)

[Addresses of parties )

)

omitted in printing]

COMPLAINT FOR ACCESS TO RECORDS

1. This is an action under the Freedom of Information

Act for access to records of the Department of State, which

defendant Henry A. Kissinger claims are personal records

and which he has deposited with the defendant Librarian of

Congress with prohibition of access by anyone except him-

self and his designees.

2. This court has jurisdiction pursuant to 5 U.S.C. § 552

(aX4XB).

18a

3. On December 28, 1976, plaintiffs requested from

defendant Department of State access, under the Freedom

of Information Act, to the records of conversations of the

Secretary of State, Henry A. Kissinger, with foreign heads

of state, heads of government, ambassadors, foreign

ministers and national security advisers (“‘the records’’).

Plaintiffs made a second request on December 29, 1976, for

records of conversations of the Secretary of State with

anyone.

4. By letter dated January 18, 1977, the Department of

State denied the requests on the ground that the records

requested were ‘‘personal” and “‘are not and never have

been agency records of the Department of State.’’ Plaintiffs

appealed the denial. The appeal was denied on March 4,

1977. Plaintiffs have exhausted their administrative

remedies.

5. Plaintiffs are persons within the meaning of the

Freedom of Information Act.

6. Defendant Department of State is an agency within

the meaning of the Freedom of Information Act and is the

lawful custodian of the records. Defendant Henry A.

Kissinger was Secretary of State until January 20, 1977, has

asserted that the records are and in violation of law has

treated the records as his personal property. Defendant

Daniel J. Boorstin is the Librarian of Congress who, in

violation of law, has accepted a physical deposit of the

records in the Library. Defendant James B. Rhoads is the

Archivist of the United States and has asserted jurisdiction

over the records.

7. On November 11, 1976, the Legal Adviser of defen-

dant Department of State, Monroe Leigh, Esq., stated in a

memorandum to defendant Henry A. Kissinger that the

records had been reviewed by the Department of State

Council on Classification Policy ‘“‘and found that they did

not contain classified information”’ (emphasis in original).

19a

8. The records are records of the Department of State, an

agency of the United States within the meaning of 5 U.S.C.

§ S52, 18 U.S.C. § 641 and 44 U.S.C. §§ 3101-07, 3301-14,

as implemented in regulations of the Department of State,

§§ 411, 412, 417, 423, 432 and 436 of the Foreign Affairs

Manual and regulations of the General Services Ad-

ministration, GSA Bulletin FPMR B-65, 9 4(c), 41 Fed.

Reg. 51149 (November 19, 1976).

9. On a date unknown, defendant Henry A. Kissinger, in

violation of the provisions of law and regulations specified

in paragraph 8, removed the records from the Department

of State and placed them on private property in the State of

New York.

10. On or about December 24, 1976, defendants Henry

A. Kissinger and Daniel J. Boorstin executed a purported

donation of the records to the Library of Congress, which

purports to prevent access to the records by the public and

all persons other than defendant Henry A. Kissinger for 25

years or five years after the death of Henry A. Kissinger,

whichever is later, with unrestricted use only by Henry A.

Kissinger and persons named or approved by him. Plain-

tiffs are informed and believe that defendant Henry A.

Kissinger intends to publish the records, portions thereof or

references thereto or to their contents, for his private profit,

in violation of law.

11. Plaintiffs are informed and believe that on or about

December 28, 1976, defendant Henry A. Kissinger, in

violation of the provisions of law and regulations specified

in paragraph 8, physically placed the records in the Library

of Congress pursuant to the purported donation described

in paragraph 10.

12. On January 4, 1977, defendant James B. Rhoads

requested access to the records to determine whether they

are in whole or in part records within the meaning of ap-

plicable laws and regulations. On January 18, 1977, defen-

20a

dants Department of State and Kissinger denied the

request.

13. By the acts described in paragraphs 9-12, supra,

defendant Kissinger unlawfully converted valuable proper-

ty of the United States, to wit, agency records of the Depart-

ment of State, to his own use, thereby depriving plaintiffs

of rights of access secured to them by the Freedom of In-

formation Act, 5 U.S.C. § 552.

14. Plaintiffs request that this court

(a) grant plaintiffs access to the records and enjoin

defendants from withholding the records;

(b) declare unlawful the removal of the records from

the Department of State, their purported donation to the

Library of Congress and their physical transfer to the

Library of Congress;

records described in paragraph 10 and any other restric-

tions on public access save those provided in the Freedom

of Information Act, 5 U.S.C. § 552(bX1)-(9);

(d) align defendant Rhoads as a plaintiff pursuant to

Rule 1%a), F.R.Civ.P.;

(e) award plaintiffs their costs, expenses and attorneys’

fees pursuant to 5 U.S.C. § 552(aX4XE).

/s/ William A. Dobrovir

WILLIAM A. DOBROVIR

ANDRA N. OAKES

DAVID L. SCULL

2005 L Street, N.W.

Washington, D.C. 20036

(202) 785-8919

Attorneys for Plaintiffs

March 8, 1977

2la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

The Reporters Committee for

Freedom of the Press

American Historical Association

American Political Science

Association

James MacGregor Burns

Nat Hentoff

Donald G. Herzberg

William Leuchtenburg

Arthur Link

J. Anthony Lukas

Austin Ranney

Clement E, Vose

William Safire

Plaintiffs

’ VS.

Cyrus R. Vance, individually

and as Secretary of State

: r

-— ~—_

— —_ et Ne et et ee ee ee et ee ee ee ee ee ee ee eee wae wes es

No. 77-0220

22a

Daniel J. Boorstin, individually

and as Librarian of Congress

Henry A. Kissinger

ee ed

Defendants.

)

[Addresses of parties )

omitted in printing] )

AMENDED COMPLAINT

Plaintiffs, for their amended complaint herein, allege as

follows:

I. NATURE OF THE ACTION

1. This is a civil action for declaratory, injunctive and

mandamus relief. Plaintiffs sue as individuals engaged in

the professions of education, journalism, history and

political science, as organizations of such individuals, and

as individual citizens and taxpayers. They seek review of

the Department of State’s denial of their Freedom of In-

formation Act request for the transcribed secretarial notes

of the telephone conversations held by defendant Henry

Kissinger during his service as Assistant to the President

for National Security Affairs and Secretary of State. These

notes are now in the process of being transferred to the

Library of Congress pursuant to two unlawful agreements

between defendants Kissinger and Boorstin that will deny

the public access to them, except on such terms as defen-

dant Kissinger determines, for twenty-five years or five

years after the death of defendant Kissinger or the other

parties to the conversation, whichever occurs later. Plain-

tiffs assert that these notes — which reflect official con-

versations, were prepared and edited by government em-

23a

ployees, stored in government facilities and used by other

government employees as part of their duties — have

always been the property of the Department of State, and

thus could not lawfully be disposed of by defendant

Kissinger pursuant to private agreement. But for the

unlawful agreements between defendants Kissinger and

Boorstin, these historic documents would now be available

for use, study and inspection by the Government and by

private citizens seeking disclosure according to the

established standards and procedures of the Freedom of In-

formation Act.

This action seeks to prevent defendants Kissinger and

Boorstin from effectuating the unlawful agreement trans-

ferring the notes to the Library of Congress and denying

the public access thereto; to compel the Department of

State, as their lawful owner, to regain custody of these

notes; and to provide for an orderly examination of the

notes and their release to plaintiffs and others on the basis

of the standards for disclosure established by and under the

Freedom of Information Act.

II. JURISDICTION AND VENUE

2. Jurisdiction is conferred on this Court by the Freedom

of Information Act, 5 U.S.C. § 552, by the Administrative

Procedure Act, 5 U.S.C. §§ 702-04 and by 28 U.S.C. § 1331

(federal question), § 1361 (action to compel federal officer

to perform duty), and §§ 2201 and 2202 (declaratory

judgment). The amount in controversy, exclusive of interest

and costs, exceeds in monetary value the sum of $10,000. A

substantial portion, if not all, of the documents at issue in

this action are now located within the District of Columbia,

in the custody of defendants Boorstin or Kissinger, and

many of the pertinent acts, occurrences and omissions (in-

cluding the denial of plaintiffs’ Freedom of Information

Act request) transpired within the District of Columbia.

24a

Defendants are all found within, and are subject to service

of process in, the District of Columbia.

II]. DESCRIPTION OF THE PARTIES

3. The Reporters Committee for Freedom of the Press,

founded in 1970, is the only organization in the nation ex-

clusively devoted to protecting the First Amendment and

freedom of information interests of the working press of all

media. The Committee publishes a Press Censorship

Newsletter, which is a compendium of all current govern-

mental actions affecting the news media; it maintains a

News -Media Law Information Center and Press Law

Citation Service; it conducts in-depth research projects on

various First Amendment problems; and it assists reporters

pursuing freedom of information claims.

4. Plaintiff American Historical Association is a mem-

bership organization composed of approximately 18,000

members who are engaged primarily in the teaching, study

and writing of history. It was founded in 1884, and char-

tered by Congress in 1889, for the purpose of “‘the

promotion of historical studies, the collection and preser-

vation of historical manuscripts, and for kindred purposes

in the interest of American history . . . .’’ The constitution

of the Association mandates that it “‘encourage the collec-

tion and preservation of historical documents,” “insure

equal access to information,” and “foster the dissemination

of information about historical records and research.’’ The

Association publishes the American Historical Review and

sponsors lectures, conventions and symposia where its

members report and discuss their research, based on their

study of original documents and other historical materials.

5. The American Political Science Association, founded

in 1903, is the major professional organization in the

United States devoted to research and education about the

art and science of politics and government. Most of its ap-

Kein cr LPO OS

25a

proximately 17,000 members are political scientists

teaching in colleges and universities. Its membership also

includes graduate students, lawyers, journalists, federal,

state and local government officials and elected political

representatives. One of the principal activities of the

Association is facilitating the dissemination of scholarly in-

formation of interest to those engaged in the study of

political science. Toward this end, the Association

publishes two quarterly journals, The American Political

Science Review and PS.

6. Plaintiff James MacGregor Burns is Woodrow Wilson

Professor of Political Science at Williams College and

President-elect of the American Political Science

Association. Plaintiff Burns has been and is engaged in a

continuing study of political leadership and the Presidency.

He has studied Presidential papers of several ad-

ministrations. He has done research into the Presidency of

Richard Nixon and intends to do further work on that sub-

ject. He is the author of several books on the Presidency

and the recipient of various awards including the Pulitzer

Prize in History, the National Book Award and the Francis

Parkman Prize. He is co-author of a textbook entitled

Government By The People concerning American political

institutions. Said textbook is revised periodically, and

plaintiff Burns is under contract with the publisher, Pren-

tice-Hall, Inc., to supply further timely revised editions

dealing with events subsequent to those covered in present

editions. In order to continue his work, it is necessary that

plaintiff Burns have access to the secretarial notes at issue

in this action.

7. Plaintiff Nat Hentoff is a member of the Steering

Committee of The Reporters Committee for Freedom of the

Press. He is a staff writer for the New Yorker Magazine, a

columnist for the Village Voice, and the author of a num-

ber of books on public affairs. Plaintiff Hentoff frequently

writes on current public affairs and governmental problems

26a

and has written and will continue to write about those

aspects of the Nixon Administration, including the .

tivities of the Department of State and the conduct 0

American foreign policy, which he believes have affected, or

might in the future affect, civil liberties and civil rights.

8. Plaintiff Donald G. Herzberg is Dean of the Graduate

School of Georgetown University and Professor of eke

ment. He is the former Director of the Eagleton Institute 0

Politics of Rutgers University and was Executive Director

of the Presidential Commission on Registration and Voting

Participation. Plaintiff Herzberg has published works 0

the area of American government and politics, on carga

parties, political campaigning, elections, registration an

voting and executive-legislative relations. In order to con-

tinue his scholarly pursuits of teaching and publishing, it ts

necessary for plaintiff Herzberg to be able to study the tran-

scribed notes of defendant Kissinger S telephone con-

versations that are the subject of this litigation.

9. Plaintiff William Leuchtenburg is DeWitt Clinton

Professor of American History at Columbia University. He

has done research in presidential archives at the Franklin

D. Roosevelt and John F. Kennedy libraries; has written

books and articles on recent American history; and is ene

writing the final volume of the Oxford History of the mt

States, covering the period 1945-1977, which embraces t ,

Nixon Presidency. Oxford University Press has contracte

to publish this volume. Plaintiff Leuchtenburg has also

contracted with Oxford University Press for a sone

revision of the Growth of the American Republic, whicl

will include the Nixon Presidency. Plaintiff Leuchtenburg :

author of A Troubled Feast, published by Little, Brown rd

Co., which covers the first Nixon term, and which plainti

Leuchtenburg will soon revise to cover the period of a

second administration. Plaintiff's ability to continue is

research and writing about the Nixon years will be sub-

stantially affected if he is denied access to the important

27a

transcribed notes of conversations at issue in this action.

10. Plaintiff Arthur Link is Edwards Professor of

American History at Princeton University and Director of

the Woodrow Wilson Papers there. He ; engaged in a con-

tinuing study of 20th Century American history and con-

ducts a course in 20th Century American history. He has

worked extensively in the collections of papers of recent

American presidents and plans to do such work and study

in connection with the papers and other records of the

Nixon Administration. He is the author of a textbook en-

titled American Epoch. Said textbook is in its fourth

edition. Plaintiff Link intends to do revised editions in the

future and such revised editions are expected by the

publisher, Alfred A. Knopf. The materials at issue in this

case are pertinent to and necessary to the proper

preparation of such revisions.

11. Plaintiff J. Anthony Lukas is a member of the

Steering Committee of The Reporters Committee for

Freedom of the Press. From 1962 to 1972 he was a domestic

and foreign correspondent for the New York Times, and he

currently is a freelance writer who has published articles in

the New York Times Magazine, Harpers, Esquire, Satur-

day Review and other publications. He is a senior editor of

(MORE), a national magazine on the press. He is the

author of two special issues of the New York Times

Magazine dealing with the Watergate affair. He is a

Neiman Fellow and a Pulitzer Prize winner. Plaintiff Lukas

is currently preparing, and may prepare in the future, ar-

ticles on the Administrations of Richard M. Nixon and

Gerald Ford. In order to prepare accurate, timely and

scholarly works, it is essential that plaintiff Lukas examine

and study the transcribed notes of defendant Kissinger’s of-

ficial conversations that are at issue in this action.

12. Plaintiff Austin Ranney is Professor of Political

Science at the University of Wisconsin and President of the

28a

American Political Science Association. Plaintiff Ranney is

engaged in research dealing with changing American at-

titudes toward their national political institutions, in-

cluding the growth of the feeling of political alienation from

their government on the part of the citizens of the United

States, and, specifically, from the institution of the

Presidency during the Nixon Administration. Plaintiff Ran-

ney’s field of study includes, in addition, the legal

regulation of political campaign expenses. In order to fulfill

his obligations as a scholar and author, it is necessary for

plaintiff Ranney to study the tfanscribed notes of con-

versations that are the subject of this litigation.

13. Plaintiff Clement E. Vose~is John E. Andrus

Professor of Government of Wesleyan University and

Representative of the American Political Science

Association to the Archives Advisory Board of the U.S. Ar-

chives and Records Service. As Professor of Government

plaintiff Vose is engaged in general research in American

government and politics and has a special interest in the

preparation and publication of material on a continuing

basis on availability and use of scholarly material in

libraries and other depositories. In order to prepare ef-

fectively and publish source material publications, it is

necessary for plaintiff Vose to study the transcribed notes

of conversations that are the subject of this litigation.

14. Plaintiff William Safire is a columnist for the New

York Times. From January 20, 1969 through April 1, 1973,

he was an Assistant to the President in the Nixon White

House. Before his government service, Mr. Safire was an

author, public relations consultant and reporter. He has

written a book recounting his experiences in the Nixon

White House entitled Before The Fall and he is the author

of several columns that relate to the conduct of the Govern-

ment during the Nixon and Ford presidencies. in the

future, plaintiff Safire plans to write again about these sub-

jects, as well as about the ongoing activities of the Govern-

29a

ment, and his ability to carry out these plans will be im-

paired if he is unable to obtain and study the transcribed

notes of conversations that are the subject of this litigation.

15. All of the plaintiffs have direct, immediate and

specific legal interests in assuring that the original notes of

conversations at issue in this action are preserved, main-.

tained and controlled as ptoperty of the United States

Government and its citizens. As educators, journalists,

historians and political scientists, plaintiffs presently

desire, and in the future will desire, to study, compile,

analyze, interpret and report on the telephone con-

versations of defendant Kissinger reflected in the tran-

scribed notes at issue herein. All of the plaintiffs are

presently being injured by the unavailability of these

materials and they will be irreparably injured in the future

if the agreements between defendants Kissinger and Boor-

stin, described below, are carried out.

16. Defendant Cyrus R. Vance is the Secretary of State.

In his official capacity, defendant Vance is responsible for

seeing that the Department of State meets its obligations

under the Freedom of Informatioa Act, inciuding the

obligation to reclaim and make available to the public the

Department records that are the subject of this action.

17. Defendant Daniel J. Boorstin is the Librarian of

Congress. In his official capacity, defendant Boorstin

executed the agreements with defendant Kissinger that ef-

fect the transfer to the Library of Congress of the tran-

scribed secretarial notes that are the subject of this action.

As Librarian of Congress, defendant Boorstin is currently

the custodian of portions of those notes.

18. Defendant Henry A. Kissinger was Assistant to the

President for National Security Affairs from approximately

January 20, 1969 until approximately August, 1973. From

that time until on or about January 20, 1977, defendant

Kissinger was Secretary of State. The documents at issue in

30a

this action are the secretarial notes of defendant, Kissinger’s

telephone conversations during the time he held these

positions. Defendant Kissinger is one of the parties to the

agreements pursuant to which the notes were transferred to

the Library of Congress, and he and his designees now have

custody of portions of those notes.

IV. NATURE OF THE SECRETARIAL NOTES

19. On information and belief, substantially all of the

telephone conversations of defendant Kissinger concerning

official matters were monitored or recorded while he served

as Assistant to the President for National Security Affairs

and Secretary of State.

20. On information and belief, verbatim transcripts of

these conversations, or secretarial notes that reflected their

contents substantially verbatim, were prepared after the

conversations occurred.

21. On information and belief, these transcripts or notes

(both hereinafter referred to as “secretarial notes’) were

prepared by Government employees in the discharge of

their official duties, on government time and with the aid of

equipment, materials, office space and other services of the

United States.

22. On information and belief, the secretarial notes of

defendant Kissinger’s conversations were retained in the

normal course of Government business and stored in

Government files.

23. On information and belief, the secretarial notes

reflect the decisions, policies, deliberations, analyses, ac-

tions and contemplated actions in which defendant

Kissinger and numerous other government employees par-

ticipated in the course of discharging their official duties.

24. On information and belief, the secretarial notes were

used as a record of official communications that could help

3la

defendant Kissinger recall prior conversations and events

and insure appropriate administrative follow-up.

25. On information and belief, the secretarial notes were

reviewed by defendant Kissinger and his subordinates for

these purposes while they performed Government business.

26. On information and belief, the secretarial notes per-

tain, in whole or in part, to the ongoing affairs of the

United States and are essential to the orderly maintenance

of the established policies of the Government and to the

ongoing deliberations, analyses and decisions that the

Government is now conducting.

27. As documents prepared by and for Government em-

ployees as part of the ongoing governmental process, the

secretarial notes have always been the property of the

Department of State, not of defendant Kissinger as a

private ciizen, and constitute “agency records’”’ within the

meaning of the Freedom of Information Act, 5 U.S.C. §

552.

28. Under the statutes and established policies of the

United States, including the Freedom of Information Act

and the Federal Records Act, the officers, employees and

agents of the United States are required to preserve the

secretarial notes and, subject only to those exceptions

provided by law, to make such notes available to the

citizens of the United States, including plaintiffs, for pur-

poses of inspection, study and reporting.

29. As journalists, historians, educators and political

scientists, plaintiffs are an inherent part of the ongoing

. political process. This process depends on continuing and

informed analysis, interpretation, and debate concerning

issues of public interest and importance. Plaintiffs cannot

perform this function if they are denied access to the notes

of official conversations and other materials that reflect or

relate to the policies, decisions and Celiberations of the

Government.

32a

V. THE AGREEMENTS BETWEEN DEFENDANTS

KISSINGER AND BOORSTIN

30. On November 12, 1976, defendants Kissinger and

Boorstin entered into a Deed of Gift and Agreement

(hereinafter the ‘‘First Agreement’’). Under this

Agreement, a copy of which is annexed hereto as Exhibit A,

defendant Kissinger, acting as a private citizen, donated to

the United States.as a gift a collection of personal and

governmental papers in his possession. Under paragraph 3

of the First Agreement, defendant Kissinger undertook to

deliver both sets of documents to the Library of Congress

within three months of the Agreement’s execution.

31. Paragraph 4 of the First Agreement provides that per-

sonal papers donated to the Library will not be available to

public access until 25 years after the date of the Agreement

or five years after the death of defendant Kissinger,

whichever is later. Under paragraph 5 of the Agreement,

public access to government papers donated to the Library

will be unavailable for the same period and, thereafter, will

be allowed only if the originating agency of the papers in

question has determined that they contain no classified or

restricted information.

32. Until public access is permissible pursuant to

paragraph 4, examination of papers subject to the First

Agreement is limited by paragraph 5 to: (a) employees of

the Library of Congress that have been jointly approved by

the Librarian of Congress and defendant Kissinger; (b) per-

sons who have received the written permission of defendant

Kissinger; and (c) after defendant Kissinger’s death, per-

sons who have received the written permission of a com-

mittee to be named in defendant Kissinger’s will.

33. Under paragraph 6, defendant Kissinger is permitted

unrestricted access to all papers covered by the Agreement

during his lifetime. The Library of Congress is required to

provide defendant Kissinger with working space where he

iit sien

33a

can use the papers, and to permit examination of the

papers by all research assistants of defendant Kissinger

who have appropriate security clearances.

34. On November 11, 1976, Monroe Leigh, Esquire, then

the Legal Adviser of the Department of State, wrote a

memorandum to defendant Kissinger which considered

whether the secretarial notes of defendant Kissinger’s

telephone conversations were the property of the Depart-

ment of State, or instead were personal papers which defen-

dant Kissinger could retain when he left office. The

memorandum, a copy of which is annexed hereto as Exhibit

B, concluded that the notes were not agency records but

personal papers and therefore were the private property of

defendant Kissinger.

35. On December 24, 1976, defendants Kissinger and

Boorstin entered into a Second Deed of Gift And

Agreement (hereinafter “Second Agreement”’). Under this

Agreement, a copy of which is annexed hereto as Exhibit C,

defendant Kissinger donated to the Library of Congress the

“transcribed secretarial notes of his telephor= con-

versations.’”” The Second Agreement incorporates by

reference all the terms and conditions of the first

Agreement of November 12, 1976 and further provides that

public access to the notes will be permitted only with the

consent, or upon the death, of the other parties to the

telephone conversation in question. Thus, except when

defendant Kissinger decides to release them to the public or

to selected individuals, the notes of his telephone con-

versations will become available to interested persons such

as plaintiffs only after this further condition has been met

and after the passage of twenty-five years or five years from

defendant Kissinger’s death, whichever is later.

36. While the Second Agreement vests nominal title to

the secretarial notes in the Library of Congress, the

prerogatives and incidents of ownership remain with defen-

dant Kissinger, and the notes are effectively still held as his

private property.

37. The Second Agreement would allow a private citizen,

defendant Kissinger, to draw a curtain of secrecy over im-

portant policies, decisions and deliberations of the United

States Government from January 20, 1969 through January

20, 1977.

38. The Second Agreement is void, and of no force and ef-

fect, for the following reasons, among others:

(a) The secretarial notes of defendant Kissinger’s of-

ficial conversations have always been the property of the

Department of State, not of defendant Kissinger as a

private citizen, and therefore could neither be transferred,

donated or otherwise disposed of by a private citizen;

(b) The secretarial notes of defendant Kissinger’s of-

ficial conversations are ‘“‘agency records’’ within the

meaning of the Freedom of Information Act, 5 U.S.C. § 552

and enforcement of the terms of the Second Agreement

would therefore deprive plaintiffs and others of their right

to be informed of, and to have access to, the decisions,

policies and deliberations of the Government as provided

by that Act;

to and use of information concerning government policies,

decisions and deliberations equal to the access available to

defendant Kissinger and his designess and thus violates the

First and Fifth Amendments to the United States Con-

stitution;

(d) The Second Agreement violates the requirements of

44 U.S.C. §§ 3301-14, which establish strict and exclusive

procedures for the disposal of records of the Government

and which provide that records having ‘‘administrative,

legal, research, or other value’’ should be retained;

(e) The Second Agreement violates Article IV, Section 3

of the Constitution, which provides that officers and em-

ployees of the United States iack the power and authority to

dispose of or transfer property of the United States except

35a

as authorized by rules and regulations established by

Congress; and

(f) The Second Agreement is in violation of 44 U.S.C. §§

3101-07, which require each federal agency (i) to preserve

records relating to the ‘‘organization, functions, policies,

decisions, procedures and essential transactions of the

agency... ,”’ (ii) to establish a continuing program for the

“creation, maintenance and use of records in the conduct

of current business. . . ,” (iii) to “establish safeguards

against the removal or loss of records’’ deemed to be

necessary and required by the agency, and (iv) to inform

and assist the Administrator of General Services and the

Attorney General in the prevention of ‘‘any actual, im-

pending or threatened unlawful removal, defacing,

alteration or destruction of records in the custody of the

agency....

39. Even if the Second Agreement had been entered into

by defendant Kissinger in his official capacity as Secretary

of State, or were now so construed, it would still be void,

and of no force and effect, for the following reasons:

(a) The Second Agreement violates the procedures for

disposing of Executive Branch records required under 44

U.S.C. §§ 3301-14 and therefore is contrary to Article IV,

Section 3 of the Constitution; and

(b) The Second Agreement would deny plaintiffs and

other members of the public access to the secretarial notes

on the same terms as defendant Kissinger and his designees

and thus violates the First and Fifth Amendments to the

Constitution.

40. In agreeing to the terms of the Second Agreement,

defendant Boorstin has exceeded his lawful authority as

Librarian of Congress. Accordingly, the Library of

Congress has no legal right to the secretarial notes of defen-

dant Kissinger’s telephone conversations and its continued

possession of those notes is contrary to law.

36a

VI. THE ARCHIVIST’S REQUEST

41. By a letter dated January 4, 1977 to defendant

Kissinger, the Archivist of the United States indicated that

portions of the secretarial notes covered by the Second

Agreement might be official records which the United

States Government had an obligation to retain. The letter,

a copy of which is annexed hereto as Exhibit D, cited the

Archivist’s responsibilities under Federal statutes (44

U.S.C. §§ 2103, 2904, 2905 and 3303a and 44 U.S.C. §

2107) and requested that GSA archivists be permitted to

review defendant Kissinger’s secretarial notes to determine

whether they met the definition of official records under

these laws.

42. In a memorandum dated January 14, 1977, Monroe

Leigh, Esq. considered the Archivist’s request and con-

cluded that it was improper. /nter alia, the memorandum,

a copy of which is annexed as Exhibit E hereto, reaffirmed

the Department’s position that the secretarial notes of

defendant Kissinger’s conversations were his personal

records. Relying on this memorandum, defendant

Kissinger informed the Archivist that his request was being

rejected in a letter dated January 18, 1977.

VII. PLAINTIFF SAFIRE’S FREEDOM

OF INFORMATION ACT REQUEST

43. By a letter dated January 14, 1976, plaintiff William

Safire submitted to the Department of State a request un-

der the Freedom of Information Act for all transcripts of

defendant Kissinger’s official conversations that were en-

compassed by one of the following two descriptions:

“1. Please send me photocopies of all tran-

scripts (including rough drafts, if such exist) in

which my name appears.

“2. Please send me photocopies of all tran-

scripts (including rough drafts, if such exist) of

37a

conversations between Mr. Kissinger and General

Haig, or Mr. Kissinger and Attorney General

John Mitchell, or Mr. Kissinger and J. Edgar

Hoover, or Mr. Kissinger and any other official of

the FBI, or of Mr. Kissinger and President

Richard Nixon, in which the subject of ‘leaks’ of

information was discussed.”

This Freedom of Information Act request is attached as

Exhibit F hereto.

44. By letter dated February 11, 1976, the Director of the

Department’s Freedom of Information Staff informed

plaintiff Safire that his request had been denied. As one

reason for.that denial, the letter asserted that the materials

sought “‘are not records of the Department of State or of

any other ‘agency’ and, thus, are Mot ‘agency records’ .

within the meaning of the Freedom of Information Act.”’

4S. By letter dated February 24, 1976, plaintiff Safire ap-

pealed the denial of his Freedom of Information Act

request to the Chairman of the Department’s Council on

Classification Policy. This letter exercising plaintiff Safire’s

right of appeal is attached hereto as Exhibit G.

46. By letter dated March 29, 1976, plaintiff Safire’s ap-

peal was denied. As one reason for this action, the Chair-

man of the Department’s Council on Classification Policy

asserted that the ‘‘memoranda of telephone conversations

have not been preserved as evidence of Department of State

business’’ and reiterated the position that the documents

sought “‘are not ‘agency records’ within the meaning of the

Freedom of Information Act.”

VIII. THE FREEDOM OF INFORMATION ACT

REQUEST OF THE REMAINING

PLAINTIFFS

47. By a letter dated January 13, 1977, plaintiffs, through

their attorneys, submitted to the Department of State a

38a

request under the Freedom of Information Act for, inter

alia:

“All transcribed secretarial notes of the

telephone conversations held by Henry Kissinger

during his government service as Assistant to the

President for National Security Affairs, com-

mencing on or about January 2C, 1959, and

during his service as Secretary of State, extending

through the present time. These documents in-

clude all of the ‘transcribed secretarial notes of

[Secretary Kissinger’s] telephone conversations’

referred to in the Second Deed of Gift and

Agreement, dated December 24, 1976, between

Secretary Kissinger and Daniel J. Boorstin,

Librarian of Congress.”

A copy of plaintiffs’ request is annexed hereto as Exhibit H.

48. By a letter dated January 28, 1977, the Department

denied plaintiffs request for access to the secretarial notes

of defendant Kissinger’s official telephone conversations. A

copy of this letter is annexed hereto as Exhibit I. As the

ground for its denial of plaintiffs’ request, the Department

asserted that the notes were not ‘‘agency records” subject to

the Freedom of Information Act and, in any event, the

notes were no longer in the Department’s custody:

‘The first part of your request pertains solely to

the secretarial notes of telephone conversations

involving former Secretary of State Kissinger. As

you are aware, the Department’s Legal Adviser

concluded last year that these papers are not

agency records under either the Freedom of In-

formation Act or the Department of State

regulations on record keeping. Instead, under the

Department’s regulations, these notes could be

retained by Secretary Kissinger when he left of-

fice.

tlc

39a

‘‘These conclusions are reflected in memoranda

of the Legal Adviser, dated November 11, 1976

and January 14, 1977. Based on these conclusions,

Dr. Kissinger donated all of the notes in question

to the Library of Congress. All of the notes have

been delivered to the Library of Congress, and

they are presently owned by and in the custody of

the Library.”

The letter aiso stated that, because of the ground for the

denial, an appeal to the Department’s Council on

Classification Policy was necessary neither under Depart-

ment regulations nor under the Freedom of Information

Act:

“In conclusion, the Department cannot accede

to the first portion of your request, on the ground

that the papers requested are not agency records

of the Department of State and are not in the

custody or control of this Department. It is our

view that this portion of your request is not

technically subject to an appeal because the

Department’s appeal procedures (22 CFR 6.8) ap-

ply only where there has been a denial of existing

“agency records’” under one of the statutory

exemptions of the Freedom of Information Act.”’

49. In order to discharge the functions and respon-

sibilities of his profession, each of the plaintiffs has a par-

ticular and substantial need to obtain access to the

secretarial notes of defendant Kissinger’s phone con-

versations. Plaintiffs have in the past engaged in, and in-

tend in the future to engage in, research, writing, analysis,

interpretation and reporting on matters of current and

historical importance and interest, including the Presiden-

cy and the decisions, policies and deliberations of the

Government. Some of the plaintiffs are subject to contracts

and professional commitments to publish books and other

studies of the Nixon Administration. Their ability to fulfill

——

40a

their responsibilities will be thwarted if their right of access

to the presidential materials is temporarily or permanently

denied. Plaintiffs will also be damaged if access is granted

to defendant Kissinger or his designees prior to the time

that plaintiffs have access to such materials.

SO. The secretarial notes of defendant Kissinger’s con-

versations constitute valuable, irreplaceable information

resources of profound importance to plaintiffs in the con-

duct of their professions, and plaintiffs will be irrepara-

bly injured if custody of these materials remains in the Li-

brary of Congress under the terms specified by the two

Agreements.

WHEREFORE, plaintiffs pray:

(a) That the Court declare that legal and equitable title to

the secretarial] notes has always been in the Department of

State and not in defendant Kissinger;

(b) That the Court declare the First and Second

Agreements to be null, void and of no legal effect insofar as

they purport to effect a transfer from defendant Kissinger

as a private citizen to the Library of Congress of the tran-

scribed secretarial notes of defendant Kissinger’s official

telephone conversations;

now, and always have been, ‘‘agency records’ subject to the

Freedom of Information Act;

(d) That the Court issue an order in the nature of man-

damus requiring the Librarian of Congress, defendant

Boorstin, to relinquish custody over the secretarial notes

and the Secretary of State, defendant Vance, to re-possess

them;

(e) That the Court issue an order requiring the Secretary

of State to produce to plaintiffs all the secretarial notes ex-

cept those exempt from disclosure under one of the specific

exemptions of the Freedom of Information Act;

(f) That the Court issue an order impounding the

er eet LS ee ee

4la

secretarial notes of Secretary Kissinger’s telephone con-

versations during the pendency of this action so that the

notes will not be destroyed or modified and so that plain-

tiffs are assured of access to the notes on an equal footing

with defendant Kissinger and his designees in the event

they prevail in this action; and

(g) That the Court order such further relief as it may

deem just and proper bearing in mind the rights of the

plaintiffs to have access to governmental information.

/s/ Charles A. Horsky

Charles A. Horsky

/s/ Peter Barton Hutt

Peter Barton Hutt

/s/ Robert Matthew Sussman

Robert Matthew Sussman

COVINGTON & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

(202) 452-6000

Attorneys For Plaintiffs

Dated: March 21, 1977

42a

EXHIBIT A

DEED OF GIFT AND AGREEMENT

Henry A. Kissinger hereby donates to the United States

of America, to be held and administered by the Library of

Congress and its officials, as a gift to the nation, a collec-

tion of the papers relating to his years of government ser-

vice and other periods of his life (“the Collection’’). The

Collection shall contain the papers described in a schedule

to be prepared and attached hereto. In implementing this

gift and as conditions to its donation, Henry A. Kissinger

and the Library of Congress (‘the Library’) agree to the

following:

Purposes. This Deed of Gift and Agreement are un-

dertaken in order to assure —

(a) That the Collection may be preserved for future

historical and public use. ;

(b) That national security information is protected.

Collection, so that he may prepare a historical ac-

count of his years in government, and so that he

may in the future give information and testimony

that may be requested of him concerning his years

in office.

(d) That rights of privacy anéthe reputations of other

persons may be protected for a reasonable time.

Papers in the Collection; Government Approval. The

Collection shall consist of (a) personal papers of

Henry A: Kissinger (‘Personal Papers’’); and (b)

copies of government papers of which there is an

original or record copy in government files (““Govern-

ment Papers”). The Personal Papers shall include

handwritten notes, private letters, papers dating from

Henry A. Kissinger’s years at Harvard University,

and similar materials. The copies of Government

Papers are those which Henry A. Kissinger worked on

or reviewed during his government service, and which

pe le mtn he ae Sa!

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ee ae tl Da aster tn + thas

43a

authorized officials have approved for inclusion in

the Collection. Pre-existing government privileges

with respect to copies of Government Papers in the

Collection shall not be affected by this gift.

Delivery of Papers. Personal Papers in the Collection

will be delivered to the Library within three months

after the date this Deed of Gift and Agreement is

signed. Copies of Government Papers to be included

in the Collection will be delivered to the Library after

they are reviewed by government officials with

authority over the records, to assure that no original

or record copies are included in the Collection, and

will be delivered to the Library within three months

after the date this Deed of Gift and Agreement is

signed. Following each delivery of papers to the

Library, the Library shall send to Henry A. Kissinger

a written acknowledgment of the delivery.

. Future Public Access to Personal Papers. Personal

papers shall be made available for public access, but

not until 25 years after the date of this Deed of Gift

and Agreement, or until five years after the death of

Henry A. Kissinger, whichever is later.

. Future Public Access to Copies of Government

Papers. The copies of Government Papers in the

Collection shall be available for public access, but not

until the period of time provided in paragraph 4 has

elapsed; however, such papers shall not be available

for public access unless the originating agency has

determined that a paper contains no classified or

restricted information.

Use by Henry A. Kissinger. Henry A. Kissinger shall

have unrestricted access to all papers in the Collec-

tion during his lifetime. The Library shall make

available to Henry A. Kissinger working space where

he may use the Collection and other materials of the

44a

Library. A research assistant or assistants engaged by

Henry A. Kissinger shall be given access to the

Collection, provided they have appropriate and

current government-approved security clearances.

Use by Others During Interim Period. Until the

period described in paragraph 4 has elapsed, access

to the Collection shall be limited (a) to such em-

ployees of the Library as may be jointly approved by

the Librarian of Congress and Henry A. Kissinger; (b)

to persons who have received the written permission

of Henry A. Kissinger; and (c) after the death of

Henry A. Kissinger, to persons who have received the

written permission of a committee to be named in

Henry A. Kissinger’s will. Henry A. Kissinger shall,

during this period, be promptly notified by the

Library of Congress of,any requests, claims, or legal

actions relating to papers in the Collection. No person

may have access under this paragraph to any

classified paper in the Collection unless he has an ap-

propriate and current government-aproved security

clearance commensurate with the classification of the

paper.

Additions. Henry A. Kissinger may in the future

donate additional personal papers and materials to

be added to the Collection. Such additional personal

papers and materials shall be governed by this Deed

of Gift and Agreement. Their delivery shall be ac-

companied or preceded by a letter or statement

signed by Henry A. Kissinger, and the Library shall

send to Henry A. Kissinger a written acknowledg-

ment of each delivery.

45a

Witnessed and agreed to, this 12th day of November,

1976.

/s/ Henry A. Kissinger

Henry A. Kissinger

Accepted and agreed to on behalf of the Library of

Congress, this 12th day of November, 1976.

e /s/ Daniel J. Boorstin

Daniel J. Boorstin

Librarian of Congress

46a

EXHIBIT C

SECOND DEED OF GIFT

AND AGREEMENT

Henry A. Kissinger hereby donates to the United States of

America, to be held and administered by the Library of

Congress and its officials as part of a collection of papers of

Henry A. Kissinger, additional personal papers consisting

of the transcribed secretarial notes of his telephone con-

versations. In implementing this gift and .as conditions to

its donation, Henry A. Kissinger and the Library of

Congress agree to the following:

1. The terms and conditions of the Deed of Gift and

Agreement executed on November 12, 1976 by Henry A.

Kissinger and the Librarian of Congress (“First Deed of

Gift’’) are hereby incorporated by reference and extended

to the present gift, except as provided in paragraph 2

below.

2. At the end of the period of time described in paragraph

4 of the First Deed of Gift, any paper included in this

Second Deed of Gift shall become available for public ac-

cess unless one of the parties to the telephone conversation

is still living in which case such a paper shall become

available for public access only with his consent or upon his

death.

Witnessed and agreed to, this 24th day of December, 1976.

/s/ Henry A. Kissinger

Henry A. Kissinger

Accepted and agreed to on behalf of the Library of

Congress, this 25th day of December, 1976.

/s/ Daniel J. Boorstin

Daniel J. Boorstin

Librarian of Congress

47a

EXHIBIT D

UNITED STATES OF AMERICA

GENERAL SERVICES ADMINISTRATION

National Archives and Records Service

Washington, D.C. 20408

January 4, 1977

Honorable Henry Kissinger

Secretary of State

Washington, D.C. 20520

Dear Mr. Secretary:

It has come to my attention that materials relating to your

public service are being deposited in the Library of

Congress under terms that are based upon the presumption

that such materials are or were personal property. Among

these materials you have included a set of transcripts or

notes that were systematically kept reflecting the substance

of telephone conversations.

I recognize that you obtained the advice of legal counsel in

the Department of State concerning those telephone tran-

scriptions. I also appreciate fully the sensitive nature of

your responsibilities in the national security and foreign

relations areas and the concomitant requirement that can-

did and unguarded conversation in the conduct of foreign

relations must be duly protected.

Nevertheless, as Archivist of the United States, by authority

delegated to me by the Administrator of General Services, I

am responsible by law (sections 2103, 2904, 2905, and

3303a of title 44, United States Code) for ascertaining that

Federal agencies create, maintain and dispose of their

records in an efficient and lawful manner, and that they

preserve records of permanent historical value for eventual

deposit in the national archival system. Further, in ac-

cordance with Title I of the Presidential Recordings and

48a

Materials Preservation Act (P.1. 94-526; 44 U.S.C. 2107

note), I am responsible for assum: custody and control of

the Presidential historical mate. < of the Nixon ad+

ministration. I believe those stat ry authorities and

responsibilities require that conduc n inspection of the

documentary materials mentioned abo - to verify the con-

clusions made and actions taken concerning them.

To carry out these responsibilities I enlist ygur cooperation

in permitting qualified archivists from my staff to be given

the opportuniiy to examine the telephone transcriptions

and any related documents that you have deposited with

the Library of Congress. These professional archivists will

determine whether such materials are, indeed, personal

property or whether some portions of them may be Federal

records or Nixon historical materials. I guarantee the

protection of any confidential information which these ar-

chivists may encounter during their inspection. In addition,

I ask your cooperation as Secretary of State in providing ac-

cess to any memoranda of conversations or other pertinent

records in the Department of State that may assist our ar-

chivists in carrying out their task.

I would appreciate your making arrangements with the

Librarian of Congress so that my staff'can have access to

these materials for the purposes of this determination.

When the process is completed I plan to formulate a report,

including recommendations, which I shall transmit to you

and, as appropriate, to officials in the White House and the

Department of State.

Sincerely,

/s/ James B. Rhoads

JAMES B. RHOADS

Archivist of the United States

49a

. " EXHIBIT F

THE NEW YORK TIMES

WASHINGTON BUREAU

1920 L Street, N.W.

Washington, D.C. 20036

(202) 293-3100

William Safire | ae

January 14, 1976

The Secretary of State

State Department

Washington, D.C.

Sir:

Under the provisions of the Freedom of Information Act,

as amended, I request information from transcripts of

telephone conversations now in the custody of Mr.

Lawrence S. Eagleburger of the State Department.

For verification of the existence of such records, your at-

tention is called to “‘Federal Defendant Kissinger’s respon-

ses to plaintiffs’ first set of interrogatories”, Civil Action

No. 1187-13 in the U.S. District Court for the District of

Columbia, pp. 46-47, which reads:

“With respect to records of telephone conversations in

which I participated and correspondence I wrote or

received during the period January 21, 1969 through

February 12, 1971:

‘Business telephone conversations from my White House

office during this period were usually monitored by my per-

_ sonal secretaries and records prepared, in accordance with

routine government practice, iu order to facilitate im-

plementation and follow-up of business transacted.

“Correspondence was deposited with White House Cen-

tral Files or Substantive Files.

“71 B. Where and in whose custody are such records

50a

now? If you do not know where they are now, where and in

whose custody were they last, to your knowledge?

“Response: All such records, with the exception of the

records of my telephone calls, are in the White House. They

are in the custody of the NSC staff. The telephone records

are in the State Department, in the custody of Mr.

Lawrence S. Eagleburger.

signature

HENRY A. KISSINGER”

1. Please send me photocopies of all transcripts (in-

cluding rough drafts, if such exist) in which my name ap-

pears.

2. Please send me photocopies of all transcripts (in-

cluding rough drafts, if such exist) of conversations between

Mr. Kissinger and General Haig, or Mr. Kissinger and At-

torney General John Mitchell, or Mr. Kissinger and J.

Edgar Hoover, or Mr. Kissinger and any other official of

the FBI, or of Mr. Kissinger and President Richard Nixon,

in which the subject of “‘leaks’’ of information was

discussed.

As you know, the amended Act provides that if some

parts of a file are exempt from release that “‘reason-

ably segregable” portions shall be provided. I therefore

request that, if you determine that some portions of the

requested information are exempt, you provide me im-

mediately with a copy of the remainder of the file. I, of

course, reserve my right to appeal any such decisions.

If you determine that some or all of the requested in-

formation is exempt from release, I would appreciate your

advising me as to which exemption(s) you believe covers the

information which you are not releasing.

I am prepared to pay costs specified in your regulations

for locating the requested files and reproducing them.

Sla

As you know, the amended Act permits you to reduce or

waive the fees if that “‘is in the public interest because fur-

nishing the information can be considered as primarily

benefiting the public.’’ I believe that this request plainly fits

that category and ask you to waive any fees.

If you have any questions regarding this request, please

.. telephone me at the number on this letterhead.

As provided for in the amended Act, I will expect to

receive a reply within ten working days.

Sincerely yours,

‘ William Safire

Social Security #: 103 22 7703

Date of Birth: 12/17/29

Place of Birth: New York, USA

52a

EXHIBIT G

THE NEW YORK TIMES

WAHINGTON BUREAU

1920 L Street, N.W.

Washington, D.C. 20036

(202) 293-3100

William Safire February 24, 1976

Assistant Secretary of State for Public Affairs

Chairman, Council on Classification Policy

Department of State

Washington, D.C. 20520

Case No. 610050

Sir:

This is to appeal the denial of my request for information

from transcripts of telephone conversations now in the

custody of Mr. Lawrence S. Eagleburger of the State

Department.

In the State Department denial dated Feb. 11, 1976, in

paragraph one of page two, it is stated: ‘“The documents

are in rough draft form and have never been reviewed for

accuracy.” That statement is false. I know from personal

observation that in some instances, Henry A. Kissinger

reviewed the rough draft of what purported to be a ver-

batim, transcript of a telephone conversation, made

changes, and ordered the document retyped. I request the

names of those members of the Office of Legal Adviser and

other personnel of the State Department who were respon-

sible for the preparation of the February 11 letter, as well as

the names of those who prepare the answer to this appeal.

In paragraph 2 of page two, it is stated: ‘“The documents

are not subject to the Freedom of Information Act. Both

because of the nature of the documents and because of Dr.

Kissinger’s position at the time the documents were made,

53a

they are not records of the Department of State or of any

other ‘agency’ and, thus, are not ‘agency records’ within the

meaning of the Freedom of Information Act.”

If the documents are not those of any agency, what are

they? Does Secretary Kissinger claim that they are his per-

sonal property and not that of the U.S. Government? Or

does he claim that these are ‘“‘White House papers’’? If they

are White House papers, why were they taken from the

White House? The White House, which is aware of the

existence of these papers, has mad@ no claim to recover

them. The only set of these papers exists at the State De-

partment, with a State Department custodian, and it is

ludicrous to pretend that they are the only White House

papers not at the White House.

In paragraph 3. of the denial, the Department says:

“Even if the documents in question were considered to be

‘agency records’ within the meaning of the Act, they would

appear to fall clearly within Exemption 5 of that Act. In ad-

dition, other specific statutory exemptions, notably Exemp-

tion 1, would be applicable, as would claims of invasion of

privacy.”

‘They would appear to fall clearly” is nonsense. ‘They

would appear”’ is tentative and conditional; ‘“‘clearly”’ i

certain and unconditional. Exemption 5 centers on the for-

mulation of policy. The policy on leaks was adopted early in

1969; discussions of leaks and complaints thereof following

that time did not deal with the formulation of policy. The

Department’s claim of exemption 5 to conceal discussions

about leaks which took place after the policy was laid down

is without merit: an additional claim of invasion of privacy,

especially in those matters concerning this appellant, is in

error.

As to Exemption 1: Undoubtedly, some classified in-

formation exists in those documents, but I have not

requested classified information. I have requested all tran-

54a

scripts of conversations “‘in which the subject of ‘leaks’ of

information was discussed.’’ Such discussions cannot be

said to be classified. The material I have requested can be

separated from the documents, as is frequently done with

many Freedom of Information requests.

Since you have claimed Exemption 1, would you please

inform me if these documents have been “properly

classified pursuant to such executive order.”

In paragraph 4 of the denial, the Department states:

“Beside falling outside the purview of the Freedom of In-

formation Act, the docu nents are not contained in any file

which is retrievable or indexed by any name or identifying

symbol or code; therefore, they are not subject to disclosure

under the Privacy Act, 5 U.S.C. 552a.”

If this were true, then the Privacy Act, 5 U.S.C. 552a

could be circumvented simply by refraining from indexing

material that ought to be available to citizens.

In your reply to this appeal, please describe the method

by which these documents are kept. All in a jumbled-up

pile, or in file cabinets; no order, or in chrenological order;

in illegible form, or in typed sheets; any cross-referencing

or number of subject headings. Can file clerks, going

through the documents in chronological order, find the in-

formation requested without leaving a single location?

The final paragraphs of your denial of these records as-

serts that “‘this letter is not a denial of a ‘record’” as

defined in your regulations.

A record cannot exist in some kind of bureaucratic lim-

bo; a record must have a home.

These records, made on government time by government

personnel on government material, are located at the State

Department and no place else. These records have been

publicly described, rightly or wrongly, by the State Depart-

ment custodian as ‘‘working papers’’ of the Secretary of

55a

State. To hold that they are not State Department papers is

to make a claim that defies reason and the law.

Accordingly, I demand that you make available to me

those portions of those documents previously requested as

soon as diligent application of clerical help makes feasible.

Very truly yours,

/s/ William Safire

William Safire

56a

EXHIBIT H

COVINGTON & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

January 13, 1977

The Director

Freedom of Information Staff

Bureau of Public Affairs

Department of State

Washington, D.C. 20520

Dear Sir:

On behalf of the Reporters Committee for Freedom of the

Press, the American Historical Association, the American

Political Science Association and the eight individuals

identified below, we request access, pursuant to the Free-

dom of Information Act, to the following documents and

materials:

1. All transcribed secretarial notes of the

telephone conversations held by Henry Kissinger

during his government service as Assistant to the

President for National Security Affairs, com-

mencing on or about January 20, 1969, and

during his service as Secretary of State, extending

through the present time. These documents in-

clude all of the “transcribed secretarial notes of

[Secretary Kissinger’s] telephone conversations”

referred to in the Second Deed of Gift And

Agreement, dated December 24, 1976, between

Secretary Kissinger and Daniel J. Boorstin,

Librarian of Congress;

2. All other secretarial notes, transcripts, record-

ings or other materials that reflect, verbatim or

substantially verbatim, the contents of the con-

versations, telephonic and otherwise, held by

~ a a ee

57a

Henry Kissinger during his government service as

Assistant to the President For National Security

Affairs, commencing on or about January 20,

1969, and during his service as Secretary of State,

extending through the present time.

Based on the November 24, 1976 Deed of Gift and

Agreement and on a Memorandum to the Secretary of Mr.

Monroe Leigh, Esq., dated November 11, 1976, it is our un-

derstanding that the Department takes the position that

the materials we are requesting are the personal property of

Secretary Kissinger and, as such, are not ‘‘agency records”

subject to disclosure. under the Freedom of Information

Act. While we vigorously dispute the validity of this

position, we recognize that it necessarily requires the denial

of our request and makes both the request and any sub-

sequent appeal futile.

On the assumption that our understanding of the Depart-

ment’s position is accurate, we are therefore proposing a

procedure for eliminating unnecessary paperwork and

bringing this matter before an appropriate court without

undue delay. We ask the Department to reiterate, in

writing, its formal position that the materials we are

seeking do not constitute ‘‘agency records” covered by the

Freedom of Information Act, to state that our request ~

would necessarily have to be denied for this reason, and to

agree not to contest our standing under the Freedom of In-

formation Act to obtain judicial review of the Department’s

rationale for that denial. As an alternative to the above

procedure, we ask simply that the Department expedite the

processing of our request so that an initial denial and un-

successful appeal are completed as soon as possible.

We understand that a portion of the materials we are

requesting is still in the physical custody of the Depart-

ment. Until legal proceedings growing out of this Freedom

of Information Act request have been resolved, we believe it

would be highly improper for the Department to relinquish

58a

custody of these materials and we therefore urge the De-

partment to refrain from taking any such actions. At the

same time, we are prepared to maintain that the Depart-

ment’s obligation to provide the materials encompassed by

our request is a continuing one and must be discharged

regardless of where the materials may physically reside at

any given time.

Before closing this letter, we would like to state again our

clients’ reasons for challenging the Department’s publicly

announced position that the transcripts are ‘“‘private

diaries.”

For eight years, Secretary Kissinger has reportedly had

several secretaries making nearly verbatim summaries of

his official conversations. According to Mr. Leigh’s

memorandum, Secretary Kissinger has used these sum-

maries repeatedly and continuously as an aid to performing

his duties. If these reports are accurate, the summaries

reflect a high public official making records of his official

conversations during the course of his public employment,

using these records over and over again as part of his em-

ployment, and utilizing government employees and

facilities to prepare, edit and store the resulting documents.

Therefore, our clients take the position that the materials

we seek are the property of the people and government of

the United States, not of Mr. Kissinger, and that, like the

official work records of all other public employees, access to

them must be governed by the Freedom of Information Act,

not the personal predilections of Secretary Kis-

singer.

Our clients’ resolve in this matter is reinforced by the

character of these materials, which probably constitute the

most valuable collection of background materials ever

assembled on the conduct of American foreign pclicy

because of their volume and accuracy and because of the

uniquely influential role Secretary Kissinger has played

over the past eight years. In addition, our clients believe

Ah Lae ical

Riri.

59a

that these documents will disclose much important in-

formation about domestic politics, perhaps including the

Watergate resignation crises. In short, if disclosed, these

materials may be of enormous value to historians, political

scientists and journalists carrying out their obligations to

inform the public about the conduct of its government on

important issues over the past eight years.

Our clients’ position is precisely that advanced by the

Reporters Committee, the American Historical Association

and the American Political Science Association in the case

of Nixon v. Sampson, 389 F. Supp. 107 (D.D.C. 1975) —

that Mr. Nixon’s work product as a President belongs to the

public and not to Mr. Nixon. The Department should be in-

formed that, as in that case, should you deny our request,

all of the groups and individuals listed below have

authorized a lawsuit to be brought promptly on their

behalf.

Sincerely yours,

/s/ Charles A. Horsky

Charles A. Horsky

/s/ Peter Barton Hutt

Peter Barton Hutt

/s/ Robert Matthew Sussman

Robert Matthew Sussman

Attorneys for:

The Reporters Committee for

Freedom of the Press

American Historical Association

American Political Science

Association

James MacGregor Burns

Nat Hentoff

Donald G. Herzberg

60a

William Leuchtenburg

Arthur Link

J. Anthony Lukas

Austin Ranney

Clement E. Vose

ce: Monroe Leigh, Esq.

Michael Sandler, Esq.

—

are a et A. Nea a at te

Pn. sid hata 5%

6la

EXHIBIT I

DEPARTMENT OF STATE

THE LEGAL ADVISER

Washington

January 28, 1977

Charles A. Horsky, Esq.

Covington & Burling

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Dear Mr. Horsky:

I write in response to your letter of January 13, 1977, in

which you request, on behalf of a number of individuals

and organizations, access under the Freedom of In-

formation Act to (1) “‘all transcribed secretarial notes of the

telephone conversations held by Henry Kissinger during his

government service’ from January 20, 1969 onwards, and

(2) ‘‘all other secretarial notes, transcripts, recordings or

other materials that reflect, verbatim or substantially ver-

batim, the contents of the conversastions, telephonic and

otherwise, held by Henry Kissinger’? during the same

period.

The first part of your request pertains solely to the

secretarial notes of telephone conversations involving for-

mer Secretary of State Kissinger. As you are aware, the

Department’s Legal Adviser concluded last year that these

papers are not agency records under either the Freedom of

Information Act or the Department of State regulations on

record keeping. Instead, under the Department’s

regulations, these notes could be retained by Secretary

Kissinger when he left office.

These conclusions are reflected in memoranda of the Legal

Adviser, dated November 11, 1976 and January 14, 1977.

62a

Based on these conclusions, Dr. Kissinger donated all of

the notes in question to the Library of Congress. All of the

notes have been delivered to the Library of Congress, and

they are presently owned by and in the custody of the

Library.

Also pursuant to Department of State regulations, extracts

from several of the notes have been prepared and delivered

to the Department of State for inclusion in Departmental

record files. It appears that the first part of your request

pertains only to the actual secretarial notes and not to these

extracts.

The second part of your request extends to any materials

other than the papers covered by the first part, which

reflect “verbatim or substantially verbatim” the contents of

any conversations ‘“‘telephonic and otherwise’ involving

former Secretary of State Kissinger. This portion of the

request would appear to include a broad range of materials

including memoranda of meetings in which the Secretary of

State participated. Verbatim or substantially verbatim

memoranda were prepared for virtually every formal

meeting in which Secretary Kissinger participated, by

notetakers present at these meetings.

In the Department’s view, this portion of the request is

unreasonably broad, and does not reasonably and with suf-

ficient particularity describe documents subject to a

Freedom of Information Act request. It is our belief that it

was not the intention of the Congress, in enacting the

Freedom of Information Act, to require agencies to devote

their resources to respond to sweeping and indiscriminate

requests, and thereby subordinate the general public in-

terest to the desire of a few individuals or groups to peruse a

broad range of documents.

In conclusion, the Department cannot accede to the first

portion of your request, on the ground that the papers

requested are not agency records of the Department of

EPO ete

63a

State and are not in the custody or control of this Depart-

ment. It is our view that this portion of your request is not

technically subject to an appeal because the Department’s

appeal procedures (22 CFR 6.8) apply only where there has

been a denial of existing ‘“‘agency records’’ under one of the

statutory exemptions of the Freedom of Information Act.

Nevertheless, you would not be precluded from requesting

the Department to reconsider its position based on ad-

ditional written arguments or information.

The Department cannot accede to the second portion of

your request, on the ground that although the papers

covered may in many instances be agency records, the

request is unreasonably broad and does not reasonably

describe documents subject to a Freedom of Information

Act request. Again, it is our view that this position is not

technically subject to an appeal under the Department’s

regulations. Again, however, you would not be precluded

from requesting the Department to reconsider this position

based on additional written argument or information.

Sincerely,

/s/ George H. Aldrich

George H. Aldrich

Acting Legal Adviser

64a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MILITARY AUDIT PROJECT, )

et al., )

Plaintiffs, )

v. ) Civil

) Action

DEPARTMENT OF STATE, et al., ) No. 77-0391

)

Defendants.

)

MOTION FOR SUMMARY JUDGMENT

Plaintiffs move for summary judgment declaring that:

(1) the secretarial notes of conversations of former

Secretary of State Kissinger are agency records of the

Department of State subject to the Freedom of In-

formation Act, 5 U.S.C. § 552 (“the FOIA”’);

(2) any restrictions on access to such records, save those

expressly provided in the FOIA, are unlawful;

(3) the records are not properly classified or otherwise

exempt from disclosure under FOIA Exemption 1, 5

U.S.C. § 552(bX1), or exempt under any other FOIA

exemption;

and ordering that plaintiffs be given immediate access to

the records for inspection and copying.

Plaintiffs request a hearing on this motion.

Respectfully submitted,

/s/ William A. Dobrovir

WILLIAM A. DOBROVIR

ANDRA N. OAKES

DAVID L. SCULL

2005 L Street, N.W. —

Washington, D.C. 20036

April 14, 1977 Attorneys for Plaintiffs

65a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MILITARY AUDIT PROJECT, )

et al., )

Plaintiffs, )

v. ) Civil

) Action

DEPARTMENT OF STATE, et al., ) No. 77-0391

)

Defendants.

STATEMENT OF MATERIAL FACTS

AS TO WHICH THERE IS NO

GENUINE ISSUE

1. The complaint in this action was filed on March 8,

1977, and served on defendant Department of Siate on

March 10, 1977, on defendants Daniel Boorstin, Librarian

of Congress, and James B. Rhoads, Archivist of the United

States, on March 14, 1977, and on defendant Henry A.

Kissinger on March 24, 1977. More than twenty days have

elapsed since service on the last defendant served. More

than thirty days have elapsed since service on all defendants

except Henry A. Kissinger, but no responsive pleading has

yet been received despite the express 30-day requirement of

law. 5 U.S.C. § 552(aX4XC).

2. On December 28, 1976, plaintiffs requested from

defendant Department of State access, under the Freedom

of Information Act, to the records of conversations of the

Secretary of State, Henry A. Kissinger, with foreign heads

of state, heads of government, ambassadors, foreign

ministers and national security adivsers (‘the records’’)

(Exhibit 1). Plaintiffs made a second request on December

29, 1976, for records of conversations of the Secretary of

State with anyone (Exhibit 2).

3. By letter dated January 18, 1977 (Exhibit 3), the

Department of State denied the requests on the ground that

66a

the records requested were ‘‘personal” and ‘‘are not and

never have been agency records of the Department of

State.” Plaintiffs appealed the denial (Exhibit 4). The ap-

peal was denied on March 4, 1977 (Exhibit 5). Plaintiffs

have exhausted their administrative remedies.

4. On November 11, 1976, the Legal Adviser of defen-

dant Department of State, Monroe Leigh, Esq., stated in a

memorandum to defendant Henry A. Kissinger that the

records had been reviewed by the Department of State

Council on Classification Policy ‘“‘and found that they did

not contain classified information’’ (Exhibit 6; emphasis in

original).

5. On or about December 24, 1976, defendants Henry A.

Kissinger and Daniel J. Boorstin executed a purported

donation of the records to the Library of Congress, which

purports to prevent access to the records by the public and

all persons other than defendant Kissinger for 25 years or

five years after the death of Henry A. Kissinger, whichever

is later, with unrestricted use only by Henry A. Kissinger

and persons named or approved by him (see Exhibit 7).

6. On or about December 28, 1976, defendant Kissinger

physically placed the records in the Library of Congress

pursuant to the purported donation described in paragraph

S (see Exhibit 8).

7. On January 4, 1977, defendant James B. Rhoads, Ar-

chivist of the United States, requested access to the records

to determine whether they are in whole or in part records

within the meaning of applicable laws and regulations

(Exhibit 8). On January 18, 1977, defendants Department

of State and Kissinger denied the request (Exhibit 9).

8. On February 11, 1977, the Archivist repeated his

request (Exhibit 10).

9. The Archivist relied on an opinion by the General

Counsel of the General Services Administration (Exhibit

Ud ki ire stein — —_—

67a

11) which concluded that:

The Archivist of the United States has the

authority and responsibility to make an in-

dependent determination of the character (federal

records, Nixon historical materials or personal

papers) of the telephone transcripts and related

documents created or received by former

Secretary of State and Assistant to the President

for National Security Affairs Henry A. Kissinger

during the course of his service in those positions.

10. On January 19, 1977, the Congressional Research

Service of the Library of Congress, under the supervision of

defendant Boorstin, Librarian of Congress, rendered an

opinion (Exhibit 12) that since the recorded conversations

were conducted by defendant Kissinger as “‘part of the of-

ficial duties of the Secretary of State [,] [t]he transcripts of

those conversations would therefore relate to the

Secretary’s public rather than private capacity,’’ that such

materials ‘‘are the public property of the United States

rather than the personal property of the official’’ and

therefore that ‘‘ownership of the secretarial transcripts in

question is vested in the United States Government rather

than Secretary Kissinger” (id. 5-6).

11. The opinion of the Congressional Research Service

was based on a written opinion of defendant Department of

State that monitoring of telephone conversations is

prohibited except when ‘“‘deemed absolutely essential to the

conduct of business,” as provided in Federal Property

Management Regulations (FPMR 101-35.308) (Exhibit 13).

12. On january 24, 1977, defendant Department of State

forbade all officers and employees to monitor or record

68a

telephone conversations except with the express consent of

the Secretary of State or his Deputy (Exhibit 14).

April 14, 1977

Respectfully submitted,

/s/ William A. Dobrovir

WILLIAM A. DOBROVIR

ANDRA N. OAKES

DAVID L. SCULL

2005 L Street, N.W.

Washington, D.C. 20036

Attorneys for Plaintiffs

ae ae

69a

EXHIBIT 1

WILLIAM A. DOBROVIR/ANDRA N. OAKES

JOSEPH D. GEBHARDT/DAVID L. SCULL

2005 L Street, N.W. Washington, D.C. 20036

(202) 785-8919

December 28, 1976

BY HAND

Barbra Ennis, Director

Freedom of Information Staff

Room 2811

Department of State

2201 C Street, N.W.

Washington, D.C. 20520

Dear Ms. Ennis:

On behalf of Military Audit Project (MAP) and Felice D.

Cohen, Director of MAP, we request access, for the purpose

of reading of written documents and listening to tape or

other sound recordings, and for copying of those we may

select after inspection, to the following records presently

physically located in or in the custody of the Department of

State:

All memoranda, aide memoirs, memoranda of con-

versations, secretarial notes, voice recordings or other writ-

ten or recorded records of all conversations between Henry

A. Kissinger and:

(1) the head of state or head of government of any

foreign nation;

(2) the ambassador to the United States from any

foreign nation;

(3) the foreign minister or foreign secretary, the

national security advisor or any other official of

70a

any foreign nation with responsibility for the

foreign affairs, foreign relations or security of

such nation.

This request includes all such records, whether or not

purportedly designated as ‘‘personal’’ pursuant to §§ 417.1

or 432 of the State Department Manual; see GSA Bulletin

FPMR B-65, 41 Fed. Reg. 51149 (November 19, 1976).

We further requcst that, until administrative con-

sideration (and, if necessary, court proceedings) respecting

this request are concluded, the records in question remain

in the Department of State and not be removed therefrom.

If this request is not to be honored, we request immediate

notification thereof. We expect a reply within 10 working

days, i.e., no later than the close of business, Wednesday,

January 12, 1977.

Very truly yours,

/s/ William A. Dobrovir

William A. Dobrovir

Attorney for Military Audit

Project and Felice D. Cohen

WAD:crk

cc: Hon. Henry A. Kissinger

Secretary of State

Monroe Leigh, Esq.

Legal Adviser

Tla

EXHIBIT 2

WILLIAM A. DOBROVIR/ANDRA N. OAKES

JOSEPH D. GEBHARDT/DAVID L. SCULL

2005 L Street, N.W. Washington, D.C. 20036

(202) 785-8919

December 29, 1976

BY HAND

Barbra Ennis, Director

Freedom of Information Staff

Room 2811

Department of State

2201 C Street, N.W.

Washington, D.C. 20520

Dear Ms. Ennis:

On behalf of Military Audit Project (MAP) and Felice D.

Cohen, Director of MAP, we request access, for the purpose

of reading of written documents and listening to tape or

- other sound recordings, and for copying of those we may

select after inspection, to the following records presently

physically located in or in the custody of the Department of

State:

All memoranda, aide memoirs, memoranda of con-

versations, secretarial notes, voice recordings or other writ-

ten or recorded records of all conversations between Henry

A. Kissinger and any other person, conducted by Mr.

Kissinger in his capacity as Secretary of State and in his

capacity as National Security Adviser.

This request includes all such records, whether or not

purportedly designated as ‘‘personal’’ pursuant to §§ 417.1

or 432 of the State Department Manual; see GSA Bulletin

FPMR B-65, 41 Fed. Reg. 51149 (November 19, 1976).

72a 73a

We further request that, until administrative con- EXHIBIT 3

sideration (and, if necessary, court proceedings) respecting |

this request are concluded, the records in question remain | DEPARTMENT OF STATE

in the Department of State and not be removed therefrom. f Washington, D.C. 20520

If this request is not to be honored, we request immediate

notification thereof. We expect a reply within 10 working

days, i.e., no later than the close of business, Thursday,

January 13, 1977.

January 18, 1977

Mr. William A. Dobrovir

Very truly yours, 2005 L Street, Northwest

Washington, D.C.

/s/ William A. Dobrovir

William A. Dobrovir | Dear Mr. Dobrovir:

Attorney for Military Audit I refer to your requests of December 28 and 29 under the

Project and Felice D. Cohen Freedom of Information Act for ‘‘all memoranda, aide

WAD): crk memoirs, memoranda of conversations . . . or other written

cc: Hon. Henry A. Kissinger / or recorded records of all conversations’’ between Henry A.

Monroe Leigh, Esq. Kissinger and certain enumerated classes of foreign of-

ficials (December 28 request) or between ‘‘Henry A.

Kissinger and any other person conducted by Mr. Kissinger

in his capacity as Secretary of State’’ and as National

Security Adviser (December 29 request). Since any records

encompassed by the December 28 request are necessarily

covered by the December 29 request, we consider the for-

mer to be superseded by the latter.

| As you may know, prior to the submission of either

request, secretarial notes which constituted the Secretary’s

| personal records of telephone conversations had been trans-

| ferred to the Library of Congress. In addition, these notes

themselves are not and have never been agency records of

the Department of State. We have, however, carefully con-

sidered the remainder of your request. I must inform you

that the Department of State cannot comply because your

request is unreasonably broad and because it does not

reasonably describe the records sought.

It is not possible within the available resources of this

Department to process your request. Moreover, it is our

74a

belief that it was not the intention of the Congress to

require agencies to devote their resources to respond to

sweeping, indiscriminate requests such as this and thereby

subordinate the general public interest to one individual’s

desire to use a broad range of documents.

If you wish to appeal this denial to the Department’s

Council on Classification Policy, you may do so in ac-

cordance with the enclosed regulations.

Sincerely,

/s/ Monroe Leigh

Monroe Leigh

Legal Adviser

Enclosure:

22 CFR § 6.8

75a

EXHIBIT 4

WILLIAM A. DOBROVIR/ANDRA N. OAKES/

JOSEPH D. GEBHARDT/DAVID L. SCULL

2005 I. Street, N.W. Washington, D.C. 20036

(202) 785-8919

January 24, 1977

Ambassador John E. Reinhardt

Assistant Secretary of State

for Public Affairs

Chairman, Council on Classification

Policy

Department of State

2201 C Street, N.W.

Washington, D.C. 20520

Re: FOIA Request of

Military Audit Project

Dear Assistant Secretary Reinhardt:

This is an appeal from the denial, dated January 18,

1977, of two Freedom of Information Act requests: (a) a

request of December 28, 1976, and (b) a request of Decem-

ber 29, 1976. Copies of all three are attached. The January

18, 1977, denial signed by then Legal Adviser Monroe

Leigh, received by us on January 22, 1977, denied both our

December 28, 1976, request for the records of specific con-

versations of then Secretary of State Kissinger with certain

specifically described foreign government officials, and our

December 29, 1976, request for records of all his con-

versations.

76a

The January 18 denial states that ‘‘secretarial notes which

constituted the Secretary’s personal records of telephone

conversations had been transferred to the Library of

Congress.’’ We are also aware that at former Secretary

Kissinger’s instance, Mr. Leigh in November 1976 gave him

a written legal opinion that these conversations were his

personal property.

Accordingly, it is obvious that the Leigh letter’s assertion

that our request does not reasonably describe the records in

question was not made in good faith. They were sufficiently

described to be the subject of his legal opinion; they were

sufficiently described to be carted off first to the private

property of former Vice President Rockefeller and then to

the Library of Congress. Finally, the letter improperly and

wrongly asserts that the first, specific request was super-

seded by the second, broader request.

The essence of the denial, however, is that, by reason of

Mr. Leigh’s November 1976 opinion that the records of the

Secretary of State’s conversations are “‘personal,’’ they ‘‘are

not and have never been agency records of the Department

of State.’”” We submit that it was highly improper for the

Secretary of State to ask for a legal opinion from the Legal

Adviser of the Department which was worth a great deal of

money to the Secretary (by reason of Mr. Kissinger’s

desired exclusive access to the records for the purpose of

writing his memoirs); still more improper for the Legal Ad-

viser to give such an opinion, and still more improper for

the same Legal Adviser then to rule on a Freedom of In-

formation request for the same records.

We further submit that the records are records of the

Department of State, an agency of the United States within

the meaning of 5 U.S.C. § 552, and of 18 U.S.C. § 641 and

44 U.S.C. §§ 3101-07, 3301-14, as implemented in

regulations of the Department of State, §§ 411,412, 417,

423, 432 and 436 of the Foreign Affairs Manual and

regulations of the General Services Administration, GSA

77a

Buleltin FPMR B-65, 4 4(c), 41 Fed. Reg. 51149 (November

19, 1976).

For the foregoing reasons, we appeal the denial of:

(a) our request for records of conversations of for-

mer Secretary Kissiiiger with certain specifically

described foreign officials, dated December 28,

1976; and

(b) our request for records of all of former Secretary

Kissinger’s conversations, dated December 29,

1976.

You are expressly informed that the December 29, 1976,

request does not supersede the December 28, 1976, request;

we appeal the denial of each request separately.

Moreover, we request that as lawful custodian of the

records, the Department immediately take all steps

necessary, including a civil suit for conversion or requesting

criminal prosecution under 18 U.S.C. § 641 if necessary, to

have the records which were removed from the Department

by former Secretary Kissinger immediately returned to the

Department so that they can be made available to us pur-

suant to the Freedom of Information Act..

We request a reply within 20 working days, or no later

than February 22, 1977.

Very truly yours,

/s/ William A. Dobrovir

William A. Dobrovir

cc: Hon. Cyrus Vance, Secretary of State

Hon. Matthew Nimetz, Counselor of the Department

of State

George H. Aldrich, Esq., Acting Legal Adviser

78a

EXHIBIT 5

DEPARTMENT OF STATE

Washington, D.C. 20520

March 4, 1977

William A. Dobrovir, Esq.

William A. Dobrovir, Andra N. Oakes,

Joseph D. Gebhardt, David L. Scull

2005S L Street, N.W.

Washington, D.C. 20036

Dear Mr. Dobrovir:

This is in response to your letter of January 24, in which

you appeal the Department’s denial of requests you have

made under the Freedom of Information Act.

Your original request, dated December 28, 1976, asked

for ‘‘all memoranda, aide memoires, memoranda of con-

versations, secretarial notes, voice recordings or other writ-

ten or recorded records of all conversations between Henry

A. Kissinger and [three categories of foreign officials].’’ By

a second request dated December 29, 1976, you asked for

the same categories of materials relating to conversations

between Henry A. Kissinger ‘‘and any other person.”’ Both

requests were denied by a letter of the former Legal Ad-

viser, dated January 18, 1977.

Having reviewed the initial denial and your request for an

appeal, the Department has decided to reaffirm the initial

decision to deny your requests. Specifically, the Depart-

ment has taken into account the following considerations:

There are in essence two aspects to your requests. The first

aspect pertains to the secretarial notes of telephone con-

versations of former Secretary of State Kissinger which

were donated by the former Secretary to the Library of

Congress. The status of those notes is currently the subject

of litigation: The Reporters Committee for Freedom of the

79a

Press, et al v. Vance, et al, D.D.C. No. 77-0220 (filed

February 8, 1977). Under these circumstances, the Depart-

ment is not in a position to accede to this aspect of your

request.

The second aspect pertains to documents which the

Department does have in its possession. It would extend,

however, to every piece of paper and all materials that

reflect any conversations of the former Secretary of State.

The request apparently includes aide memoires, diplomatic

notes, memoranda of meetings, memoranda of telephone

conversations, and correspondence between the former

Secretary and persons both within and without the Depart-

ment of State — a very large and undifferentiated volume

of material. In the Department’s view, this portion of your

request is unreasonably broad, and does not in the terms of

the Act reasonably describe documents properly subject to

a Freedom of Information Act request.

In sum, the Department has reviewed its initial denial of

your requests, but again concludes that it cannot accede to

those requests. As you will be aware, you may seek judicial

review of this decision.

Sincerely,

/s/ William D. Blair, Jr.

William D. Blair, Jr.

Acting Chairman

Council on Classification Policy

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EXHIBIT 6

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 1 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

8la

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 called upon to review an appeal of

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

formation Act request for these papers. I advised the

Department’s Council on Classification Policy that there

was ‘‘very strong support” for concluding that these papers

are not agency records. Incidentally, I 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 tu 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

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Information Act. The Court conclude 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." /d. 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

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government ot 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 S 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. court 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

84a

“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 and other legal criteria, these particular

papers are personal and may be retained by you when you

leave office.

Monroe Leigh

[Attachment]

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 statement 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

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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 Kissinger in recent

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

tention.

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

outline and 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

named a literary agent.

A 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.

86a

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 said.

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 presidency 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 government information of the House Govern-

ment Operations Committee, is reported to be considering

87a

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. “If 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.

88a

EXHIBIT 9

THE SECRETARY OF STATE

WASHINGTON

January 18, 1977

Dear Dr. Rhoads:

I write in response to your letter of January 4, in which

you inquire about the donation of my papers to the United

States for preservation at the Library of Congress and, in

particular, about that portion of the donation that com-

prises the secretarial notes of my telephone conversations.

Apparently, there has been some misunderstanding or at |

least incomplete information concerning this donation. So

that you may be apprised of what has occurred, I enclose a

copy of a letter I have sent to the Chairman of the House

Committee on Government Operations, which describes in

detail the scope of the donation and the steps taken to

assure completeness of Department of State records.

I also enclose a copy of a memorandum by counsel to the

Department, which discusses several problem areas that

might arise if the additional procedures contemplated in

your letter were followed. With respect to the procedures

which have been followed to date, I have requested the

records officers of the Department to answer any further

questions you may have concerning the steps taken.

Best Regards,

/s/ Henry A. Kissinger

Henry A. Kissinger

Enclosures:

as stated above

Dr. James B. Rhoads, 5%

Archivist of the United States,

National Archives and Records Service.

89a

THE SECRETARY OF STATE

WASHINGTON

Dear Mr. Chairman:

I write in response to your letters of January 3 and

January 11, concerning the donation of my papers to the

United States for preservation at the Library of Congress.

In confirmation of your conversation with the Deputy

Under Secretary of State, Mr. Lawrence Eagleburger, I

wish to reiterate the following details concerning the scope

of the donation and the steps undertaken to assure the

completeness of Department of State records.

First, all government papers that have been donated to

the Library of Congress are copies and not original records.

Documents officers have carefully reviewed all of these

papers to make certain that all original or record copies are

included in the appropriate files at either the Department

of State, National Security Council, or White House, and

that only copies have been included in the files that have

been transferred to the Library.

Second, in addition to government papers, I have

donated papers relating to my personal life, both before

and during my years of government service. This portion of

the donativn includes, for example, papers from my years

at Harvard University.

Third, I have donated under a separate instrument, the

secretarial notes of my telephone conversations. These

papers have been consistently treated as personal work

aids. The special privacy considerations raised by these

The Honorable

Jack Brooks,

Chairman,

Committee on Government Operations,

House of Representatives.

90a

notes are reflected in the separate instrument of gift. Coun-

sel to the Department of State has thoroughly reviewed the

applicability of Department of State regulations to these

papers, and has advised that under these regulations and

other legal authority, the papers are personal. The only

copies of these papers are at the Library of Congress.

However, also pursuant to Department of State

regulations, Deputy Under Secretary Eagleburger is at my

direction reviewing these notes of telephone conversations

and is extracting any significant government activity or

decision that may be reflected in them. These extracts will

be forwarded to the appropriate government offices or

agencies for inclusion in government record files.

Both in executing and in implementing the donations to

the Library of Congress, I have endeavored to follow in both

letter and spirit the applicable Department of State

regulations. I am advised that these regulations, which have

been in effect since 1967 and which were promulgated pur-

suant io 44 U.S.C. 3101 and 3102, have been scrupulously

followed with respect to my papers.

I wish to note that the Department’s regulations serve a

number of relevant policy considerations. They assure that

the Department has continuing access to information

needed for the conduct of foreign policy. They also respect

privacy expectations in papers that have been consistently

treated as personal. This aspect of the regulations has

enabled numerous Department officials to originate candid

diaries and notes which reflect their official activities and

which have proved to be invaluable historical legacies.

Although I am not in a position to make a similar claim for

the minor portion of my papers that I have treated as per-

sonal, I am convinced that the policy reflected in the

Department regulations of 1967 serves to promote candid

accounts of government service which would not otherwise

be created. Such accounts would certainly not be created if

the accompanying privacy expectations did not continue to

9la

be respected.

I wish to assure you, as I have assured others, that the

Department of State will have complete records of the

foreign policy actions and decisions in which I have par-

ticipated as Secretary of State. With respect to the

donations I have made, all of the papers in question are to

be preserved for future scholars at an institution of

unquestioned integrity, the Library of Congress. As you

may know, the Library has preserved the papers of 27

other Secretaries of State. It is my sincere hope that when

the donation is considered in this perspective, it will be

viewed as a positive and responsible contribution.

Best regards,

Henry A. Kissinger

92a

THE LEGAL ADVISER

DEPARTMENT OF STATE

Washington

January 14, 1977

MEMORANDUM

By a letter dated January 4, 1977 to Secretary of State

Kissinger, the Archivist of the United States has inquired

about Secretary Kissinger’s donation of papers to the

Library of Congress, and, in particular, about that portion

of the donation consisting of secretarial notes of Secretary

Kissinger’s telephone conversations. The letter requests that

GSA archivists be permitted to review these notes, so that

they might make their personal assessments as to whether

these notes consist of personal or agency records.

It appears that the request has not taken into account the

following factors: (1) that the nature of the notes in

question must, under present law, be determined according

to the Department of State regulations; (2) that the Depart-

ment’s records interest is met by the ‘extract’

requirement; (3) that the GSA is not an appropriate entity

to review the notes, because of its advocate’s interest in

seeking a government-wide rule for distinguishing personal

from official papers; (4) that other legal authority fully sup-

ports the policies reflected in the Department of State

regulations; and (5) that Department policies would be

prejudiced by the requested review. This memorandum

discusses each of these points in detail.

1. Role of Department of State Regulations.

Whether the notes in question are personal or official

papers must, in the final analysis, be considered in light of

the Federal Records Act, 44 U.S.C. 3101 et. seq., and the

Department of State regulations, promulgated under that

Act. There is not under present law any carefully defined,

government-wide legal standard for distinguishing per-

93a

sonal from official papers. (Indeed the absence of such a

government-wide standard is the reason why the present

National Study Commission on Records and Documents of

Federal Officials was created.) Instead, existing legislation

leaves it to each federal agency to determine how records

should be made and preserved, and to provide for “effective

controls over the creation, maintenance and use of

records.”’ 44 U.S.C. 3101 and 3102.

Pursuant to this statutory authority, the Department of

State in 1967 promulgated regulations concerning main-

tenance of records and, in particular, concerning what

papers a retiring official may retain as personal. 5 FAM

417.1 and 432. Inasmuch as these Department regulations

are controlling, it is the responsibility of Department of

State officers, and not GSA archivists, to ascertain what

steps are being taken to assure continuing Department ac-

cess to information which may be reflected in the notes in

question and which might be needed for the conduct of

foreign policy.

2. The “Extract’’ Requirement

The Department’s regulations establish a pragmatic test

for determining what papers a retiring official may retain

as personal. If a paper has been explicitly designated or

filed as personal from the time of origin or receipt, it is con-

sidered to be personal and may be retained; on the other

hand, if a paper has not been so designated or filed, or if it

has been circulated within the agency, it is considered to be

an agency record. 5 FAM 417.1. This working test for

distinguishing personal from official papers attempts to

respect, in a realistic fashion, privacy expectations that an

individual Department employee or official may have with

respect to a paper. :

However, even though a paper may be considered personal,

official policy matters discussed in such a paper must be ex-

tracted and forwarded for inclusion in Department records.

94a

S FAM 432. The Department has consistently construed

this provision as requiring a departing official to extract

any significant government activity or decision that may be

reflected in such a paper. (Note that the very existence of an

extract requirement is based on the premise that there are

categories of personal papers which may and do contain

discussions of official activities and that such discussions of

official activities do not alter the personal nature of these

papers.)

At present, the secretarial notes of Secretary Kissinger’s

telephone conversations are being reviewed at his direction,

in order to ascertain which portions of them must be ex-

tracted for inclusion in appropriate foreign policy record

files. In light of this review, it would be highly unusual if

these same papers were to be subjecied to a second review

by persons unfamiliar with the current state of foreign

policy. We would, of course, anticipate that in future years,

when foreign policy records are normally reviewed within

the State Department to determine whether they should be

transferred and preserved at the National Archives, these

extracts will also be reviewed for that purpose.

It should be noted that no statute required Secretary

Kissinger to make and retain candid notes of telephone

conversations. The only requirement is that significant

government activities or decisions undertaken by a

Secretary of State by telephone be reflected in government

records. This requirement is being fully satisfied, so that

the agencies of the United States Government concerned

with the conduct of foreign policy will have the information

needed for the conduct of foreign policy in coming years.

Also, in the event that some of these extracts may pertain

directly to the Nixon or Ford Presidencies (as opposed

to National Security Council or Department of State

business), they are to be forwarded for inclusion in the

White House files for those periods.

ee LE ME yy Seman any ech Mee eer Ane AEM en eee ey

95a

3. GSA’s Advocate’s Interest

Recently, the GSA has espoused a view that personal

papers are limited to material pertaining solely to an in-

dividual’s private affairs, and not at all to his official ac-

tivities. This view implies that traditionally personal

materials (like diaries, notes and family correspondence)

which discuss a person’s official activities, are official re-

cords. The GSA advocated this position in proposed

regulations under the Presidential Recordings and Ma-

terials Preservation Act, but it was expressly rejected

twice by the Congress in the past year. S. Res. 428; H. Res.

1505; see H. Rep. No. 94-1485 of 4-S (1976). This approach,

among others, has also been suggested to the National

Study Commission on Records and Documents of Federal

Officials, which has the task of proposing for the first time,

government-wide legislation on the personal-official paper

distinction. In that forum, GSA is a proponent for a

definition of official records that is inconsistent with

Department of State regulations. In view of this advocate’s

interest, it would not seem appropriate for GSA archivists

to preempt the Department of State by reviewing the notes

in question.

We, of course, are aware of the recent GSA Bulletin FP-

MR B-65 (November 15, 1976), which undertakes to sum-

marize existing law with respect to records. Significantly,

the only paragraph in that “‘summary’”’ that is not sup-

ported by a statutory citation is paragraph 3c, which ad-

vances the GSA’s recent proposal on the distinction bet-

ween official and private papers. In this regard, no

provision of the GSA Federal Property Management

Regulations of February 1967 contains so far-reaching a

definition of official records as that contained in paragraph

3c of GSA Bulletin FPMR B-65.

4. Other Legal Authority

Recent judicial decisions have firmly supported the view,

embodied in Department of State regulations, that per-

96a

sonal papers can include discussions of official activities,

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

(8th Cir. 1958), and that such personal records of official

activity are not agency records, Porter County Chapter v.

A.E.C., 380 F. Supp. 630 (N.D. Ind. 1974). The same con-

clusion is set forth in the OMB Guidelines to the Privacy

Act (40 F.R. 28952), which makes clear that “‘agency

records’ do not include ‘“‘uncirculated personal notes,

papers and records” — even if such materials are “in

possession of agency employees and used by them in per-

forming official functions.”’

Also, in the last government-wide pronouncement on

what papers a retiring official may retain — Cabinet Paper

CP-59-58-4, July 27, 1959 — it states that “‘since such work-

aids as office diaries, logs, memoranda of conferences and

telephone calls are usually reflected in actual agency

records, such work-aids ordinarily can be removed.”

In a related context, the Department last January

received a Freedom of Information Act request relating to

some of the notes in question. Before responding to the

request, we consulted with the Office of Legal Counsel at

the Department of Justice, which wrally concurred in our

position that the notes sought weve mot agency records sub-

ject to the Freedom of Infeewiation Act. Attached for

reference is a recent Department of Justice press guidance

concerning these events. I call attention to the conclusion

that one of the grounds for denying the request ‘‘was that

the request included documents which were not ‘agency

records’ within the meaning of the Freedom of Information

Act, 5 U.S.C. §552, but rather personal notes and records

of Mr. Kissinger.”

5. Prejudice to Department Interests

The Department of State regulations serve a number of

important policy interests — in particular, access by the

Department to full information needed for the conduct of

foreign policy, and respect for privacy expectations which

an individual may have in regard to a paper that has been

97a

consistently treated as personal. It should be noted that the

respect for privacy expectations implicit in the Depart-

ment’s regulations has enabled numerous Department of-

ficials to originate candid diaries and notes which have

proved to be invaluable historical resources.

If present practices were changed so as to preclude an of-

ficial’s private papers from containing material concerning

his conduct in office, these candid and intimate sources of

history would not be created. And, of equal concern to the

Department, matters that are currently set down on paper

might cease to be recorded.

In summary, it is my view that the procedure con-

templated in the Archivist’s letter of January 4 would

present a number of difficulties for the Department and the

administration of its records policies.

/s/ Monroe Leigh

Monroe Leigh

98a

Department of Justice Press Guidance (12/23/76):

The Department of Justice has received requests for

copies of a formal legal opinion thought to have been issued

by the Department concerning the ownership of secretarial

notes of telephone conversations of Secretary of State

Kissinger. No such opinion exists. Early this year, however,

in accordance with normal practice, the Office of Legal

Counsel of the Department was consulted informally with

respect to the proposed denial of a Freedom of Information

Act request which sought such material relating to certain

of Mr. Kissinger’s telephone conversations. On the basis of

a general description of the material involved which in-

cluded\.both transcribed and untranscribed notes, the

Assistant Attorney General for the Office of Legal Counsel

orally approved the propriety of denying the request on

several grounds, one of which was that the request included

documents which were not “agency records’”’ within the

meaning of the Freedom of Information Act, 5 U.S.C. §552,

but rather personal notes and records of Mr. Kissinger.

99a

EXHIBIT 10

Feb 11 1977

Honorable Henry A. Kissinger

1800 K Street, NW.

Washington, D.C. 20006 t

Dear Dr. Kissinger:

This is in reply to your letter of January 18.

In that letter you declined to permit professional archivists

from the staff of the National Archives and Records Service

to examine the transcripts or notes of telephone con-

versations which you have deposited with the Library of

Congress. You included with your reply copies of your letter

to the Honorable Jack Brooks, Chairman of the House

Committee on Government Operations, and a January 14

legal memorandum from the Legal Adviser to the Depart-

ment of State, Mr. Monroe Leigh.

While those enclosures add some information regarding the

deposit of this material with the Library of Congress, they

do not resolve the basic issue of whether some or all of the

transcripts or notes are Federal records, Nixon historical

materials, or personal papers.

Consequently, I am writing to you once again to enlist your

cooperation in making it possible for qualified archivists

from my staff to examine this material in order to make the

necessary determinations. As I indicated in my letter of

January 4, this work would be done by professional ar-

chivists who will protect any confidential information they

may encounter. It is my intent to select for this purpose a

small team of archivists experienced in diplomatic records,

personal papers, and the appraisal of Federal records.

With regard to the legal issues involved and Mr. Leigh’s

memorandum, I enclose the opinion of the General Coun-

sel of the General Services Administration. As you will

100a

note, this opinion concludes that: ‘‘The Archivist of the

United States has the authority and responsibility to make

an independent determination of the character (federal

records, Nixon historical materials or personal papers) of

the telephone transcripts and related documents created or

received by Former Secretary of State and Assistant to the

President for National Security Affairs Henry A. Kissinger

during the course of his service in those positions.”

In view of this opinion and in order to resolve the basic

issue expeditiously, I would appreciate it if you would make

the necessary arrangements with the Librarian of Congress

so that the membéfs of my staff may have access to the

materials in question.

Sincerely,

/s/ James B. Rhoads

JAMES B. RHOADS

Archivist of the United States

Enclosure

10la

EXHIBIT 11

UNITED STATES OF AMERICA

GENERAL SERVICES ADMINISTRATION

Date: Feb 03 1977 Officer of General Counsel

Reply to Washington, D.C. 20405

Attn of: General Counsel — L

SUBJECT: Archival inspection of Kissinger telephone

transcripts and related documents

TO: James B. Rhoads

Archivist of the United States — N

Pursuant to your request, this office has examined the legal

questions posed by your request to the Honorable Henry A.

Kissinger, former Secretary of State and Assistant to the

President for National Security Affairs, that a team of ar-

chivists be permitted to inspect certain telephone tran-

scripts and related documents, the former constituting the

corpus of the most recent donation by Dr. Kissinger to the

Library of Congress. In examining these questions, we have

paid particular attention to the memorandum of law dated

January 14, 1977, of then Department of State Legal Ad-

viser Monroe Leigh, which was an enclosure to Dr.

Kissinger’s letter to you of January 18, in which he rejected

your request for archival inspection.

FACTS

Recent news accounts, which have been confirmed by sub-

sequent events, disclosed that former Secretary of State and

Assistant to the President for National Security Affairs

Henry A. Kissinger had his secretary transcribe certain of

his telephone conversations that had taken place during the

course of his service in these positions. These accounts fur-

ther disclosed that Dr. Kissinger had concluded that these

transcripts were his personal property and, accordingly,

102a

that he could dispose of all or part of them as he chose to

do. On December 24, 1976, Dr. Kissinger donated the only

copy of these transcripts to the Library of Congress, pur-

suant to an instrument accepted by the Library which

provides for lengthy and frequently indefinite periods of

restricted access. Concerned that all or part of the tran-

scripts might be federal records or Nixon historical

materials rather than personal papers, you wrote to Dr.

Kissinger on January 4, 1977, and requested that he permit

a team of experienced archivists to inspect them and

related documents, and subsequently issue a report to him

on your findings. By a letter to you dated January 18, Dr.

Kissinger, enclosing undated correspondence with the

Honorable Jack Brooks, Chairman, House Committee on

Government Operations, and a memorandum of law dated

January 14,,of then Department of State Legal Adviser

Monroe Leigh, rejected your request for archival inspection

of the transcripts and related documents. In his letter to

Chairman Brooks, Dr. Kissinger stated that he had

assigned then Deputy Under Secretary of State

Eagleburger the task of making extracts of those portions

of the transcripts which reflect “significant government ac-

tivity or decision . . . . These extracts will be forwarded to

the appropriate government offices or agencies for in-

clusion in government record files.”

ISSUES

Does the Archivist of the United States have the authority

and responsibility to make an independent determination

of what documentary materials created or received by a

cabinet officer in the course of his service in that capacity

are federal records as defined in the Federal Records Act

(44 U.S.C. 2101 et seq.)?

Does the Archivist of the United States have the authority

and responsibility to make an independent determination

of what documentary materials created or received by a

103a

White House adviser to former President Nixon in the

course of his service in that capacity are Presidential

historical materials of the Nixon Administration as defined

in Title I of the Presidential Recordings and Materials

Preservation Act (P.L. 93-526; 88 Stat. 1695; 44 U.S.C.

2107 note), as implemented by the proposed public access

regulations of the Administrator of General Services (40

CFR, Part 105-63)?

CONCLUSION )

The Archivist-of the United States has the authority and

responsibility to make an independent determination of the

character (federal records, Nixon historical materials or

personal papers) of the telephone transcripts and related

documents created or received by former Secretary of State

and Assistant to the President for National Security Affairs

Henry A. Kissinger during the course of his service in those

positions.

DISCUSSION

I. There is one glaring oversight in the memorandum of

law which accompanied Dr. Kissinger’s rejection of your

request for archival inspection of the telephone transcripts

and related documents. It totally ignores any examination

of the statutory and regulatory authorities and respon-

sibilities of the Administrator of General Services, as

delegated to the Archivist of the United States, which flow

from the Federal Records Act and Presidential Recordings

and Materials Preservation Act. Instead, the memorandum

confines its examination of pertinent statutes and

regulations to only that. portion of the Federal Records Act

which relates to the records management responsibilities of

agency heads, as implemented by State Department

regulations. (Throughout the entire memorandum there is

no reference or discussion of Title I of the Presidential

Recordings and Materials Preservation Act; hence, there is

no consideration whatsoever of Nixon historical materials.)

104a

Viewed in this limited perspective, the memorandum con-

cludes that the responsibility for determining the character

of the transcripts rests solely with the agency head, i.e., Dr.

Kissinger. The heart of Mr. Leigh’s rationale is expounded

in one of his initial paragraphs:

Whether the notes in question are personal or

official papers must, in the final analysis, be con-

sidered in light of the Federal Records Act, 44

U.S.C. 3101 et seq., and the Department of State

regulations, promulgat

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