Kissinger v. Reporters Committee for Freedom of the Press – Oral Argument – October 31, 1979

Media for Kissinger v. Reporters Committee for Freedom of the Press

Audio Transcription for Opinion Announcement – March 03, 1980 in Kissinger v. Reporters Committee for Freedom of the Press

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Warren E. Burger:

We will commence — we will resume at 1 o’clock with Kissinger against the Reporters Committee and consolidated case, and counsel may take their place at the table before we return.

Mr. Ginsburg.

David Ginsburg:

Mr. Chief Justice, and may it please the Court.

I represent Dr. Henry Kissinger.

He is the petitioner in 1088 and the cross-petitioner in 1217.

The material facts in this case are not in dispute.

It comes here on a cross motions for summary judgment.

At the White House and that the State Department, Dr. Kissinger had his secretaries to monitor his telephone conversations, take short hand notes of what was said and prepare rough typewritten summaries.

The practice was specifically approved for Senior Department officials by State Department policy.

The purpose was to ease the administrative burdens of office by enabling Dr. Kissinger’s personal aides without further briefing to implement and follow up what was said or what was agreed.

They were used as work aides and it was these follow up actions that produce the records which are presently in the department’s files, aide memoirs, memorandums of telephone conversations, memorandums of the file, other documents which were circulated and filed in the normal course of business in the State Department, and these official records are voluminous.

The notes themselves were not made or kept as records.

They do not have the form of records.

They were never edited.

They contain omissions.

They are not accurate.

They were never circulated outside of Dr. Kissinger’s office.

No one other than Dr. Kissinger and his immediate aides had access to them.

Warren E. Burger:

You are speaking of the White House period?

David Ginsburg:

Both of the White House period, Mr. Chief Justice and of the State Department, both periods, always retained in personal files within his office, never part of either the White House files or the State Department files.

The notes reflect almost all of Dr. Kissinger’s telephone conversations regardless of content.

They contain notes of both official and personal matters, some important and some of course, inconsequential.

Intermingling was unavoidable.

Byron R. White:

Mr. Ginsburg, how do you know there were omissions or how does anyone know they were omissions?

David Ginsburg:

Simply by the affidavits that are in file in this record by those that have examined the notes and we have the affidavits in the record in this case.

Byron R. White:

You mean there are some things that were said on the phone, but are not on the notes, is that what you are saying?

David Ginsburg:

There were some things that are said in the notes that are said to be not accurate.

Byron R. White:

Well, I know but how about omissions, you said there were omissions?

David Ginsburg:

And omissions —

Byron R. White:

So, there were some telephone conversations that were not noted?

David Ginsburg:

There were some telephone conversations that were not taken although almost all as the affidavits in this record show were taken.

Warren E. Burger:

Well, were these omissions deliberate or inadvertent simply because of the difficulties involved?

David Ginsburg:

Both, Your Honor.

What actually happened in this case is that some of the secretary knew in some cases that were purely personal.

In the event that it was a personal telephone call and no record, very personal telephone call, no record was made, but in the normal course, every telephone call by aides, by the President, by whoever it was, the conversation was recorded and the notes were made.

These notes were reviewed by Dr. Kissinger, his affidavit is in the record to the effect that there are omissions, inaccuracies in the notes that were taken and there were other omissions.

Of course, had Dr. Kissinger known that these notes might be viewed as official agency records, he would either have put them in proper form for filing or more likely he would discontinue the practice altogether.

Now, towards the end of his term, Dr. Kissinger decided to donate both his Harvard papers and the papers he accumulated in government service to the United States and he chose the Library of Congress as the custodian because it has been used as the depository by many other Secretaries of States and as the Government points by a great many other Cabinet officers. The donation process within the department included several steps.

Each of which was approved by the Legal Adviser, by the Assistant Secretary for Administration, by the Deputy Undersecretary for Management and by the Director of the Department’s Record Center.

Potter Stewart:

All of them of course were subordinates of Dr. Kissinger while he was Secretary of State?

David Ginsburg:

All of them were subordinates, Your Honor.

All of them, and if I may point out to —

Potter Stewart:

But nevertheless, really has anything to do with your primary argument, does it?

David Ginsburg:

It does not, sir.

In a memorandum signed by all of these, Dr. Kissinger was advised that his personal files were freely transferable to the library under the department’s regulations.

Each signer of the memorandum knew that the notes were in Dr. Kissinger’s personal files.

The legal adviser gave Dr. Kissinger a formal written opinion confirming the previous oral advice that the notes were not State Department agency records.

William H. Rehnquist:

Mr. Ginsburg, is a legal adviser an appointee of the Secretary of State or of the President?

David Ginsburg:

He is appointed by the President, sir and confirmed by the Senate and is a respected member of the bar of this Court.

And in that opinion, the legal adviser considered the agency regulations, government practice and analogous judicial opinions and he concluded “That these particular papers are personal and may be retained by you when you leave office, but as a precaution, to assure that the Government’s records were complete, the legal adviser recommended that Dr. Kissinger review and make extracts of any discussion of significant policy decisions or actions not otherwise, reflected in the official files” and this was done.

Now, Dr. Kissinger donated all of the papers subject to deeds of gift which restrict access to the collection and these restrictions were designed to protect the classified information in the notes and the other records and the privacy rights.

The notes will be made available for public access after 25 years, but only with the consent of those who participated in the conversations if they are then still living.

After the donations were publicly announced and after the notes and the other papers were transferred to the library, the Reporters’ Committee filed requests and the Military Audit Project, filed request with the State Department for these records.

Both requests were denied.

Both denials were made by persons then serving Under Secretary Vance.

The grounds for denial were that the notes were not State Department agency records and that the department in any event did not have them in its custody or control.

The Military Audit Project and the Reporters’ Committee then filed separate freedom of action suits against the State Department and Secretary Vance and named Dr. Kissinger and the Librarian of Congress as defendants.

On cross-motions for summary judgment, the District Court held that the Freedom of Information Act did not apply to notes of the White House period, but that the State Department period notes where agency records subject to the Act.

The Court then ordered Dr. Kissinger and the Library of Congress to return all the State Department notes to that department for processing and release under the Freedom Information Act.

Warren E. Burger:

Was the librarian — was the librarian a party to the action?

David Ginsburg:

The librarian was named as a party to the action, although of course, he is not an agency under the Freedom of Information Act and of course, neither is Dr. Kissinger as an individual, but the Court of Appeals affirmed.

So that as we see it the central issue in this case is whether the Freedom of Information Act gives the Military Audit Project and the Reporters’ Committee a right of access to documents which the State Department has specifically determined were not its records before any requests for them were filed and records which it does not have and cannot produce.

Now, first the issue —

Potter Stewart:

Whatever the determination of the State Department may have been, wouldn’t your argument really be the same as if you just eliminated that middle language and said does the FOIA cover and impose a duty upon the State Department to not to withhold and to deliver records that it does not have?

David Ginsburg:

I make a point simply to avoid the problem in order to clarify the issue Mr. Justice Stewart that there was proper relinquishment, whatever it was.

Potter Stewart:

But whether or not it was proper —

David Ginsburg:

Yes.

Potter Stewart:

— wouldn’t your argument be the same?

David Ginsburg:

The argument would be the same and I think that is clear that the Act does not apply in these circumstances.

Potter Stewart:

That was your arguments —

David Ginsburg:

But our primary submission and this is a submission with which the Government agrees —

Warren E. Burger:

Mr. Ginsburg, when this agency makes a determination before any demand is pending or when a demand is made that particular material is not an agency record.

What is the review procedure that is available for that other than judicial?

David Ginsburg:

There is — It’s the issue, Mr. Chief Justice of — of course, not all documents in the hands of agency are records.

They do not become records until they are filed as records.

The Court was concerned in the previous case with the definition of records.

Records as we see it are simply those documents which are defined as records for purposes of Federal Records Act which are filed by the agency as its records.

So that in this case, the issue was clear.

They were not filed as records.

They could not have been filed as records.

They were always kept in the personal files within the office of Dr. Kissinger, never circulated outside of his office, never seen by anyone other than his closest aides so that when we —

Byron R. White:

These are then not agency records even if they were still at the State Department?

David Ginsburg:

Oh!

It’s clear that they were not records of the State Department.

The State Department never treated them as records, never sought to use them as records, there was no declaration that they were records.

Potter Stewart:

Conversely, even if they were once “agency records,” there is no obligation to turn — well the State Department to turn over something that may be once might have been an agency record, if it does not at the time of the request have possession and/or control of it, is that —

David Ginsburg:

That is correct.

Potter Stewart:

Is that also your argument?

David Ginsburg:

I wouldn’t say that is all of our argument, that’s the central portion —

Potter Stewart:

That’s central portion of your argument?

David Ginsburg:

Yes, that is, sir.

That is of course —

Potter Stewart:

That is of course your entire argument, but that’s also your argument?

David Ginsburg:

That is also our argument, yes, sir.

Byron R. White:

But you would say as my brother Stewart has asked you that even if the records were in the possession of the State Department at this time or if these papers were in the possession of the State Department, they would not be subject to the Act because they were not records?

David Ginsburg:

That’s exactly right.

They were not records, they were not treated as records, they didn’t look like records, no one thought of them as records and no one else saw them.

Byron R. White:

You don’t make the possession argument in your brief, do you?

David Ginsburg:

Possession?

Byron R. White:

I mean, you say they aren’t records subject to —

David Ginsburg:

We are making the point that —

Byron R. White:

— subject to production and hence it is irrelevant to you whether they are in possession of the State Department or not, at least it is irrelevant for that argument?

David Ginsburg:

Well, the possession argument comes into this argument simply because these notes are presently in the hands of the Library of Congress and to secure them is not simply a ministerial act of obtaining them from the bailee.

A lawsuit is required to obtain these documents.

I point out first that the —

Potter Stewart:

Is not a lawsuit under the FOIA?

David Ginsburg:

No, sir.

Potter Stewart:

I mean, that’s your submission?

David Ginsburg:

That’s absolutely, yes.

The requesters in this case rely solely on the Freedom of Information Act and that statute, as this Court has read repeatedly this morning, gives the District Court’s jurisdiction to enjoin agencies from withholding agency records.

We submit that the District Court in this case had absolutely no subject matter jurisdiction under the Freedom of Information Act to enter any order in this case.

First, neither Dr. Kissinger nor the Library of Congress is an agency under the Act, and the Freedom of Information Act cannot be used to sue private citizens and adjudicate their rights, their substantive rights.

And second, the State Department, of course, is an agency, but the question is whether it violated the Act by withholding any agency records.

The Reporters Committee and the Military Audit Project say that it did on the theory that the Freedom of Information Act imposes a duty on the department to —

William H. Rehnquist:

Mr. Ginsburg, let me go back just a minute to the point you just made.

Supposing that Dr. Kissinger, instead of disposing of the records to the Library of Congress, had sent them to a private warehouse where he had a warehouse so he could pick them up any time he wanted to.

Isn’t it conceivable under the decision in Bannercraft that a Freedom of Information Act, the court using it’s I believe what was referred to as its customary equitable powers, could require the warehouse owner to deliver up the records if it concluded that they otherwise satisfied the FOIA?

David Ginsburg:

I think not, Mr. Justice Rehnquist.

Under Bannercraft, it’s very clear that the Renegotiation Board had those records.

They were in the possession and control of the agency, no doubt about it.

David Ginsburg:

And this was an action to enjoin the continuation of the procedures in that case, and at that time the Court observed that it could, having jurisdiction, with records in the hands of the agency, the Court could of course, exercise its equitable jurisdiction and do whatever was necessary to protect that jurisdiction, but in this case, the records were never in the hands of the agency as agency records, and presently of course they are in the hands of the Library of Congress.

Bannercraft I think has no application here.

Warren E. Burger:

Whatever they were, could — was Dr. Kissinger’s gift to the Library of Congress irrevocable?

David Ginsburg:

It was irrevocable, under a deed of trust.

Warren E. Burger:

But he could not individually carry out a command to get them back?

David Ginsburg:

Certainly not.

This was in the hands — at least, these notes are now owned by the Government of the United States in the custody of the Library of Congress.

William H. Rehnquist:

Well, what if Dr. Kissinger had given the entire records of the State Department to the Library of Congress?

David Ginsburg:

It would have been a problem –

William H. Rehnquist:

Would that have been irrevocable?

David Ginsburg:

No, sir.

I think that here the question is, you are speaking, you’ve used the term “records” and this is I think a problem that the Court must consider here.

The moment you use the word “records,” we’re dealing with something that an agency has determined were its records, and if we’re not dealing with records as we’re not dealing with records in this case, we are dealing with a claim that they should have been records, that the State Department should have regarded these notes as records, but they didn’t and they specifically determined that they didn’t.

William H. Rehnquist:

Well, if they are not records, you never get any further, do you?

Potter Stewart:

That’s right.

David Ginsburg:

Oh!

That’s exactly right.

This is the first issue that I am seeking to address now, is the issue of jurisdiction, not whether they were records.

There is a problem, and I’ll get to that in a moment, and to consider that issue if the Court ever reaches it.

But the central issue of this case as we see it is that these were [Laughter Attempt] not records, they were not regarded by the State Department record, they were viewed as records, and never treated as records, and —

John Paul Stevens:

On that point, Mr. Ginsburg, I take it that the case would be the same if instead of saying the Library of Congress they were in Dr. Kissinger’s basement?

David Ginsburg:

If they were in Dr. Kissinger’s basement as personal property —

John Paul Stevens:

It would be the same case?

David Ginsburg:

— which of course he could have done at any time —

John Paul Stevens:

And really so the fact that they are in the Library of Congress rather than in his possession is legally irrelevant?

David Ginsburg:

I don’t think it’s legally irrelevant except in the sense that –

Potter Stewart:

In that argument, it is argumentative?

David Ginsburg:

To this —

Potter Stewart:

They are not records, wherever they are.

David Ginsburg:

That’s right.

John Paul Stevens:

But to what argument would it make a difference whether they are in the Library of Congress instead of in his possession?

David Ginsburg:

There is no way in which Dr. Kissinger can just reach over to these notes and bring them back into —

John Paul Stevens:

Yes, but he is not the agency, as you make a very good point.

It is the State Department and the State Department had no control over him?

David Ginsburg:

And nor has the State Department any control over the Library of Congress.

John Paul Stevens:

Right, so if they are with him instead of the Library of Congress, it would be precisely the same legal question?

David Ginsburg:

It would for this purpose, yes.

Harry A. Blackmun:

I take it, Mr. David Ginsburg, that your case for all purposes rests on the proposition that these, I will call them materials rather than records, are Dr. Kissinger’s personal property?

David Ginsburg:

They are indeed and they were so determined by the department.

Harry A. Blackmun:

And that being the case, I take it the record does not show any income tax effect upon his turning them over to the Library of Congress?

David Ginsburg:

The record doesn’t show that.

There is nothing in the record that bears any income tax advantage — is that what you said, sir?

Harry A. Blackmun:

Yes.

David Ginsburg:

No, sir, the record doesn’t show that, but I can assure the Court that there is none.

Warren E. Burger:

Was any available?

David Ginsburg:

I beg your pardon?

Warren E. Burger:

Was any available at the time he made the gift?

David Ginsburg:

Not to my knowledge.

Harry A. Blackmun:

It may well not have been available under the current version of the code?

David Ginsburg:

That issue was not here and I don’t believe it is part of this case.

Byron R. White:

What — Mr. Ginsburg, I take it that your argument does go so far as to say that at no time was any of these — was any one of these papers a record for the purposes of the FOIA.

Let’s say the minute after the transcription was made?

David Ginsburg:

Exactly right, that is our argument.

Byron R. White:

And before any extracts were made for the purposes of the files?

David Ginsburg:

Yes, they were not created for the purpose of records.

They were created for the purpose of advising his immediate aides as to what he had just said so that he didn’t have to tell them right away what he had talked about on the phone.

They read it and then they spoke with others within the —

Byron R. White:

The fact is that is why he created them, so that he wouldn’t have to tell anybody?

David Ginsburg:

Exactly right.

Byron R. White:

Well then — It seems to me that’s an argument for saying that these papers at least until they have been extracted, to extract the — to take out the materials relevant to the State Department business, that were critical to the State Department business, would be records.

David Ginsburg:

No, records do not become records until they are so determined by the — there is no question in this case, there cannot be a serious question in this case as to the fact did Dr. Kissinger create an adequate record of all of the —

Byron R. White:

Well, Mr. Ginsburg, you emphasized the fact that Dr. Kissinger went through the procedure that the legal adviser suggested, namely why don’t you go through these notes of yours and make sure everything is taken out of them that should have been taken out?

David Ginsburg:

But the State —

Byron R. White:

And he proceeded to do that.

You would say he didn’t need to do that at all because it wouldn’t make any difference what was in the papers?

David Ginsburg:

I think fundamentally that was the position also of the legal adviser, that the records were made as a consequence of the calls that were made immediately after or the file memoranda that were made immediately after the calls were made, and they were put into the records of the department.

Byron R. White:

So, your position really is fundamentally different from that of the United States?

David Ginsburg:

We differ only —

Byron R. White:

Well, there’s quite a difference.

I would assume they would have answered my question differently that until they were extracts, they were State Department records?

David Ginsburg:

The position of the United States as I understand it — Mr. Alsup will be here in a moment —

Byron R. White:

Yes.

David Ginsburg:

— is that it depends on the United States’ interpretation of the legal adviser’s memorandum.

The Government as I understand it, suggests that Mr. Lee intended to make the excerpting process a condition of the transfer of the records.

This as we see it, the opinion is in the record for all to see, it seems to us absolutely clear that this was not his intention.

That he determined on the basis of an analysis of the State Department’s own regulations that Dr. Kissinger had an absolute right to retain these notes within his files, and that he did and he determined that these were his personal papers, but he said as a matter of precaution, leaning over backwards, “you, Dr. Kissinger, look through your files to determine whether this should be done.”

Dr. Kissinger didn’t do it himself, he had Mr. Eagleburger do it, the Deputy Undersecretary for Management, and that was done.

Byron R. White:

But if the Secretary of State is talking on the telephone and making agreements or making plans or making proposals that his colleagues ought to know about, he should communicate them and he has one of two ways of doing it, I suppose.

One, he can take his time and communicate them orally and he doesn’t need to keep any records, I suppose, or he can do it the way he did, he made notes and had them extracted and communicated.

Now, if he didn’t do either he wouldn’t be doing his job, would he?

David Ginsburg:

He has done his job —

Byron R. White:

Well, I know, but he wouldn’t be doing his job if he didn’t do either, if he didn’t communicate, if he chose —

David Ginsburg:

If he did [Voice Overlap] he would be in violation of the State Department regulations.

Byron R. White:

Yes.

And if he chose to communicate in a certain way, namely not orally but by in writing, and if the only thing there was that you — if there were ten recordings or ten transcriptions of telephone conversations that had never been extracted and there they were and they contained important information that had never been communicated, why would you say that’s not a State Department record?

David Ginsburg:

There is a moment of time at which those — the moment between the time when the records — when these notes were made and before they were turned over to anyone, it is conceivable that there was some issue, but that issue is not in this case.

What happened in this case is that everyone, that the totality of the information in the records, in those notes was immediately transferred to the rest of the department and then by reason of that memorandum prepared, memorandum of conversations and these became the records and they are the records.

Lewis F. Powell, Jr.:

Even if one assumes that these are agency records, don’t you also argue that these petitioners or the plaintiffs below have no private cause of action under the FOIA?

David Ginsburg:

I do indeed, sir.

Lewis F. Powell, Jr.:

Are you going to address that?

Lewis F. Powell, Jr.:

You are sort of running out of time. You have talked a lot about whether or not they are records.

David Ginsburg:

I am running out of time.

Lewis F. Powell, Jr.:

It is a very substantial additional argument.

David Ginsburg:

It is.

Potter Stewart:

That is your first argument.

It is Roman one in your brief.

David Ginsburg:

It is indeed.

Well, we say that what the court below did in this case is clear, which is to create a private right of action.

Under the Freedom of Information Act, if the records or if the notes are in the possession of the agency, they must be provided, but here they were not.

The court attempted to create a private right of action by exercising its general equitable jurisdiction under Cort v. Ash in order to retrieve these records.

It seems to us absolutely clear, as you read the Freedom of Information Act, that this cannot be done.

The Congress was explicit in the case, agency — that the records may not be withheld from an agency, that agency records may not be withheld, and it seems to me absolutely clear in these circumstances that a private right of action cannot be constructed contrary to the legislative intent of the Freedom of Information Act, contrary it seems to us under the Federal Records Act.

There is absolutely a right of action in the Government to retrieve these notes in the event of need.

It is very clear that under the Federal Records Act the Attorney General on the instance of the Administrator of the General Services Administration and of the Secretary involved in this case, the Secretary of State, to retrieve these, to bring an action under section 3106, 44 U.S. Code 3106, there is no doubt about the government’s right in this case.

The issue in this case is whether private requesters may insist that this action be done and —

Warren E. Burger:

And if there is no such action, that is the end of the case, isn’t it?

David Ginsburg:

That is the case in our view, and I would like to reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well, Mr. Ginsburg.

Mr. Alsup.

William Alsup:

Mr. Chief Justice, and may it please the Court.

The Federal Respondents’ threshold submission is the same as Dr. Kissinger’s threshold submission, and that is that the Freedom of Information Act does not require an agency to retrieve documents it once possessed, but no longer possesses at the time a request is made under the FOIA.

That submission, if correct, is dispositive of the case —

Potter Stewart:

Is this because, Mr. Alsup, that material that is not in the possession and control of an agency cannot by definition be an agency record?

That was the argument that the Government made in the previous case.

William Alsup:

Correct.

Potter Stewart:

And that is —

William Alsup:

It’s a combination in response to a comment that Justice Stevens made.

I would like to make it clear that it’s because the agency cannot withhold what it does not possess, and we also think that the word “withhold” and made available lends meaning to the words “agency records.”

Potter Stewart:

In the previous case, you didn’t bend that to my brother Stevens’ suggestion.

You said that material that is not in the possession and control of an agency cannot be an agency record by definition.

William Alsup:

Well —

Potter Stewart:

Do you take a different position in this case?

William Alsup:

No.

I take the same position, and the position is that these words modify each other and that you have to look at that entire sentence in its totality to see that what Congress said was that the agency has to turn over those documents that are under its possession and control.

That’s what it meant by agency record and that’s what it meant by withhold, and we don’t really see any useful purpose in trying to distinguish between in parts, the sentence is very narrow, and say this might be an agency record, but it is not being withheld because it is —

Potter Stewart:

Well, in the last case, you did see a very real need to it or you wouldn’t have used that against the United States Government would hardly make that argument unless it felt they needed to?

William Alsup:

Well, we do make the further distinction concerning whether or not a document is a record under the Federal Records Act.

Potter Stewart:

Whether it used to be a record.

Whether it is a record or we may have used it.

It used to be an agency record, but if it is no longer on the possession and control of the agency it is by definition an agency record, that was the Government’s argument in the previous case.

William Alsup:

Well, with the modification or not even modification with commerce that I have made up, we accept that statement.

Warren E. Burger:

He had an alternative, your colleague had an alternative that they could not be commanded by anyone to give up the possession or something that didn’t possess even assuming it was a record?

William Alsup:

That’s correct.

Warren E. Burger:

That was his alternative argument?

William Alsup:

I believe that is correct.

Well, if the — our primary submission is dispositive even if the Court were to hold that these secretarial notes were records under the Federal Records Act which is an entirely different scheme and we think that primary submission is dispositive and the Court doesn’t even have to reach the issue of whether or not it was a record under the State Department Records management program.

Contrary to our primary submission, however, the courts below held that the FOIA does require an agency to retrieve those documents that no longer possesses where it used to be or may still be a record under the Federal Records Act.

Now, in the event the Court, this Court rejects our primary submission, we urge the Court to reject the analysis used by the District Court and the Court of Appeals concerning what is and is not a record under the Federal Records Act and it is to this question of what is and is not a record under the Federal Records Act with the Court’s permission that I would like to turn.

John Paul Stevens:

May I just ask one question because I did think there was a difference in your theory in this case and the other.

I thought your argument here was that even if they were agency records, they had not been withheld and therefore there was no part, but are you taking the position that they are or are not agency records?

William Alsup:

No.

I will make sure I understand your question.

Are you referring to agency records within the FOIA or within the Federal Records Act?

John Paul Stevens:

Well, let’s take in to two steps.

First of all, assuming that some of them, un-extracted or something, some of them are records within the meaning of Federal Records Act.

Would they be therefore records within the meaning of the FOIA even though they are at the Library of Congress?

William Alsup:

That is a difficult question and I know we have stumbled over perhaps, but let me answer it this way.

First, there would be no withholding because the —

John Paul Stevens:

I understand — that’s what I understood your argument to be so that’s why I am —

William Alsup:

I think that is clear to everyone that agrees we are making that argument.

John Paul Stevens:

Right.

William Alsup:

We also think that the word “withholding” and “made available” lend meaning to what Congress meant by agency record which appears in that same sentence, and therefore, it’s conceivable that the Court might also hold at least the same documents [Voice Overlap] are agency records.

John Paul Stevens:

I know that it is conceivable we might hold.

I am trying to find out what the Government position is.

I can think of a lot of things that may hold.

I am asking it very narrowly and very specifically, assume that there are records within the meaning of the Federal Records Act, perhaps they are not producible because they are not being withheld, if they are over at the Library of Congress and they are records within the meaning of Federal Records Act, are they or are they not in the Government’s view records within the meaning of the FOIA?

William Alsup:

Alright, if they are records within the meaning of the Federal Records Act, they remain Federal records within the meaning of the Federal Records Act even though they are at the Library of Congress.

Now —

John Paul Stevens:

That doesn’t answer my question.

William Alsup:

I know, I know.

Your question is whether or not they are agency records within the meaning of FOIA?

John Paul Stevens:

Yes.

William Alsup:

I have to say that I think that our argument is that they are not records within the meaning of the FOIA, even though I do not think the Court needs to reach that issue because of the clear availability of the word “withhold.”

John Paul Stevens:

[Voice Overlap] Then why do you make all this long argument about the Federal Records Act?

William Alsup:

Well, because —

John Paul Stevens:

Your whole argument is completely unnecessary to your position?

William Alsup:

I disagree with that.

The court below found it very important that these were records within the meaning of the Federal Records Act.

Potter Stewart:

If we accept the argument of the United States Government made in a previous case, it is a matter of definition under the FOIA, nothing can be an agency record, it’s not in the possession and control of the agency then that is the end of this case, isn’t it?

William Alsup:

That is correct.

Potter Stewart:

And that’s the very argument that the Government made on the last case and you are shying away from it in this case.

William Alsup:

No, no, absolutely not.

Byron R. White:

Then why didn’t you just answer that —

William Alsup:

Well, I think —

Byron R. White:

That – it’s easy, it would be easy, whether they were they ever were records or whether they are still records then for purposes of the Records Act, they are not for purposes of the FOIA because they are not in the possession and control —

William Alsup:

Well, if I may, we clearly argue and I think I haven’t said this very well, but we are clearly taking the position that whether or not it is a record under the Federal Records Act or under Justice Stevens’ possibility that agency records mean something special in the FOIA, if the agency does not have possession and control — wait, let me finish this, if the agency doesn’t have possession and control, there is no violation of the FOIA.

Possession and control is an essential requirement before the agency is required to produce under the FOIA.

John Paul Stevens:

Mr. Alsup, you have two right separate reasoning.

One is there could be no withholding, or two, it could be because they are not agency records, and you keep muddling them?

William Alsup:

Well, I don’t think I am able to give much clearer answer than what I have.

William Alsup:

As I understand our argument, first there would be no withholding.

John Paul Stevens:

Right.

William Alsup:

And you agree with that.

Second, this may or may not be agency records.

We don’t think it is necessary under the FOIA, we do not think it is necessary to determine that issue.

John Paul Stevens:

But you are saying that issue does not depend on whether or not they are records within the meaning of the Federal Records Act, and yet you have argued at great length the meaning of the Federal Records Act, as though, and I had the impression from your brief that that would be dispositive in this case on the issue of whether or not they were records within the meaning of the FOIA, but apparently I was wrong?

William Alsup:

Well, no.

We believe that an agency is required to produce under the FOIA any document which is a record under the Federal Records Act and is in its possession and control.

Now, let’s go over those three elements, a record under the FRA, possession, and control.

If any of those three are missing, then the agency does not have to produce it and there is no withholding.

Now, it is a separate question and a nice question, but we think a theoretical question as to whether or not agency record means something, that if it is not in its possession and control it continues to be an agency record, and I think where I haven’t been very clear is that I am simply saying I don’t think that is necessarily an issue in this case whether a document is a record under the Federal Records Act, however, is an issue in this case.

Byron R. White:

Well, your colleague in the previous case argued that it wasn’t an agency record —

William Alsup:

That’s right.

Byron R. White:

— now because it wasn’t in possession and control and he says, let’s forget this no withholding business or at least just use the withholding to shed light on what is in an agency record?

William Alsup:

Well —

Byron R. White:

That is what Mr. Geller said, but his bottom line was that this is not an agency record for FOIA purposes, that was his bottom line.

William Alsup:

Well —

Byron R. White:

Yours is, you say now we don’t even have to think about whether it is an agency record, if you are not withholding it?

William H. Rehnquist:

Well, there is nothing inconsistent between those two positions, between saying (a) I choose to answer it, and (b) you don’t have to answer it?

William Alsup:

Well, that’s correct.

It is not inconsistent and I understood Mr. Geller to say that you don’t have to make a distinction between what is and is not an agency record because the word “withhold” and “made available” in agency records should all be read together.

But —

Byron R. White:

He certainly suggested to us that if we agreed with him, we should approach the case and the words you use would be talking about what is an agency record and your conclusion would be if you agreed with him, this is not an agency record.

That was his submission.

William Alsup:

Well, I don’t disagree with that submission.

Byron R. White:

Good.[Laughter]

William Alsup:

Well, with the Court’s permission, I would like to address the question of whether or not these were or were not records under the Federal Records Act because that was the question which was of great concern in the courts below and they concluded that they were records under the Federal Records Act.

We think that the District Court made a fundamental error in deciding for itself what is and is not a record under the Federal Records Act.

William H. Rehnquist:

That is 44 U.S.C. 3301, on page 5 of your brief?

William Alsup:

That’s correct.

William Alsup:

That was first enacted in the Records Disposal Act, and that same definition that was in 1943, that same definition was then incorporated into the Federal Records Act in 1950.

Potter Stewart:

Mr. Alsup, we interrupted you a great deal and I hesitate to do it again, but just to aid my understanding of your argument, we do not reach this issue if we accept your first argument, is that correct?

William Alsup:

That’s correct.

In fact, the Court could simply hold that the Act does not reach documents which are not in the possession of the agency.

Potter Stewart:

Right.

William Alsup:

That would be the end of the case.

This secondary issue would only be reached in the event the Court were to say there is a duty to retrieve documents which are records under the Federal Records Act.

The definition under 33 — Section 3301 defines a record to be one which is preserved among other things and only to be those things which are preserved or appropriate for preservation as evidence of the organization, functions, policies, decisions, procedures, operations or other activities of the Government.

We think the words “appropriate for preservation” there is the key.

The District Court underscored that language in its opinion, indicating that it felt that these notes were appropriate for preservation.

We think that the legislative history of that Section makes it clear that it is the agency, not the courts, which make the decision whether or not something is appropriate for preservation as a record.

Under the Federal Records Act, the scheme that is contemplated is that agencies will adopt records management programs and they will make the decision in the first instance whether some material should or should not become an agency record and thereby — or federal record and thereby subject to the strictures of the Records Disposal Act which prohibit any disposal of such a record without the approval of the Archivist.

On the other hand, if it is not designated as a record, it remains non-record material, and even though that is the property of the United States in our view, it is not a federal record.

Now, we believe that the District Court and the courts below disregarded this approach to the act by simply assuming that these documents were records under the Federal Records Act without making an inquiry into the State Department’s regulations to determine whether or not the agency itself had classified them as records on the one hand or non-record materials on the other.

We do agree, however, with the District Court that these documents, when they were created, were not the personal property of Dr. Kissinger, but were the property of the agency.

They may have been non-record material or they may have been records, but the agency would make that determination by applying its records management program.

If we accept that analysis of the Federal Records Act, we believe that a remand to the District Court would be necessary in order to determine whether or not these particular notes were or were not non-record material or were or were not, to put it conversely, records under the Federal Records Act.

Warren E. Burger:

What would make them property, the fact that government employees and government materials went into their construction?

William Alsup:

Not principally.

The principle determinant under the cases that we have cited in our brief is whether or not they were prepared within the scope of employment of the employee, and here that clearly was the case.

These were — with the possible exception of those notes that have nothing to do with the State Department’s business, but the bulk of these would have been clearly prepared in the scope of Dr. Kissinger’s employment and that would have made them the property of the United States.

Warren E. Burger:

Well, it is said that Mr. Truman, when he was President, dictated every night a diary of the day’s events and assuming that was done and it was also said that he frequently referred back to these things with respect to conversations he had had with Cabinet officers or various other people.

Now, these were all made with government facilities, they certainly had a relationship to his job, would that make those diary tapes Government property?

William Alsup:

Not necessarily and in some cases a nice question would be presented whether or not something like that was made within the scope of employment.

For example, if the President had written a letter and to a personal friend, I think most people would agree that is not within scope of an employment.

There are intermediate cases that are in the gray area where it is not as clear.

Warren E. Burger:

My question assumed that there could be a mix in these.

There might be something about his opinion of the music critic of the Washington Post on what she’d said about or what he’d about his daughter’s musical abilities, on the her hand there might be come comments about what he and what he directed to the Attorney General to do or what he had told the Secretary of the Interior not to do.

Now, when you once segregated them, would that make them partially Government property?

William Alsup:

Not necessarily.

William Alsup:

Again, the test would be whether or not the active writing a letter was something that would —

Warren E. Burger:

This is not a letter.

This is a tape recording dictated in diary.

William Alsup:

Well, I am sorry.

Whether that Act could have been within the scope of his employment.

Warren E. Burger:

Well his conversation with the Attorney General or Secretary of his Cabinet would surely be within the scope of his employment, wouldn’t it?

William Alsup:

The conversation itself would be, but whether or not in the late hours in the evening if the President dictates the tape about that day’s events that’s not necessarily within the scope when the President’s role as President.

It might be, that’s perhaps much tougher case than we have now, but these were clearly, in the present case Dr. Kissinger just notes were clearly prepared within the scope of his employment as a Secretary of the State.

Lewis F. Powell, Jr.:

You do not accept the — an opinion of the legal adviser?

William Alsup:

With respect to the question of whether or not these were personal property when created.

We believe that the legal adviser was incorrect.

We believe that those were the property of the agency.

We do, however, accept that part of the legal adviser’s opinion which seemed to say that at the end of the usefulness of those notes, after the extracts were prepared if it were properly prepared then because there would non record material under the record management program, the agency would be free to disposed of that property by allowing Dr. Kissinger to retain it.

Lewis F. Powell, Jr.:

I understood you are going to say you felt the agency should make this decision rather than the courts.

William Alsup:

That’s correct.

Lewis F. Powell, Jr.:

And the agency in this case said it through its legal adviser seems already to admit it.

So by virtue what right does the Solicitor General say that it thinks the agency decision is incorrect?

William Alsup:

Well, let’s take an extreme — more extreme case.

Let’s say —

Lewis F. Powell, Jr.:

Let’s take this case?

William Alsup:

Well, I think I can answer that by saying what if Dr. Kissinger had given all of the records of the State Department to the Library of Congress.

Well, clearly on the case like that.

Even if the legal adviser had somehow approved that the State Department would want to bring every retrieval action and say we changed our mind.

The legal adviser no longer believes that these were the personal property of Dr. Kissinger, but rather that these were the property of the agency itself.

We do believe that the agency itself can change its mind in go after —

Byron R. White:

Well what about this case?

How about this case?

As I understand the State Department doesn’t want these records?

William Alsup:

So far as this record discloses, the State Department has not made a final determination whether to bring a retrieval action for the recovery of the notes and that is correct.

Byron R. White:

Well, has it asked for them back?

William Alsup:

It has not asked for them back.

In the record there is an agreement —

Byron R. White:

Well, I’ll put it this way; do you think that you are representing the views of the State Department Head?

William Alsup:

Yes.

Byron R. White:

Which means that the statement — the State Department through you is asking these notes be reviewed in the hands of the Library of Congress to see if they have been fully extracted?

William Alsup:

No.

No, the procedure that now is outstanding is that there is an agreement with Dr. Kissinger and the federal parties that allows a sampling of these documents to be undertaken for the State Department to make a determination whether it believes some of these are or are not records.

When that is completed, if the State Department has decided that these were records on the records management program, and at that time that would take appropriate action to seek to return —

Byron R. White:

Seek to return or just get them extracted?

William Alsup:

Well, it might have either alternative.

Byron R. White:

What’s your position on that part?

William Alsup:

The State Department specifically would like to reserve both possibilities and we don’t take the position as to whether — in this case as to whether or not these are or are not records.

Byron R. White:

Well, I think it’s rather important you take the position because for purposes of Freedom of Information Act, if all this State Department interested in, is making sure they’ve properly extracted and the official business is taken out of them, they have copies of it, that doesn’t mean at all that the papers need to be returned, does it?

William Alsup:

That’s, that is correct.

Byron R. White:

Because I take it your position is that once they get back to the State Department, they are FOIA papers.

William Alsup:

Once they were back —

Byron R. White:

Yes or no?

William Alsup:

That’s correct.

Once they are back in the possession of this —

Byron R. White:

I think it makes quite a difference on what position you take for purposes of this lawsuit?

William Alsup:

I — Mr. Justice, the problem is this.

The State Department does not know what these documents look like.

They have not seen, but a limited sample, and it is simply not in the position at this point to draw a conclusion which would reverse the position that the legal adviser took.

Byron R. White:

Well, I know but there’s always — if they want to sample them, and they do sample and which they are now doing and they decide that they should be reviewed and further extracts made.

They can do that — perhaps they can do that.

But does that mean they have to have the papers returned to them or leave it?

William Alsup:

Not necessarily, that might be done at the Library of Congress.

Byron R. White:

In which event, they never would be your FOIA papers except to the extent they were extracted?

William Alsup:

That is correct.

Warren E. Burger:

Now, you referred to these negotiations that are going on, discussions whether or if anyone uses it.

William Alsup:

Well, at the time of the District Court’s order an agreement was filed with the Court which advised the Court that federal parties were making an inspection of the a limited sample of the notes at the Library of Congress and that they, therefore, would make a decision at some point in the future when that review was completed as to whether or not the State Department felt that any of these were records and would therefore seek the return.

Warren E. Burger:

Is it possible that we dispose of the issues in this case?

William Alsup:

It would not dispose.

Even if the State Department were to say that they wanted some small percentage in the documents back, we are convinced that the plaintiffs in this case in this case would insist on full return, it would not dispose of the case.

John Paul Stevens:

Mr. Alsup, I just want to make one thing — call one thing to your attention.

At page 21 of your brief, you said.

“We agree with the courts below that the FOIA applies to at least all records within the meaning of 44 U.S.C. 3301.

You’ve departed from that position here.

Do you think you really mean to depart from that position?

William Alsup:

All records within the meaning of 3301 which are in the possession and custody of —

John Paul Stevens:

No.

It isn’t qualified in your brief.

You say unequivocally, because you argued no withholding first, you can recall that in your brief, then you say in the summary of argument in part two of your brief, “We agree with the courts below the FOIA applies to at least all records within the meaning of 44 U.S.C. 3301.”

William Alsup:

Now, I don’t think that’s a fair construction.

Mr. Justice, for this reason.

We made a very clear in our first argument that possession and control is a sine qua non of —

John Paul Stevens:

Withholding?

William Alsup:

Of withholding and of whether — well, perhaps we didn’t make it as clear as the oral argument now should —

John Paul Stevens:

May you now suggest, we should not accept this as a literal statement of your position?

William Alsup:

Well, it’s the second of our argument, that we meant to say about that, that of course, that applies only to those records which are in the possession and control of the —

John Paul Stevens:

So your first argument was you don’t have to decide what agency records are because in all events there has been no withholding.

Your second argument was, well, these are not agency records because they are not records within the meaning of Federal Records Act.

That was your second argument.

William Alsup:

Well, rather than —

John Paul Stevens:

You really want to withdraw this concession, in other words?

William Alsup:

We will stand by whatever we said in our brief, so I don’t want anything I have interpreted to be a concession from the statements that we have made and either our Forsham brief or the Kissinger brief.

Thank you.

Warren E. Burger:

Mr. Dobrovir.

William A. Dobrovir:

Mr. Chief Justice, and may it please the Court.

In this case the Secretary of the State chose to record and communicate to his aides the conduct of his office in part by causing the preparation of verbatim transcripts of his business telephone conversations.

William A. Dobrovir:

The issue is whether public rights under the Freedom of Information Act can be defeated by the Secretary’s removal of these documents from the State Department building prior to his departure from office.

Warren E. Burger:

Well, perhaps the first question is whether there is private cause of action available here.

Will you address that at some point?

William A. Dobrovir:

I will address it now in response to your question, Mr. Chief Justice.

When the State Department denied the records on January 18 and that is the date which I ask the Court to remember.

It said we deny access to these records on the grounds that they are not agency records because they were personal records and also on the ground that they are no longer in the possession of the Department, they are in the Library of Congress.

That denial, we submit and I will present my theory with respect to that, was a withholding within the meaning of the Freedom of Information Act, on that basis there was a cause of action.

The cause of action arose under the Freedom of Information Act.

Warren E. Burger:

Well, surely at that time the Attorney General of United States or acting independently or the Administrator of GSA, operating independently perhaps could have commenced the lawsuit, you agree on that?

William A. Dobrovir:

He could have.

Indeed, as the record reflects, the Archivist of the United States on January 18, the same date that the State Department denied access to the records, was also denied by Secretary of State Henry Kissinger, acting as Secretary of State access to the records to inspect them for the purpose of determining whether or not they were records that ought to remain within the Government’s record system.

Warren E. Burger:

He is the —

William A. Dobrovir:

The controversy —

Warren E. Burger:

The Archivist is the subordinate of the Administrator of GSA, is he not?

William A. Dobrovir:

Yes, he is.

We assume he was acting within the authority granted him by his superiors.

The point is that the Secretary of State categorically denied him access to these records, claiming that they were personal records.

I will argue the question of the District Court’s power and the question of the cause of action, Mr. Sussman will argue the question of whether the records are agency records.

I would only say here that we agree with the concession made by the Solicitor General that they were agency records in their inception.

We disagree with him when he says that they could at a later date or did at a later date not become lose that character as agency records.

I refer to January 18 and I told the Court what happened on that date.

The petitioner was still the Secretary of State on January 18, and it was in his capacity as Secretary of State that the department under his supervision, under his supervision by statute denied access to these records.

The denials were based on the claim that they were his personal property, his refusal of access to the Archivist was based on the claim that they were his personal property.

Warren E. Burger:

And you said there was an additional basis?

William A. Dobrovir:

With respect to the Archivist, that was the only basis.

With respect to the Freedom of Information request the additional basis was that he had already transmitted them to the Library of Congress.

We start with the proposition that when a Federal government official acts in performing the duties of his office, he is presumed to act for the agency.

The petitioner was Secretary of State and not acting as a private individual, and everything at issue here occurred when he created the records, when he caused them to be written down, when he preserved them, and he preserved them, he thought that they were appropriate for preservation and in so doing I think he was acting for the agency of which he was the agent and for which he was a fiduciary.

It was a Secretary of State that the agency denied the first Freedom of Information request for these documents, and it was a Secretary of State that he by statue had custody of the department’s records, that prima facie these records were State Department records at all times that he was Secretary of State and insofar as he purported to transfer them to the Library of Congress, they remained nevertheless the property of the Department of State through the constructive possession, a phrase used by Mr. Geller earlier in the Forsham case, the Government accepts constructive possession, through the constructive possession of Secretary Kissinger.

Accordingly, very simply, these documents remained in the possession and in the control of the Department of State at the time when both Freedom of Information requests were filed.

William H. Rehnquist:

Mr. Dobrovir, suppose I am Secretary of State and I have a file in my office in which I keep copies of correspondence to personal friends, which I have written saying, no, I can’t come out and visit you this week, but maybe two weeks from now, and it is separate from State Department record transactions and other things.

Are those FOIA records?

William A. Dobrovir:

No, sir, those are personal records, by your description of them.

By the description of these records, however, as the Solicitor General says, they were agency records and all flows from that in our view.

The conversations, after all, were not held with Mrs. Kissinger, they were held with Presidents, they were held with foreign ambassadors, they were held with other officials of the department.

They were circulated to Dr. Kissinger’s immediate aides, as Dr. Kissinger’s lawyer here has told us, for the purpose of implementing and following up the determinations.

There is no way in which these could be anything other than agency records.

Now, our position is that as Secretary of State, Henry Kissinger had a duty to his principal, the Department of State, not to prefer his own personal interests to his principal’s interests.

He was aware from the very beginning, from January of 1976, when the first Freedom of Information Act for any of the records, those in that case White House records, were submitted.

That there was a question as to whether or not these documents were agency records or were personal files.

Nevertheless, he made the determination, a determination which we submit was in conflict with the interest, an interest he was aware of, of the agency that they were his records and not the agency’s records.

William H. Rehnquist:

There are a lot of Presidential Libraries that are in trouble, aren’t there?

William A. Dobrovir:

The Presidency has always been considered a different animal.

We now have statutes that take care of those problems.

The Presidential Materials Act of 1978 will now regulate the question of agency records — for Presidential records.

This Court now has to determine the status of records of agency heads, cabinet officers, because this is a unique kind of case.

A subordinate official would not be in the position that the Secretary of State was in to make the determination on his own.

A subordinate official would have had to have submitted to all the normal procedures that the Department of State has in order to get a determination that the records were personal records and not State Department records.

Dr. Kissinger —

Warren E. Burger:

Mr. Dobrovir, you are down to a little more than one minute and we haven’t heard very much about the private cause of action, at least I haven’t.

William A. Dobrovir:

Well, I will — it’s as simple as this.

The documents were denied.

The denial of documents creates a private cause of action because it is in the circumstances of this case a withholding.

The Government makes a very technical argument that the documents are not in the possession of the agency, there is no withholding.

Here the possession of Dr. Kissinger, the right of access, the right to exclude others from access by right normal definitions of possession was the possession of the Department of State.

There was, therefore, in our view a withholding, and therefore, there was a cause of action, like any cause of action.

Warren E. Burger:

Do you think this situation meets the criterion of something enacted, especially for the particular class of people seeking the information?

William A. Dobrovir:

No, the statute was enacted for the benefit of the public at large.

Anyone, any person, they need not be a citizen of the United States, has a right to seek access under the Freedom of Information Act, and everything that happened here created that cause of action.

I believe I have used up my time.

John Paul Stevens:

May I just clarify one thing.

You don’t argue at all that there is a private cause of action under the Federal Records Act?

William A. Dobrovir:

No, sir.

John Paul Stevens:

You merely claim that your rights under the FOIA give you the right to bring this action?

William A. Dobrovir:

That’s right, Mr. Justice Stevens.

Warren E. Burger:

Mr. Sussman.

Robert M. Sussman:

Mr. Chief Justice, may it please the Court.

I would like to if I may return to the threshold issue in this case, the question of whether documents which were agency records at the time of their removal and were so we argue removed unlawfully are agency records within the meaning of the Freedom of Information Act, and therefore, are subject to judicial relief within the terms that Act.

It is true that we are here before the Court today not under the Federal Records Act.

We believe that is the statute for the Government to enforce.

We are here instead under the Freedom of Information Act, a statute which creates rights on behalf of private citizens who seeks to obtain records of the United States Government.

Our primary submission and a submission which we believe controls the resolution of this is that if the transcripts were removed unlawfully from the Department of State, they remain records.

On the other hand, we believe if the transcripts were removed lawfully pursuant to statutes and regulations, they lost their record statutes status and the Act ceases to apply.

I think we have to start with the text of the Freedom of Information Act.

Potter Stewart:

The relevant test is not whether or not they are records but whether or not they were called “agency records,” you agree with that, would you?

Robert M. Sussman:

Oh!

That’s absolutely true, although we do argue that —

Potter Stewart:

Your argument is the same, but they were agency records and remained agency records if they were wrongfully removed from the agency?

Robert M. Sussman:

That is absolutely our argument.

Potter Stewart:

That’s your argument?

Robert M. Sussman:

Our argument is that the Act on its face applies the agency records.

If the document has been unlawfully removed, it preserves its legal status as an agency records, therefore, it is within the coverage of the Act.

I think it is significant that Congress in enacting the Freedom of Information Act specified nine exemptions.

Defined very clearly for determining when documents would fit the definition of records could not be produced by Federal Agencies.

It did not, and I think this is very key, it did not create an exemption to documents which are agency records in every respect but happen not to be in the physical custody of the agency.

William H. Rehnquist:

Well, what if one makes a demand under — on an agency for a record which doesn’t fall within any of the exemptions, but which was destroyed lawfully under the Federal Records Act?

Robert M. Sussman:

Then I think the Act no longer applies —

Potter Stewart:

Let’s say it was stolen, quite unlawfully —

Robert M. Sussman:

Well, then the Act would apply —

Potter Stewart:

But it simply isn’t there?

Potter Stewart:

It does not exist so far as the agency goes?

Robert M. Sussman:

Well, the agency quite obviously should not —

Potter Stewart:

It was stolen and taken to Timbuktu, how can the agency possibly comply?

Robert M. Sussman:

The agency cannot produce what it does not have and if the document is physically unavailable, if there is no physical way that the agency can retrieve the document and provide it to the FOIA requester, then obviously it is not withheld.

The agency doesn’t have the capacity to produce the document.

Potter Stewart:

And so how can anybody withhold something that he doesn’t have?

Robert M. Sussman:

Well, I think the word “had” has to be construed broadly and I think this is an important point.

The agency does not have unlawfully removed records, in the sense that those records are in its physical possession, that is to say, the State Department could not go down to the basement of the Department of State and get these transcripts.

However, there’s another plain on which we can approach the problem, and we can think of possession not merely as physical possession, but as legal possession, and we would submit that an agency certainly has what it’s owns and its ownership rights certainly do not turn on the physical location where records are kept.

We would say and I think this case illustrates it quite plainly that if an agency owns a document, it has a legal right to reduce that document to possession at any time.

It is the owner of the document, therefore, it has the means of producing the document under the Freedom of Information Act and it can provide it and I think this case illustrates that perfectly.

Mr. Kissinger was Secretary of State at the time the Freedom of Information Act requests were made.

Therefore, he had it well within his means and power to produce these documents if in fact they were owned by the department.

Even after Mr. Kissinger was Secretary of State, I think you have the exactly the same situation.

The department —

Warren E. Burger:

Do you mean, on the 18th of January they were already in the possession of the Library of Congress, were they not?

Robert M. Sussman:

They were already in the possession of the Library of Congress, that’s true.

Warren E. Burger:

Well, if he demanded them their return, could he secure their return in his individual capacity after he had made the gift which the government says is an irrevocable gift, as Ginsburg did?

Robert M. Sussman:

I think, Your Honor, he could have done it in either capacity.

As Secretary of State he could have said to the Library of Congress, I have now reexamined the law, I have been advised by those who have construed the Federal Records Act that these documents were not my personal property, therefore, I had no authority to remove them, and therefore, I had no authority to donate them to you, and I think they ought to be returned.

Warren E. Burger:

Well, is that a fact, that someone did advise him that they were no longer —

Robert M. Sussman:

Well, nobody —

Warren E. Burger:

The facts are just the contrary, haven’t they?

Robert M. Sussman:

Well, he was advised by the legal adviser that they were not, but I think the question we are looking at right now is the question of withholding and the question of whether an unlawfully removed document is within the power of an agency to retrieve.

And my point is that it would have been very simple for Mr. Kissinger, assuming, contrary to the facts, that he did conclude, reassess his opinion, decide that these documents were indeed records would have been very simple for him in his capacity as Secretary of State to go down to the Library of Congress and say these are department records, a request for them has been made under the Freedom of Information Act.

My deed of gift to you I believe is superseded by that, I would like the records back and I would like to make them available to an FOIA requester and it is in that sense that I think that one has to conclude that these transcripts were within the legal control, the legal control of the Department of State at the time the FOIA —

Byron R. White:

What if the library — what if he said those very words to the librarian and the librarian said, “I am awfully sorry, but I think you are ill-advised right now, and you gave these to us, we are going to keep them until the Court tells us to give them back?”

Robert M. Sussman:

Oh!

Byron R. White:

Could Mr. Kissinger, as Secretary of State or Mr. Kissinger either as Secretary of State or personally have the — would he under any relevant statute have a cause of action against the State Department, I mean against the state library?

Robert M. Sussman:

I think that — let me answer the question in two ways.

Robert M. Sussman:

I think that the State Department would have a cause of action, as awkward as it sounds, under the Federal Records Act —

Byron R. White:

Through whom?

Robert M. Sussman:

Through the Attorney General.

Byron R. White:

I know.

Well, the State Department could not become a party by itself.

It would have to get the Attorney General to file a lawsuit.

Robert M. Sussman:

That’s true, but —

Byron R. White:

And the Attorney General would have to agree with him.

Robert M. Sussman:

The Attorney General would —

Byron R. White:

So, I am not sure I understand your position that these records are retrievable just at the request of the State Department, as a matter of fact, they aren’t?

Robert M. Sussman:

Well, let me re-frame it slightly.

Let me say this, that if a document continues to be owned by an agency, the agency we would say is under a duty — under the Freedom of Information Act to procure that document to the extent it can.

Byron R. White:

But the law says that a party to get them back if they are illegally possessed by somebody else is the Attorney General?

Robert M. Sussman:

But we don’t even need to reach that question because short of bringing a lawsuit, there are actions that the State Department could have taken, but didn’t take in this case to procure the return of the notes.

We don’t know what the Library of Congress would have said if the State Department had —

Byron R. White:

The question is now though is whether the State Department is withholding any records?

Robert M. Sussman:

Well, I do believe that —

Byron R. White:

Isn’t it, and if the only way you can get the records is to win a lawsuit, first convince the Attorney General to sue and then to win it, are they withholding records now?

Robert M. Sussman:

I think that the State Department is withholding records if it has failed to take all steps within its power to procure the return of those records.

Byron R. White:

So what — if you on that basis, if you win, what’s the judgment?

Robert M. Sussman:

Well, the judgment —

Byron R. White:

What do you order, turn them over?

Robert M. Sussman:

The judgment I think is precisely the judgment entered by the court below and that is an order to the State Department to go out and to repossess from the Library of Congress to the extent of the library is willing to provide the documents and the transcripts.

Byron R. White:

Alright.

What if you were the adviser of the State Department, how would you proceed, go down, go across the street and ask him for them?

Robert M. Sussman:

I would, that’s exactly what I would do.

Byron R. White:

And if the library said awfully sorry, then you would go to the Attorney General?

Robert M. Sussman:

I would certainly do that and I would do that not only under the Freedom of Information Act, I would do that under the Records Act itself because the Records Act imposes a mandatory duty on the part of an agency to retrieve unlawfully removed records.

William H. Rehnquist:

The Attorney General is the enforcer of that and there have been all sorts of cases deciding what is or is not owned by a person.

Isn’t that ultimately left to the judgment of the Attorney General, whether a record has been unlawfully removed?

Robert M. Sussman:

If there are no Freedom of Information Act requesters, the issue is left to the Attorney General, but if —

William H. Rehnquist:

Well, would that make any difference?

Robert M. Sussman:

Well, it should make a difference for this reason, that independent of what is or is not done, under the records statute citizens have a private cause of action under the FOIA to obtain records, and we submit that cause of action, to records which are covered by the Act and are not within the exemptions, that cause of action should not and cannot be conditioned on whether the Attorney General does or does not choose to exercise his prosecutorial discretion.

Byron R. White:

Are you suggesting that an FOIA suit could be used to secure judicial review of every single decision by an agency to dispose of a non-record record once it thinks that it has served its purposes.

All you would have to do is file an action and say that the agency made a mistake and they were dead-wrong in deciding that this document has served its purposes and that the officer may take it away with him.

Robert M. Sussman:

Let me say that I think that 9,999 of every 10,000 such suits would be frivolous because it would be very clear that the record-keeping decision of the agency was a lawful one and that the documents was removed lawfully.

Byron R. White:

So your answer is yes, that’s exactly what an FOIA case could be used for?

Robert M. Sussman:

That’s right, but I don’t think that that is a result that we ought to be fearful of or concerned about because there is a very clear and very comprehensive statutory framework for removing documents from public to private property and if —

Byron R. White:

And for retrieving them?

Robert M. Sussman:

And for retrieving them, but I come back to the point I made before and that is that we’re not only concerned in this case with the Government’s record-keeping decisions under the record statutes.

We are concerned with the rights of the public under the Freedom of Information Act and what we are asking from the Court is to recognize the remedy that an FOIA requester has, when a document otherwise subject to the act has been unlawfully removed from agency custody, and we submit that the FOIA is a free-standing statute, and if a document which is otherwise a record has been removed from agency custody unlawfully, then we don’t believe that a prosecutorial discretion decision by the Attorney General or the agency head can cut off the public’s rights under the Act.

And it’s for that reason that we think that the Court in an FOIA case has to reach, has to reach the question of whether the removal was lawful.

Byron R. White:

Well, the other opt if you wouldn’t want to be bound by the Attorney General’s decision, perhaps you could get judicial review of his decision, that doesn’t mean you shouldn’t have to seek his decision first?

Robert M. Sussman:

Your Honor, I would submit that there is no reason why you would have to go to the Attorney General first for —

Byron R. White:

Well, the normal rule is to exhaust your administrative remedies?

Robert M. Sussman:

I don’t think that we are talking about administrative remedy here.

The administrative remedy under the FOIA is a request to the agency to produce withheld records.

That is the only administrative remedy that the Act provides, and that is what we did.

We went to the State Department and we said we would like to see the transcripts of Mr. Kissinger’s telephone conversations, and that request was denied.

At that point, we think that we had a right to a judicial remedy under the statute because that is the mechanism that Congress chose for vindicating public’s rights in those situations.

Warren E. Burger:

Was any request ever made of the Attorney General to get into this matter that you are aware of?

Robert M. Sussman:

Not by the FOIA requesters and I can’t speak with absolute authority about the State Department, I believe that it also never made a request.

Warren E. Burger:

Nor GSA?

Robert M. Sussman:

GSA.

I don’t believe has also asked the Attorney General to bring suit, although it should be —

Byron R. White:

Of course, I suppose that the Department of Justice, which is headed by the Attorney General, has a position in this lawsuit that is directly contrary to yours that this isn’t an FOIA — that this isn’t any longer the business of an FOIA lawsuit in the posture of this case.

Robert M. Sussman:

That is indeed their position and I would submit that if there were a judicially created duty on the part of the State Department to seek the return of these records, the Justice Department might be somewhat more sympathetic to our problem.

The one issue that I have not discussed is the question of whether these documents are records.

I will try to be very brief about it and simply say that we think the issue turns on, first, the Federal Records Act themselves and, secondly, GSA regulations, because GSA is the agency that Congress has selected to implement the records statute, and third, State Department regulations, and as we have demonstrated in our briefs, we think that these transcripts are plainly, very plainly records under all three bodies of law.

I believe my time is up —

Warren E. Burger:

No, not yet.

Robert M. Sussman:

It is not?

Okay.

Well, I would be happy to continue a little while longer.

Let me turn first to the definition of records in the records statute.

We have a rather fundamental and direct quarrel with both the Government and with Mr. Kissinger on that point.

They make the argument that individual agencies have broad discretion under the Records Acts to determine when documents concededly relating to public business are records and when they are non-records.

We don’t think that it is logical or sensible to adopt that reading of the records statute.

Our reason is this.

The records statute contains a very detailed, a very specific procedure for transferring documents relating to public business from public to private custody.

The agency must list those documents on a schedule, submit it to the Archivist, and it must determine before it lists those documents on the schedule that the documents have no longer use for the current transaction of government business and they have no long-term value either to other agencies of the government, to the government as a whole or to the general public.

Now, the interpretation of the Records Act proposed by the government would allow an individual agency by the simple expedient of classifying a document as a non-record material to exclude it entirely from the archival process, in which case the careful, detailed, uniform, and consistent scheme adopted by Congress for making archival decisions would be bypassed completely.

With that, I would like to close.

I think that that is a compelling reason in and of itself why the interpretation of the Act offered by the Government should not be accepted.

Thank you.

Warren E. Burger:

You have a few minutes left, Mr. Ginsburg.

You have three minutes.

David Ginsburg:

Three minutes.

Mr. Chief Justice, and may it please the Court.

The Military Audit Project counsel said that the Solicitor General had conceded that these notes were agency records in their inception.

This is an issue to which Justice White addressed himself earlier.

I simply wish to correct the record.

The Solicitor General can speak for himself, but he said that they would be regarded as non-record materials.

I make the simple point that if they are non-record materials, then of course they are not subject to the Freedom of Information Act which applies only to records.

This is a problem that has to do with the Federal Records Act and not with the Freedom of Information Act.

Now, the implications of the argument that the Court has just heard from the Reporters Committee should be clearly understood.

The first, that the claim is that the Freedom of Information Act can be used not only to obtain records in the custody and the possession and in the control of an agency, but as a basis for requiring the return to an agency of materials that it relinquished before the request was made.

Warren E. Burger:

Do you think there would be a difference possibly, Mr. Ginsburg between the authority of the Attorney General to pursue records and retrieve them by replevin and the obligation of the State Department to deal under the Act with records of papers that they no longer possess?

David Ginsburg:

I think there is no doubt that if the Attorney General’s authority was invoked under the Federal Records Act and the claim was both by the Administrator of General Services and the Attorney General referring these and the Secretary of State referring the issue to the Attorney General, he has plenary power under the Federal Records Act to pursue the matter.

That is a problem of ownership, the problem of whether it’s an initially a record is simply a different matter and a different statute.

Warren E. Burger:

And that would still have to be decided whether, assuming they were owned by the State Department, and therefore, properly back in State’s possession, whether they were agency records under the FOIA.

David Ginsburg:

That would still leave that issue to be determined, Your Honor.

In this case, it is clear that these were never records and never treated as records, but the implication is one that we would be able to use this statute as a basis for requiring the return of material that it already relinquished.

It would be required as a basis to obtain materials which an agency had determined were not its records.

It would mean that private Attorneys General would now be implied under the Federal — the Freedom of Information Act so as to supplement in a sense the activities of the Attorney General under the Federal Records Act, and finally it would also mean, if this approach to the Freedom of Information Act were taken, that private citizens might be able to use the Freedom of Information Act not only against agencies of the United States, but also against private citizens and also against institutions that were not agencies under the Freedom of Information Act.

Thank you.

Byron R. White:

Mr. Ginsburg, is it correct under your submission that say, an agency became aware of an pending FOIA request before it was filed, that the person who had custody of all the records that might be the subject of the request could simply take them home and keep them until after the request had been filed and then they would avoid compliance.

David Ginsburg:

We’ve considered that problem, Your Honor.

It seems to us that all of those facts could be established and the person in a sense were aggrieved, that there would be a basis for a remedy I think as suggested in other cases that the Court has recently considered under the Administrative Procedure Act.

If there was a —

John Paul Stevens:

If there was a lawless removal?

David Ginsburg:

And the person was aggrieved.

If there was a grievance —

John Paul Stevens:

So your opponent here argues that that is in substance what happened here, and I am not saying he is right, but he argues that there was a lawless removal and they were in effect put in the basement of the people rather than kept and so how is the case different?

David Ginsburg:

Oh!

I think there is no —

John Paul Stevens:

There is no central issue?

David Ginsburg:

Under the facts of this case, it’s clearly not a lawless removal.

But assume for the moment that —

John Paul Stevens:

But, do we have to — the question really is do we have to decide whether or not it was a lawless removal?

You see, once you concede that a lawless removal defeats — does not defeat the FOIA request, then it seems to me that we may have a duty to decide whether or not there was a lawless removal?

David Ginsburg:

Well, Your Honor, it seems to me that the remedy — the only possible remedy that could be invoked that this is an issue conceivably for amendment of the statute, but the only possible remedy that could be invoked presently under the law as we know it would be the equivalent of a review under the Administrative Procedure Act if one could show injury, if one could show damage of some sort and that there was a basis for —

Potter Stewart:

There would be an FOIA cause of action, that’s your submission, whether removal was lawful or lawless?

David Ginsburg:

Under the FOIA.

Potter Stewart:

Under the existing FOIA.

Isn’t that your argument?

David Ginsburg:

It would be.

Potter Stewart:

And if that is true, then there is no — if you are correct, then there is no need to inquire whether or not the removal was lawful or lawless?

David Ginsburg:

Exactly right, sir.

Warren E. Burger:

So that would be up to the Attorney General and it would be a discretionary act, would it?

David Ginsburg:

This certainly would be our submission.

That is not something you could mandamus the Attorney General to file a suit.

It would be discretionary within the power of the Attorney General.

John Paul Stevens:

Mr. Ginsburg, I don’t mean to prolong it, but I also don’t want to leave with a misunderstanding of your position.

I think you have agreed with me that in the case I pose if someone aware of a pending request, takes all of the documents home and keeps them in his basement, that there would be no FOIA claim against that agency?

David Ginsburg:

That is my view, sir.

John Paul Stevens:

Yes.

Okay.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.