# Appendix — Kissinger v. Reporters Committee for Freedom of the Press > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0051%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 441 U.S. 904 ## Text 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, v. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, et al., Respondents. and REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, et ai., \ Petitioners, V. P wee ee 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 (i 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, v. 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. iz (viii) a 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 la 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 V. 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 Apr 19 Apr 19 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 02 May I11 May 12 May 13 May 20 May 26 2a 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 17 June 17 June 17 June 20 Aug 05 Aug 08 Aug 08 3a 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 Aug 22 Sept 28 Dec 08 Dec 16 Dec 19 Dec 19 4a 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 Sa 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 6a 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 Ta 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) 8a 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. 9a 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. V. 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. v. 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 (C) 4-11-78 (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 e (A) 4-24-78 (A) 4-24-78 (A) 4-24-78 (A) 4-25-78 (A) 5-24-78 (A) 5-24-78 (T) 6-29-78 (T) 7-13-78 (©)7-17-78 (T) 7-17-78 (C) 7-26-78 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. (C) 8-8-78 (C) 8-29-78 (E) 9-18-78 (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) 12-14-78 (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; (c) declare unlawful the restrictions on access to the 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 Pn 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 a 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; (c) The Second Agreement would deny plaintiffs access 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; (c) That the Court declare that the secretarial notes are 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: 1. 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. (c) That Henry A. Kissinger may have access to the 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! | eine — ate, tn elt bin dala! 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 8. 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 2 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 80a 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 th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0051%3A03. Public record. Not legal advice.