The opinion of the court was delivered by: SMITH, JR.
In these two Freedom of Information Act cases, the Reporters Committee for Freedom of the Press, the American Historical Association, the American Political Science Association, and nine authors and journalists, along with the Military Audit Project, seek access to records, now in the custody of the Library of Congress, of Dr. Henry Kissinger's official telephone conversations during his service as Assistant to the President for National Security Affairs and as Secretary of State. Defendants are the Department of State, Dr. Kissinger, his successor, Cyrus Vance, Librarian of Congress Daniel Boorstin, and Archivist James Rhoads. Motions for Summary Judgment have been filed and argued on behalf of Dr. Kissinger and all plaintiffs.
Dr. Kissinger served as National Security Adviser from January 20, 1968 until his resignation on November 3, 1975. He assumed office as Secretary of State on September 22, 1973 and remained in that position until the end of the Ford Administration in January, 1977. Thus, for a period of nearly two years, he served in two capacities -- as Secretary of State and as staff adviser to the President.
Throughout Dr. Kissinger's tenure in the Nixon and Ford Administrations, his secretaries, both at the White House and at the State Department, monitored his telephone conversations and took shorthand notes of what was said. Transcriptions of these notes were prepared for Dr. Kissinger and his staff.
No distinction was drawn between conversations relating primarily to official government business and those of a more personal nature. All were monitored, transcribed, and the records thereof stored in Dr. Kissinger's office, apart from official agency files.
Prior to leaving office, Dr. Kissinger decided to donate to the United States his personal papers and copies of various official documents relating to his activities while in office. In early 1976 the State Department's Legal Adviser informed Dr. Kissinger that the secretarial notes were not State Department documents but were his own personal papers. This advice was affirmed in writing in a memorandum dated November 11, 1976.
Finally, on December 24, 1976, the notes were deeded to the United States, in the custody of the Library of Congress. Under the terms of the deed, public access to the papers was restricted to Dr. Kissinger and his appointees for twenty-five years or until five years after his death, whichever is later. Thereafter the notes would be available for public inspection with the consent or upon the death of the other party to the conversation. On December 28, 1976, the records were delivered from Pocantico Hills to the Librarian of Congress. Subsequently, defendant Rhoads, citing his responsibility as Archivist of the United States to oversee the preservation of "records of a permanent historical value," requested permission to inspect the notes. By letter dated January 18, 1977, Dr. Kissinger rejected that request.
The Freedom of Information Act grants this Court authority to "enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld." 5 U.S.C. § 552(a)(4)(B). Dr. Kissinger contends that the Act is inapplicable for three reasons. First, he asserts, the fact that the notes are in the custody of the Library of Congress, which is not subject to the Act,
renders meaningless any court order prohibiting the State Department from withholding documents. He argues that FOIA imposes no obligation upon an agency to gather records no longer in its possession
and that, in any event, plaintiffs lack standing under the Federal Records Act to challenge the transfer from the Department.
The Federal Records Act provides the exclusive procedure for disposal of government records, which are defined to include:
"documentary materials . . . made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them." 44 U.S.C. § 3301 (emphasis added).
Prior to disposal of its records, an agency must submit to the Administrator of General Services a list of those intended for disposal. 44 U.S.C. § 3302. Only if the Administrator then determines that the records are no longer appropriate for preservation may they be destroyed. 44 U.S.C. § 3303a. When, as here, records have been removed from an agency outside this statutory framework, the agency head must so notify the Administrator and, together with him, initiate action through the Attorney General for their recovery. 44 U.S.C. § 3106. This, suggests Dr. Kissinger, is plaintiffs' sole remedy.
There is, however, an alternative. Rather than wait for institution of the statutory retrieval action, plaintiffs may first invoke the broad equitable powers granted the district courts in aid of their role as the "enforcement arm" of the Freedom of Information Act. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 19, 39 L. Ed. 2d 123, 94 S. Ct. 1028 (1974). Accord, Nixon v. Sampson, 389 F. Supp. 107, 121-22 n.34 (D.D.C.), stayed sub nom. Nixon v. Richey, 168 U.S. App. D.C. 172, 513 F.2d 430 (1975), dismissed as moot, (D.D.C. September 21, 1977). The courts may draw on those powers to order the return of wrongfully removed agency documents where a statutory retrieval action appears unlikely.
Secondly, Dr. Kissinger urges that notes of those conversations conducted in his White House capacity cannot be considered "agency records". At oral argument, plaintiffs withdrew their challenge to this position.
Dr. Kissinger's final argument, based on the proposition that creation of the extracts fully satisfied the State Department's record-keeping requirements, is that the notes are personal working papers,
not "agency records" and not subject to an FOIA request. He maintains that he considered and treated the notes as personal property from their inception.
Circulation was restricted to his immediate staff. The records were stored in filing cabinets in his office.
Dr. Kissinger asserts that had he thought that the notes would be ...