DEPARTMENT OF STATE ACTION MEMORANDUM S S CONFIDENTIAL TO The Secretary FROM T - Carlyle E Maw L - Monroe Leigh Telephone Monitorings Safire Request Problem William Safire has requested under the Freedom of Information Act FOI the transcripts made by secretaries of your telephone conversations The request dated January 14 197 6 covers only a portion of the transcripts Tab 1 Specifically Safire's request asks for transcripts of those telecons which either 1 mention him by name or 2 contain discussions between you and Mitchell Hoover other FBI officials or former President Nixon on the subject of leaks Under the Act we have until COB January 28 to respond We are e ntitl ed to an extension of ten working days if we show unusual circumstances Discussion Before considering the alternatives to be considered in responding to the Safire request we should first address the preliminary legal question as to whether the making and retaining of the transcripts of your telephone conversations was consistent with relevant laws and regulations The Supreme Court in 1971 in the case of United States v White upheld the legality of one party to a t e l ephone conversation making a record or recording of that conversation Although that case involved the u se of recordings in police investigations we believe its p rinciples are clearly applicable to a high p ublic official who has his o wn conversations monitored In our v iew this CONFIDENTIAL GDS DECLASSIFIED p uthority il-- N D19 CONFIDENTIAL - 2 - practice ·in and of itself offends neither the constitutional guarantees of the Fourth Amendment f or the provisions of Section 605 of the Federal Conununications Ac We have found no other statute that precludes a party to a telephone conversation from having that telephone conversation monitored In fact the Omnibus Crime Control and Safe Streets Act of 1968 specifically states that It shall not be unlawful ••• for a person not acting under color of law to intercept a wire or oral conununication where such person is a party to the conununication or where one of the parties to the conununication has given prior consent to such interception 18 U S C 25ll b Another question raised is whether there was any legal restriction on your transferring the telecons from the White House when you became Secretary of State First it is clear to us that you did not violate any of the court orders issued in the Nixon papers litigation Those orders applied only to documents and materials in the custody of the named defendants in that litigation or their agents or superiors The first of these orders was not issued until October 21 1974 at a time when all of the telecons were already here at the State Department Nor do we know of any inconsistent statute or regulation except perhaps the internal White House procedures under the Nixon Administration Those procedures required each White House staff member upon termination of employment with the staff to turn over to the White House central files all papers in any way related to his performance of official duties at the White House Tab 2 Those procedures according to Buchen ceased to be effective after President Nixon's CONFIDENTIAL CONFIDENTIAL - 3 resignation on August 9 1974 Since you had not terminated your White House position when these procedures expired you were not required under the procedures to turn your telephone records over to White House central files Moreover as the Halperin suit has demonstrated you had need to use the records even if they be regarded as White House papers You should however be aware that on September 23 1970 the Department of State issued a notice stating that whenever it was necessary to monitor telephone calls advance notice must be given whenever a secretary or any other person is placed on the line for any purpose whatsoever This notice appears to have had the force of a procedural directive which you presumably would have had the authority to rescind or modify We have found no formal government-wide prohibition on monitoring The only thing that comes close is a GSA pronouncement that in the future it would not install dead-keys on telephones This does not preclude the retention of dead-keys on telephones already in existence With this background we turn to the alternatives in responding to the Safire request Response to Safire -- Legal Alternatives In responding to the Safire FOI request the principal alternatives are 1 treating the telecon transcripts as personal records 2 treating the transcripts merely as non-agency records without getting into their status as personal or government property 3 treating the transcripts as subject to the FOI but protected under the specific FOI exemptions 4 treating transcripts made at the White House prior to August 9 1974 as part of the Nixon papers and 5 treating some of the transcripts as personal records and some as government records These are discussed below in order 1 Treating the transcripts as personal records We believe a strong argument can be made that your telecon records are private records and not government documents From a legal standpoint success in maintaining this position would have several advantages CONFIDENTIAL CONFIDENTIAL - 4 - Under the FOI only agency records are subject to production If a document is a personal and not an agency record it is not covered by the statute Personal records which contain no direct references to Halperin or wiretaps would probably be exempt from discovery in the Halperin litigation If the records are personal you presumably would be able to retain them after you left office or at least to control their disposition It is not clear however that a court would accept our argument that these memoranda are personal in nature The FOI is a fairly recent statute it contains no definition of the term agency records and there has been little judicial construction of the difference between an agency and a non-agency record It could be argued that insofar as records relate to any government business they should not be treated as personal in nature This view finds support in an early opinion in the Nixon papers litigation in which Judge Richey said that any material generated created produced or kept by a public official in the administration and performance of the powers and duties of a public official belongs to the government and may not be considered the private property of the official Nixon v Sampson 389 F Supp 107 133 D D c 1975 That opinion also cites a number of other cases which hold that materials made by a public official in the course of his employment are government property and that whenever a public officer keeps a written record of government transactions the record becomes a public document On the other hand it does not make sense to maintain that a high public official may not keep a personal record exclusively for his own use of the matters he discusses over the telephone Such records protect CONFIDENTIAL D CONFIDENTIAL -5one against misquotation They also protect against possible future attacks against the official's reputation It would seem that a court should look at the reason a record was made and the ultimate use made of the record If a record is not intended for others in the government and if it is restricted to personal use then arguably it should not be considered government property Our position on this would be considerably bolstered if we were to receive a favorable opinion from the Justice Department It must be acknowledged however that in order to establish this position we would have to break new legal ground 2 Treating the transcripts merely as non-agency records without getting into their status as personal or government property Under this approach we would simply argue that your White House telecons are not agency records within the meaning of the FOI It would put off the question of whether the records belong to you or to the government There are two legal grounds for concluding that these records are not agency records under the FOI First as the Assistant to the President for National security Affairs you were a member of the immediate Office of the President It is clear that under the FOI the Office of the President itself is not an agency and papers generated in the Office of the President need not be disclosed Technically this would not be the case if the transcripts were deemed to be NSC records because the NSC is considered to be an agency under the Act second we could make an argument similar to the one outlined under alternative one -- i e that records intended solely for personal use are not agency records Even though the telecons may one day be held to be government property they are not the type of records that congress intended to subject to public access under the FOI This approach again has considerable logic but unfortunately no judicial authority to support it J Treating the transcripts as subject to the FOI but protected under the specific FOI exemptions CONFIDENTIAL CONFIDENTIAL -6Even if some of the telecons were deemed to be agency records there would still be other defenses available under the FOI For example if the telecons were classified and appropriately marked as classified they would be exempt under section b 1 Moreover many of the telecons might be deemed to be intra-agency or inter-agency records which are exempt under section b 5 The difficulty with this type of argument is that individual transcripts must be examined to determine under which FOI exemption it might fall Moreover our determination that a particular exemption is appropriate is subject to judicial review by means·of in camera inspection of the documents 4 Treating the transcripts made prior to August 9 1974 as part of the Nixon papers This possibility was suggested to us by Phillip Buchen On further reflection we see a number of disadvantages to it although the approach is helpful insofar as the Safire request is concerned The transcripts covered by Safire's · request mostly appear to have been made du ing the Nixon Administration As part of the Nixon papers they would be subject to the Presidential Materials Preservation Act of 1974 and therefore according to the White House lawyers beyond the reach of the FOI Support for adopting this alternative is provided by the Nixon Administration's procedures on White House office papers Tab 3 Those procedures which remained in effect until August 9 1974 provide that all White House office papers are the personal property of the President The term White House office papers was defined to include all papers or records relating to official business made or received in the course of official business at the White House One practical disadvantage of this approach is that it would associate your transcripts with the Nixon tapes From a legal standpoint this alternative would not protect transcripts made during the Ford Administration or transcripts made during the Nixon Administration but - at the State Department --------------- - - - we understand this legal conclusion has not been specifically approved by the Attorney General CONFIDENTIAL CONFIDENTIAL -7Moreover those transcripts which were protected under the Presidential Materials Preservation Act would ultimately have to be transferred to the GSA Administrator who is given custody and control of the papers under the Act GSA has issued regulations for administering and processing the Nixon tapes and papers Under these proposed regulations a team of archivists would initially review materials The archivists would segregate private or personal materials from the collection for return to the author However the term private or personal materials is defined in the regulation to mean only those materials having no connection with a person's constitutional or statutory duties or political activities as President or as a member of the President's staff The practical effect of this is to leave to the GSA all materials relating to government business Also under the proposed regulations the GSA Administrator would be required to afford public access to all of the materials except those which were classified or those whose release would violate either a federal statute or a person's constitutional right or privilege The GSA would decide claims of privilege In sum you would not be certain of access to or control over those transcripts included in the Nixon papers 5 Treating some of the transcripts as personal records and some as government records Under this approach we could concede that those transcripts which were materials of significant government business which had been transacted by you would fall within the category of government records Or we ·might try however difficult the task to establish some less inclusive definition of government record For those transcripts which were categorized as government records some or all may be withholdable because they were classifiable or because they come within one of the other FOI exemptions To implement this alternative we would have to make an immediate examination of all the transcripts in order to segregate the personal from the governmental and also for those in a government category to determine whether any of the FOI exemptions might apply CONFIDENTIAL D CONFIDENTIAL - 8 - Recommendation Since the legal questions will require detailed analysis we recommend that you authorize us to request a 10-day extension before responding to the Safire request Approve -------- Disapprove --------- Attachments Tab 1 - Request from William Safire dated January 14 1976 Tab 2 - White House Papers Procedures during Nixon Administration cc S - Mr Eagleburger Drafted L MDSandler MLeigh edk X 22149 x29598 CONFIDENTIAL CONFIDENTIAL - 8 - Recommendation Since the legal questions will require detailed analysis we recommend that you authorize us to request a 10-day extension before responding to the Safire request Disapprove Approve -------- Attachments Tab 1 - Request from William Safire dated January 14 1976 Tab 2 - White House Papers Procedures during Nixon Administration cc S - Mr Eagleburger Drafted L MDSandler MLeigh edk X 22149 x29598 CONFIDENTIAL -· N JC ' C· U l f - •0 r Q t mC G '--' WA3HINGTCl J eui EAU _ 1020 L srnE ET -WASHlr IGTOJ C C 2 36 20 21 293-3100 w WILLIAM SA FIRE --··-· - _ January ll 1976 The Secretary of State State Department _ -Washington D G · _· ·-1 · _ i l' J Sir i· _· · - _ ' J - t f · 1 · _ J · · the· provisions · of· the Freedom of ·rnforrnation Act as amended I request informa · · ·· · ti'011 ·•from transc ripts of ·telephone coi1versa tions no v thC CUStody of N Lawrence s Eaglequrger -··of· the _tate___ Department Under ·· J- J _ J· j _- r J in ·· · · ···· · · For·-yerification of the existence of such ·- records yo r attention is called to· Federal --D fendant Kissinger's respo Q ses to plaintiffs' -· first set of interrogatories 11 Civil Action __ No 1187-13 in-th U S District Court for the · District of·Columbia pp 46-47 which reads • • • • • • ··- •• • • •• tz • • • • • • - • • • - ·· - - · ·••Business t ·lephone conversations· from my ··· · · ·white· House office during ·this period were usually monitored by my personal secretaries and records - prepared in accordance with routine gov rnment · -p·ractice _iri order o facilitate implementation l • · With respec·t to _records f telephone -conversations in which -I -parti cipa ted and corresporidence I wrote or received during the period Jan a y 21_ 969 throug1 J tn a- y _12 1971 I • i · 2 p 4 · The Secretary of State · - •-- ------ •• and-follow-up of business transacted • Correspondeace was deposited ·with 111 ite House Central Files or Substantive Files 71 B Where and in whose custody are such records now If you do not know where they are now where an in ·whose c sto_tjy were they last 11 - _ - o you·r know 1 edge ·· Response All such records ·with· the ex- ception· of the records of my telephone calls are i the White House They axe in the custody pf tl1 e NSC staff The tE lephone record$ are in the State D epnrtrne·nt in the custody of Mr --·_La r ncc S' Eag cburger · · · - -· ' signa-ture · HENRY A KISSINGER -- 1 Please send me photocopies of all tran · -- - scripts including rough drafts 'if such e _ist • - ·-· which my- na e appears · _- -· - - 2 - Please s·end me pl-iotoc·opies of all tran·- s ripts including rough drafts if such· exist conversations b_etween Mr Kissinger and General - · -· Jaig or Mr ' Kissinger antj_ Attqrney General John · Mit h 1_ _or Mr Kissinge - a_ d J Edgar Hoover or Mr Kissinger and any other official of the • FBI or of Mr Kissinger and Presid nt Richard · -· __ · xon in which the subject of leaks of· Qf 3 · The Secretary of State --·-··-··- -- - infoim ti6n was discussed As you know the amended Act provides that if soille pn rts of a file·ure exempt from release that reasonably ·segregable portions shall be provided ·1 therefore request that if ·you determine that some portions of the requested -t i information are xa npt' you provide me im TUed-1 a tely - with a copy of the remainder of the file I of · course ieserve my right to appeal any such -· decis tons ·-rf you determine that some or all of the iriforrria tion i·s ·exempt from release l- wo uld apprccia te your at iyi_sng me· as to whi h - xemption s you believe covers the inf6rmation · · wh- ch y o ar· n9t_ r leasipg _ -- ·r·eque·sted - • ••• • • •ff • •• ·• · I am prepared to pay co ts spe ified in your --r gulations for locat tng h·e requested files· aiid ·· · - ·· reproducing them ·· · _ As you know the amended Aqt permita you _to r educe or waive the fees if that is in the public interest because f rnishing the inf rma -·-·tion can· be con tc r·e_d as primarily bei -tef ting th P blic I _believe that this request plainiy · fits that c·ategory and ask you to aive an v ·fees - - · · · - -· · ·- · - · - __ ·· If you have any questions regarding this ······ · · rEiquest ple·ase telephone -me at -the numqe_r on this letterhead - -·- ·-· - · As prbvlaed for iri the amended Act· ·r -will · expect to receive a reply within ten working days 1 - e e y _ l I • ·- _ s r ' _ -- ' William Sa£ ire - - __ Social Sec rity # 103 22 7703 Date of Birth 12 17 29 Place of Bir th New Yorl US -- f • I ' -· -'I ---- Hy custom In effect up to August 9 1974 WHITE MOUSE OH'IC PA RS and t r ulit ion all vhitc- IIc us om -- Jlll positirm as he- may fot rmi w t the close of the A clministrat ion the l'ntirc colhiction of paplirs now Lc•ing cn'atcd rn 1y l c expccHd to Ix deposited in a Presidential ibrary similar to the libraries thnt pr en·o the pa pcrs of the lo st six Prcsident s To provi lc the Prcsid nt with n complPtc nnd rtccura le record of his tenure in oillcc tlm vhitc House staff must oversee the prcserrntion of the papers it generates 'Die procedures set forth in this document represent tho colle ctive t-hinking of many members of the _st fI as to how bf °'t to preserve papers and docwnents for the President Compli mco wit h t hcsc procedures is an expression of loyalty by the staff to the President- For the procectures to be cffecti 'c it require cooperation and assistance of Wery staff mcmuer Tho security clas iification of e i ch clocumc nt prepared i 1 the White House is determined hy the individual staff member writing it in accordance with Executive Ortlcr 10501-or other applieable Exccuti C Ordl rS l lc h 1' i Onsible for insurin that the classification assigned to his work rcflcc t the sensiti ·itv of the material concermd and al o for ma kin« crtain that thjs classiricntion' is not 0 excessiYcly restricti ·c records whether or not u l opt cJ nm lc or re cci ·cd in tho course oi ofiicia l liusin 3 E'ach staff J ftce shall jorwarfl r' gu larly to Central Files thre copies of all o t1 Jing o lticvzl bu siness consi ting oj corrc spond mct a d m uwm1vla One copy of all otlt er outgoing -related materia s sltou ld also be filed 4 Ea cl stafi offi'ce tall jor tiard regi w rly to Oeni1' Ll Files a iy incoming offi i Z w i ncss from sources other tl m lF tite House sta ff ojJicci ajler action if any has betm taken En ch stnft c fibe if it so desires may keep ·n copy of such incoming official business for its own working files E'acti stctl 0 il Ce •n l Oru iru rc 'JU a - y to 8 ta wm Oentrcl F-ilcs any originals of foco1 1-in J c icfrll bwlinese from other ff hitc I OU$e - t 1 ff cPlcc-s 1 f er actio·n ·ij any iu J lJt·tn take·r awl if sucit ori7i1ia r were -not intended to be returned to th -·1 ndcr_ If dt'sircd n copy may be kept for tho stutt s working files 6 E'ach rdctff oi ice slwll forlr ar l lo Ccntra t Pi cs at such tiuzes a it dcterm i-nc to be ·' I11pro1 ia te • all 1cor i11g files oj c 1fil-ial bwtin j idte'r t rue inactiz e a ul no longer needed Theso filc will b stored by ofltcc as well as listed by suhj t m tter They ·will of course 'always be anLila Llu for nt-0r Whito House or ice Pap rs Fi ing wifh Ccmtral Files 4 of nM• spnpc 1-s or mnge r ine dippin n nd copics of re orcls of n 1u•1 0111wl nnturo rclr iug to n p r• i-mn ·s mnplny111c11t 11 - rpn·i · · J n onH 1 Jih· t iwuili not indU fo rmy - •pie clrnft8 or wo1·ki11g- papers tlw t relntc to oflieiai businc -ss or any loct mer ts or rcg-1ti·dt d ns r iu p 1• c nal 1u·o1H 1·ty of tfod 'n• id ·nl a tnl rnl jt•r·t to mch 'ontrnl uud disJmpcrs ---- t rcferrnco_ 1 Jt fa re guested that the ma xi1m em poa i le use be 1n- 1de of Central Files an l t Le procedures li8led below be followed This will aid in the fn ster 7 1 ·ac 1 staff o lce at its own c i screticm mrzy seq regfl te any matc ·ials tiul t it belicl es to uc parti ularly 8en itive and -u hic t - hould 1 ot be ftlcrl t Rtb ject matter Su h sen iti ·c 111 1t criais ihc 1 lcl be and more complete· retrieval of current infom ation e-liminat-e uam c a ry duplic t ion of files prcn•nt c ccssi ve xc roxrng unu m u rnuze preser ·e tiou of 'White Jicusc papers 2 E9ach ta f m mber sh all 111 aintai n his pe i· mal files srpamte from an ir or ing es he 1111 1 y J cep cm o Jiciui l u 'iinCMJ a1i d r lcarly dr 1i1na c them a t sucli l'l•1-so1i 1 l iill' s iriclude corrci- pomlence unrelated to auv oflicial duties pcrform d by the st air m tnbf r pc1 s m d hooks p n ptdt•t s ind r eri d i·· · u • · 1 •lt' lj· • · ·· •- n· Jo l ub · fohl r ·- 11· · ·· •1t- h v1 s ionvnrclcd to the Scali' ecrctar · m the same l asis as outlined in p iragraphs 3 th rough r in m 'clopc marked SEX S lT l E RECOHV -- FOH STORAGE with tho oilic-1 or individual fror 1 which they ir ' sent marked on tl1c m t 5id nnd appropriate u fot of inrnntory in g nera t r ns ntt 1 d1l d This l st of in ·cntory --hou d ahm l c sent to Ccnt ral Fil s so that not ious c na br m ufo in subji ct files that c crrnin mattH·ial i 11 i - in from the i · 'f l' e m r1 rial -- · ill bi i d ifl k d h n1 •rs a nd · -ill only l- n dc tt 'idla de t t te H• en- t I Jividu3 l or om from whom till' H'l l rrCC-1 I d 8 Xo d ·j c m cl ri11l r ·fo siJt d wfrr 1 - cccutfr J · n· ·sr 10 - I J 11 il d 1 i 11tio1t oj 1'0P 1 s1 ·1 J t T u i e - frir·l d a ta ur Ju th Atomic J• m•1'g 1 A · of J J ' wu l br _io ·wt11·d ut to Ct 11 lr l Fi -_ __ 11 s1wla 11ml •1·ial --hnultl l forw u·dL·d t o t lu• St n tT c• ·rt•l n r ' fur urn •·· Jt_ _ Y11 · •· rrr pl ion v lo tl r a m1·1 d1flll l11 ·mad t r 01Mc1tl of tlu f otm Jr l to tltr rJ·prc Prr tiiknt Aclditionnl t l vier on tha 01 er il ion of Contml Files mn y be obtained from Frti nk Mattlu ws Chief of CcntrnrFiles Ext 2 H0 witl o t l e White Housg Office Papgis Disposition of Papers Upon leaving Staff 1 Upon term i·nation oj cm-ployment wUh tlu staff each staff mem-ber 1 vill turn over lt i s entire file s to Oentral F-iles with the exception of iwy personal filc s lte miglt t llavc maintained 2 Perso nal files ·inc ude correspondc mco um-elatod to any oftlcinl duties performed by the stllff member personal books pnmphlet s and periodicals daily appointment books c r log books folders of newspaper or magazine c1i1 pings and copies of records of a pcrsonn 1 nature relating to a person's employment or sen·ice Personal fil s shouid not include my copies drafts or working papers that rehtt e to official busincs ' or any doouments c r records whether or not adopted m de or rcccin l in tl1e course of oflicial busines - The Yhite I Iou il'• Office of Presidentfol Pape staffed by J' ' prC' cntatives of the Xn ti0 1al Archive - is tn-uilubl to assist statT members in the dt terminution of - ·hat • aro personal files Any qu stion L' l this reg 1 rcl should be resolved with their as s • l ncc by co 'l to cting John S esbitt supcn·isory u rchh·ist oi thr Office of P rcsi len tial Pa pcrs Ext 2 - 5 1 ••111-bcr t1710n ll rm tv tirrn of cn pln • i di'$ rclit n 111 h r npi · t1 jvr r • - - • ' •i h• 1 1 L ui·t•full I ciu • _ i·c ·•-·ti - n f lAt follr u 'i -17 ty1 - · of tlo u 1cc11 ts wit l tn J i j -le A Docu m cnl whid1 entbod vr · 1irwJ in tr lleotual tlwuy 1tt r t nt ·il 11 t-d l y th · - a f m1 m l1 r ur h u l'l' - 1 1 nr h work n rul di· tfl - uurn hip oi t'Cc·ht• imti h·gi l lt ion ll ocu11n·nt ·wlticli mi 1ht bl' n1 '1 r rtl m ju lure related work by the £1 liddur l 4 1·vo ataff me1n be1· v shal l mal e copfo8 a 1 pa·mitled i-n paragraph tltrca of any doc-- i menty 1 1 ·b fo c nta in defense 1na terial clalJified as 00 YFI - · - DEN tIAL SEORE1' OR TOP SE CRET mukr cecuJ ivrJ Order No 10501 lesfr ctt d Da fa uMler tlte Ato nfo E1wrgy Act of 195 J c r ·t-njormAtfon supplied to the go·ve1·11r ien t tl-nder 3fa tute -1 ·11 Mch make the liscwsure of such injonn atior a crime 5 A aclL staff mem bcr·u ho dec-id 1 tn -ma e copfc3 of sucli clocm umts describecl in 1mrc graph three s ialt lcm·e a list of ll m i docu nerds copied -with Central Files This will en ble r trieva l 0£ n document in t-hc o ·cnt that a 11 other ctJpie5 of it and the original should be fat er lo t 6 Tlte discretionary authori y gmn tcd in paragraph ·thr11e is e pEctcd to be e i -erei srd parh1 gl 1 mul not abused All Yhite House Office papers including copies th reof a re t h per onR 1 prop rty of the l'r ' 5idcmt nnd should b rc pe tc l us such Any copies retained by a staff n1cmber should b st orccl in a secure rnunn r and Jn tint tim·cl confidentin lly 7 All confident inl nnd · nsit i -c __r mt rfo 1s wm be protected from premature clisclc m by r t ci c prO ·isions of the Prcsident b l LH rnr r s Act ni 1 55 44 U 8 C 210S • r t t I i t l f I f l