---- -----------------·-· • - --·- - F ruary 9 1976 Memorandwn of Law FOX REQUESTS FOR MEMORANDA OF TELEPHONE CONVERSATIONS This is a preliminary legal analysis of issues raised by requests under the Freedom of Information Act FOI for transcripts of telephone conversations involving Secretary of State Kissinger Although the FOI requests speak of transcripts the documents in question range from incomplete summaries to detailed memoranda of telephone conversations but are not strictly speaking transcripts Succeeding parts of this memorandum Tabs 1 to 5 treat the following legal questions 1 Ownership of the _Transcr pts If a cabinet official owns memoranda of his telephone conversations the memoranda presumably would be agency records within the meaning of the FOI Conclusions about ownership are not clear Personal ownexship is supported by a Cabinet Paper during the Eisenhower Administration which states that memoranda of conferences and telephone calls and other personal work aids may be retained by heads of departments upon leaving office And Porter County Chapter v Atomic Energy Commission 380 F 1 Supp 630 N ·D Ind 1974 holds that a governmentemployee's handwritten notes not circulated to anyone else in his agency are ·personal papers and not agency records under the ItOI On the other side the cases support-an overriding government interest in having a complete record of all agency business If a telephone memorandum is the Government's only record of a substantial Government decision the Government may own or have a predominant interest in the memorandum However where one has consistently treated a document as private and where the government already has a complete record of official matters described in the document the document may be deemed a personal paper United States v First Trust Co of St Paul 251 F 2d 686 8th Cir 1958 I DECLASSIFIED ' Authority ·rJ fl j 1 - 2 - Finally conclusions about ownership may be · affected by the outcome of the current Nixon papers litigation as well as by a report due by March 31 1976 by the National Study Commission on Records and Documents of Federal Officials 1 2 The Agency Record Requirement Apart from questions of ownership an argument might be made that some of the telephone conversation memoranda are White House papers and hence not agency records subject to the FOI It seems clear the memoranda prepared in Secretary Kissinger's for er White House office would not be agency records even though they are now stored in the State Department But this White House papers argument might not protect memoranda prepared in the State Department itself except perhaps memoranda of a conversation with the President Moreover this White House papers argument might bring some of the memoranda under the Presidential Recording and Materials Preservation Act of 1974 whose legislative history indicates an intent not to limit access otherwise available under the FOI see Tab 3 2 The memoranda would receive broader protection if they were personal papers such as those at issue in Porter Country Chapter v Atomic Energy Agency The critica Tfact in that case was that documents had not circulated to anyone in the agency other than the author Secretary Kissinger's transcripts have not strictly speaking been circulated within any agency but they were initially reviewed by Secretary Kissinger's im t ediate assistants so that undertakings by the Secretary is a conversation could be followed up This factor should not by itself convert a personal paper into an agency record but this is not clear 3 Exemptions Via Presidential Papers Statutes FOI Exemption 3 protects materials specifically exempt from disclosure by another statute The Presidential Recordings and Materials Preservation Act of 1974 may be one such statute Cf Nichols v United States 460 F 2d 671 10th Cir 1972 - - However the Act would not apply to memoranda after August 9 1974 and perhaps not to memoranda prior to August 9 1974 which were prepared at the State Department As to memoranda which would be covered a reference to the FOI in the legislative history casts doubt on whether a complete FOI exemption would exist ·- DECLASSIFIED Authority ·rJ tvJ 1 $' qS • - 3 - A donation of the memoranda to the National Archives under the Presidential Libraries Act 44 u s c 2107 would qualify under FOI Exemption 3 Nichols v United States supra The legal effect of the underlying donation however may be placed in doubt either by the Nixon papers litigation or by legislation which may be enacted in light of the upcoming report of National Study Commission on Records and Documents of Federal Officials 1 4 Exemption for Classified Material FOI Exemption 1 protects material properly classified under Executive Order 11652 Some of Secretary Kissinger's memoranda contain national security information but they have been neither reviewed for classification nor marked as classified Although there are no court decisions on belated classification E O 11652 and regulations thereunder indicate a basis for now classifying those memoranda which have national security information Also the Justice Department has taken the view that where an agency has treated a document with the same precautions as would be appropriate for classified material it may give the document a belated classification if the document contains national security information 5 Exemption for Intra-Agency Memoranda Memoranda of conversations between two government officials readily fit within the concept of an inter-agency or intra-agency memorandum in FOI Exemption 5 As for conversations between Secretary Kissinger and someone outside the government two cases indicate that memoranda of such conversations would also be covered if the conversation involved the expression of opinions or recommendations to Secretary Kissinger Wu v National Endowment For Humanities 460 F 2d 1030 SthCir 1972 Soucie v David 448 F 2d 1067 1978 n 4 D C Cir 1971 Not all intra-agency memoranda are protected under Exemption 5 but only those which would not be available by law to a party in litigation with the agency Clearly this would encompass advice and recommendations as to what decision or policy the government should adopt There is also a growing doctrine that the mental processes of a government official in arriving at a decision or policy should also be protected Montrose Chemical Corp v Train 491 F 2d 63 D C Cir 1974 citing Morgan v United States 313 U S 409 422 1941 International Paper Co v FPC 438 F 2d 1349 1358-59 2d Cir 1971 Soucie v Davicr supra 448 F 2d at 1067 cf Vaughn v Rosen 523 F 2d 1136 DECLASSIFIED I Authority · J r JJ 1 S' qS ---- 2 I 11 I 3 - - - - - - H- 0 - - - - - - - - - - - - - 4 - D C Cir 1975 holding that not all pre-decisional documents are exempt but only those which express opinions on legal or policy matters or are a part of the agency give-and-take by which the decision itself is made Thus there is a basis for contending that most if not all of Secretary Kissinger's telephone memoranda are protected under Exemption 5 Invasion of Privacy There is stili work to be done on whether compelling disclosure of the telephone memoranda would result in an invasion of privacy If a privacy privilege exists it more probably would have a basis in tort law principles or in the Constitution than in FOI Exemption 6 It seems clear that Secretary Kissinger as a party to a conversation is free to disclose a memorandum of the conversation to others But query whether he can be compelled to disclose that conversation DECLASSIFIED AuthoritY ·rJ tvJ 1 qS$ l January 30 1976 FOI REQUESTS FQR TELEPHONE TRANSCRIPTS OWNERSHIP OF THE TRANSCRIPTS This memorandum discusses whether Secretary Kissinger has property rights in memoranda of telephone conversations that were prepared primarily for his personal use during the years 1969-75 The nature and subject matter of these memoranda are described in an annex to this memorandum If the memoranda are personal property they cannot be agency records subject to an FOI claim Porter County Chap v Atomic Energy Commission 380 F Supp 630 N D Ind 1974 discussed at Tab 2 The rights of government employees in materials produced or accumulated during the course of their employment is uncertain particularly in the aftermath of the Nixon papers controversy The Supreme Court has never ruled on the question Although lower court decisions have espoused the principle that material generated by a public official in the course of his employment is owned by the government some decisions have recognized limited rights of public officials in some materials which relate to official duties Nixon v Sampson Litigation The question of ownership rights of public officials is currently being litigated in Nixon v Sampson 389 F Supp 107 D D C 1975 Nixon v Sampson involved the validity of an agreement between former President Nixon and the GSA Administrator under the Presidential Libraries Act 44 u s c 2107 The agreement purported to donate approximately 42 million documents and tapes of the Nixon Administration to a depository under the GSA Judge Richey's opinion in that case was stayed by the court of appeals on January 31 1975 pending a decision in a companion case Nixon v Administrator in which the constitutionality of the Presidential Recordings and Materials P eservation Act of 1974 was ultimately upheld by a three judge district court The three judge court requested the court of appeals to lift its stay of Judge Richey's decision in Nixon v Sampson The court of appeals has not yet acted Thus Judge Richey's opinion has not yet been incorporated into a final j udgmen t • DECLASSIFIED Authority ·rJ rvj 1 $' qS -•2 - Administrator and Archivist of the United States In reality however President Nixon retained substantial control over the donation He was permitted to direct the GSA Administrator at any time to destroy the Watergate tapes He also obtained the right to withdraw any of the other materials that were to be donated President Nixon brought suit for specific performance of this agreement or for writ of mandamus directing Sampson Philip Buchen and Secret Service Director Knight to comply with the agreement Neither the United States on behalf of Sampson nor the Special Prosecutor who intervened in the suit contested Nixon's ownership of the papers Rather the Special Prosecutor contended that the Government had an overriding interest in the tapes and p·apers The United States argued that the suit was barred by sovereign immunity in that specific performance will not lie against the Government However Jack Anderson The Reporters Committee For Freedom of the Press and Lillian Hellman in separate suits sought declarations 1 that the tapes and papers belonged to the Government and 2 that they were subject to the FOI It is through these latter suits which were consolidated with Nixon v Sampson that the ownership question arose In the consolidated Nixon v Sampson litigation Judge Richey held that President Nixon did not own papers and tape recordings which were generated created produced or kept in the administration and performance of the powers and duties of the Office of the President · Judge Richey concluded that such materials and tapes belonged to the Government and are not personal property of the former President 389 F Supp at 145 It is important to keep in mind that President Nixon made an undifferentiated claim of ownership to approximately 42 million materials He did not distinguish between papers he was personally involved in from those which he never saw Nor did his claim focus on papers or notes prepared solely for his own personal use V Because of this Judge Richey's holding does not control the question of ownership in the Secretary's telephone conversation memoranda Indeed Judge Richey's holding applies only to papers that are produced or kept in the administration and performance of the powers and duties of the Office ••• It is arguable that the DECLASSIFIED Authority ·rJ tvj 1 qS $' -1 l - 3 - r- Secretary in having the telephone conversation memoranda prepared was not strictly speaking acting in the administration and performance of the powers and duties of his office Keeping the memoranda does not further the government's business but rather serves to protect the Secretary Moreover Judge Richey's opinion implicitly accepts the view that some of the Nixon papers and tapes were personal property In discussing President Nixon's right of privacy the opinion notes that Nixon did not have time to remove his personal materials and tape-recorded conversations and states that a person's expectation of privacy is not eliminated by the fact that personal property is in the possession of the government 389 F Supp at 156 Also the opinion indicates that the Nixon-Sampson agreement was valid insofar as it pertained to personal materials Id at 143-44 Thus Nixon v Sampson would not preclude a claim that Secretary Kissinger's telephone transcripts are personal property It must be conceeded however some of the prior cases quoted in the opinion intimate a broad view of what papers are government as opposed to private materials ✓ Prior Cases Supporting Private Ownership -- Among the authorities on which Judge Richey relied in Nixon v Sampson is United States v First Trust of St Paul 251 F 2d 686 8th Cir 1958 There the court said that records of a government' officer executed in the discharge of his official duties ••• are public documents and ownership is in the United States Although Judge Richey cites this statement the actual holding in case was quite different co The case involved rough notes made by William Clark during the famous Lewis and Clark Expedition of 1804-05 About 150 years later these notes were found in the attic of a lady who had just died The executor of her estate brought suit to quiet title to these notes The United States intervened claiming that the notes were Government property DECLASSIFIED Authority ·rJ rvj 1 S' qS - I I I • - 4 - The court held that Clark's notes were private and not Government property This was so even though the court found that Lewis and Clark were on an official expedition of the Government The court relied on the following findings Clark made his notes for his personal use in subsequently preparing his own diary Clark's comrade Lewis was directed by President Jefferson to keep an official record of the expedition but this directive did not extend to Clark Moreover since Lewis did in fact prepare an official record of the expedition this supported the view that Clark's notes were not official records Lewis Clark and President Jefferson subsequently treated the journal that Clark prepared from his rough notes as a private document Although Clark's notes contained much of the data that Jefferson had requested Lewis to collect in the official record this data was mixed with considerable personal and private notations as might not be expected to be found in notes of an official character or in an official record -- Private possession of the notes for over a century afforded a presumption of private ownership in the notes placing the burden on the Government to prove that the notes ·were not private property Secretary Kissinger's telephone transcripts appear to satisfy many of the above criteria Presumably the Department of State has an official record of most matters discussed in the memoranda The memoranda have been treated as private they have been kept for the personal use of the Secretary and they apparently contain considerable private matter On the other side however it is possible that some of the transcripts embody the only written records of some foreign policy decisions of the United States DECLASSIFIED Authority - rvJ 1 qS S - I I - 5 There are a couple of other authorities that indicate the existence of private rights in certain kinds of papers prepared in public office In Eyre v Higbee 35 Barb 502 N Y Sup ct 1861 it was stated that in writing to his private military secretary General George Washington did not part wholly with his property in these literary compositions nor did he give his military secretary the power of publishing them In Folsom v Marsh 9 Fed Cas 342 C C D Mass 1841 publishers of a work entitled The Writings of George Washington claimed that their copyright had been infringed by a publication of some of Washington's private letters that these publishers had purchased The defendants replied by arguing that there could be no infringement because the letters were public in nature Justice Story noting 1 that the publishers had expended considerable money and effort to collect the letters and 2 that President Washington himself had deemed them his own private property recognized the copyright The opinion in Folsom notes that in addition to the private letters some of Washington's official letters were also involved Unfortunately the opinion does not discuss how the official letters were to be distinguished from the rivate ones In this respect the Folsom case is not terrib y helpful ' -- ____ _ In Re Roosevelt's Will 190 Misc 341 73 N Y S 2d 821 1947 concerned whether President Roosevelt had made an effective gift of the personal and public papers he had collected The public papers included Roosevelt's office files and the White House Central Files of his Administration Roosevelt's Map Room Papers were apparently not considered a part of the gift The Court found that Roosevelt during his lifetime had intended to and did in fact make an effective gift of his personal and public papers to the United States Government to be preserved at the Franklin D Roosevelt Library at Hyde Park This holding appears to assume that Roosevelt owned --r- o t h his personal and public papers But this ownersbi p -- · ___ issu was not addressed The opinion does A -state that Roosevelt had expressed a wish that a c ittee examine his personal papers and select those which in DECLASSIFIED Authority ·fV tJ 1 qS $' --- IJ ' Y' - • - I 6 - their opinion should never be made public and those which should remain sealed for a prescribed period of time •• The court found that this was a mere wish and not a condition to the gift which the Archivist of the United States was required to follow Judge Richey in Nixon v Sampson distinguishes this case by asserting that the question of ownership was not involved but only whether the elements of a valid inter vivos gift had been satisfied The case can be read to support Judge Richey's characterization Finally there is a case involving Admiral Rickover's copyright interest in speeches Rickover gave while employed by the Government Public Affairs Associates Inc v Rickover 268 F Supp 444 D D C 1967 on remand from 369 u s 111 The district court held that although the speeches were typed duplicated and distributed through government facilities the speeches were private property •• entitled to copyright 268 F Supp at 450 This holding was based on the following considerations the speeches were prepared at Rickover's home in his free time Rickover treated the speeches as a private activity and did not seek the permission of his superiors in advance I _ the copyright notice borne by the speeches listed only Rickover's name without any official title the subject matter of the speeches did not relate in any way to Rickover's official duties The first and last factors listed make the Rickover speeches distinguishable from Secretary Kissinger's telephone transcripts The second factor is consistent with Secretary Kissinger's treatment of the transcripts On the latter point see Porter County Chap v Atomic Energy Commission Tab 2 pages 5-7 holding that a government employee's handwritten notes not circulated to anyone else in his agency are not agency records under the FOI ' DECLASSIFIED Authority ·rJ tvj 1 $' qS - I 1 --·· • i ·• Prior Cases Supporting Government Ownership There are a number of cases where papers retained by an official were held to be Government property All appear to be distinguishable from the telephone transcripts problem In United States v Chadwick 76 F Supp 919 N D Ala 1948 a Department of Labor employee made notes and memoranda while investigating a labor law violation Upon leaving the Department the employee took these notes and memoranda He then was hired as a consultant by the very parties whom he had been investigating The court held that the notes and memoranda were Government property and enjoined him to return these papers to the Department of Labor Perhaps the obvious conflict of interest colored the court's decision Also there was a departmental procedure requiring that all work papers relating to an investigation be included in the investigation file People v Peck 138 N Y 386 34 N E 347 1893 concerned the power of a state Commissioner of Labor statistics to destroy data on which he based statistical reports to the legislature The court said that without the data the government could not test the accuracy of the reports In other words an official could not deprive the government of a record of government business The record was deemed government property Secretary Kissinger's telephone transcripts fit within this rationale only to the extent the transcripts contain the only written record of a foreign policy decis on of the United States Robison v Fishback 175 Ind 132 93 N E • 666 1911 involved a city employee who devised a new tax assessment index for his city On retirement the employee tried to take the index with him The court held that since the old index had not been kept up to date and since removal of the new index would deprive the city of a record of government action the city had the predominant property right in the new index To a similar effect is Coleman v Commonwealth 25 Grattan J_§ __va 865 q 874 where the Virginia Supreme Court 7ent state4 7-- _ • - 8 whenever a written record of the transactions of a public officer in his office is a convenient and appropriate mode of discharging the duties of his office it is not only his right but his duty to keep that memorial whether expressly required so to do or not and when kept it becomes a public document -- a public record belonging to the office and not the officer it is the property of the state and not of the citizen and in no sense a private memorandum Id at 881 emphasis added These cases again turned on whether the government would be deprived of a complete record of government business Different considerations were involved in Scherr v Universal Match Corporation 417 F 2d 497 2d Cir 1944 In both cases the controlling factors were that the materials in question in Scherr a statue in Sawyer a map were made on government time and upon the direction o superior officer r official In both cases a copyright interest @ former government employees was rejected In Sawyer the court said that such material in the possession of a former employee was to be deemed as held in trust for the United States Finally there is dictum in a footnote in Pearson v Dodd 410 F 2d 701 D C Cir 1969 that suggests_one other consideration It is suggested but not stated that where files are maintained in a government office and are meant to contribute to the work of a government official the files belong to the govern ent In sum none of the decided cases would preclude a claim that the telephone transcripts are private property however where a particular transcript contains the only written record of a foreign policy decision of the United States it should not be considered private property Presidential Materials Preservation Act The Presidential Recordings and Materials Preservation Act of 1974 which is discussed more fully in the memorandum at Tab 3 appears at first blush to effect the ownership of telephone transcripts which originated at the White House during the Nixon Administration The I DECLAs-sJFIE S' 1 qS Authority ·rJ tvJ ' - 9 Act however avoids the question of ownership It directs the GSA Administrator to take complete possession and control of all materials that constitute presidential historical materials of Richard M Nixon Section l0S c of the Act provides that if any court decision should hold that any provision of this title has deprived an individual of private property without just compensation then there shall be paid out of the general fund of the Treasury of the United States such amount or amounts as may be adjudged just by that court In short congress was uncertain as to who owned papers and recordings from the Nixon Administration The 1974 Act therefore does not provide authority one way or the other on the ownership question It simply provides for just compensation if any of these papers and recordings should subsequently be deemed private property Thus even if an FOI claimant should contend that the telephone transcripts fall within the Presidential Materials Preservation Act Secretary Kissinger could still contend that he owns the transcripts and hence that they are not agency records within the meaning of FOI Trend Away from Private Ownership Prior to the Nixon years it seems to have been a relatively frequent practice for retiring government officials to retain some papers concerning matters tbat they personally worked on Significantly a Cabinet Paper during the Eisenhower Administration stated that ordinarily it would not be an abuse of discretion for retiring officials to withdraw personal work aids such as diaries logs and memoranda of conferences and telephone calls Cabinet Paper CP-59 58-4 July 27 1959 at 6 The events surrounding the Nixon papers controversy however cast doubt on whether historical practice will be of much legal significance in the future Moreover Congress has under the Presidential Recordings and Materials Preservation Act established a National Study Commission on Records and Doctu ents of Federal Officials Before March 31 1976 this Commission must submit to Congress a study recommending legislation with respect to the control disposition and preservation DECLASSIFIED $' j Authority ·rJ 111 1 1 qS ✓ a _ - 10 of records and documents produced by or on the behalf of Federal officials It is possible that the Commission will recommend and that Congress will enact legislation which in the future will affect ownership interests in Secretary Kissinger's telephone transcripts At the present however the Commission's work would appear to have no effect on how we respond to the pending FOI requests Non-Ownership Concepts It may be that the concept of ownership is outdated in determining who should have control of papers produced by government officials At least some of the cases discussed earlier in this memorandum focus not ✓ so much on who owns a piece of paper but rather whether the government or the individual has a predominant interest in the paper For example where a paper contains the only written record of government business the courts have in effect held that the government and not the individual has the predominant interest In the Nichols case discussed at Tab 3 the court found that although the estate of President Kennedy may have owned certain items that were donated to the United States under the Presidential Libraries Act the estate nevertheless had a proprietary interest in these items -- It could be argued that Secretary Kissinger has vis-a-vis the Government the predominant ·interest in his telephone conversation to protect himself and his reputation· from future misquotation to have an accurate basis for future Congressional testimony etc On the other hand one could a gue that since the transcripts may be an important account of the conduct of united States foreign policy the United States should have the predominant interest in the transcripts These concepts have not as yet been developed by the courts into identifiable legal principles ····--· ··· ·-- DEC i- gt Authority ·rJ tJJ c·qss r -- --------------·------- ___ ✓ c '· ·· 11 ·- Conclusion Secretary Kissinger would have a basis to contend that the telephone transcripts are private property or at least of predominant interest to him so that they do not constitute agency records subject to the FOI The factors to be considered in deciding these questions are Whether the Secretary has consistently treated the transcripts as private papers Whether personal or government information predominates and whether the information relates to his official duties 2 Whether the government already has an official record of matters discussed in the transcripts Whether the transcripts have been used in transacting government business On this point some of the transcripts were at first used by staff aides to follow up on commitments Secretary Kissinger made with others by telephone However once follow-up action was taken the transcripts no longer assisted in the conduct of government business from this one might argue that the preservation of the transcripts served only the personal interests of the Secretary 3 Apart from these factors there is a great deal of uncertainty in the aftermath of the Nixon papers controversy And since the Supreme Court has never ruled on these questions any conclusion concerning ownership of the transcripts must be made with some caution 4 5 DECLAs-sIFIEil S' j Authority · J vj 1 qS o• J _I ··· Ui7 DEPUTY UNDER SECRETARY OF STATE FOR MANAGEMENT WASHINGTON • January 27 1976 Memorandum for Mr Buchen The White House As you know Secretary Kissinger since he came to Washington in 1969 and until the present has maintained certain papers which are best described as memoranda of telephone conversations You have ·request d that I describe these materials more fully The earliest such memorandum is dated January 21 1969 Similar memoranda have been made during all the years of Secretary Kissinger's public service since that time and down to the present time As a rough estimate I calculate that there are 20 file drawers of this material It has not been index·ea or c·atalogued in any way except that the ·papers are maintained_in chronological order As you know Secretary Kissinger became Secretary _ o State on September 22 1973 and from that date -- -· _ · -· until_ N v inber 3 197 5 held the Secretary's office in · · · ·· · ta ndem with the off ice of Assistant to the President · for National Security Affairs -· ••- - During the period in which Dr Kissinger held both jops telephone conversation memoranda were prepared sometimes in his White House office and ometimes at _the Depart ent of State J I have examined a sample of the memoranda forthis period and it is frequently difficult to · establish which memoranda were prepared as a result of his ·being Assistant to the President and which were prepared as a result of his being Secretary of State We will examine this question further and if there is any basis on which we may clarify the question of attribution I will corru unicate with you further At intervals since September 22 1973 those i i I I -2- memoranda prepared at 'the White House were sent over to this Department for filing with the Secreta ry's other files All suc h memoranda ha ve been k ep t at the State Department for convenience The memoranda for the period prior to September 22 1973 were brought to the Depa rtment within four weeks of Dr Kissin ger ' s swearing-in as Secretary With respect to subject matter the memoranda cover a considerable range However the principal clas ificati ons which I would note are the following 2 1 Memoranda of telephone conversations dealing with social engagements both personal and official 2 Memoranda of telephone conversations with diplomatic officials of foreign governments 3 Memoranda of t e lephone conversations with officials of the United States Government 4 · ' 5 _ 3 Memoranda of tel ephone conversations with President Nixon and President Fo rd Memoranda of telephone conve rsations with ·_representatives of news media 6 • -Memoranda of t e lephone conversations with £prme r p e rsonal or academic associates •Offering advice or requesting ass stance · · · from Dr Kissinger with respect to issues ·· ·· both -p bl-ic- quas i-publ c a nd p rsonal · · - · · iou ·wili appreciate that he above categories' cannot under th e circumstances be considered compre__ hensive it would require enormous labor on my part to make a definitive catalog o f the materials in ueition This is · more the job of a librarian than it -is of anyone on ·Dr Kissinger's staff j 5 S' DECLASSIFIEI 1 qS Authority ·rJ rvJ I I January 31 1976 FOI REQUESTS FQR TELEPHONE TRANSCRIPTS THE AGENCY RECORD REQUIREMENT Apart from contending that the telephone transcripts were owned by Secretary Kissinger other grounds are available for maintaining that the transcripts are not agency records and thus not encompassed by the Freedom of Information Act This is particularly true with respect to transcripts which originated in t h e White House It has been held that papers originating in the Office of the President are not agency records subject to the FOI Records of the Office of the President The two current FOI requests for telephone tran- scripts do not seem to be limited to transc ript s that originated at the White House William Safire's request quotes a portion of Secretary Kissinger's Responses to Interrogatories in the Halperin litigation which refers to telephone conversations during the period of January 21 1969 through February 12 1971 Perhaps this affords ·a basis for limiting the period covered by the Safire request to a time when Secretary Kissinger worked exclusively at the White House However the Safire request then goes on to ask for copies of all transcripts in which my name appears and all transcripts between Secretary Kissinger and General Haig Atto_r ney General Mitchell J Edgar Hoover other FBI officials or President Nixon in which the subject of leaks is discussed Use of the term all may preclude one from limiting Safire's request to the period prior to February 12 1971 In the second FOI request Norman Kempster of the Washington Star asks for all transcripts and summaries now in the files of the Department of State of your telephone conversations with President Nixon Again it may be difficult to limit this request to conversations monitored at the White House alone -- it is possible that Secretary Kissinger spoke to Nixon from the State Department during Nixon's Presidency and that a transcript of the conversation was made -·2 - Insofar as the elephone transcripts originated in Secretary Kissinger's White House office there is a strong basis for maintaining that these transcripts are not agency records In Nixon v Sampson Judge Richey held that the immediate Office of the President in the White House was not an agency within the meaning of the FOI By contrast the Executive Office of the President which includes offices within the Executive Of·fice Building were deemed to be II agencies since Secretary Kissinger as the President ' s Special Assistant for National Security Affairs was a part of the President's immediate staff transcripts originating from his White House office would not under Nixon v Sampson be agency records Judge Richey's conclusions on this point were based on both Soucie v David ·449 F Supp 1067 D C Cir 1971 and the legislative history to the 197 4 · amendments to the FOI Soucie v David involved a request for records held by the Office of Science and Technology which was in the Executive Office of the President The court held that for purposes of the Administrative Procedure Act including FOIA an agency is 11 any administrative unit with substantial independent authority in the exercise of specific functions and concluded that the Office of Science and Technology was included within this definition 448 F 2d at 1073 The court however was very careful to distingui s h between administrative units which were stmply part of the Executive Office of the President and those that were part of the President ' s immediate staff For example the court noted that it 11 need not determine whether Congress intended the APA to apply to the President id at 1073 and referred to a House Report concerning the Office of Science and Techno l ogy OST which said that the Office was to f unction as a distinct entity and not merely as part of the President's staff 11 id at 1074 The court then s ugges t ed that if the OST had been a part of the President ' s immediate advisory staff its documents might not be agency records subject to the FOI - 3 If the OST s sole function were to advise and assist the President that might be taken as an indication that the OST is part of the President's staff and not a separate agency Id at 1O75 • In addition to advising the President however the OST had also been delegated by Congress the duty of gathering information on federal scientific programs In the 1974 amendments to FOI Congress added a new definition of the term agency That definition provides in pertinent part e For purposes of this section the term 'agency' as defined in section 551 1 of this title includes any executive department ••• or other establishment in the Executive Branch of the government including the Executive Office of the President or any independent regulatory agency 5 u s c §552 3 In the Conference Report to the 1974 amendments the conferees stated specifically that this definition was intended to affirm the result reached in Soucie v --David and then added the following significant sentence The term agency is not to be interpreted as including the President's immediate personal staff or units in the_ Executive Office whose sore func'l Lon is to advise -- § §i _-_-th- --- r ii_t Senate fteporf No 93-1200 93rd Cong 2nd Sess at 15 1974 Conference Report This language should seemingly be read in light of the opinion in Soucie v David which indicated that two groups of presidential advisers were excluded from the term agency a members of the President's immediate staff and b units in the Executive Office which simply advised and assisted the President and which did not perform other functions delegated by Congress • - 4 The foregoing legislative history strong y supports the conclusion that te ep one rans 7ripts which originated in Secretary Kissinger s White House office are not agency records under FOI It sh uld however be determined whether any of the transcripts originated in the NSC offices in the Executive Office Building The Justice Department has apparently expressed the view that the NSC is an agency for FOI purposes custody of Records It appears that the mere custody of a record by the Office of the President does not ipso facto remove the record from the reach of the FOI Nixon v Sampson Judge Richey held that the records from a department or agency - ' would be available to 11 any person even if they are sent to the Office of the President for the President's consideration •••• Thus these records of the executive departments even though now in the Office of the President must still be considered as records under the FOIA and therefore accessible to applicants under the Act 389 F Supp at 145-46 -- In support of this conclusion Judge Richey cited the Supreme Court's decision in EPA v Mink 410 u s 73 1973 That case involved a request to the President for EPA reports that had been sent to the White House for the President's consideration The Supreme Court ostensibly assumed although it did not decide that the EPA reports were agency records of the EPA Thus it would seem that the physical location of the telephone transcripts is not determinative Indeed the fact that transcripts are now stored at the State Department would not seem to preclude a claim that transcripts which originated at the White House are not agency records In this regard the Attorney General's 1967 memorandum on the Freedom of Information Act states l Jt _____ ____ _ -cL AsSD1ED-·1 AutbPnty ·-·--- 1' j 1qss ri ' -ii _ - 5 - Where a record is requested which is of concern to more than one agency the request should be_ referred to the agency whose interest in the record is paramount and that agency should make the decision to disclose or withhold after consultation with the other interested agencies Attorney General's Memorandum at 24 This suggests two things 1 if i is decided to characterize the telephone transcripts as papers of the Office of the President White House approval should be obtained in advance and 2 the fact that transcripts are stored at the State Department does not make the transcripts records of the State Department However in making this argument one practical problem arises In arguing that transcripts stored at the State Department are really White House papers one may be exposed to the inference that some of the transcrips are part of the Presidential papers of the Nixon Administration and thus subject to the Presidential Recordings and Materials Preservation Act As described more fully in Tab 3 then are statement in the legislative history of that Act indicating that the regime for administering the Nixon papers under that Act would not preempt existing rights under the FOI --· Personal Papers Ih Porter County Chap Etc v Atomic Energy Commission 380 F Supp 630 N D Ind 1974 it was held that handwritten personal notes which were prepared by AEC staff members in connection with -their official duties and which were not circulated to or used by anyone other than the authors were not agency records under the FOI The court made the following findings _ In executing their responsibilities relating to the AEC's health and safety and environmental reviews individual AEC staff members frequently prepare assorted handwritten materials for their own use Such materials are not circulated to nor used by anyone other than the authors and are discarded or retained at the author's sole discretion for their own individual purposes in their own personal files The AEC does not in any way consider such documents to be agency records nor is there any indication in the record that anyone other than the author exercises any control over such documents 380 F Supp at 633 r Having noted that the handwritten notes were not circulated to or used by anyone other than the authors the court concluded On the basis of its review of the documents in issue ••• the Court finds that these materials are personal notes rather than agency records Disclosure of such personal documents would invade the privacy of and impede the working habits of individual staff members it would preclude employees from ever committing any thoughts to writing which the author is unprepared for whatever reason to disseminate publicly Even if the records were agency records their disclosure would be akin to revealing the opinions advice recommendations and detailed mental processes of government officials Such notes would not be available by discovery in ordinary litigation Id -- It might however be argued that Secretary Kissinger's telephone transcripts do not fall within the ambit of the above holding Unlike the handwritten notes in the Porter County case the telephone transcripts a were prepared not by the authors of the words but S' DECLASsmEI - - Authority ·rJ vj L qS I t • - 7 - by monitoring secretaries and b were circulated to staff aides in order to take follow-up action on commitments made during the telephone conversations These two distinguishing factors may be critical Nevertheless the Porter County decision provides a very strong basis for arguing that the transcripts are personal and not agency records under the FOI • January 30 1976 I FOI REQUESTS FOR TELEPHONE TRANSCRIPTS i I EXEMPTIONS VIA PRESIDENTIAL PAPERS STATUTES t i Exemption 3 under the FOI Act protects materials that are specifically exempt from disclosure by statute 5 u s c 552 b 3 The legislative history reveals that Congress in enacting FOI in 1967 did not intend to affect the protections afforded by nearly 100 extant statutes which specifically exempted documents from public disclosure· One of these statutes eems tD_5 '' _ _ be the Presidential Libraries Act 44 u s c 2107 In 1974 congress enacted the Presidential Recordings and Materials Act Both of these statutes afford a basis for resisting under FOI Exemption 3 requests for access to the telephone transcripts Presidential Materials Preservation Act The Presidential Recordings and Materials Preservation Act of 1974 P L 93-526 directs the GSA Administrator to take complete possession and control of all materials which constitute the presidential historical materials of Richard M Nixon Telephone transcripts originating at the White House during the Nixon Administration could arguably be deemed presidential hist6iical materials of Richard M Nixon GSA's complete possession and control over these transcripts would seem to be inconsistent with free public access to the materials under FOI In this regard section 104 of the 1974 Act states that public access to the Nixon materials is but one of the factors that GSA must take into account in preparing regulations to implement the Act The argument that the Presidential Recordings and Materials Preservation Act should preempt the FOI is buttressed by a recent decision The Supreme Court in FAA Administrator v Robertson 422 U S 255 1975 gave Exemption 3 a broad construction in refusing to compel disclosure of an FAA report concerning the performance of commercial airlines The Federal Aviation Act authorized the withholding of documents if any person objected to disclosure and if the FAA found nondisclosure to be in the public interest i ✓ • 2 The court of appeals had concluded that since the FAA statute did not specify which documents or categories of documents were on-d s losable the FAA reports in question were not specifically exempt from disclosure by statute The Supreme Court reversed It noted that the FAA's non-disclosure provisions served a public purpose by encouraging the airline industry to give candid information to the FAA In light of this purpose and since Congress under the FOI intended to exempt documents protected under other statutes the court said that FOI Exemption 3 should not be construed as in effect repealing the FAA nondisclosure provisions 422 U S at 266 More on point is Nichols v United States 460 F 2d 671 10th Cir 1972 cert denied 409 u s 966 Plaintiffs in Nichols made an FOI request for access to evidence considered by the Warren Commission and other materials relating to the Kennedy assassination Congress however in 1965 enacted P L 89-318 which is similar to the Presidential Materials Preservation Act The purpose of that statute was to preserve evidence considered by the Warren Commission The evidence was to be placed under the jurisdiction of the GSA Admin-- istrator for preservation under such rules and regulations as he may prescribe The GSA Administrator delegated his authority to the Archivist of the United States who in turn prescribed regulations restricting public access The court held that this regime under the statute for protecting the Warren Commission evidence fell within FOI Exemption 3 There is however inconsistent language in the legislative history to the Presidential Materials Preservation Act Twice in the House Report there is a statement that none of the considerations which the Administrator of GSA must take into account in regulating access to presidential materials are intended to limit access by the public otherwise granted by the FOI Act It is hard to accept this assertion which appears in the • r - 3 - report without explanation and almost as if it were added as an afterthought by the staff See annex to this memorandum At no other point in the legislative history including the Senate Report is the FOI mentioned Nevertheless the references in the House Report cast a cloud on whether an FOI exemption will result if the telephone transcripts are deemed within the scope of the Presidential Materials Preservation Act There are in addition a number of practical disadvantages in proceeding via the Presidential Materials Preservation Act The act probably would not protect either transcripts made during the Ford Administration or those made during the Nixon Administration but at the State Department although State Department transcripts involving conversations with the White House or of concern to the White House may qualify as presidential historical materials of Richard M Nixon It might improperly associate the transcripts with the Nixon tapes G A could under the Act and future regulations afford public access to the transcripts or declassify them in a manner inconsistent with State Department or Whit - ouse standards This is partic larly important where a document has candid references to a foreign country or foreign leaders ' a • - 4 - Presidential Libraries Act Under the Presidential Libraries Act 44 u s c 2107 the GSA Administrator may accept for deposit in the national archives system papers not only of Presidents and former Presidents but also of any other official or former official of the Government A donation under this provision would be subject to whatever restrictions agreed upon between he donor and the GSA Administrator Arguably restrictions on public access pursuant to 44 u s c 2107 would exempt donated materials from FOI disclosure by virtue of FOI Exemption 3 -- i e the donated materials would be specifically exempt from disclosure by statute support for such an argument is found in Nichols v united States discussed above Nichols again involved FOI access to materials relating to the Kennedy assassination Most of these materials consisted of evidence considered by the Warren Commission and fell within a special statute for preserving these materials However the remainder of these materials had been in the pdsesssion of the Kennedy estate which donated them to the GSA Administrator under the Presidential Libraries Act The donation agreements included restrictions on public access The FOI plaintiff claimed that the materials were owned by the Government and not by the Ke nedy estate and hence could not be donated under the Presidential Libraries Act The court disagreed and stated that the statute does not require that the depositor of historical materials be the 'owner' of these materials 460 F 2d at 674 Rather the court seemed to indicate that the donor need only have some proprietary interest in the donated items The court and found it to this the court from disclosure reviewed the donation agreement itself be reasonable in its terms In light of held that the donated items were exempt under FOI Exemption 3 In view of _the Nichols case it would seem that a reasonable donation agreement under the Presidential Libraries Act would clearly exempt donated materials J ✓ · · • --5 - from FOI disclosure There are however the following practical considerations to keep in mind The Presidential Libraries Act applies not only to former officials but also_to_current ones Theoretically Secretary Kissinger could today enter into a donation agre 7ment with the GSA Administrator However in today's climate this may not be a politic thing to do hus in practice the Presidential Libraries Act may be a viable • • I alternative only upon Secretary Kissinger s i retirement 7 ✓- I President Nixon's efforts to control his White House papers involved a donation agreement under the Presidential Libraries Act Nixon's agreement with GSA Administrator Sampson seemed unreasonable Nixon reserved the right to destroy any of the tapes and to remove any of the papers he was donating Assuming Secretary Kissinger could enter into a reasonable donation agreement he nevertheless may be confronted with a charge that he was following in Nixon's footsteps The Nichols holding may be subject to question The Presidential Libraries Act does not _ specifically exempt anything from disclosure It simply permits the GSA Administrator and a donor of papers to agree on restrictions It is not entirely clear that materials restricted by agreement qualify as materials specifically exempt from disclosure by statute within the meaning of FOI Exemption 3 Cf FAA Administrator v Robertson discussed above -although the statute in Robertson did not specify which documents could be protected it did unlike the Presidential Libraries Act specifically authorize non-disclosure Thus one might argue that donating telephone transcripts under the Presidential Libraries Act should not qualify under FOI Exemption 3 Finally Judge Richey in Nixon v Sampson construed the Presidential Libraries Act as being limited to personal papers 389 F Supp at 144 This might pose a problem to ✓ - f - 6 - the extent that a court characterized the telephone transcripts as non-personal Nevertheless- a donation agreement under the Presidential Libraries Act 44 u s c 21oi is more likely to protect the telephone transcripts from FOI disclosure than is the placing of those transcripts within the Presidential Recordings and Materials Preservation Act · ···»ECUSSIFmD - · j utltorlty ·rJIVJ 1'lS$' 7 I • II01JSE OF REPRESEN' rA'l'IYES 930 Coxcui ss gel i 'e • ljicm r REPORT X o o -1507 PltESIDEN'I'I A L RECORDIXGS A N D I ATERIALS PRESERV A 'l'IOX ACT I ' I I N ·u ' 7 1074 -Committed to the Committee of the Whole House on the ovM mt - ' St tc of the Union nnd ordered to be printed Mr H ys from the Committee on House Administration submitted the following REPORT To accompany S 4016 1 i --Tho Committee on House A lmiuist rn tion to whom wns 1 cfcrrc d the bill S 4016 to prot cct nncl prcsC'rYe tnpe 1·ecor ls of convc•1· i1tion involYing former PrcsidC'nt Hiclrnrd I ixon nnd mnclc during his tenure as President nnd for othc r purposes Juwing con - idcrC' l the f mmc reports foYorn bly thc rcon witli n 11 amendment and 1 ecommerids that the bill u s nmc1iclccl do pass 'l'hc nmcnclmC'nt strikC's ont nll n ftcr the enacting cln use n nd in crts · a substitute text which appears in italic type in the reported bill 1 · - - - • I - ••• •• • i • 1 i -· -··• _ _ 1 -· •• ·· ·P_URPQSE OF THE BiLL - ·uw l' • i ' I ' • ·1 -- -- · · 'l'hc purpose of bill is twofold · ·· ·· · _ · · · · 1 to reserve the mntcrials relnting to the Presidency of Rieb m·d M Nixon nncl to pro 'i lc approprinte nCC 'S5 to t'hi 'm und · 2 to cst 1bli h tm indeprnd 'n t onnni ion to tudy the disposition 9f rc ords nn l docmncnts of nll Fcdcrnl oilici 1ls · _ · · · COM 1ITTEE ACTiON · _·s 4010 wn s pnsst'tl by the S n a tc on Octobt'r 4 Hli-1 nn l rrfcrrccl to 'the Conunillec on Hou e Administrn tion on Octobl'r ' i 1O'i-l 'l'hc Suhcommi l tC'e on l'rin ting oft lw Commit ll'c on I fon ' Admini5tration lwhl public hc irill on H R HW02 tll1 l ot h 'r hilb l'l'la ting t o the hnrnllin of rrcor l mul do umenl of F 'lk•rnl oflieial ind11di11 the· c li po --ition of th ' Prt• --idl'ntial materinl of fonuer -Prt· --ide1H Richnr l M Nixon The hcnriug were hclu on September 30 u ntl October 4 107 4 ·· · 88-00G-'14 -- 1 i t --·- ·· --------· ' 2 The suhcommitt C' m rk 'd np S 4016 in puh1ic cs ions on X' ·cmbc-r 19 Hl7-1 nncl ordl't Pd t lie 1 ill r •J rf rd on l Jin t_ d y f y u1_1 1rnnu_m ·voice vote 'l'hc full ornmittec murkC'd up the Lill m pubhc ses - ion on NovC'mbcr 26 1974 'l'h ' full committc-c on Xo ·emhC'r 26 _l9i4 by n vote of 20 lo 0 orclC'rccl the bill reported to the House with nn nmc-ndrnent BACKGROUXD -I I t i -l ' t j I l i r1- · r-· l • j l '- i ·I 1 ' ' I i- 1 hc cli po ilion nnd pn' 'n· 1tion of do nmC'nt nnd rcr rd of publi_c o cinl i n_ nu1tt r ont1mun • nI rtn_n part1cul_ uly to Jnston ms pohticnl - a ntJ l - nm otl e• - cl10l u_ ho J n n specinl in terC' iL in prc cn·ntwn of the lustom nl record - _ of the_ ntu n 'fhc· cli po ition of public doct mcnls hn -'-i taken on 1mrne hntt- s1gnificnncc bccnu --e of l he 1mccrtn n ty r 'gar lmg t_hC' prcsen·n ion of the tnp s ancl othC'r materials rel 1 tm to the l're 1clcncy of lt1cl1 1rd f Nixon material which coul l prondc u full oncl nccur le nccount of the series ofcycnt that hnve come to be known ns ' ·ntcrgntc It is unneccssntT t o rC'c ount here the cvC'nts of Y n tPrgn tc It is sufficient to obsc1 rn thnt these e cmts led to the npproYnl by t he Juclicinry Committee of the House of Hcprc entntiYcs of three nrtirlrs of impenchment clrnrgin former Prc sident Xixon ·with 1 ob - truction of justice 2 abuse nnd mi5use of Prcsiclenti 11 powers nnd 3 the failure to comply with congrcssionnl subpcnns to produce tnpt's mcl other mntcrinls ncccssnry to the impcncluncnt inquiry In the foce of these mnnimous reconuncnclo tions Ir Nixon resigned from office '£hese cYcnts nlso resulted in the inve stigntion pro culion nncl r onvictkm of hig-h-mnking cxccutiv-c clepnr_tment officin s including several close nidcs of former President Nixon for crimes relnting to -' ¥ n tcrgi te ·--Infomrntion included in the mnterinls of former President ixon is ee l 'd to C mp cte the prosecutions of Wntergntc-rclntccl crimes rins mforrnnllon 1s necessary so that t hc Special Prosecutor mny expeditiously conclude his work This informntion is nccessnrY to proYidc defcndnnts in these criminal actions mnterfol which urn · be ·- ·ncccssnry_ for their dc_fens 's nnd iniomrntion ncc •ssnrj· to pro vi-de •· - the Amcncnn people mth n complete and accurate nccount of W'atN· gate ·· · · _ But ljcroncl the importnnc e of t he 7 ntC'rgnt '-rclatNl mntrrwi there is n lcgitimntn public intcrPsL in TaininO' fiP'lroprintc ncr ' - s to mntcrinls of the Xixon PresiclC'ncv- wl ch n ·of gmcml hi toric 11 - ignifican c 'l'hc information in th •so 111utcrinls will bo of grcnt v tluc to tho pol t1ci1l health nncl Yitnlity of t 110 United Stntrs It will p 'rmit · the Am 'rletll1 J C'Ople to understand tho Wcnts ·or t his importnnL 5 yenr pC'rmcl nnd to J ft o s on to their legislatiYc rl' H't'SC'lltntive nny mnndntC's for ch mge m the cour c of cv nts ns for n•form of o-oYC'1·nlllC'J1tnl institutions b _' ·Despite tl c _oY 'ITidii1g- puhlic inter 'st in prt Pr ·in th C nntrrinl - - nnd for proYHlmg 1ppropr1 1tc tc c l• to -tlwm r - rthur l1 • S nnp - on J dministrntor of il lll'l'tal l•rdct•s c •ntcrc l into au l l't l'mcnt on l l'haJf of th Fedt'ri l on•r1mu nt - cc Appendix which if implC'mentcc l could seriously hnut nccC's to t hc c rl'cor ls nnd could l'csult iu the destruction o a substnntial portion of them i---· p 7 3 N 1xo -SAl1Pso -1 AG nEElrE -- T • -·-· On Suncfo v Snpt 'mhc 8 19i-1 l ·csillcnt ·Forcl announced ft ll nncl unconditional pard· n of Ir 1 on ·A fow hour lah'r I J11ltp Buchcn Uounscl to the Pre idcnt announcc-J u n rC'cm nt t· wc 'n former Prc itlrnt i ixon nnd Ir Sampson_ rcgardm the cl1spos1ll n of some 12 million locmncnls and mntcrinls rclnung to the 1xon l t • I ' Prc idcnr · · A C'rrul ·o· inion of SrptcmhC'r 6 1 74 prcpnrcd hy All ll'llc_r G n rnl villin 1 Sa hc took the po - i lion t_h 1 t the t q l'S tmd olher n 1 lcn d - of the ixon Prr --i lr1wy ·v 're the 1m · tte proJK'l'lY of 11' ixon Included witl in the _scope of the t 'C'en cnt 1 Ir '1xon' f1 c-51dcntii11 hi loricill matennl n - dehncd m C'ctlon 2101 of title 4 -1 Umtc l Stntcs Cod ' It 1mHl ' llth· c_gyc1 ma rrn l gc 1c ·nlcd by n 1d collcctcJ in the Vhitc IIon - c tii 11 xecut ive 0Jnce Dmldmgs nn l mclnclC's the recordings pnpcr - mul _mcm rnncla produ cd uncl collC'ct '_cl b y Ir Nixon by mcmbcl' - of n stair nn l by sti1fI members of OH1ces m t-hc Exccutivc•· jJBt Cto1· Ure PrC' Idcnt - fr N 1xon 1 crts tlrn t he relnms all legt1l and I n the no-r 'cmeut l me 1 H 1·mg nll 1' l1ls cq litnble i1llc t o the' ruai m•rn ttcru ry property rig ' he no-rcemcnt provides that the nrntc1fols nrc to be lmnsfcrrcd ·to Cnlifo ·nio for deposit in 1 GSA fncilit y for o t least three years I t I I i 1l ii 1I I until n permanent clt•po1 $i1 ory Ht ·- • i i t- L j i ·i ' - l l i f - - be est nblishcd The cost of stor 1gc is •-- to 11 I Dlity to be ns -mmcd by tlw Fcdcrnl Govcrnrncnt Access to tho· materinh would be conlrollccl by Ir Nixon who wouJu lin ve absolute Ycto power ov-cr per sons who could review the tnpcs nnd records Alt hough lhe ngrcemcnt 1ippenr to set forth fr Nixon's intent ion lo donntc the matcrii1J to L hc l 'eclcral Gon•rnment nt some point in t lic Iut urc it permits Ir Nixon to wilh lrnw m1y or nll of the mntcrinl othel' than the tapes nftcr three Ycurs for anv purpose 'rhis urmngement would permit Ir Nixon remove nnd destroy a11y of thcs documents if he wishes to do so · 'l'h ngrE 'cmc1 t fur her pro ·iclcs thn t the tape recording$ shnll rcmum on deposit until September 1 Hl79 Although the ngrcemcnt p_urporls to donntc the tll pes to the Unit cl Stntcs it n1lo · Jr -- t ixon to clcst-roy nny of the - c tn11c nftcr Sc11tcmbrr 1 1079 Further i t proYidcs ilrnt the clonal ion of thi - n-ictterinl is lo be based on the condition thzi t the tupcs shnll be destroyed nt the timo of 1Jr Nixon's dcnt h or on September 1 H S4 whichen r event slrn 11 first occur - 'l'hus tho ngrC'C'lll 'llt g-i ve - 1 r ixon total control OYN· nll the mn t 'rials nn l the records of his Administration It nllow him lo hnYe ncccss to the nrnteri 11 but 'XC1Ul1e others froin rc ewing these i•ccofcls By nllowing 1r Nixon to cle tro · nll or tho mntcri71l tho · ag1 c mC'nt igno · s he public inlere -t in prei n-i t g them l_t ig l rcs the leg1tunntc contmnm need for thcso mtltcrrnl m manY JUChcrnl proceeding including ome in whfrh U S l iw l'nforcement will be fru tmtcd md individual rights impaired if tho mn tC'rit1l n·c mnxnilnblc · to tho ·coul'ts It i non• th ncPcl - or Con re mu t'xcrut iYo tH C'ncics for ontinned u ·onfil ilrn u11tt•11f r-in -ih£ pri l'l' - of gowriunent And· it i norc lh nwocl of lii - lorian · po lit intl 'i •illi--t nJHl other scholnrs for tho inform tiion th ' --o material ' cont lin on the c ·rni 3 ol 1·cccnt ycnrs nnd the working of our go ·cnim 'nt - i i l J · - - -···--- --·· ----· - - ·- •--------- - --··-· --·- -------··· ---•- - -----··----· - - · • r '' D ECLASSD'IEJ -- 1 1 C SS _ Authority ·rJ tvl iiil ____ _·····-·--- ·--··--· ···-· -·· --- --· • -· 4 • • 1 1 -' 'he S1wdal Prq c ' 1tlor 'XJH C' o - Pd rwu - rr· - c•n· 1l1nt n JOllt t '0 no-rcC'llll'nt and it was iet0rmined lh_ tt 11011c of_thc mat nals ·oulcl_ 11 1· novcd frm l their prr 'C'ltf loc 1 ltons pending ft1Tl 1er d1s •u --wn among Ir Xixon the Sp ' cinl l'ro - -c utor md_tl C' Jut I_fon - _ On 'Octobrr 15 rn l ir Xixou l ro11 ht itllt m tlin l mt d N dr Di trict Court of tlw Di - lrict of Columbia to_ f m·e Ir f' r u 1p -·on et ul to cnrry out the p1·0 ·h-i_o11 - of tlu dl'po 1lory J TCrmrnt l' ·1 ral othci private pnrti • iIH'lt1dmg 11 _lor1 111 - 1om· 11ah t_ - und ·he · - filed inclrprndc•nt u·l10n - to l loc·_k rnqm•mPnt 111011 of till' w1 •1 1H•l l Olh r partic s Hcludin tl_1c tipccrnl l'rosecutor haYc moYNl to mtervenc as pnrttc m thc c nrl10ns 'l'he citses were conso idnted and n tC'mpornry rc tr unmg onler w 1 issu ' l on Octobc-r 22 Hl74 blocking t1 c Fc r I tdmini -tr _1tion fro n giving fr ixon custody of t_hc n1ilte1 1uls l 1u or l r with ccrtum subsequent nmcndmcmt ulso 1 5 the pec1al Pro eculoT dcfcnd 1 nts in Vntcr l'ntc cnses nncl Ir 1xon nccr - 5 to thr matennl On No cmbcr 11 1974 Scnntor l rvin C rnirmnn of the SC'nnte Government Operation Committee nnd Senn tor X c son md J· n-iu Chairmnn Hn ·s nn l Jr Brndcmns filed n memor mdmn of arni ·i curiae urging the courL to mnintnin the st 1h12- quo b cxtendin the order until the Congress con iderc-d this legislation Exten - in• bric•f were filed by nil the pnrtics in this nction in support of motions for preliminary injunctions nnd ornl nrgumcnts were hciu-d on oYembcr 15 nnd November IS 19i4 · __ i I f 1 f I_ •• · 1 ' · li · I · - t ' -1 'i I · ' t ·• 1 · ' '1 I I I _l DESCRIPTION OF BILL This legislation would nullify the Kixon-Snmpson ngTcement of Scpt cmber·7 1974 nnd would provide thnt the FC'deral GoY 't·mnrnt retain custody of the Xixon tapes und Pre5idC'ntin1 mat 'rials Tlw biH wmi d nlso estnb i h a 17-mcmber co1mnission to study the di - position of tha documents of nil Federal 01iici 1Js • · ·TITLE I-PnEsERVATION OF PnEsIDE TIAL MATERIALS OF N1xo ·• In _ Title I provides thnt not withstanding nny other proYision of l 1w or auy agreement the Aclministm tor of GS A r h' dl rrt 1in c t1 toch· n11t l ·complotC control of nil t 1pc· 1rnpt·r doc umcnt uud othl'r materials of ge 1 eral historical significance relt1ting to thc· PrcsidC'ncy of Rich 1rd LN1 xon 'fhc _ape recording inclndc nll conYC'rsations rrcordcd br inning June 20 19G9 nntl ending August 9 1974 ·hieh 1 include formr•r P1·esidcnt Nixon or imlh·idu ll who w n rmployecl b t the- Fedl'l' 'l ·Govf 'rnment mcl l WP ' ' recor led in tlu ' hitc liou - C' or in th Exl• · utivc Ollicc Buildin or O li · • - of thL' fornwr Prl' idrnc al Camp D 1vi l l forylund KC'y Bisc 1yr1 ' Florida or 8 m ClL•mentr C 1liforni 1 'J 'his title would gin' t lu • FPclPnd Go ·rrmm'rlt c i twly of 111 p qwr dQcum 'nb J1H'morn1ul t trall -wripb and otiwr uhjt• ·t nnd nwtt•riul wliich co1i titut e the hi lorienl mnteriaJ - of lr ixon ns defined in section 2101 of title 4•1 Unit Pc I lut r Code 'l'he mntcrinl would be immrc linlch· nYnih1blo for u c in judicinl procccc lin -- t'ilh 'r by subpt•n t or otl1C'r IL• al fH' H'L' Produc-tion of 1 11atcrinl _in the c proceeding would be subject to nny right defense -- ·· ·- 5 -·-· or prh·il 'f C' which tlfc Federal Gov rnm nt or nn p 'r on mny rnisc A r 'quC' t fc r c s to the matP1·1 1I hy the Spccrnl Pro ecntor would l e gin•n prwnty oYcr ollll r rc-quc B l f r Kixon or nny pc-r m whom he muy dcs1gnntc may have nt nll titn 'S nccc s to the material for nny purpo5P 'fhc lc i lation takrs no po ilion o l th_c qu hon of o • n r lnp of the mnterinls p1'i r to cnnct _mmt _of l_l11 title however m the c · nt a court dc -tcrmincs that th1 l 'g1 lnl on dcp •ffes _nny _person of yr1vo tc J roprrty without ju - t compl•n - ntwn th1 _1 _1 l_a_t101 m1thor cs__ thc P l m 'n of uch sums muy be dccmc-d nN C -iaIJ bj m npp1op11atc Umtcd State court _ 'l'o 'l'uar l 1 10- 1inst the destruction or rcmovnl of nny of the mntcrinls the biil proviJes tlrnt 1ionc of t hc nrn erials shnll be dcsti oyed cxc pt as mny be pro ·idrd hy b_w It rcqmre th 1 t the nrntcrrnls be m 1m- •' 1 ' I taincd within the mctropoht 1 1 nrcn of Wnshu gton D C nn l proYHlcs that the Aclministmtor shall 1 sue nt the cnrlrn t poss1blo date regula- 1 I l tions to prote ct the_ urntrrinl from oss or dc-struction und to prevent access to thn mi1 tcrrnl bv unauthorized persons 'l'he bill directs the A lminislrntor to submit to the Congrcs within 90 dn ·s nft r the enactment of the mc 1 m·r regulations' thnt would woYic°lc public ncccss to the tnpc rrcordings nncl other 1nnterinJ l'he c rccrulntions would insure ncce to mnterit1l rclntrd to ' ValPrgnte ns - il ns mnterinl of p Pncrnl historitnl significn11re In prepm-ing these rcgul11tions the Administrator hall t akc into nccount th following factor 1 the need to proYiJc u full nccounting of the eYcnts of Wutcrgntc 2 tho need t o make the muterinls u Yailnble in judicinl prore'eding 5 the nc 'd to limit gcncrtd Q S e - 319 mntcri 11 reln t ing to nntiounl security ' • the n 'rd to protect cyei·y indiYi lunl' ·1·ight to u foir-nn l impnrtinl trinl 5 the llC d to protect• nm· in diYid rnl' opportunity to nsscrt n1w legal or conslitutionul rio-ht or · · p1frilcg which mny fimit gcncrul ncc ss to the 1rn1tcrinl 6 th need to provide public nc 'ss lo mnt 'rial of eneml hi toricnl significuncc inn mnnnrr consistent with proccdm·e tf1 t h 1xc b en used to provide public nc crss to mntcrinls of former President nnd 7 t hc ll 'Cd to t 1 I 1 l I j--- · a ' • 1- m·• to fr Xixon pm· 'ly pcrsonnl mnteri 11 which nre not of gcncml l11stor1col ·nltte ···· Ju the m m1cm ion_ of eritC'rin to be nppliC'c l by t lH A 1ministf·o tor in cstnLh hmg gmdehnes for the mnn 1gcnH'nt of nrntcz·rnl rcferrrd to in cction 101 the committC c ulded in subpnrngrnph 5 thc- trrm prh·il ' c to lcgnlly or con - titulionnlh· ba - etl rhrht ' t - g rounc ls for limit ntion of ncccss The committee• · purpo o 1 to tccognizc the Jcgitinrncy of the tloct rinc of executive p1fri1 ' e ns stated in the July 4 19i-1 ruling of the Supremo Court in United Sta tes · J Yi £ on · · Pret iclrnt of the Uuitecl Stales et al · _ Non of tho ron i IC'l' llions nbon' C'lllllllC'l'tltcd nrc intc-ndt'd to f l ·T ·Jili1it flC'C' ' S b_v the public otherwise gmnt 'cl by the Freedom of f I - -··· t 1- l · I Informntwn Act · Section 105 n G ' of thi k• i lntion i - intc-'mlt'd to 1mdrr co1·e tlw c·on ·t'm of th ' c·o111111itlN' thnt tl e pnhliC' ' in n iu·cr ' to tht' tnpp and otlll'r material of l he ixon Prl• idl'IW of 'l l'l' tl hi toril'al signifiennrc n - ·ell 11 - to th ' m 1lt'ri 1J r 'ln ted t·o ' ttergu tc n Aect s uncl 'r this ub rction i to he proviclNl in m mn 'l' C'omparaul ' to pror cdurt 's tlrnt h tYC' ht 'l followt'd hY Prt• iclt'llt ' in proYiding H·c ' to t hcir n1atcriul Allhough it is l' 'cogniz 'd tlrnt some for1 1t r l'r ' ii- I- - -· •· - · o • c -· I uthcmtj -- · · -· -·-· rJJ i'i sSf 1··· • 6 dents have imposc l hro l l rC'slrictions on ncrr to lhC'il' nrnf 'ria L is undC'rstoocl tli iti mo --t- _ und p i_rtic ul irly yw - t J'l'cent fo1 _nrr l n• --1dcnl -1 haYc cxhibiH•t 111 mtcre l rn JH't• c•n mg thC' nrntcmul mtuct uncl providing curly pubhc_ ac c C' - s o the_ mnt n 1l _ t ic 'l'hu formc·r _l'rc• - -Hlc·nL I • runkhn C H oo ie cit 1ccoz -'1llZCd imnorluncc of tlu ipprcwch • I hnvc bcPn laking the t h-ic c o mnny histor rns 1ncl others 'fht•ir udvic·e is that mnt •rw1 of thnt l ncl 1 Roo evd l's pn pP1 - --J 011 rh t _not to lH' brnkc·n up for t11 ' future IL ou ht lo b0 kt•pt mtuct It Otlf hl i ot to bo olcl lt auction it ought not to be sea tlcn'd lm ong c_Ic crnclim l - It should be kept in one place nnd kPpt m 1 - on rnrn l form bl'cnuso Prc idcntial p lpers und other pub H' p 1p0r lrnYe been culled O ' r luring the lifetime of the ownC' ' md tho O ' lCl' ins thrown out n go d 10ul of nrnlcrrnl wl11th he pt'rsonally did not consiclC'r of irn · i mport mcc which howcYc-r from tlw pofot of view of fact UH lii lor · mnY h n-e Ul' 'l1 of t lw ut no t 1mporl mco Tlw Publ c Pa pcrs and Addresses of l·ra1tkltn lJ lloosc1 elt 630 1941 · This att-iiudc wns nlso exhibited by former l rcskfont Dwig ht- D Eisenhower During hcnring before t hc uhcommittrc on Printing John Eisenhower ·ho has rondnuing responsibility for 111ttinlnin ng the late P1·csidcnt's papers stated Sinco vc finished on my father's nlC'Jnoirs nnd I lcf t Gettysburg I h1nre b cn involved on it continuing b -1 si with · my ic$ponsibilitic3 in trying to g-ct those docum 'nts out of ·Abilene into the public domain Our philosophy is the quid Pr the Presidcntini pnper$ c m be ottrn out into the public domain the more nclvimtngcous it is to the forml r Prc idcnt · Where restriction hnn been impo - cd by former Prc5icknt thry ·have been gcncmlly limited lo matter of UiLtion nl sr-curitL It is not the purpose of this section to authorize Ir ixon to place rc•slriction on overs to the mntNfah- Any restrictions would bo imposed by current government ofl1cinls in accordance with existing· lcg tl irnthorilil' i j i l I l ·1 1 i • i t- 1·· iI ' l _ancl procedures '·i ··-1 · I · · - ·- · ·· - 'l'ho legislation proviclrs thnt the regulat ions shnll tnkc ffrr-t 90 n ys nft ' l' sub nission t the Songrrs 1 111lt' -- di nppron•d by n n• oiution of c1U1cr Hou c ot the Con rc s If the committee 1 o whith tlw rcgulutious nre l'l'fC'rrccl hns not 1·cportcd n rc olu tion of cli i p H'o ·c1l within 60 cloys nflrr their mbmi ion to the Congrcs nuy It mh 'r mny initinte n rcsohttion of disnpproYal This title proYici • thnt uny Jvfcmhcr mny ln rC'solution disehnro-c th l con1rnittcc of furtlh•r con siclernt ion of tlic l' ' ttlntion - Sncl a di ch tr C' motion would be p1frilcp ed rn l n rc• olntion ol' di - appro ·nl wmi cl h ' in ordt•r if the ilisclrnr c motion s11ct· ·t'd 'l'hr C'fl •d of thi - proYi ioff would ht• to permit n Yotc of li apprornl by the ·hole llou -c if lpJH'tlprialt•ly miscd GO c lny nft 1• the l' 'lt Y 111t commillc 'l' lw - llilcl tlil oppurtuuit_y to review tlw rC'gulation -To n - snrc ntl 'XJ t ditious resolution of n cl nllengC' to nny provision of the titlC th bill wo11ld wst in the • Unih•tl Sl t t • - District Court for t he Di - trict- of Col11111hin Pxcln in' juri - cliction to henr any cl ullcngu to the lcg 11 or coustitutionul v tlidity of ttny pro1 -· • - _ · _ •• vw - I I -- • r t I I I ' 1 j 4 1 l 0 l• 1 I i i ti f -·· '- _ I · vision of thnt title or •m · rP Hlation i - - ttPcl thC'n•lo 'fhi_s 1cf -i J 1tion provides thnt such n chnllen e --h_all be I_H'nr l by tl rce-Jn l c p n l with direct npp •nl to lhc Umtcd Mntes llprC'mc Com t Ar - li 11 n c shall be consid •red n priority· 1 m tlC'r by both court rcqmrm 1111111edintc con - i lern lion and r ' ol 11 t w1_1 • • It- is the in tt n t of Llw com mt l tc •e t wt t 111 s clton not n ppl r to Jit irration now pending in which nr cr5 - to th ' matcrrn rrl t tm to tht Nixon Presidc •ncy under the 're 'dom o_f nforma tton A l nn l title to tlw matl'rinl in i - - 11c But rntllC'I' l 1 llltcndcd to apply to actions filc l ub cc1nent to cnuctmcnt of tins lltlc lfi- torical materials This title would giYc t hc Unit_c_d Stnt 'S C l ody nl th Presidcn Ual histmic nl nrn terinl of H 1ch 1rd f 1xo11 Sech I 1 _- IO l_ of title 44 United Stales Code prov1clcs that th ' term lu -to11co l mnterinl includes -books con po1Hlcncc clocnm nts pnpers pnmphlrts works of urt models p_1ctures photogrn1_ hs plots rn p - films motion pictures sound rccordmgs umJ other obJcct or mnkrrnls havit o- historicnl or commcmoratiYe vnlue It is undcrstoocl_thnt these mntc1·inl include lot onJy _mcmorn nchl letters nnd other dqcuments gencrntec l hy_ Jr 1xon but n so n11 docmnc•nt _ nnd mntciinl produced o_r -- ollectcd __ py m lcs to t 10 fori 11er Pr_0 1dPn t niid _offici ls n1 lo u_1 Office_ of t 1c xccutlY OII1cc lunng th j cs1de - - - - -1 1 Jl-4 ' n tk ' ' ' ' ' ' 1 __ P ·ivate ownersldzJ _ J i - ' - · - - °' Ht tV J1 c - I 1 'he legislation tnkcs no po ition on the ownership of thc r nrnlcrinl prior to c1rnctmcnt of this title The committee b ' icYcs tlrnt nt this time the resolution of the question of prior ownership is n urn ltcr most npproprintcly left for the jndiciury to decide Nevertheless the committee bPlicYc it hns the nnlhoritY to pn s legislotion concerning the dispo ition of the Xixon Presidential mate rials H the mntcrinl is nlrcncly public propC'rty the bill i - imply nn exercise of the congressional power unclC'r Article l V of the Constitution to dispose of the property of the Unit •d Stntes--onc of the basic constitutional l' Hlt5 of nnthoritY to thC' Conrrrc - s If t hc mntcriol is 'privntc pro11erty the' islnti n would if ncct's sary ex rci5c the power of cminl nt domnin This power to t lkr property is ul o YC'Stl'd in thr Cotl n• nllho • h tl1c nuthorit to d ltr rmine just compcnsntion belong to the judi inl brnnch 1orcovcr rYen if thc· c mnlC'rial - ·1rc priYntc pro1wrtY the FNl0rnl Govcrmnent mny tnkc protl•ctin custo h· of mnterinl which is ncc 'ssnry· for the continuing use of the Fcdirul GoY 'rnment where it f l i s ·in the public interest lo do so A ccordin r to A ttorncY Gcnernl p J 0 Snxbc's opinion · '-' f t r• v V J onc o t 1e l'onsidrr ltion nboY cnttllll'l' lh'd i - intenclrd tCl limit · · · n •cp h r the · publi · othl'1' 'i --t• grnntL•c l hy St'ction 552 of ti tie b United · _ J St 'ltc Code tlw Fn•Nlom of information c t ' · Iii tori nlly tlwn• 11 1 - 1 '-' n ·011 i tt·nt wknowlt1lh' nwnt · · thnt Pn ick•n tinl mn terinls nr ' peru linrlv nfft•cted • 1ff n · 1mblic inter ' L whic·h mny ju - tify - uhjel'ting thl' nh u·lute owncr hip ri ht of the • ex-Prt' idl•nt to rrrtuin limitntion - din•ctly rl•lnll•d lo llw l'l1nrn 'tc •r of the clontmt·nt n - n• ·onl - of go ·ernmC'nt ncti ·ily • Upon th ' dcnth of l• 'mnklin rI fI r l i 7 j ·i l 1 -1 I r - iI iii i 8 j D Roo cn lt luring the closing_ _non th _ of World r 1 ' I with full n ' l'JH HH' ' of the tr Hhtron_ tl YJPW that all l Jl ' H ou - c pnpl'l' - •I Jon •d to t lie Pn· -1cl •11 t 111 l de ·oh cl to his •stnt 01110 of the pnper -- dc-nl111g- ntlt pro C' 'Utw 1 of the rar tho so- tlll'c '' fop Room 1' tf 1'r l'rC' rct nmc by Prr icl •nt Trurn 111 1uul •r n t li 'ory _of '·pro t ct1_ · • c' t ocl until Dt•cPmlH'r Hl-HL _ I ia llOJl OJlll lt • L l lni - H ll dlc - · of wlwther 1 lti i - I h ' bt o t wny to nppro t li thC' J rohlc •rn prcc lcnt lcrnou tmte tha the _go_ ·N·nrnent_ 1 I mt t• · t nri ' ing been u --n of tit pecnlrn r Ha lll e of th ' c J Uhl IJ ll -Cnolnbh· nn_r JWl'd to pm •et nntaonnl security mformntion ancl nny ncC'd for contmned 11 e of crtnm cloct mr nt -iu the procc oi gon•rnmcnt cnn be protcctr d m full conformit v wit h tirn theory of owncr lup on the pnrt of the cx-P1 C'5ident Op of the AU'y Gen September 6 f I Ii i I t· I I i I I 1 · · • 1974 pp 9-10 CJcnrly it is in the publ c inter t t prcscrv·c he nrnt rinl t nd to proYidc nccoss to the m n t crrnl or 1ud1crnl procce di 1gs to cxpcd1 l 10u _y complete the prosccuuon of nt _cr 1te- rclntcd cr 1 1c und to penmt the just resolution of other acl1ud1cutlons reqmrrng nccc3s to the mntr rink C oarly· it is in the public interest to provide genernl public ncccss to tf10 nrnlcrinls to ns urc n full nn l nccumte uccotmt of 'YntC'rgntc nnd to provide il bnsis for lrgi lntion nnd rxccutirn action to prevent futurC' W nterg11t •s nnd clcnrly it is in the public · inforcst to safeguard the historico l record of the Presidency during the fost five and onc-hnlf ycnr · TITLE II-NATIONAL STUDY Co u mssIO 0 -1 REconos MEN'l'S 0lt FEDERAL OFFICIALS --- A n Docu- · Tit le II w·otdd cstabiish an independent- commis ion to studv the ··handling of record nnd document of nil J'edernl ofllcinls Fc ler 11 officinls would include clectC'd officials mcmbc-rs of t he Fc lcrnl judiciary nnd other nppointccl officers of the govcrnmc-nt · 'l'he 17-mcmbcr commi - ion wo1Jld be composed of two fombcrs of tho House of Reprc cntathrcs two Senators three appointee• of th ·-·•President- selected from the public on n bipnrti -- m h 1 --i the Lihr fdnn ··of CongrC'ss one uppoin tee r 1ch of the Chief J ustico of th ' United St-nt-cs he White HousC' the Secretil rr of Stn-tP the SNTC'tnry of Dcfe_nse tl1 ' A Uornry G 'JH•rnl nnd thr Admini tmto1 of General SC'rnccs nnd three otlwr rC'J l' 'SC'ntntiYcs one C'irc h nppoint • l by tho __ American Hi toric 1l A - ocintion the Soc·irt - of Amcric m Arc hh·h t and the Orgnnizution of A mericnn Historh u 'l'hc_con mi'3sion would be dirc_ctrd to make specific rccommendntions for lcg1slntion ind rccomme11Cl1tt1ons for rule -- nnc l procedurC' o ns m tY hC' approprintc l'l' nrding thC' di po ition of document of FC'dl'rnl 1llic i 1ls 'l'h f filrnl rl'port is l be sub111iltC'cl to the Congress nnd tlw Prc ' --idc •nt by fnr ·h 31 197G · · ·'fhc Suh 'ommit f N' on Print in lu•l 1 two dnys of lwnring- ou · · C'gi - la t ion l'Pln tin to t lw di --po it i n of dOf Ullll'lll of Fl•dt•r il oJii ·iak Testimony durin tlH'sc h 'oring indir ntcc l thnt the i sne -- rl'l ttin to the di po -ition of'lhc• --e c locmnl nts nre so Y iril'd nnd complt'x th 1t n compn'IJC'n - in t11dy would hr wnrr rnlc'd to dc •n•lop - pC'eific l' 'cnmmcmfotions t hnt could hC' u C'cl by the Con re - in c·on --idl'ring pcrma- - _ncnt Jcgi lntion nffccting docunu 'llts of nlf l• 'cdcro l offici1l ls ··• r-· ·- I' 9 rrhc i -- nc thn t shou d h ron i Jc r l ln· the commission u·c hoth philosophic·n_l ttHl f J'O C'dUral TIH•y in ·ludc •· a r 'i ' nf pror c _Jurc tc lllSllJ' ' rn 1xrnrnm pn•- 1•n·n l u n of thPful l11 nn · il m 1 tC-riil I rnd procN1m·c s lo ns t l'C c •arliP - l _prattit ihJ a ' - -ihili_ty of hC -H ' Jij 1 ri r d matl rinls lo chol 1r - for tlw1r n- ' uul 111tcrpretnt10n I he r omnu 1nn should nl - o ron idf'r tlH· c•xtc-n1 to whi ·h procf'durC' - for g- 1i11in triy ncccss tot hc c 11fo l 'ria 1 owy aff1't' t t hC ' willingw• - s of ofHc iuls to pm c r ·c to the mnxinnun 'XleJlt U -- -ful lii --tc 1·i · 1i 111 tlt •l' Otlwr i uC's tlwt - hould bc ' c-oa idc•n•cl in ·l11dl' 1 the nnturc of puhlic do ·t1rn '1 1f u nn uclt' f t_l tlP 'l tlflH'lllution of th work of gon•rmu •nt c Hu rnl t 2i t u • 11 -j --ll on of ' ' _onb 1 l'c ' tt 'd ht appoiutc-d offic·ial - uch a - c11 n m 1 onrcl'l' - i _ hit Hon -C tnlt nnd memb •r of tlw F lcll'rul Judu·1 11T i n d1 'cus ion of n con 15tcnt policy· 1 c nrcling record - ere H • within the Ex 'cuth·c Otncc of the i rc - iclencY · 4 the role of elected ofl1c •r - n they gcnC'rt1 le nnd retain filcR reflccdng bolh poli tiC'5 nnd public 1dmiui - trftlion 5 1 • wb thcr pc •1·sonnl ni Hl truly politir nl mnttc-r - could be sep u·nte l from J1HlHc1· of oflicinl juri diction in public ndmini - tmtion iG whether the iu lu - ion of poJitir- d fi ' would inhibit mliti - 11 i i rlidti 's in nny wny 7 circnm - lnncC's nnclcr whi ·h genern public 1ec '55 to · mntcrfols should be ullowc•d nnd npproprwtc pi·ocedu ·c to pro ·idcsuch nccess S the nerd to protect ccrtnin nrntr rfols for 1w1' '01rnl polit icnl or nntionnl Rt'curity rcnsons nncl 0 wh thC'r legi lntion would C'ncourngl olficinl to purp c file while slilJ in office 'l'hc hill would C'stal Ii h a t ommi sion that rnulcl induclc the' k 1elinz -autlwritiC's on nncl pN·sons vith principnl rcspon - ibilitiC' i fo _· the disposition of historfool record Thi conunission would cn m· the cxc nngc of ideas nmong cxpC'rts in the field nncl lend to hi• •·hl - nrofess10nnl rc onrn1 'ndn tion 5 which will be ncccs-stUT if the C 1o·i·c s i 0 ·- to lcgislntc intclli 'lltly in this nrc- -1 r mes B H honds Archh·ist of the Unilcd Stntes in his tcsti•mony m support of the propo nl stated · - strongly upport thC' c-nll for a stmh- rommi sion to exnmn e the fonnd Hion of hi - toricnl evidence and the presmnpt- ons nbout whnt 110nl l be kPpt and how best to preserve 1t- to scryc thP ncPcls of the futur Onr nrchirnl - prohlc_m nrC' both phi1o -mphi 'nl nd proc·Nluml i tw h -· co1 11mss10_n et1n·bc n good uppro 1 h to soh-ing them _ Dr Rhonds wc-nt on to ob - -erye thn t _ ve I I 1' i'I ' • • Study_ c_omrni ion hin-c often OYC'rcom grent Hnkultie5 · m orgam -mg g n· 'l' WH'nt ll C'fforb in the pn t The crentinn · of a 1111tio1rnl -u-ch1Yr systl'lll w 1s hron ht nbout ln· th cffor o ri num c •r of study_ con1mi _iof tl - Bt·m ·nlow Comrn1l rc of H 6--10 C' --l 1hh lwd tht' bxN 'ttlffC' Offic ' of Jht' Prt ' --1 lrnt 1n d uppl' l t- l the t'CfkiPnc· · of the Exc•t·utin brnnch nncl t lw I1°nYPJ Cnmmi - ion of in-rn nnd l n oYl'r· rnulC'cl the wholt or 111iz 1tion ot' thC'EXl'elltin• hmnl'h tomakl' 1t JllOl'C rl' J Oll i 'C to t ht' dPm md - of n eh HH ·d - o ·i •t · l nm conf1dt•al l h 1t this t udy eommi - itHl c1 n llC'l'l ·it ii · the smnc l · l of _ uc_ct •ss in nn 1reu of ' thll complexity H R 1507- -2 • I I I r -- t - •• ·-· -· 41 1' -- • i '·· - i I I' I • r 10 · I ·• It i the opinion of th com nittre thnt thi - IC'fr tla ion m ct _th_e public int •rC 4 of pn• •rnng t11P t apr nnd 1_11at 1 Jill of th 1 H' --1dcnc Y o icdwrd I ixon and tlwt ll p1 ondc• q proJH u tL' il CT - -lo th l' - c m '1 ll•rinl -- for u p in j udic·i d proc rt•d111µ - und lnr 1 1 l ill 1 t 1• U --«bv the public Thl· co nmit ti•t ill o Jwlit•vc• - tl111t the b1 l will ' ' 1llstructivch- ·ontrihatc to tlw dPn 'lopnwnt of n u aifonn m1t_101 nly 1 11H-y c r lnling the handling of the dot urnents nnd rc•cord ol ah 1' L'tlt·ral officinls i COXCLVSJO X f i i SEC'fJO -BY-SECTJOX SU DI ARY OF THE DILL SIIORT Tl1'LE The first section p o·dclcs tlrnt t11i egislntion n ny be ' tecl ns thC' Prcsi fontinl Rcr ordmg md laterrnls PrcscrYnhon Act ·1 T1TJ E I-PnESEUV TIOX 01· I'nESIDE XTI Al REcom IXGS AXD fa TEnIA S • DELIVERY AXP UETEX'l'I0 01-· CER'l ux PUESil EXTIAL I TElU · LS I Htatergafe tape recorclinfJS L ' Section lOl n proYides thnt notwithstnm1ing nny oll1C'r l or agi-ecme ut rcnchCld um rr scctior 2107 of titl 4-1 United t il l_le CoclL· nnv- l cLlernl cmployre m pos p - wn hall dchvc-r to th ' Aclnmu tril ol' o Genernl SrrYicc -s hc-rC'innftrr in this summ iry referred to ns t11e Administrator nil original t 'tpc recordings of conYersations whith ·' l er£' recorded hy nny ofliccr or cmplonc of the Fcdrrul Gon·rnmcn L 2 invoh·c former Pn itl nt Rieh 1 rcl 1 Xixon or otlwr indiYiclth ls who were employetl by the Fr clc•r 1 l Gon mment nt the time of the conYcr ation 3 wcr ' recorded in the rhite Hou -e ur in cc1·tnin other offices of fr Xixon nnd 4 were recordrd dnrin the period beginning J mtitll'Y 20 1969 nnd ending August -9 l 0 -f Rete T_ltion of historical malcrial s Scc ion lOl b proYid ' that notwithsttinclin nny oth r fo or ngrccmcnt 1·c u· wd mulPr - ettion lOi of title •H L nitC' l St tle CC'C t ' the Adminfatr 1lor shnll r 'ceiyr nnrl rctnb1 1ll p pcr5 c octm1ent · mcm or mdum tmn - eripts 1·nc1 oth 'r ohjecb nncl nh1terinls d1ic h constitute t hc Prc illcntitil hi5toric 1l m itcriul of lr Xixon ovc-rinz · the 'i e1focl br p inning tT munr · 20 HJG9 nnd ending Au n t 9 197- SC'ction IO 1 b nl - o drli w - the tcrnr hi toric-nl nrnterinl - '' ns h 1Yin · t hc me min giwn it hy --N·tion 2101 of title 44 l'nitrd tatr - Cod Section 2101 provitlt' thn t neh term indudr ' hook con·e pc 1ulc-n · document pap 'r pamphh·l work - of nrt moth'1 pietun• pht•togri1ph plat - m q film moti n picturrs mmd n· · lnlin - ll d 0U1l obj •cls or m 1terial lrnYing hi lorical or t·ommen1oralin Yi1 ur ' ' · ·0 -1 ' j 1 ' AVAlLADILITY OF CER'f lX PRESIDEXTIAL ll - TERIALS J roMbition n f destruction Section 102 1 provic1r thnt none of the tnpl' rrcording or other mntl•1fols rcfonet l to in section 101 hcrciunftcr in this su·uunary re- j D ECLAS • 1 Aulhoritj ·rJ foJ Cj'SS J L ----- ---- - I' 9 rrhc i -- nc thn t shou d h ron i Jc r l ln· the commission u·c hoth philosophic·n_l ttHl f J'O C'dUral TIH•y in ·ludc •· a r 'i ' nf pror c _Jurc tc lllSllJ' ' rn 1xrnrnm pn•- 1•n·n l u n of thPful l11 nn · il m 1 tC-riil I rnd procN1m·c s lo ns t l'C c •arliP - l _prattit ihJ a ' - -ihili_ty of hC -H ' Jij 1 ri r d matl rinls lo chol 1r - for tlw1r n- ' uul 111tcrpretnt10n I he r omnu 1nn should nl - o ron idf'r tlH· c•xtc-n1 to whi ·h procf'durC' - for g- 1i11in triy ncccss tot hc c 11fo l 'ria 1 owy aff1't' t t hC ' willingw• - s of ofHc iuls to pm c r ·c to the mnxinnun 'XleJlt U -- -ful lii --tc 1·i · 1i 111 tlt •l' Otlwr i uC's tlwt - hould bc ' c-oa idc•n•cl in ·l11dl' 1 the nnturc of puhlic do ·t1rn '1 1f u nn uclt' f t_l tlP 'l tlflH'lllution of th work of gon•rmu •nt c Hu rnl t 2i t u • 11 -j --ll on of ' ' _onb 1 l'c ' tt 'd ht appoiutc-d offic·ial - uch a - c11 n m 1 onrcl'l' - i _ hit Hon -C tnlt nnd memb •r of tlw F lcll'rul Judu·1 11T i n d1 'cus ion of n con 15tcnt policy· 1 c nrcling record - ere H • within the Ex 'cuth·c Otncc of the i rc - iclencY · 4 the role of elected ofl1c •r - n they gcnC'rt1 le nnd retain filcR reflccdng bolh poli tiC'5 nnd public 1dmiui - trftlion 5 1 • wb thcr pc •1·sonnl ni Hl truly politir nl mnttc-r - could be sep u·nte l from J1HlHc1· of oflicinl juri diction in public ndmini - tmtion iG whether the iu lu - ion of poJitir- d fi ' would inhibit mliti - 11 i i rlidti 's in nny wny 7 circnm - lnncC's nnclcr whi ·h genern public 1ec '55 to · mntcrfols should be ullowc•d nnd npproprwtc pi·ocedu ·c to pro ·idcsuch nccess S the nerd to protect ccrtnin nrntr rfols for 1w1' '01rnl polit icnl or nntionnl Rt'curity rcnsons nncl 0 wh thC'r legi lntion would C'ncourngl olficinl to purp c file while slilJ in office 'l'hc hill would C'stal Ii h a t ommi sion that rnulcl induclc the' k 1elinz -autlwritiC's on nncl pN·sons vith principnl rcspon - ibilitiC' i fo _· the disposition of historfool record Thi conunission would cn m· the cxc nngc of ideas nmong cxpC'rts in the field nncl lend to hi• •·hl - nrofess10nnl rc onrn1 'ndn tion 5 which will be ncccs-stUT if the C 1o·i·c s i 0 ·- to lcgislntc intclli 'lltly in this nrc- -1 r mes B H honds Archh·ist of the Unilcd Stntes in his tcsti•mony m support of the propo nl stated · - strongly upport thC' c-nll for a stmh- rommi sion to exnmn e the fonnd Hion of hi - toricnl evidence and the presmnpt- ons nbout whnt 110nl l be kPpt and how best to preserve 1t- to scryc thP ncPcls of the futur Onr nrchirnl - prohlc_m nrC' both phi1o -mphi 'nl nd proc·Nluml i tw h -· co1 11mss10_n et1n·bc n good uppro 1 h to soh-ing them _ Dr Rhonds wc-nt on to ob - -erye thn t _ ve I I 1' i'I ' • • Study_ c_omrni ion hin-c often OYC'rcom grent Hnkultie5 · m orgam -mg g n· 'l' WH'nt ll C'fforb in the pn t The crentinn · of a 1111tio1rnl -u-ch1Yr systl'lll w 1s hron ht nbout ln· th cffor o ri num c •r of study_ con1mi _iof tl - Bt·m ·nlow Comrn1l rc of H 6--10 C' --l 1hh lwd tht' bxN 'ttlffC' Offic ' of Jht' Prt ' --1 lrnt 1n d uppl' l t- l the t'CfkiPnc· · of the Exc•t·utin brnnch nncl t lw I1°nYPJ Cnmmi - ion of in-rn nnd l n oYl'r· rnulC'cl the wholt or 111iz 1tion ot' thC'EXl'elltin• hmnl'h tomakl' 1t JllOl'C rl' J Oll i 'C to t ht' dPm md - of n eh HH ·d - o ·i •t · l nm conf1dt•al l h 1t this t udy eommi - itHl c1 n llC'l'l ·it ii · the smnc l · l of _ uc_ct •ss in nn 1reu of ' thll complexity H R 1507- -2 • I I I • rJ •' • FOI REQUESTS FOR TELEPHONE TRANSCRIPTS EXEMPTION FOR CLASSIFIED MATERIAL Exemption 1 under the FOI permits an agency to withhold classified information As with other FOI exemptions reliance on Exemption 1 assumes that the document in question is an agency record see Tab 2 otherwise subject to the FOI In addition if the pending FOI requests for the telephone transcripts are to be denied on grounds that they contain classified material this may be inconsistent with a claim that the transcripts are personal papers Exemption l exempts from FOI disclosure materials that are A specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and B are in fact properly classified pursuant to such Executive order 11 II Thus there are two aspects to Exemption 1 Under part A information to be kept secret must satisfy the criteria set forth in the applicable Executive Order This requirement has been construed as meaning any material classified under the Executive Order on classification E O 11652 EPA v Mink 410 u s 73 1973 Under part B it must be shown that the documents at issue have in fact been properly classified The Conference Report on the 1974 Amendments to the FOI states that a document must be properly classified pursuant to both procedural and substantive criteria contained in E O 11652 H R Rep No 93-1380 93d Cong 2d Sess at 12 With respect to the substantive criteria in E O 11652 Secretary Kissinger's telephone transcripts would be classifiable only to the extent that they contain national security information It is unlikelyJ therefore that all of the transcripts would be classifiable S' DECLASSm ED- 1 qS Authority ·riJ Vj ---- • • • -· 2 With respect to procedural criteria section 6 of E O 11652 requires that all classified documents be appropriately and conspicuously marked as classified This raises two questions concerning the telephone transcripts 1 can they be now marked as classified even though some have been in existence for several years and 2 can they be classified en masse Classifying Old Documents There appear to be no court decisions on the question of whether a document can be classified several years after it was made One mus therefore examine E O 11652 and the regulations issued pursuant to it to determine whether the belated marking of classifiable material constitutes proper classification V Section 4 A of Executive Order 11652 provides that each classified document shall show on its face its classification ••• whether it is subject to or exempt from the General Declassification Schedule and also the office or origin and the date of preparation and classification •••• The latter term concerning the date of preparation and classification suggests that the processes of preparation and classification are distinct and that each may - be undertaken at a different time If thfs is indeed the case then there should be no objection if one were now to classify Secretary Kissinger's telephone transcripts On May 17 1972 the National Security Council issued a Directive 37 F R 10053 pursuant to Section 6 of E O 11652 which authorizes the issuance by the NSC of binding Directives relating inter alia to the making of classified material Part IV of that NSC Directive provides in part ··»tt' QS Authority ·rJ rvj 1 qs - V ✓ ' • • - 1 - At the time of origination each document or other material containing classified information shall be marked with its assigned security classification and whether it is subject to or· exempt from the General Declassification Schedule 11 This suggests that in order for a record to be properly classified it must be physically marked as classified at the time of its origination 11 On the other hand the NSC Directive then goes on to state The person who signs or finally approves a document or other material containing classified information shall be deemed to be the classifier The latter sentence seems to imply that a document has not been classified until and unless a the appro-· priateness of classifying the document has been reviewed and b the document itself has been signed ·or approved In other words classification involves more than simply marking a document Where documents are not marked at the time of their origination the NSC Directive states only that 11 11 Should the classifier inadvertently fail to mark a document using one of the formulae specified in the directive the document shall be deemed to be subject to the General Declassification Schedule -· The Directive does not say that failure to mark a record at the time of its origination ipso facto precludes a subsequent classification of there°cord In dealing with this complex problem of subsequent classification one must also take into account the State Department's classification regulations which were promulgated pursuant to Section 7 B 1 of E O 11652 and which may be applicable to the classification of records kept by Secretary Kissinger Section 912 1 of the Uniform State AID USIA Security Regulations provides in pertinent part ' • • DECLASSIF 1 E o--- Authority ·rJ TvJ ss LC 4 - Any person who originates a classified document has the responsibility to assign the appropriate classification at the time the document is prepared The final classification and declassification schedule however must be approved by an official with the appropriate level of classifying authority This language again suggests that the classification process is not complete until the appropriateness of a classification has been reviewed and approved by an official having the requisite classifying authority Thus an argument can be made that a classifiable document can be given a classification marking sometime after it was made However there are considerations on the other side If Secretary Kissinger's telephone transcripts should now be classified ostensibly in response to the pending FOI requests a court may question or at least scrutinize more carefully the classification Classifying Documents En Masse If some of the transcripts are classifiable must someone engage in the painstaking work of reviewing each of the tapes and records one by one or can certain categories of tapes and records be classified en masse without an item-by-item review J One might contend that since the transcripts ary of considerable volume and since some of them clep iy contain national security information it would--oe consistent with E O 11652 to make an inter im ··en masse classification of such materials pengj ng✓a --more detailed review One might for example affix a classification marking to the front of'eaa-ii tape that clearly contains some national security information such a classification would of course be a qualified one See NSC Directive of May 17 1972 Part IV B which provides that the classification of a document shall be conspicuously marked or stamped at the top and bottom of the outside of the front cover if any on the title page if any on the first page on the back page and on the outside of the back cover if any i I J • • - 5 - applicable only to national security information contained in the tapes or records There appear to be no precedents to support the· making of blanket classifications Moreover if many of the telephone transcripts were broadly classified the classifications would be subject to judicial review under the FOI and the court could compel disclosure of non-classifiable information 5 u s c 552 a 4 B In camera Inspections At the time the FOI was first enacted in 1967 there was considerable uncertainty as to how far a court could go in reviewing an agency's claim that certain material was exempt from disclosure The Act stated simply that the courts shall determine the matter de novo and the burden is on the agency to sustain its action As for materials exempted because classified the Supreme Court held that u s district courts could not make in camera inspections of classified documents for purposes of separating out any nonsecret components EPA v Mink 410 u s 73 1973 The 1974 amendments to the FOI in effect overruled this holding in EPA v Mink and increased judicial authority to conduct in ' camera inspections· The Act now provides · T he court shall determine the matter de novo and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in Subsection b of this section and the burden is on the agency to sustain its action 5 u s c 552 a 4 B - •4 I • • - 6 - The conference Report however states that in camera examination need not be automatic and that before a court orders in camera inspection the Government should be given the opportunity to establish by means of testimony or detailed affidavits that the documents are clearly exempt from disclosure Senate Report No 93-1200 at 9 The Conference Report then goes on to state T he Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record Accordingly the conferees expect that federal courts in making de nova determinations in Section 552 b ·c1 cases under the Freedom of Information law will accord substantial weight to an agenc 's affi avit concerning e etai s of e c assified status of the disputed record Id at 12 This would appear to indicate that if the State Department denies the pending FOI requests for telephone transcripts on the basis of Exemption 1 and if the FOI claimants seek judicial review an in camera judicial inspection of the transcripts might be resisted by presenting affidavits attesting 1 that the transcripts contain national security and foreign policy materials and 2 that the transcripts have been properly classified or that they fall under some other FOI exemption Segregable Matter Although information in a document may qualify for one of the FOI exemptions it does not necessarily mean that the entire document will be protected from disclosure Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection 5 u s c 552 a ✓ V I • •' 'J • • • - ·7 - This means that even if a particular telephone transcript contains classifiable material the classification may not extend to the entire transcript Moreover the courts are empowered to make determinations not only with respect to an entire record but also as to any part thereof 5 u s c 552 a 4 B In conclusion Exemption l will not afford a basis for withholding all of the transcripts Although transcripts containing national security information can probably be marked as classified at this late date the process of marking the appropriate transcripts would take time and any classification would be potentially the subject for an in camera inspection by a court ' • I · • • Februa-9 1976 FOI REQUESTS FOR TELEPHONE TRANSCRIPTS EXEMPTION FOR INTRA-AGENCY MEMORANDA This memorandum addresses the question of whether the telephone transcripts are exempt under FOI Exemption 5 for inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency 5 u s C · 552 b 5 At least two questions are involved 1 are the transcripts including those of conversations with persons outside the government inter-agency or intra-agency memoranda and 2 would the material in the records be available by law to a party • in litigation with the agency Intra-Agency Memorandum Requirement Records of conversations between persons in the Government would seem to fall readily in the category of inter-agency or intra-agency memoranda under FOI Exemption 5 The difficult problem involves conversations with those outside government The Congressional purpose underlying Exemption 5 -the protection of internal deliberations of government ·officials -- would not at first glance seem to encompass memoranda of a communication with someone outside the government It might be argued that conversations with such persons are not equivalent to internal deliberations within the Government However at least two cases have purported to construe Exemption 5 as applying to views which outsiders provide to government agencies In Soucie v David 448 F 2d 1067 D C Cir 1971 a court said that a scientific report prepared by outside experts at the request of a government agency should fall within the coverage of Exemption 5 ' • - 2 - • The rationale of the exemption for internal communications Exemption 5 indicates that the exemption should be available in connection with the Garwin Report even if it was prepared for an agency by outside experts The Government may have a special need for the opinions and recommendations of temporary consultants and those individuals should be able to give their judgments freely without fear of publicity A document like the Garwin Report should therefore be treated as an intra-agency memorandum of the agency which solicited it 448 F 2d at 1078 n 44 The question was more directly addressed in Wu v National Endownment for Humanities 460 F 2d 1030- 5th Cir 1972 In that case a Chinese scholar applied for a grant from the National Endowment for the Humanities In reviewing the scholar's application the Endowment requested the views of outside experts The experts did provide opinions most of which were in writing and one of which was oral The court held that documents containing these opinions are intra-agency memoranda even though the five professors were not actual agency employees 460 F 2d at 1032 11 One of the factors on which the court relied was that Congress had specifically authorized the Endowment to use the services of experts and consultants But this does not seem to be the principal consideration In discussing whether documents from other outside experts were subject to Exemption 5 the court stated · The community of Chinese scholars and of others in specialized fields is small and the members are the only ones qualified to evaluate each other's work Surely they would be hesitant to be frank with the Endowment in their evaluations of a colleague's work if they knew he could readily obtain their comments from the Endowment The Endowment's interest in retaining the services of these outside experts clearly outweighs the public's interest in whatever factual excerpts there may be in the memoranda appellant seeks Id at 1034 emphasis added ·• ' • - 3 - • Similarly it could be argued that the Secretary of State should have access to views and comments from as many possible sources including persons outside the Government and that it is in the public interest that he have the candid views which only a policy of non-disclosure could provide Memoranda Not Available in Litigation Advice and Recommendations FOI Exemption 5 does not exempt all inter-agency and intra-agency memoranda but only those which would not be available by law to a party • in litigation with the agency Courts have interpreted this provision as drawing a distinction between factual material on the one hand and material used in the deliberative or policymaking process on the other If a document is a part of the deliberative or policy-making process of an agency it is exempt from disclosure under Exemption 5 EPA v Mink 410 U S 73 89 1974 For example it is clear that where a document expresses advice or recommendations as to what policy the government should adopt the document can be prot cted at least in part under Exemption 5 The legislative history reveals that Exemption 5 was enacted to protect the full and frank exchange of opinions within and between agencies s Rep No 89-813 at 9 H Rep No 89-1497 at 10 At the same time however it was made clear that Exemption 5 was to be construed as narrowly as consistent with efficient government oper·ation 11 Id Narrow construction of Exemption 5 appears to have manifested itself in two ways to date First it has been held that even though a memorandum may reveal the deliberative process of an agency if that memorandum sets forth the final decision of an agency on a matter it cannot be protected under Exemption 5 NLRB v Sears Roebuck Co 421 U S 132 1975 Vaughn v 7 fc sen 523 F 2d 1136 D C Cir 1975 Second where a memorandum contains both factual material as well as recommendations an agency would have to disclose the factual portion of the memorandum if it is severable from the recommendation portions EPA v DECLASSIFilrD Authority ·rJ rJJ 1qss 1 • ' • - 4 - • Mink supra 410 U S at 91 Grumman Aircraft Eng Corp v Renegotiation Board 425 F 2d 578 582 D C Cir 1970 · On the other hand if the factual material in a memorandum is inextricably intertwined with advice and recommendations in the memorandum the factual material can be withheld Souciev David 448 F 2d 1067 1078 D C Cir 1971 Thus if a telephone transcript contained factual descriptions intertwined with advice and recommendations the entire transcript would undoubtedly be withholdable The more difficult problem is where a document contains no advice or recommendations per se but simply reveals a policymaker's state of--iurncf Mental Processes and Evaluations There is a growing body of decision which indicates that even though a document may not contain what are strictly speaking advice and recommendations the document may nevertheless be withheld if it reveals the mental or deliberative processes by which policies are formulated or decisions made · · This concept appears to have been first developed in_ the FOI area in International Paper Co v F P C 438 F 2d 1349 2nd Cir 1971 That case involved a request for staff memoranda upon which a final decision was ultimately based The court concluded To allow disclosure of these documents would interfere with two important policy considerations on which Exemption 5 is based ···encouraging full and candid intra_agency discussion and shielding from disclosure the mental processes of Executive and Administrative officers 438 F 2d at 1358-59 emphasis added The Court in International Paper derived this language in part from Carl Zeiss Stiftung v V E B Carl Zeiss Jena 40 F R D 318 D D C 1966 affirmed 384 F 2d D C Cir 1967 In the Carl Zeiss case it had been held that to allow discovery in litigation of certain intra-agency memoranda would entail the probing of the mental processes of administrative and executive officers of the government thus discovery was disallowed DltCtAS - 1 1 -pJ tJJ 1qss 1 • J 4 ' l • • - 5 - • The mental processes theme was picked up in Soucie v David supra where the o c Circuit said that Exemption 5 might include a factual report prepared in response to specific questions of an executive officer because its disclosure would expose his deliberative processes to undue public scrutiny 448 F 2d at 1067 11 This rationale is given an additional gloss in Montrose Chemical Corp v Train 491 F 2d 63 D C Cir 1974 This case involved a summary prepared by the EPA staff of evidence presented at a public hearing The EPA Administrator had asked EPA staff members to prepare this summary to help the Administrator digest the lengthy record of the hearing The FOI plaintiff claimed that the summary contained only factual material and no recommendations or deliberative material and thus should be outside the protection of Exemption 5 The court disagreed It noted that one of the exemption's purposes was to protect not simply deliberative materials but also the deliberative processes of an agency 491 F 2d at 68 and held that the summaries were protected under Exemption 5 To probe the summaries of record evidence would be the same as probing the decision-making process itself To require disclosure of the summaries would result in publication of the evaluation and analysis of the multitudinous facts made by the Administrator's aides and in turn studied by him in making his decision Whether he weighed the correct factors whether his judgment scales were finely adjusted and delicately operated disappointed litigants may not probe his deliberative process Id at 68 As a caveat the court said that where factual material contained in a summary is not already in the public domain a different result might be reached Id at 71 Thus it might be argued that the decision-rs not applicable to Secretary Kissinger's telephone transcripts because the material contained in those transcripts is presumably not in the public domain However the court '4 ' • - 6 - • appeared to have a broader rationale for its decision The court based its decision on prior cases which held that the mental processes of government officials should not be subjected to public or judicial scrutiny In particular the court described litigation known as the Morgan cases In one of the Morgan cases the Supreme Court had conciuded that the Secretary of Agriculture was required to afford a public hearing prior to making a certain decision However the Court also indicated that once the Secretary had made a decision following a full hearing it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusions • n Morgan v United States 304 U S 1 18 1938 Subsequently after a decision by the Secretary of Agriculture following a full public hearing the secretary was deposed and questioned about the grounds on which he made his decision The Supreme court held that this was an improper scrutiny into the mental processes of the Secretary Morgan v United States 313 U S 409 422 1941 One case which might at first blush undermine the mental processes doctrine is Vaughn v Rosen 523 F 2d 1136 D C Cir 1975 The Vaughn case involved Civil Service Commission reports that evaluated personnel management in various agencies The Civil Service Commission denied an FOI request in part under Exemption 5 claiming that the reports were pre-decisional memoranda which simply made evaluations on which an agency might subsequently act The court held that Exemption 5 did not apply and that the ·fact that a document was pre-decisional was not sufficient to invoke Exemption 5 T o come within the privilege and thus within Exemption 5 the document·must be a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters Put another way pre-decisional materials ar not exempt merely because they are predecisional they must also be a part of the agency give-and-take -- of the deliberative process -- by which th decision itself is made Emphasis added ' • - 7 - • It seems that the telephone transcripts would be clearly distinguishable from the evaluation reports the issue in Vaughn The court in Vaughn found the evaluation reports to be final agency opinions final objective analyses of agency performance under existing policy Thus the court relied on the fact that the reports comprised objective statements of a final agency position The notion of finality was enhanced by the fact that agencies receiving these reports often did not take further action on them By contrast there would be no basis for concluding that the telephone transcripts were a record of final agency action -- except insofar as a transcripts might be the Department's or NSC's only complete record of a substantial government decision Otherwise the material in the transcripts would seem to be what the court in Vaughn called a part of the agency give-and-take -- or the deliberative process -- by which the decision itself is made n In sum there is a substantial basis for one to argue that to the extent Secretary Kissinger's telephone transcripts reflect his mental processes or the mental processes of other government officials or the evaluations of either the transcripts should be withholdable under Exemption 5 In Camera Inspections To establish that the telephone transcripts contain material impinging upon the deliberative process a court might decide to make an in camera inspection of the -tran scripts ·The FOI Act states expressly that courts may examine the contents of • agency records in camera to determine if any of the exemptions apply- -1' 5 U S C 552 a 4 B This has been held·to encompass Exemption 5 EPA v Mink 410 U S 73 1974 EPA v Mink however also decided that with respect to Exemptions- -in camera inspections were not to be mandatory The Court noted that any member of the public who makes an FOI request is permitted to ·do so without any showing of need for the material requested Under such circumstances the Court said it would be inappropriate • - 8 - • for members of the public to require that otherwise confidential documents be brought forward and placed before the district court for in camera inspection -no matter how little if any purely factual material may actually be contained therein 410 U S at 92 The court then added that under Exemption 5 an agency should be given the opportunity by means of detailed affidavits or oral testimony to establish to the satisfaction of the district court that the documents sought fall clearly beyond the reach of material that would be available to a private party in litigation with the Agency Id at 93 Thus it is very possible that an in camera inspection would not be necessary to establish thatthe telephone transcripts fall within Exemption 5 and that affidavits or oral testimony would suffice Although the 1974 amendments to the FOI Act affected a portion of the decision in EPA v Mink they do not disturb the court's conclusions with respect to Exemption 5