RESPONDENT: Reporters Committee for Freedom of the Press
LOCATION: United States District Court for the Northern District of Illinois, Eastern Division
DOCKET NO.: 78-1088
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 445 US 136 (1980)
ARGUED: Oct 31, 1979
DECIDED: Mar 03, 1980
David Ginsburg - on behalf of the Petitioner Kissinger
Robert M. Sussman - on behalf of the Reporters Committee for Freedom of the Press
William H. Alsup - for Federal Parties
William Alsup - on behalf of the Federal parties
William A. Dobrovir - on behalf of the Military Audit Project
Facts of the case
Media for Kissinger v. Reporters Committee for Freedom of the PressAudio Transcription for Oral Argument - October 31, 1979 in 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
William H. Rehnquist:
In the Kissinger case, Henry Kissinger served in the Nixon and Ford administrations from January of 1969 through January of 1977.
During those years, he served first as Assistant to the President for National Security Affairs and later a Secretary of State.
Throughout this period of government service, Kissinger's secretaries monitored his telephone calls and summaries of transcripts of the conversations were prepared and retained in his personal files at the State Department.
In October of 1976 while still Secretary of State, Kissinger removed the telephone notes from his office in the State Department without first seeking the approval of federal authorities responsible for the maintenance and disposal of federal records.
Subsequently Kissinger entered into agreements with the Library of Congress dating his private papers including his collection of telephone notes.
The agreements restrict public access to the collection for a number of years.
Before Kissinger ended his tenure as Secretary of State, three separate Freedom of Information Acts were filed with the State Department seeking access to the transcripts of telephone conversations made by Kissinger while acting either as Assistant for National Security Affairs and/or Secretary of State.
All three requests were denied by the State Department.
The first of these request filed by William Safire sought access to conversations transcribed while Kissinger was serving as Assistant to the President.
This request was denied on the grounds that the requested telephone notes were White House records excluded from FOIA coverage.
The other two requests were denied because they were filed with the State Department after Kissinger had removed the notes from the State Department office.
The individuals and groups whose FOIA request had been denied filed actions in federal courts seeking a judicial order requiring the library to return the telephone notes to the State Department with directions to process them for disclosure under the FOIA.
The plaintiffs named Kissinger, the Library of Congress, the Secretary of State and the Department of State as defendants.
On summary judgment, the District Court ruled that the plaintiff should have access to the telephone notes transcribed while Kissinger was Secretary of State.
The District order of premises finding as conclusion that the telephone notes were agency records as defined in FOIA accessible under that Act and that Kissinger had wrongfully removed those records by not obtaining the required approval.
The Court therefore held that equitable relief was appropriate under the Act.
The Court entered an order denying plaintiff's request however for conversations transcribed while Kissinger was Special Assistant to the President.
On appeal, the Court of Appeals for the District of Columbia Circuit affirmed the District Court and the parties filed cross-petition for certiorari in this Court.
Today, we affirm in part and reverse in part.
First, we reverse the order requiring the return of the telephone notes made while Kissinger was Secretary of State.
The Freedom of Information Act explicitly approved -- provides the federal courts are only authorized to order disclosure of requested materials when an agency has improperly withheld agency records.
We hold today that the State Department has not withheld any documents from the plaintiffs within the meaning of the Act.
At the time of the two requests, the agency had neither the custody or control necessary to enable it to withhold as Congress used that term.
We affirm the Court of Appeals however in its judgment denying access to telephone notes transcribed while Kissinger served Assistant to the President.
The Act provides that records of the Executive Officer of the President are not available to the public under the Freedom of Information Act.
We conclude that the Court of Appeals and District Court properly characterized the Safire request as seeking access only to White House records excluded from the Act's coverage.
Mr. Justice Brennan and Mr. Justice Stevens have filed separate opinions concurring and dissenting in the judgment of the Court.
Mr. Justice Marshall did not participate in the consideration or decision of this case.
Mr. Justice Blackmun did not participate in the decision of this case.