KISSINGER v. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS ET AL.
No. 78-1088
Supreme Court of the United States
Argued October 31, 1979—Decided March 3, 1980*
445 U.S. 136
*Together with No. 78-1217, Reporters Committee for Freedom of the Press et al. v. Kissinger, also on certiorari to the same court.
David Ginsburg argued the cause for petitioner in No. 78-1088 and respondent in No. 78-1217. With him on the briefs
Robert M. Sussman argued the cause for the Reporters Committee for Freedom of the Press in both cases. With him on the brief were Charles A. Horsky and Peter Barton Hutt. William A. Dobrovir argued the cause for the Military Audit Project in both cases. With him on the brief was Andra N. Oakes.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
The Freedom of Information Act (FOIA) vests jurisdiction in federal district courts to enjoin an “agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.”
I
This litigation arises out of FOIA requests seeking access to various transcriptions of petitioner Kissinger‘s telephone conversations. The questions presented by the petition necessitate a thorough review of the facts.
A
Henry Kissinger served in the Nixon and Ford administrations for eight years. He assumed the position of Assistant
On October 29, 1976, while still Secretary of State, Kissinger arranged to move the telephone notes from his office in the State Department to the New York estate of Nelson Rockefeller. Before removing the notes, Kissinger did not consult the State Department‘s Foreign Affairs Document and Reference Center (FADRC), the center responsible for implementing the State Department‘s record maintenance and disposal program. Nor did he consult the National Archives and Records Service (NARS), a branch of the Generаl Services Administration (GSA) which is responsible for records preservation throughout the Federal Government. Kissinger had obtained an opinion from the Legal Adviser of the Department of State, however, advising him that the telephone summaries were not agency records but were his personal
After Kissinger effected this physical transfer of the notes, he entered into two agreements with the Library of Congress deeding his private papers. In the first agreement, dated November 12, 1976, Kissinger deeded to the United States, in care of the Library of Congress, one collection of papers. Kissinger‘s telephone notes were not included in this collection. The agreement established terms obligating Kissinger to comply with certain restrictions on the inclusion of official documents in the collection and obligating the Library to respect restrictions on access. The agreement required that official materials in the collection would consist of “copies of government papers of which there is an original or record copy in government files.” It also provided that all such materials must have been “approved for inclusion in the Collection” by “authorized offiсials.”
Public access to the collection, under the terms of the deed, will not begin until 25 years after the transfer or 5 years after Kissinger‘s death, whichever is later. Until that time, access is restricted to (1) employees of the Library of Congress who have been jointly approved by the Library of Congress and Mr. Kissinger; (2) persons who have received the written permission of Mr. Kissinger; and (3) after Kissinger‘s death, persons who have received the written permission of a committee to be named in his will. Kissinger and all of his research assistants who have appropriate security clearance retain unrestricted access to the collection.
After this agreement was executed, the Department of State formulated procedures for the review of the documents and their transfer to the Library of Congress. Employees reviewed the collection and retained (a) original or record copies
On December 24, 1976, by a second deed, Kissinger donated a second collection consisting of his telephone notes. This second agreement with the Library of Congress incorporated by reference all of the terms and conditions of the first agreement. It provided in addition, however, that public access to the transcripts would be permitted only with the consent, or upon the death, of the other parties to the telephone conversations in question.
On December 28, 1976, the transcripts were transported directly to the Library from the Rockefeller estate. Thus the transcripts were not reviewed by the Department of State Document and Reference Center with the first collection of donated papers before they were delivered into the possession of the Library of Congress. Several weeks after they were moved to the Library, however, one of Kissinger‘s personal aides did extract portions of the transcripts for inclusion in the files of the State Department and the National Security Council. Pursuant to the instructions of the State Department Legal Adviser, the aide included in the extracts, “any significant policy decisions or actions not otherwise reflected in the Department‘s records.”
B
Three separate FOIA requests form the basis of this litigation. All three requests were filed while Kissinger was Secretary of State, but only one request was filed prior to the
The second FOIA request was filed on December 28 and 29, 1976, by the Military Audit Project (MAP) after Kissinger publicly announced the gift of his telephone notes to the United States and their placement in the Library of Congress. The MAP request, filed with the Department of State, sought records of all Kissinger‘s conversations made while Secretary of State and National Security Adviser. On January 18, 1977, the Legal Adviser of the Department of State denied the request on two grounds. First, he found that the notes were not agency records. Second, the deposit of the notes with the Library of Congress prior to the request terminated the Department‘s custody and control. The denial was affirmed on administrative appeal.
The third FOIA request was filed on January 13, 1977, by the Reporters Committee for Freedom of the Press (RCFP), the American Historical Association, the American Political Science Association, and a number of other journalists (collectively referred to as the RCFP requesters). This request also sought production of the telephone notes made by Kissinger both while he was National Security Adviser and
The United States has tаken some action to seek recovery of the notes for record processing. On January 4, 1977, the Government Archivist wrote to Kissinger, requesting that he be permitted to inspect the telephone notes so that he could determine whether they were Department records, and to determine whether Kissinger had authority to remove them from Department custody. The State Department Legal Adviser, however, analyzed the Archivist‘s request and issued a memorandum concluding that so long as extracts of the official business contained in the notes were filed as agency records, Kissinger had complied with the Department‘s regulations. The Legal Adviser also concluded that the inspection procedures suggested by the Archivist would compromise the Department‘s policy of respecting the privacy of such secretarial notes and would discourage the creation of historical materials in the first instance. On January 18, 1977, Kissinger replied to the Archivist, declining to permit access.
The Archivist renewed his request for an inspection on February 11, 1977, by which time Kissinger was no longer Secretary of State. With the request, he enclosed a memorandum of law prepared by the General Counsel of the GSA concluding that the materials in question might well be records rather than personal files and that the Archivist was entitled to inspect them under the Federal Records and Records Disposal Acts,
C
Proceedings in the United States District Court for the District of Columbia commenced February 8, 1977. The RCFP requesters and Safire instituted an action under the FOIA, seeking enforcement of their FOIA requests. On March 8, 1977, MAP filed a similar suit. Both suits named
Cross-motions for summary judgment were filed by all plaintiffs and by Kissinger. The District Judge ruled in plaintiffs’ favor as to transcripts produced while Kissinger was Secretary of State, but denied relief as to transcripts of conversations produced while Kissinger was Special Assistant to the President. The court first found that the transcriрts of telephone conversations were “agency records” subject to disclosure under the FOIA. The court also found that Kissinger had wrongfully removed these records by not obtaining the prior approval of the Administrator of General Services. The court recognized that the FOIA did not directly provide for relief since the records were in the custody of the Library of Congress, which is not an “agency” under the Act. Nevertheless, the court held that the FOIA permitted the court to invoke its equitable powers “to order the return of wrongfully removed agency documents where a statutory retrieval action appears unlikely.”
An order was entered requiring the Library to return the documents to the Department of State; requiring the Department of State to determine which of the summaries are exempt from disclosure under the FOIA, and to provide the required materials to the plaintiffs. The court denied the production of summaries made during Kissinger‘s tenure as National Security Adviser on the basis of a mistaken assumption that plaintiffs had withdrawn their request for these summaries.
Both Kissinger and the private parties appealed from the lower court judgment. The Court of Appeals, without dis-
Kissinger filed a petition for certiorari requesting this Court to review the Court of Appeals’ determination that the State Department had improperly withheld agency records, thereby permitting their production from the Library of Congress. The RCFP requesters filed a cross-petition seeking review of that court‘s judgment denying production of the conversations transcribed while Kissinger served as National Security Adviser. We granted both petitions, 441 U. S. 904, and we now affirm in part and reverse in part.
II
We first address the issue presented by Kissinger—whether the District Court possessed the authority to order the transfer of that portion of the deeded collection, including the transcripts of all conversations Kissinger made while Secretary of State, from the Library of Congress to the Department of State at the behest of the named plaintiffs. The lower courts premised this exercise of jurisdiction on their findings that the papers were “agency records” and that they had been wrongfully removed from State Department custody in viola-
The question must be, of course, whether Congress has conferred jurisdiction on the federal courts to impose this remedy. Two statutory schemes are relevant to this inquiry. First, if Congress contemplated a private right of action under the Federal Records Act and the Federal Records Disposal Act, this would in itself justify the remedy imposed if Kissinger in fact wrongfully removed the documents. In the alternative, the lower court order could be sustained if authorized by the FOIA.
A
The Federal Records Act of 1950,
Under the Records Disposal Act, once a document achieves the status of a “record” as defined by the Act, it may not be alienated or disposed of without the consent of the Administrator of General Services, who has delegated his authority in such matters to the Archivist of the United States.
But the Federal Records Act establishes only one remedy for the improper removal of a “record” from the agency. The head of the agency is required under
The Archivist did request return of the telephone notes from Kissinger on the basis of his belief that the documents may have been wrongfully removed under the Act. Despite Kissinger‘s refusal to comply with the Archivist‘s request, no suit has been instituted against Kissinger to retrieve the records under
Plaintiff requesters effectively seek to enforce these requirements of the Acts by seeking the return of the records to State Department custody. No provision of either Act, however, expressly confers a right of action on private parties. Nor do we believe that such a private right of action can be implied.
This Court has spent too many рages identifying the factors relevant to uncovering congressional intent to imply a private cause of action to belabor the topic here.4 Our most recent pronouncement on the subject, Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11 (1979), readily disposes of the question. First, the language of the Records Acts merely “proscribes certain conduct” and does not “create or alter any civil liabilities.” Id., at 19. The Records Act also expressly provides administrative remedies for violations of the duties
The legislative history of the Acts reveals that their purpose was not to benefit private parties, but solely to benefit the agencies themselves and the Federal Government as a whole. The Senate Report to the Federal Records Act of 1950 reveals this focus. S. Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). The Report states:
“It is well to emphasize that records come into existence, or should do so, not in order to fill filing cabinets or occupy floor space, or even to satisfy the archival needs of this and future generations, but first of all to serve the administrative and executive purposes of the organization that creates them. There is danger of this simple, self-evident fact being lost for lack of emphasis. The measure of effective records management should be its usefulness to the executives who are responsible for accomplishing the substantive purposes of the organization. . . . [The] first interest is in the establishment of a useful system of documentation that will enable [the executive] to have the information he needs available when he needs it.”
Congress expressly recognized the need for devising adequate statutory safeguards against the unauthorized removal of agency records, and opted in favor of a system of administrative standards and enforcement. See U. S. Commission on Organization of the Executive Branch of the Government, Task Force Report on Records Management 27 (1949). Thus, regardless of whether Kissinger has violated the Records and Records Disposal Acts, Congress has not vested fed-
B
The plaintiff requesters contend that even though the Federal Records and Records Disposal Acts do not contemplate a private right of action, the FOIA nevertheless supplies what was missing from those Acts—congressional intent to permit private actions to recover records wrongfully removed from Government custody. We are, however, unable to read the FOIA as supplying that congressional intent.
The FOIA represents a carefully balanced scheme of public rights and agency obligations designed to foster greater access to agency records than existed prior to its enactment. That statutory scheme authorizes federal courts to ensure private access to requested materials when three requirements have been met. Under
In looking for congressional intent, we quite naturally start with the usual meaning of the word “withhold” itself. The requesters would have us read the “hold” out of “withhold.” The act described by this word presupposes the actor‘s possession or control of the item withheld. A refusal to resort to legal remedies to obtain possession is simply not conduct subsumed by the verb “withhold.”
The Act and its legislative history do not purport to define the word. An examination of the structure and purposes of the Act, however, indicates that Congress used the word in its usual sense. An agency‘s failure to sue a third party to obtain possession is not a withholding under the Act.
Several sources suggest directly that agency possession or control is prerequisite to triggering any duties under the FOIA. In the debates, the Act was described as ensuring “access to the information possessed by [Government] servants.” (Emphasis added.) 112 Cong. Rec. 13652 (1966), reprinted in Freedom of Information Act Source Book, S. Doc. No. 93-82, p. 69 (1974) (remarks of Rep. Monagan) (hereinafter Source Book I).
Following FOIA‘s enactment in 1966, the Attorney General issued guidelines for the use of all federal departments and agencies in complying with the new statute. The guidelines state that FOIA
“refers, of course, only to records in being and in the possession or control of an agency. . . . [It] imposes no obligation to compile or procure a record in response to a request.” Attorney General‘s Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (June 1967), Source Book I, pp. 222-223.
Most courts which have considered the question have concluded that the FOIA is only directed at requiring agencies to disclose those “agency records” for which they have chosen
The conclusion that possession or control is a prerequisite to FOIA disclosure duties is reinforced by an examination of the purposes of the Act. The Act does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.7 It has been settled by decision of this Court that only the Federal Records Act, and not the FOIA, requires an agency to actually create records, even though the agency‘s failure to do so deprives the public of information which might have otherwise been available to it. NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 161-162 (1975); Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 192 (1975).
If the agency is not required to create or to retain records under the FOIA, it is somewhat difficult to determine why the agency is nevertheless required to retrieve documents which have escaped its possession, but which it has not endeavored to recover. If the document is of so little interest to the agency that it does not believe the retrieval effort to be justified, the effect of this judgment on an FOIA request seems little different from the effect of an agency determina-
The procedural provisions of the Act, in particular, reflеct the nature of the obligation which Congress intended to impose on agencies in the production of agency records. First, Congress has provided that agencies normally must decide within 10 days whether to comply with an FOIA request unless they can establish “unusual circumstances” as defined in the Act.
A similarly strong expression of congressional expectations emerges in
It is therefore clear that Congress never intended, when it enacted the FOIA, to displace the statutory scheme embodied in the Federal Records Act and the Federal Records Disposal Act providing for administrative remedies to safeguard against wrongful removal of agency records as well as to retrieve wrongfully removed records. This result is buttressed by our decisions in Renegotiation Board v. Bannercraft Clothing Co., 415 U. S. 1 (1974), and NLRB v. Robbins Tire & Rubber Co., supra, both demonstrating reluctance to construe the FOIA as silently departing from prior longstanding practice. Bannercraft, supra, of course held that Congress intended federal district courts to retain traditional equitable jurisdiction in adjudicating FOIA actions. But historic equitable practice has long recognized that an individual does not improperly withhold a document sought pursuant to a subpoena by his refusal to sue a third party to obtain or recover possession. Amey v. Long, 9 East 473, 482, 103 Eng. Rep. 653, 657 (K. B. 1808).
C
This construction of “withholding” readily disposes of the RCFP and MAP requests. Both of these requests were filed after Kissinger‘s telephone notes had been deeded to the Li-
III
The Safire request raises a separate question. At the time when Safire submitted his request for certain notes of Kissinger‘s telephone conversations, all the notes were still located in Kissinger‘s office at the State Department. For this reason, we do not rest our resolution of his claim on the grounds that there was no withholding by the State Department. As outlined above, the Act only prohibits the withholding of “agency records.” We conclude that the Safire request sought disclosure of documents which were not “agency records” within the meaning of the FOIA.
Safire‘s request sought only a limited category of documents. He requested the Department to produce all transcripts of telephone conversations made by Kissinger from his White House office between January 21, 1969, and Febru-
ary 12, 1971, in which (1) Safire‘s name appeared; or (2) in which Kissinger discussed the subject of information “leaks” with General Alexander Haig, Attorney General John Mitchell, President Richard Nixon, J. Edgar Hoover, or any other official of the FBI.The FOIA does render the “Executive Office of the President” an agency subject to the Act.
The RCFP requesters have argued that since some of the telephone notes made while Kissinger was adviser to the President may have related to the National Security Council they may have been National Security Council records and therefore subject to the Act. See H. R. Rep No. 93-876, p. 8 (1974), Source Book II, p. 128, indicating that the National Security Council is an executive аgency to which the FOIA applies. We need not decide when records which, in the words of the RCFP requesters, merely “relate to” the affairs of an FOIA agency become records of that agency. To the extent Safire sought discussions concerning information leaks which threatened the internal secrecy of White House policymaking, he sought conversations in which Kissinger had acted in his capacity as a Presidential adviser, only.
Nor does his request for conversations in which his name appeared require a different conclusion. Safire never identi
The RCFP requesters nevertheless contend that if the transcripts of telephone conversations made while adviser to the President were not then “agency records,” they acquired that status under the Act when they were removed from White House files and physically taken to Kissinger‘s office at the Department of State. We simply decline to hold that the physical location of the notes of telephone conversations renders them “agency records.” The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department‘s files, and they were not used by the Department for any purpose. If mere physical location of papers and materials could confer status as an “agency record” Kissinger‘s personal books, speeches, and all other memorabilia stored in his office would have been agency records subject to disclosure under the FOIA. It requires little discussion or analysis to conclude that the lower courts correctly resolved this question in favor of Kissinger. See also Forsham v. Harris, post, p. 169.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.
MR. JUSTICE BLACKMUN took no part in the decision of these cases.
MR. JUSTICE BRENNAN, concurring in part and dissenting in part.
Today‘s decision explores hitherto uncharted territory in a complicated statutory scheme. I cannot agree with what is to me the Court‘s crabbed interpretation of “improper withholding” under the Freedom of Information Act (FOIA). At the same time, I am not without some uncertainty about the contours of the “improper withholding” standard. Accordingly, although the result reached by my Brother STEVENS strikes me as the most workable for the present, I write separately to articulate some ideas on this difficult problem.
As an abstract matter, I concur in the Court‘s view that FOIA‘s reach should not be conditioned upon the legality of a documents transfer under the Federal Records and Records Disposal Acts.
Although I agree that the Records Acts cannot be neatly interpolated into FOIA, I part company with the Cоurt when it concludes that FOIA does not reach records that have been removed from a federal agency‘s custody. If FOIA is to be more than a dead letter, it must necessarily incorporate some restraint upon the agency‘s powers to move documents beyond the reach of the FOIA requester. Even the Court‘s opinion implies—as I think it must—that an agency would be improperly withholding documents if it failed to take steps to recover papers removed from its custody deliberately to evade an FOIA request. Ante, at 155, n. 9. Beyond that minimal rule, I would think it also plainly unacceptable for an agency to devise a records routing system aimed at frustrating FOIA requests in general by moving documents outside agency custody with unseemly haste.
Indeed, I would go further. If the purpose of FOIA is to provide public access to the records incorporated into Government decisionmaking, see Forsham v. Harris, post, at 188 (BRENNAN, J., dissenting), then agencies may well have a concomitant responsibility to retain possession of, or control over, those records.2 But, as with so many questions that
Although one might hope that Congress will soon address this problem, we must decide the case currently before us. I have little difficulty concluding that records which should have been retained for FOIA purposes may be reached under FOIA even though they have already passed beyond the agency‘s control.3 In the absence of an analytically satisfying standard for determining which records should be retained, however, it is necessary to resolve this case by looking to an approach that is currently practicable. My Brother STEVENS’
Accordingly, I agree with MR. JUSTICE STEVENS’ conclusion with respect to the “improper withholding” issue, and therefore dissent from Part II of the Court‘s opinion.
MR. JUSTICE STEVENS, concurring in part and dissenting in part.
As the Court recognizes, the requesters are entitled to prevail in this FOIA action if the State Department “has (1) ‘improperly‘; (2) ‘withheld‘; (3) ‘agency records.’ ” Ante, at 150. The Court assumes, without deciding, that “agency records” have been requested and then concludes that no such records have been “withheld.” The Court states, and I agree, that an agency cannot “withhold” documents unless it has either custody or control of them. It then goes on, however, to equate “custody” and “control” with physical possession, holding that FOIA is simply inapplicable to any “document which has been removed from the possession of the agency prior to the filing of the FOIA request.” Ibid.1
I cannot agrеe that this conclusion is compelled by the plain language of the statute; moreover, it seems to me wholly inconsistent with the congressional purpose underlying the Freedom of Information Act. The decision today exempts documents that have been wrongfully removed from the agency‘s files from any scrutiny whatsoever under FOIA. It thus creates an incentive for outgoing agency officials to remove potentially embarrassing documents from their files in order to frustrate future FOIA requests. It is the creation
In my judgment, a “withholding” occurs within the meaning of FOIA whenever an agency declines to produce agency records which it has a legal right to possess or control. A determination that documents have been withheld does not end the inquiry, of course, for a court must still determine whether the withholding was “improper” for purposes of the Act. Thus, in my view, correct analysis requires us to confront three separate questions in the following order: (1) are any of the requested documents “agency records“? (2) if so, have any of them been withheld because they are in the legal custody of the agency? and (3) if so, was the withholding improper?
I
Everyone seems to agree that the summaries of Dr. Kissinger‘s State Department telephone conversations3 should be considered “agency records” subject to disclosure under FOIA if they were “agency records” under the definitions set forth in the Federal Records Act (FRA). The parties disagree,
I cannot accept Dr. Kissinger‘s argument that the summaries are private papers. As the District Court noted, they were made in the regular course of conducting the agency‘s business, werе the work product of agency personnel and agency assets, and were maintained in the possession and control of the agency prior to their removal by Dr. Kissinger.
II
The second question to be considered is whether the State Department continued to have custody or control of the telephone summaries after they were removed from its files so that its refusal to take steps to regain them should be deemed a “withholding” within the meaning of the Freedom of Information Act. As I stated at the outset, I do not agree with the Court that the broad concepts of “custody” and “control” can be equated with the much narrower concept of physical possession.6 In my view, those concepts should be applied to
In this case, I think it is rather clear that the telephone summaries were wrongfully removed from the State Department‘s possession.7 Under these circumstances, the State
III
The third and most difficult question is whether the State Department‘s “withholding” was “improper.” In my view, the answer to that question depends on the agency‘s explanation for its failure to attempt to regain the documents. If the explanation is reasonable, then the withholding is not improper. For example, I would not find an agency‘s inaction improper in a case in which it simply did not know where the documents were located or had no interest whatsoever in retrieving them. The FOIA does not require federal agencies to engage in prolonged searches for documents or institute legal proceedings that will not yield any appreciable benefits to the agency.
On the other hand, if the agency is unable to advance a reasonable explanation for its failure to act, a presumption arises that the agency is motivated by a desire to shield the documents from FOIA scrutiny.9 Thus, if the agency be-
In this case the State Department refused the FOIA requests on the ground that the telephone summaries were not agency records and, in any event, were no longer within the agency‘s custody or control. By the time the FOIA actions were filed, there was substantial reason for doubting the Department‘s resolution of the first issue, inasmuch as the General Counsel of GSA had rendered a legal opinion that the documents were probably agency records and should be returned to the Government for proper archival screening.10 Because of their very nature, there was also substantial reason for believing that, if they were agency records, the summaries would have to be considered valuable documents. Finally, the fact that the documents had been removed by the head of the agency shortly before the expiration of his term of office raised an inference that the removal had been motivated by a desire to avoid FOIA disclosure.
Accordingly, I believe the District Court had jurisdiction under FOIA to determine (a) whether the telephone summaries were in fact agency records and (b) if so, whether the State Department‘s failure to seek return of the documents was improper. The court‘s disposition of those issues seems to me to have been somewhat premature, however. Once the litigation began, the State Department changed its position and contended that it could not determine whether it should seek return of the summaries without first inspecting them. Pursuant to an agreement with Dr. Kissinger, the Department and the Archivist began the process of sifting through the records. That process had not yet been completed when the District Court handed down its decision. Because the agency‘s informed opinion of the documents’ status and their value was in my view relevant to a determination of whether its actions were “improper,” I think the court‘s order was premature. I would therefore remand to give the Government an opportunity to finish its examination of the documents.
Notes
Because it believes that the degree of duplication between thе summaries and records still in the agency‘s possession cannot be determined from the evidence presented in this case, the Government argues that a remand would be appropriate if the issue of whether the summaries were “agency records” must be decided.
If, on the other hand, the summaries could have been converted from “records” to “non-record materials” as the Government suggests, the State Department still would have been required to take steps prior to relinquishing them to assure itself that all significant information had been properly extracted for inclusion in more formal State Department files. The fact that such steps were not taken until after the summaries had been deeded over to the Library of Congress makes their removal from the agency by Dr. Kissinger unlawful even under the Government‘s theory.