DEPARTMENT OF STATE Washlniiton O C 3 '2 9 7 20520 Dear Mr Safire This is with respect to your letter of February 24 1976 in which you appeal the denial of your request for information from transcripts of telephone conversations now in the custody of Mr Lawrence s Eagleburger of the State Department Your original Freedom of Information Act request of January 14 1976 seeks two categories of materials from telephone conversations that Dr Kissinger participated in between January 21 1969 and February 12 1971 1 All transcripts including rough drafts if such exist in which my name appears 2 All transcripts including rough drafts if such exist of conversations between Mr Kissinger and General Haig or Mr Kissinger and Attorney General John Mitchell or Mr Kissinger and · J Edgar Hoover or Mr Kissinger and any other official of the FBI or Mr Kissinger and President Richard M Nixon in which the subject of 'leaks' of information was discussed Mr William Safire New York Times Bureau 1920 L Street N W Washington D C I J i b f9 5G _ DECLASSIFIED Authority I 2 In the Department's letters of February 11 and March 2 i t was indicated to you that since the documents encompassed by your request were not agency records within the meaning of the Freedom of Information Act you were not technically entitled to an appeal under the Department of State's regulations 22 C F R 6 8 Although we are still of the view that you are not entitled to an appeal we have employed the same procedures to your request as would be applicable to an appeal Your letter of February 24 raises the following points concerning the legal status of the documents encompassed by your request 1 Your letter asserts that the documents encompassed by your request must be agency records of the Department of State because they are physically located at the Department of State in the custody of the Executive Assistant to the Secretary who is also a Department of State employee The Department's Office of the Legal Adviser however advises us that the law is clear that the current location of a document does not control the document's status under the Freedom of Information Act and that documents which are originated in a White House office by a member of the President's immediate staff such as the President's Special Assistant for National Security Affairs are not subject to the Act Senate Report No 93-1200 at 15 1974 It should also be noted that the memoranda of telephone conversations have not been preserved as evidence of Department of State business As indicated in the Department ' s earlier letter the Department's Office of the Legal Adviser determined that the documents you seek are not agency records within the meaning of the Freedom of Information Act The Office of the Legal Adviser has again reviewed this issue and has reaffirmed its original view 2 Having reviewed the documents covered by your request the Department's Council on Classification Policy has determined that in the event the documents you seek should be deemed to be agency records exemption 5 under the Freedom of Information Act would be clearly applicable The documents reveal the detailed mental processes of government officials as well as portray some discussions of policy and decision alternatives DELlfuSIFIED I Authority y9 5G _ 3 3 Your letter asserts that an additional claim of invasion of privacy especially in those matters concerning this appellant i e yourself is in error The Department's Office of the Legal Adviser advises however that yours are not the only privacy interests which may be at stake For example if a memorandum of conversation mentioned the names of several persons including yours privacy interests might be at stake for all of the persons mentioned as well as for the actual parties to the conversation If your Freedom of Information Act request turned on the privacy interests of others besides yourself these interests could not be ignored 4 Your letter suggests a government official circumvents the Privacy Act simply by refraining from indexing material that ought to be available to citizens The Department's Office of the Legal Adviser has indicated to us that the Privacy Act does not require indexing that it would be incongruous for legislation designed to protect privacy to require government officials to index all documents in their custody and thereby arm themselves with greater access to information about individual citizens and that since the documents covered by your request are not contained in any file which is retrievable or indexed by any name or identifying symbol or code they are not subject to disclosure under the Privacy Act Having examined the documents the Council on Classification Policy has found that the documents are not contained in files which are indexed by any name or identifying symbol or code In summary having reviewed your letter of February 24 the Department has concluded that the documents you seek are not subject to disclosure under the Freedom of Information Act because they are not agency records Even if they were deemed to be agency records the Council on Classification Policy has determined that exemption 5 under the Freedom of Information Act would clearly exempt these documents from disclosure Sincerely John Reinhardt Chairman Council on Classification Policy Drafted L MDSandler be 3 29 76 x22149 Clearance - L - Monroe Leigh DECLASslFIED Authority lib- % % DEPARTMENT OF STATE W ashl eton D C 20520 MEMOR Ai DUM LIMITED OFFICIAL USE EXDIS March 26 1976 TO PA - Mr John Reinhardt Chairman Council on Classification Policy FROM L - Monroe Leigh '' - SUBJECT Saf ire FOI Requests of January 14 and February 24 On January 14 1976 William Safire of the N Y Times requested under the Freedom of Information Act FOI memoranda of telephone conversations of Dr Kissinger for the period January 21 1969 to February 11 1971 Tab 2 Specifically he requested all transcripts of telephone conversations in which a he is mentioned by name or b in which the subject of leaks is discussed between Dr Kissinger and either Mitchell Haig FBI Director Hoover other FBI officials or former President Nixon On February 11 the Department denied the request Tab 3 on the ground that documents sought by Safire are not agency records within the meaning of the FOI Other possible grounds for denial were also cited On February 24 Safire sent a letter received onMarch 1 in which he appeals the denial of his request Tab 4 We have sent an interim reply Tab 5 in which we reiterate that although Safire is not technically entitled to an appeal because the documents he seeks are not agency records we would give prompt and thorough consideration to the points he raises Recommendations 1 Because of the sensitive nature of the documents involved we recommend that you appoint a special three person panel for the members of the Council on Classification Policy CCP to review as soon as possible Safire's request and the documents Safire seeks Part III A 2 of the CCP rule provide for such a procedure Tab 6 LIMITED OFFICIAL USE EXDIS DE LASSIFIED JJlJQ -f95 Authority e LIMITED OFFICIAL USE EXDIS -22 Having again reviewed Safire's request we recommend that the CCP deny Safire's request on the ground that the documents Safire seeks are not agency records within the meaning of the FOI 3 If the CCP concurs with our analysis we recommend that you sign and send by March 29 the letter at Tab 1 Discussion The telephone conversation memoranda sought by Safire fail to qualify as agency records under the FOI on either of two grounds a the memoranda were originated at the White House at a time Dr Kissinger was the President's Special Assistant for National Security Affairs and b the memoranda have not been preserved as evidence of any agency business but as work aids of Dr Kissinger a It is settled that an agency record under the FOI does not include documents that have been prepared at the White House by the President's immediate staff of advisers Thus in the Conference Report to the 1974 amendments to the FOI it states The term agency is not to be interp reted as including the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President Senate Report No 93-1200 93rd Cong 2nd Sess at 15 1974 · The Co nference Report also states that Congress wished to affirm the result in Souci v David 448 F Supp 1067 D C Cir 1971 In that case the court held that a separate office located in the larger Executive Office of the President and vested with special statutory functions was an agency under the FOI but it also indicated that presidential advisers sering on the President ' s immediate staff were not part of any agency for FOI purposes This view was also confirmed in Nixon v Sampson 389 F Supp 107 D D C 1975 where the court said that documents originating in the immediate office of the President are not agency records subject to the FOI For this reason the telephone conversation memoranda requested by Safire which were originated in the office of the National Security Adviser to the President between January 1969 and February 1971 are not agency records within the meaning of the Freedom of Information Act DE LASSIFIED I Lib 9' 5G Authority e LIMITED OFFICIAL USE EXDIS • -3b In order for a document to qualify as a record'' of an agency it must be preserved as evidence of the organization functions policies decisions procedures operations or other activities of an agency 22 C F R 6 l b 44 U S C 3301 Dr Kissinger's memoranda of telephone conversations have not been preserved as evidence of any agency's business or activities Rather they have been preserved as a work aid to give Dr Kissinger some basis for recalling the innumerable conversations he had on foreign policy matters while serving as the President's Special Assistant for National Security Affairs There is some authority which holds that an individual's work aids even if originated within an agency are not agency records for FOI purposes In Porter County Chap Etc v Atomic Energy Commission 380 F Supp 630 N D Ind 1974 it was held that handwritten 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 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 LIMITED OFFICIAL USE EXDIS DECLASSIFIED J J y 5C _ Authority ' • LIMITED OFFICIAL USE EXDIS -4- members it would preclude employees from ever committing any thoughts to writing which the author is unpr pared for whatever reason to dissemination pub iclr Even if the records were agency records th i 7 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 In sum there is very strong support for the conclusion that the documents which Safire seeks are not agency records and thus need not be disclosed under the Freedom of Information Act The present location of documents The fact that a document is presently located in an agency such as the Department of State is not a determinative of the question of whether the document is an agency record What is critical is where the document was originated There are cases which hold that a document presently located in the Office of the President but originated in an agency are considered to be records of the originating agency Nixon v Sampson supra 389 F Supp at 145-46 see EPA v Mink 410 U S 73 The converse should follow particularly where as with the Secretary's memoranda the documents have not been circulated within an agency and have not been preserved as evidence of any agency's business Although the Safire request should be denied on the ground that the documents he seeks are not agency records it would be helpful in future litigation to reiterate that even if the memoranda were deemed to be agency records other defenses would undoubtedly be available We believe that virtually all and perhaps all of the memoranda are withholdable under one or more of the following defenses Exemption 5 for intra-agency memoranda exemption 1 for classified material and invasion of privacy Exemption 5 Intra-Agency Memoranda Memoranda of conversations between two government officials readily fit within the concept of an inter-agency or intra-agency memorandum under FOI Exemption 5 As for conversations between Dr Kissinger and persons outside the government two cases indicate that memoranda of such conversations would be covered LIMITED OFFICIAL USE EXDIS DECLASSIFIED ctbority lib 79 sra_ • - LIMITED OFFICIAL USE EXDIS -5- 7 by Ex m tion 5 if the conversation involved the expression of pinions or recommendations to Dr Kissinger Wu v N tional Endowment for Humanities 460 F 2d 1030 5th Cir 1972 Soucie v David 448 F 2d 1067 1978 n 44 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 DavI'a ' supra 448 F 2d at 1067 cf Vaughn v Rosen 523 F 2d 1136 D C Cir 1975 holding that not all predecisional 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 Most of the memoranda sought by Safire clearly involve a give-and-take on foreign policy matters between Dr Kissinger as National Security Adviser and other persons Moreover to reveal these memoranda would reveal the mental processes by which decisions or policies were ultimately considered and formulated Thus we believe that Ex- emption 5 would be available even if the memoranda were deemed to be agency records Exemption 1 Classified Material FOI Exemption 1 protects material properly classified under Executive Order 11652 Some of Dr 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 later give the document a classification LIMITED OFFICIAL USE EXDIS DE LASSIFIED Authority 1 i f95 5Ca I • - LIMITED OFFICIAL USE EXDIS -6if the document contains national security information Thus even though the memoranda have not been formally ma rk e d as classified a large portion of them would be subject to classification because of their content -- e g candid references to foreign countries and foreign leaders discussions of subjects which are still treated as classified etc Invasion of Privacy The doctrine of invasion of priIt is clear that Dr Kissinger did not violate privacy laws by having a record made of telephone conversations in which he himself participated 18 u s c 251l b However this does not mean that he can be compelled to disseminate what others have told him or what he has told others in private telephone converations The participants in these conversations as well as persons referred to in the conversations may have privacy interests at stake if the memoranda are disclosed Although this is an unsettled area of the law i t would be prudent to mention potential privacy interests in a response to Safire vacy is still at a relatively young stage - LIMITED OFFICIAL USE EXDIS DE LASSIFIED - - - - - - - - - -------1L A utb orityJ J f 5 _