I DEPARTMENT OF STATE ACTION MEMORANDUM 5 S LIMITED OFFICIAL USE 1 May 11 1976 NODIS TO The Secretary FROM L - Monroe Leigh 2 Disposition of Your Papers and Telephone Memoranda Transcripts of your telephone conversations have to date been the object of three Freedom of Information Act FOIA requests From a legal standpoint we are persuaded that these papers are not subject to disclosure under the FOIA However we are concerned about public reaction and political consequences if the matter is given further coverage in the press 3 The legal status of the transcripts is however but a part of the broader question of what disposition should be made of your papers when you leave public office This memorandum therefore not only discusses your options with respect to the telephone transcripts but more specifically offers legal guidance on how to tr€at various categories of papers upon your retirement BACKGROUND ANALYSIS 1 Principal Objectives 4 In deciding what papers to take upon leaving office consideration must be given to criminal statutes that deal with the removal of government records 18 U S C 207l b and 18 u s c 641 Tab 1 Section 207l b makes it a crime for anyone having custody of papers deposited in a public office to willfully and unlawfully remove or destroy such papers This statute is designed to prevent the government from being deprived of the use of its LIMITED OFFICIAL USE 5 11111111 LIMITED OFFICIAL USE - 2 documents i t has been construed as not applying to the taking of copjes United States v Rosner 352 F Supp 915 1972 1 Section 641 is somewhat broader It imposes criminal penalties on anyone who knowingly converts to his own use any record or thing of value belonging to the United States The emphasis is not simply on depriving the government of a record but also on taking and making use of that record without the requisite authority The statute however has been construed as applying only where one has acted with criminal intent -an intent to appropriate something one knows he is not entitled to have Morisette v United States 342 U S 246 1952 2 Although these statutes h ave n e ver bee n applied against senior officials who take papers upon retirement one must make certain that removaL of a particular category of papers does not expose one to potentjal liabil ity The applicability of these statutes depends on two questions First is a particular document a government record or a private paper If there is substantial legal authority to support a claim of private ownership of a document then removal of that document cannot give rise to criminal liability 3 Second if a particular document is a government record has the removalof that document or of a copy been authorized If authority is given pursuant to statute or regulation removal of the document or copy consistent with the authorization will avoid liability Apart from these legal questions other objectives should be a to protect rights of privacy b to protect sensitive foreign policy information and c with respect to papers you originated or reviewed to assure yourself an access comparable to that available to other retired senior officials 2 Restricted Ownership 4 The Nixon Papers Controversy The ownership of a public official's papers is currently being contested in litigation brought by former President Nixon Although the ownership issues in that LIMITED OFFICIAL USE 5 1111111 LIMITED OFFICIAL USE - 3 - case are still unresolved the Nixon papers controversy points to a recent trend of restricting what a retiring official can take with him 1 During - his administration President Nixon asserte d an ownership interest in all papers generated at the White House while he was President · Upon leaving office Nixon entered into an agreement with the GSA Administrator under 44 U S C 2107 Tab 2 in which he purported to donate to the government all White House papers from his administration approximately 42 million items Nixon however reserved the discretion to destroy any papers and tapes included in the donation 2 The agreement was made public immediately following the Nixon pardon and added fuel to the public outcry Thereupon the White House decided that the United States should not go through with this donation agreement Nixon brought suit to enforce the agreement A lower court determined that Nixon did not own papers generated created produced or kept in the administration and performance of the powers and duties of the Office of the President but this decision is subject to further court review Nixon v Sampson 389 F Supp 107 145 1975 3 In 1974 Congress enacted the Presidential Recordings and Materials Preservation Act This statute directs the GSA Administrator to take complete possession and control of the presidential historical materials of Richard M Nixon irrespective of who currently owns them The statute does provide that if the courts ultimately decide that Nixon or others own these papers the government is to pay just compensation under the Fifth Amendment The 1974 Act also requires the GSA Administrator to propose regulations which will govern public access to the Nixon papers and which will protect national security information and rights of privacy It is contemplated that government archivists would catalog the papers and return to Nixon only those which are clearly personal The GSA last year did propose regulations which were rejected by Congress -- apparently because they were too generous to Nixon The rejected regulations LIMITED OFFICIAL USE DECLASSIFIED Authority l 9 5G _ 4 5 LIMITED OFFICIAL USE - 4 broadly defined presidential historical materials of Richard M Nixon to include all papers and materials 1 made or received by former President Richard M Nixon or by members of his staff in connection with his constitutional or statutory duties or political activities as President and retained or appropriate for retention as evidence of or information about these duties and activities We expect that this definition will reappear in future regulations prepared by GSA Indeed it is conceivable that the GSA will contact you and others who served on Nixon's staff and ask that you turn over various categories of papers prepared in the Nixon White House If such a request were made GSA may well ask for transcripts of your telephone conversations with the former President Under the 1974 Act GSA is not given authority to enforce its requests through court action However under 44 U S C 3106 see Tab 5 the head of any agency including GSA has the authority to bring a legal action to recover records which have been transferred to his custody and which have been unlawfully removed This might be applied to papers covered by the 1974 Act 3 2 3 National Commission on Papers of Federal Officials In the 1974 Presidential Recordings and Materials Preservation Act Congress directed the establishment of a National Commission to study and recommend legislation on the control disposition and preservation of records and documents produced by or on behalf of federal officials The Commission has come into being chaired by Herbert Brownell A membership list appears at Tab 4 John Thomas is the State Department representative on the Commission 4 The Commission has asked for a memorandum on the Department ' s policies and practices with respect to who controls papers kept in the Department This week we will submit a memorandum which stresses five policies 1 the need of the Department to retain all papers that evidence the Department's decisions and business 2 the need to protect the confidentiality of diplomatic 5 LIMITED OFFICIAL USE 11111111 LIMITED OFFICIAL USE - 5 - corr spondence nd of papers reflecting internal discussion of foreign policy alternatives 3 the right of a Department official or employee to retain papers of a per onal nat re or those he has prepared with the expectat 7o of privacy 4 the right of senior Department officials to have access to their files after retirement and 5 the rights of historians and the p blic to have access to appropriate papers The latter rights are well protected by the Freedom of Information and Privacy Acts l The Commission will not be in a position to make recommendations before the spring of 1977 It seems likely that future legislation based on the Commission's recommendations would not be retroactive -- and thus would not have a direct impact on officials who had by that time left office 4 2 What Papers Have Been Deemed Personal An Eisenhower Administration Cabinet Paper of 1959 provides one of the few sets of guidelines that attempt to distinguish government records from personal papers It notes a predominant government interest in maintaining complete records on all matters of official concern but specifically permits retiring Department and agency heads to take with them personal work aids such as office diaries logs and memoranda of con£erences and telephone calls -- unless such papers contain confidential government information Subject to the same limitation removal of extra copies of other papers was also permitted In July 1975 0MB published guidelines on what papers are to be considered agency records under the Privacy Act a recent statute that affords a citizen access to information the government and private organizations collect on him Although the 0MB guidelines are not concerned with retiring officials they are consistent with provisions in the Eisenhower Cabinet Paper 3 4 Uncirculated personal notes papers and records which are retained or discarded at the author ' s discretion and over w i h the agency exercises no control or dominion e g P ersonal telephone lists are not considered to be agency recor d s 5 LIMITED OFFICIAL USE DECLASSIFIED ib 9551 a Authority LIMITED OFFICIAL USE - 6 - At least one court decision under the Freedom of Information Act expresses a similar view -- that where a paper is retained by its author and is not circulated within an agency it is not an agency record Porter County Chapter v A E C 380 F Sup 630 1974 1 The only statute that attempts to define what is a government record is not very precise but seems to be consistent with what has been said so far That statute 44 U S C 3301 Tab 5 defines the term record as including all papers which both 1 were made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and 2 have been preserved or are appropriate for preservation • as evidence of the policies decisions or other activities of the government or because of the informational value of data contained in them A somewhat different approach to the personal versus government distinction appears in the State Department's regulations Under 5 FAM 417 l Tab 6 it is assumed that unless a paper in an employee's office has been • xplicitly designated or filed as personal at the time of origin or receipt the paper is a Department record which cannot be removed without the approval of the Director of FADRC Many of the papers you may claim as personal appointment books diaries personal correspondence telephone transcripts have fortunately been designated or filed as personal in accordance with the regulati n Some note should be made of White House procedures Those of the Nixon Administration Tab 7 precluded retiring staff members from treating as personal any papers made or received in the course of official business Those procedures ceased to be in effect after the fall of 1974 Since this was long before you left the White House staff you cannot have violated its provisions on retiring staff members 2 3 4 The Ford Administration procedures Tab 8 permit retiring White House staff members to take personal files but no definition is given as to what files are personal 5 LIMITED OFFICIAL USE DEC SIFIED J y95 5C _ Authority LIMITED OFFICIAL USE - 7 - In practice however we understand that White House counsel are proceeding on the assumption that any papers relating to official business are not to be treated as personal pending a final decision in the Nixon papers litigation l Finally there are some court decisions which suggest the possibility that an otherwise personal paper may be deemed a government record if the paper is the only existing record of significant government activities or decisions The current law is ambiguous on this point But given the current trend of restricting what papers are personal one should not discount the possibility that a court some day will hold that any paper prepared by a government official in a government office is a government document if it is tl eonly existing record of government activities o r decisions 5 2 Practice of Former State Department Officials Through the mid -1 96 0 1 s s enior Department officials often took large nll IT'ber s o f d ocuments with them on retirement The bulk of the paper s consisted of copies of papers the officials had worked on or reviewed These collections of copies and some originals in luding substantial quantities of classified mat rial · re often placed in private institutions aft r obtaining security c learances for the proposed stora r s A list of some of these collections app rs Tb 9 Apart from t he names listed we know th t Chri t i n Herter donated c opies of his papers to th Ei nhower Library John Foster Dulls h d num rous pap rs microfilmed at h is own expense and deposit d th microfilms in an approved security arc t Prine ton University That Dulles bore the expense of microfilming may be of some consequ e n ce During the Nixon papers controversy the vie w was voiced that papers prepared at government expense should belong to the government In 1 967 at the i nstance of Dean Rusk the Department t ighten ed its practice on the removal of copies of Depa rtment p apers Secr etary Rusk himself took no papers LIMITED OFFICIAL USE 3 4 5 LIMITED OFFICIAL USE - 8 - with him which related to government business under the theory that all such papers belonged to the government However his files are in a special safe in the Department and are currently available to him under a general Department practice of making such files available to retired senior officials 5 FAM 946 see Tab 6 p 2 1 Access to Rusk's safe is afforded to Rusk and to those he specially designates Access is also available to senior Department officials and also to individual bureaus provided that our document center FADRC obtains advance clearance from S S Access will also be available to Department historians beginning approximately 20 years from a file's origination For example in about 1981 when a historical review is made of all Department records dating from 1961 Department historians will review Rusk's files from 1961 with a view to publishing any documents that can be declassified Papers which cannot be declassified would be retained in the collection The collection would then probably be transferred to the National Archives subject to restrictions on public access in about 1989 -- 20 years after Rusk's retirement from office Among the files in Rusk's safe are memoranda of his telephone conversations Also stored in the Department under similar conditions are the files of 42 other officials see Tab 10 As a matter of course FADRC now rec mmends to all senior officials that their files be stored in the Department under conditions similar to those governing the Rusk papers One such recommendation was made recen ly to Under Secretary Sisco see Tab 11 On problem with that recommendation is that it treats as personal only papers of a strictly personal character pertaining only to your private affairs and not to official business In our view this is not an accurate statement of current law The authority cited for this proposition 5 FAM 432 Tab 6 p 2 is simply a regulation that requires one to make a separate record of portions of personal correspondence that discuss Department functions and activities 6 2 3 4 Retention of Copies Apart from personal papers the question arises as to whether you are permitted to remove originals or copies of government records -- or must the only copies LIMITED OFFICIAL USE I DECLASSIFIED J i jC -5Gt Authority 5 LIMITED OFFICIAL USE - 9 - of your files remain in the Department subject to the same privileges and restrictions as are applicable to Dean Rusk's files 1 Some former officials who have taken their files with them may have relied on the so -called extra copy exception Under 44 u s c 3301 Tab 5 extra copies of documents preserved only for convenience of reference are no t consi'd ere d to be government records Although an extra copy of a government record may not technically be a government record this does not end the inquiry One must also consider whether the retiring official has the authority to remove the extra copy -- particularly where classified information is involved Thus the 1959 Eisenhower Cabinet Paper on removal of papers states that whether or not a departing officer may take extra carbons or non-record copies of records should depend largely upon whether there is any policy or legal reason why the information contained in them should be regarded as confidential 2 There is no specific statute or regulation that permits retiring officials to retain extra copies But there are regulations assuring former senior officials access to classified records and this right of access was at one time construed as including the keeping of extra copies For example the Executive Order on classification permits former officials who were appointed by the President to policy-making positions to have access to those classified papers which the former official originated reviewed signed or received while in public office -- provided the head of the agency which originated the papers i determines that such access is consistent with national security and ii takes steps to assure that classified information is not published or compromised E O 11652 sec 12 The State Department has a similar regulation 5 FAM 946 -- Tab 6 p 2 which is the basis for permitting retired officials like Dean Rusk to have special access to their files in the Department This right of access was construed in the 1959 Eisenhower cabinet Paper as giving agency heads the discretion to permit persons granted access to classified information 3 4 5 LIMITED OFFICIAL USE LIMITED OFFICIAL USE - 10 under this Executive Order to acquire or reproduce and retain in their custody extra copies of those classified records if those persons arrange for the proper safeguarding thereof 1 Moreover the access contemplated in the executive order and regulations does not specifically preclude the storage of copies of a former official's files outside of Washington D c It only requires that steps be taken to protect classified information This means compliance with government security regulations in storing documents These regulations would obviously be satisfied if copies of classified records were stored at a government facility such as the USUN in New York or a regional depository under the National Archives see Tab 12 Conceivably approval could be obtained for storage at a private institution that had adequate security see Tab 9 It should be noted however that since 1960 the only Department official to have requested and obtained approval for storage• at a private institution is G Mennen Williams Although a particular institution may now have a classified collection a separate security approval would have to be obtained if your papers were to be stored in that institution 2 3 With respect to unclassified materials Department regulations would appear to condition their removal on the prior approval of the Director of FADRC -- at least where the document in question was not in the public domain The regulations state that unless a paper has been designated or filed as personal at the time of its origin or receipt it cannot be taken by a retiring employee without the FADRC Director's approval 5 FAM 417 1 Tab 6 7 Approval for Removing Copies Apart from security approval for storage facilities individual approvals should be obtained for the overall plan to remove copies If a paper is a State Department record approval is required from the Director of FADRC under 5 FAM 417 1 Tab 6 If a White House record approval would probably have to be obtained from the Counsel to the President see Tab 8 p 2 And if the document is an NSC record approval would probably be needed from the Executive Secretary of the NSC 4 5 LIMITED OFFICIAL USE DECLASSIFIED Authority 1 @ f9t 5Ja I LIMITED OFFICIAL USE - 11 If such approval is obtained i t would eliminate any question concerning possible criminal liability for the removal of copies 1 With respect to White House records as opposed to NSC records dating from the Nixon Administration Counsel to the President may take the view that these records are under the exclusive control of the GSA pursuant to the 1974 Presidential Recordings and Materials Preservation Act -- and that this is a decision for GSA GSA in turn may consider itself precluded by the 1974 Act from allowing you to retain copies 8 HAK Personal File in S S-I 2 S S-I maintains a separate file marked HAK Personal The file is not part of the Department's document system It has not been reduced to microfilm but is retained in paper form We have been informed that only your correspondence of a personal non-business nature is kept in this file Since the file is marked personal and since papers in it were placed there when they were received or originated you are entitled to take this file when you retire 5 FAM 417 1 -- Tab 6 9 Appointment Calendars 3 Your appointment calendars are placed in separate binders and designated with your initials An individual's appointment books have traditionally been treated as personal papers both in practice and under the 1959 Eisenhower Cabinet Paper We believe that your appointment calendars have been designated as personal for purposes of 5 FAM 417 1 and that you may keep them when you retire 10 Files in S 4 The practice in S has been to keep separate files to a minimum and to return papers to the originating bureau In the latter regard S maintains two safes of current matters whose contents turn over every week or so 5 LIMITED OFFICIAL USE DECLASSIFIED Authority 1 JD 'y 5r' o J LIMITED OFFICIAL USE - 12 There are however four safes devoted to working files that· are maintained for purposes of refe rence Include d are sensitive cables notes and memcons We are advised that all or virtually all of the docume nts in these safes have duplicates either in the Department or at the White House l From the general description provided to us the documents in these safes would seem to be government records The safes however should be checked to see if an occasional item of a personal nature is included If the files in these safes were to be physically transferred to an approved storage area outside of Washington several steps would seem necessary One should make certain the files contained copies and not the originals of documents The files might have to be segregated among State NSC and White House originated documents so that approvals could be obtained from each of the agencies concerned 2 Alternatively one ight a arrange to keep the actual files here at the Department but bl make a duplicate set of the files to be transferred to an approved storage area outside of Washington The files might conceivably be treated as a single collection of a Secretary of State's working papers and hence arguably Department of State records Counsel to the President might concur in this view if assurances could be given that the White House had the originals of all White House originated documents 11 3 Telephone Transcripts Is there sufficient legal authority to support a claim that the telephone transcripts are personal papers Factors supporting such a claim are that the transcripts were prepared and kept with the expectation that they would remain private they have been segregated from government records and placed in files bearing your initials they have been kept by you and your immediate assistants and have not been circulated in any government agency they seem to contain few if any discussions of substantial government decisions or activities which are not adequately reflected in existing government records 4 5 LIMITED OFFICIAL USE DECLASSIFIED I J Ji2 y9 5r a Authority LIMITED OFFICIAL USE - 13 The only factors that might be cited against a claim of personal ownership are that the transcripts we r e pre pare d on government time and at government e x pense and that they contain some discussions of governme nt b s nes In view of the pendency of the Nixon pape rs l1t1gat1on we cannot draw a firm conclusion as to wh o owns the transcripts But we do be ieve 1 that e xi sting authority can support a claim that they are personal papers and 2 that such authority is substantial e n ough to avoid any serious question of criminal liability if you treated the transcripts as personal 1 You may wish to confirm these conclusions with private counsel Indeed if the GSA Safire or others bring a suit for these transcripts you might have to bear the expense of defending a claim that the transcripts are personal papers 12 2 FOIA Requests for the Transcripts There have so far been three Freedom of Information Act FOIA requests for transcripts First William Safire requested all transcripts which either me ntione d him by name or contained a discussion between you and either President Nixon Mitchell Haig Hoover or other FBI officials on the subject of leaks ' On March 29 the Department denied Safire's appeal of our initial rejection of his request see Tab 13 We believe that Safire will soon begin a law suit against you to obtain the transcripts he has requested The two other FOIA requests -- from Norman Kempster of the Washington Star Tab 14 and Harry Rosenfeld of the Washington Post Tab 15 -- are broader than the Safire request Kempster is seeking the transcripts of all conversations between you and President Nixon Rosenfeld wants all transcripts referred to in a March 29 Washington Post article Tab 16 which appears to encompass all transcripts prepared during the Nixon Administration We have denied the Kempster and Rosenfeld requests Neither Kempster nor Rosenfeld has yet asked for an administrative appeal but their time to request an appeal has not expired The Department ' s denial of the Safire Kempster and Rosenfeld requests is based on the following legal defenses LIMITED OFFICIAL USE I DECLASSIFIED Autho ityJ lib- 95 ¼ 3 4 5 LIMITED OFFICIAL USE - 14 To the extent the requests seek transcripts prepared in your former White House office they are not subject to the FOIA The FOIA applies only to agency records and the term agency records has been defined to exciude papers prepared by immediate assistants to the President 1 The transcripts should be viewed as personal papers or personal work aids and thus not agency records within the meaning of the FOIA 2 Even if the transcripts were to be characterized as agency records they fall under exemption 5 of the FOIA Exemption 5 protects papers refle cting internal deliberations in the formulation of government decisions and policies Disclosure of many if not all of the memoranda would raise potential claims by third parties of invasion of privacy Even though the foregoing defenses will we believe protect the transcripts from FOIA disclosure any litigation could focus public attention on the transcripts Given the likelihood that William Safire will soon bring a law suit seeking some of the transcripts we would expect to see more press coverage on this subject 3 We raise the question whether an adverse public reaction could be averted if it were made clear that-the transcripts together with other papers would be donated to the government subject to reasonable guarantees of your future access to them Such a donation could be negotiated with the GSA Administrator under 44 u s c 2107 see Tab 3 4 OPTIONS A Options with Respect to the Telephone Transcripts Your options are 1 to maintain that all the transcripts are personal papers belonging to you 5 LIMITED OFFICIAL USE DECLASSIFIED AuthorityJ j 6 -f95 LIMITED OFFICIAL USE - 15 2 to maintain that all the transcripts are personal pa er except for those which appear to be the only existing record of significant government business or _decisions 3 to deposit the transcripts in your State Department files as Dean Rusk did and 4 to negotiate now an agreement to donate the transcripts with other papers to the National Archives upon your retirement 1 Maintain that all the telephone transcripts are personal papers belonging to you A principal advantage is that you would maintain actual control over the transcripts If however a law suit were begun you would probably have the personal expense of defending a claim of personal ownership This course would not help avert an adverse public reaction if Safire should bring a suit and if the litigation focuses public attention on the transcripts To the e'xtent the transcripts might __ include national security information you would have to store them ·in a specially approved facility Maintain that the transcripts are personal papers except for those which appear to be the only existing record of significant government business or decisions With respect to the latter sUinmary memoranda could be made of their contents and included in your Department files Making summary memoranda would be consistent with 5 FAM 432 Tab 6 p 2 which says that official matters discussed in personal correspondence should be extracted and made part of the official 2 LIMITED OFFICIAL USE DECLASSIFIED Authority l J i9 5r o _ I LIMITED OFFICIAL USE - 16 records Since the transcripts are presently in personal fil e s within the meaning of 5 FAM 417 1 Tab 6 p 1 you would have the responsibility for segregating out information to be included in Depa rtment files 1 A good-faith effort to· add significant information to existing government documents would strengthen your legal position by demonstrating that you are not depriving the government of necessary records 2 This course might however raise questions about the contents of transcripts that were not summarized and about whether the summaries are complete It would require a very substantial commitment of time and resources in order to read evaluate and summarize these materials 3 Deposit the transcripts in your State Department files as Dean Rusk did 3 This would negate any claim that you were keeping matters relating to official government business while assuring you access to the transcripts as other officials have access to their files -- The Department however would have legal control over and access to private communications included in the transcripts It would give the impression that the transcripts were agency records subject to the FOIA 4 4 Negotiate now an agreement to donate the transcripts with other papers to the National Archives upon your re irement 7 Such a onation w uld place the transcripts in a National Archives depository see Tab 12 subject to access by you and restrictions on 5 LIMITED OFFICIAL USE LIMITED OFFICIAL USE - 17 access by the public The agreement could also give you custody · of all transcripts of a purely personal natur as well as a copy of all other transcripts One might also ask the National Archives to catalog the transcripts here at the State Department while the papers are still in your custody cataloging would permit one to identify transcr ipts that may contain classifiable information or conversations that raise substantial questions of privacy Such an agreement would be negotiated under 44 u s c 2107 Tab 2 with the GSA Administrator who has jurisdiction over the National Archives l A donation agreement if announced at the appropriate time might avert an adverse public reaction from press coverage of future litigation by Safire 2 Since the donation agreement would be based on a statute permitting restrictions on disclosure the agreement may provide an additional FOIA defense to the Safire request Exemption 3 of the FOIA protects materials that are exempt from disclosure under other statutes 3 However the donation itself might focus public attention on the transcripts and invite comparisons with the Nixon donation A donation agreement will not eliminate the possibility that some of the transcripts will ultimately be determined to be subject to the Presidential Recordings and Materials Preservation Act of 1974 In fact since the GSA Administrator is given custody of the Nixon papers under the 1974 Act the GSA Administrator may insist that your donation agreement not extend to any portion of your transcripts which were prepared during the Nixon Administration -- and that GSA is entitled to these transcripts irrespective of any donation The effect of a donation might also be undermined by a future determination that LIMITED OFFICIAL USE 4 5 LIMITED OFFICIAL USE - 18 some of the transcripts were government records The donation agreement could be structured so that insofar as the transcripts were deemed to be State · Department records you would be viewed as transferring them i n your capacity as head of the State Department as provided in 44 u s c 2103-04 Tab 3 But to the extent the transcripts were deemed to be White House recrods the agreement might well be ineffective without the signature of the President 1 2 B Options with Respect to Files ins Your options for assuring yourself convenient access upon your retirement to files now in S appear to be 1 to attempt to secure the necessary approvals for a future transfer of the actual files to an approved storage facility and 2 to leave the files as a single collection here in the Department but attempt to secure approval for a duplicate set of this collection to be made and transferred upon your retirement to an approved storage facility 3 1 Attempt to secure the necessary approvals for a future transfer of the actual files to an approved storage facility Before the actual files were transferred one should probably try to make certain that they contain only copies and not originals of documents This would give you convenient access to the files in the form that- they are now stored in S However separate approvdl would probably be required from the Department the NSC and the Counsel to the President depending on where a particular docuemnt was originated It may also entail the burden of cataloging the documents according to their office of origination prior to obtaining the necessary approvals from the various offices This course may be criticized both inside and outside the Department An argument might be voiced that this would deprive the Department of the use of the working files of a Secretary of State LIMITED EEICIAL USE 4 5 LIMITED OFFICIAL USE - 19 - 2 Leave the files as a single collection here in the De partme nt but attempt to s e cure approva l for a copy of this collection to be made and tran sfer e upon your retire ment to an approved storage facility 1 This course might make' it easier to obtain the concurrence of the Counsel to the President for transferring copi e s of documents in the collection -- particularly if assurances could be given that the originals of any White House originate d papers are stored at the White House By characterizing the files as a Department of State collection the approval for transferring a duplicate set of the collection may appear to be more in the nature of a State Department decision 2 You would probably have access to both the collection in the Department as well as the duplicate set stored elsewhere If you personally bear the expense of making a duplicate set it might avert public criticism -- particularly if the duplicate set was to be stored in a private institution 3 RECOMMENDATIONS 1 With respect to the transcripts I recommend that you maintain that they are personal papers Any transcripts you keep should be stored in the same location where you would store copies of classified documents you may be authorized to retain 4 2 With respect to files in S I recommend that you leave the files as a single collection here in the Department but authorize us to attempt to secure approval for a duplicate set of this collection to be made and transferred to an approved storage facility upon your retirement To implement this we would first take steps to make certain that the White House has original copies of any White House originated documents in the S files LIMITED OFFICIAL USE DECLASSIFIED Authority lb 79 5 LIMITED OFFICIAL USE - 20 tan appropriate time we would contact Counsel to the President and based on our determination that the White House has the original copies of all White House originated documents ask for his concurrence 1 After obtaining White House concurrence we would ask our documents center FADRC to approve this approach Before the S files are deposited with the State Department as a single collection you should ithdraw any papers of a personal nature 2 3 That you designate one or two locations where you would prefer to have papers stored We would then attempt to obtain the necessary security approvals for these locations Attachments Tab 1 Tab 2 Tab 3 Tab 4 Tab 5 Tab 6 Tab 7 Tab 8 Tab 9 10 11 12 13 14 15 Tab 16 Tab Tab Tab Tab Tab Tab - Criminal Statutes 18 u s c 641 and 2017 - Statute on Private Donations to National Archives - Statute on Transfer of Agency Records to National Archives - Membership National Commission on Papers of Federal Officials Statutory Definition of Records - State Department Regulations on Removal of Records - Nixon White House Papers Procedures - Ford White House Papers Procedures - Private Institutions with Papers of Senior Officials - State Department V I P Files - FADRC Memo to Sisco - List of National Archives Depositories - Safire FOIA Appeal and Department Response - Kempster FOIA Request and Department Response - Rosenfeld FOIA Request and Department Response - Washington Post Article on Telephone Transcripts T M - LIMITED OFFICIAL USE 4 5 Mr Maw Mr Eagleburger Drafted L MDSandler dc be x22149 cc 3 DECLASSIFIED Authority JD Y95 To b I 6 § 641 Public money property er records Whoever embezzles steals purloins or knowingly converts to his use or the u se of another or without authority sells ccnvcn or cllsposes of any record voucher money or thing or value of the United States or of any department or agency thereof or any property made or being made under contract for the United States or any department or agency thereof or WhoE ver receives conceals or retains the same with Intent to convert It to his use or gain knowing it to have been embezzled stolen purloined or convertedShall be fined not more tha n $10 000 or Imprisoned not more than ten years or both but if the value of such property docs not exceed the sum of $100 he shall be fin ed not more than $1 000 or Imprisoned not more than one year or both The word value means face par or market value or cost price either whole ale or retail whichever Is greater June 25 1948 ch 645 62 Stat 725 2 § 2071 Concealment remonl or mutnation generally a Whoever willfully and tmlawfully conceals removes mutilates obliterates or destroys or attempts to do so or with intent to do so takes and carries nway aD7 record proceeding m2p book paper document or other h ni flied or deposited with any clerk or oIDcer of any court of the United States or In a11y public office or with my judicial or public ofllccr of the Umted Slates sh111l be med not more than $2 000 or unprisoncd not more than three yrars or both b Whoever having the custody of any st•ch record procctdlng map book docwnent paper or other thing willfully and unlawfully conceals removes mutilates obliterates falslfle s or destroys the same shall be fined not mere than $2 000 or Imprisoned not more than three years or both e nd shall forfeit his office and be disqualified from holdIng any office under the United States June 25 1948 ch 645 62 Stat 795 3 4 6 - I § 2107 Material accepted for deposit When the Administrator of General Services considers It to be in the public interest he m iy accept for deposit-Cl the papers and othEr his Orical materlaJs of a President or former President of the United States or other official or former ofli ial of the Government and other papers relalL'1g to and contemporary with a Pre idcnt or former President of the United States subject to restrictions agreeable to the Administratora - to- their use and 2 documents including motion-picture films still piciurcs and sound recordini s from pri 'ate sources that are appropriate for preser 'ation by the Govenunent as evidence of its organl ation functions policies decisions procedure and transact ions Pub - 90- 620 Oct 22 1968 82 Slat 1288 3 4 5 To b § 210l Acccptanc-c or rccords for histor·1 a1 1011 • preservn- When It appear s to the Admmi3t rator of General Servkes to be in the public interf'st h e may 1 acccp for dep sit with the National Ar chives of the Un trd Stat es the r ecords of a F ed era a gency or of t c Con n •c•- d t chivl• t c erm1 1ed by the Ar - of tne Umted St ltes lo have sufficient hlsturical or other value to warr lnt their continu d preserv tlon by the Umted Statrs Go ·ernment 2 _ direct and eITe t the t anz er to the National Arcluves of the United States of tecords of a Federal a gency that have b en in existence for m rc than fifty years and determined by the Arch vlst of the United States to have sufficient histo1ical or other value to warrant thcu· continued preservation by the United St ites Government unless the head of the agency hich has custody _o f them ce tlfies in writing to the Administrator that they must be ret tined m his custody for use in the conduct of the regular current business of the agency 3 direct and eITect with the approval of the head of the or inating a gency or if the existence of the agency has been terminated then with the approval of his successor in function If any the transfer of records deposited or ap r n·ed for deposit with thr National Archh·es or the United States to public or c dueation il institutions or associations title to the records to remain vested in th£' United States unless othennse authorized by Congress and 4 transfer materials from private sources authorized to be received by th Administrator by sect ion 3106 of this title Pub L 90-620 Oct 22 1968 82 Stat 1237 l DE0 mSIFIED Authority 3 9S- 6 I § 2101 Hcsponsibility for custody use ind withdra al of rec ords The Administrator of General Services shall be responsible for the custody use and withdrawal 0f records transfern d to him When records the use o wh' ch is subject t statutory llmitati in s and res nc tions are so transferred p rmi l e and 1estrit·t1· c statutory provisions with respect to the exa mination and use of reco1 els applicable to the head of t 1e agency from which the records were t ·ansferred or to employees of that agency are applicable t i th Administrator the Archn•1st of the United St ncs and to the employees of the General Sernces Administration res iecti •ely Whe1 the head of an agency statts in writing re tnctions that appear to him to be necessary or desirable in the pub ic i iterrst on the ·use or examination of records bE i n considered for transier from his custody to the Admiulstrator the Administrator shall mpo e the restrictions on the records so transferred and may not remove or relax the restrictions without the concurrence in •writing of the head of the agency frc n which the m terial was transferred or of is succ -ssor In function if any Statutory and other rcstricffons referred to In this section shall remain in force w1t I the records have bern in existence for fif y years unless thl AdminbLrator by order ckkrmmes as to specifi' bodies of records that the restrictions shall remain in fC1rcc for a longer period Restriction on the use or examination of records deposited nth the Nation Archives of the Uniwd Stales imposed by section 3 of the National Archives Act app o• ta JW1e 19 1934 shall continue in force ref ard e s of the expiration of the tenure of o nce of the ofiicial who imposed them but may be remo ·ed or rel n rci by the Administrator with the concurrrncc in writIng of the head of the agency from hi h 111 teri 11 was transferred or of his successor in funct10 1 1f any Pub L 90--620 Oct 22 1968 82 Stat 1288 l 8 4 5 - - J- • NATIONAL S TUDY co _ v I SSJO -J O RF- CORDS AND DOCU • ENTS OF FE DEK l l OF F I CIALS 6 The CommissioI1 is composed of seventeen members as follows One t 1e mber of the House of Representatives appointed b the Speaker of the House upon recomme ndation made by the majority leader of the House A I Edward Mezvinsky Iowa B One l'iember of the House of Rcpresenta ti ves appointed by the Speaker oft he House unon reconunendation r1ade by the minority leader of the House Robert J Lagomarsino California C ' One Member of the Senate appointed by the Pr esident pro tempore of the Senate upon rccomrocndation m de by the majority leader of the Senate · 8 Ga ylord Nelson - Jisconsin D One MeIT1 ber of the Senate appointed by the President p r o tempore of the Scn2te upon recommendation %ade by the minority leader of the Senate Lowe ll Weicker Jr Connecticut E 9 One Justice of the Supreme court appointed by the c h ief Justi e of the United States Not y e t designated F the Execu tive Office of the One person employe d by House Office appointed P resident or tJie ni te by the President Philip W Bu c h e n I 5 DECLASSIFIED ib- 9t ¼ Authority 6 § 3106 Unlawful r emoval destructi on of records Th_e ead of each Federal agency shall notify the Adm1mstrator of General Services of a11y actual impending or threatened unlawful I tmoval defa ing alteration or dt-struclion of records m the custody of the agency of which he is the head that shal come to his atte1 tion and with the assistance of the Administrator shall initiate action through the Attorney General for the recovery of records he kno s or has reason to believe have been unlawfully emoved from his agency or from another Federal arency whose record have been transferred to his legal custody Pub L 90-620 O ct 22 1968 82 s _tat 1298 I § 3301 Definition of records As used In this chapter records ln Judes all boC'ks papers maps photographs or other documcnt lry materials r rarclless c phy ic i 1 form or char icteristics made or recci ·ed by ar agency of the United States Government under Federal Jaw or In connection with the trans ction of public business and prcser 'ed or appropriate for preservation by that agency or Its legitimate successor as evidence of the oraaniU Uon functions policies decisions procedures operations or other activities of the Go ·ernment or because of the Informational valuP of data In them Library and museum matedal made or arqulred and preserved solely for reference or exhlb Uon purposes extra copies of documents preserved only or convenience of efer cnce and stocks ot publications and of processed documents are r ct included Pub L 90-620 Oct 22 1968 82 Stat 1299 8 9 10 T A6 I Cc Removal of Records 4 17 1 Legal Re strictions To implement the l egal restrictions against e r emoval of rec o rds by any employee lea v ing th servi e of a Fede r al agenc y as set __forth 1n the Federal Records Act of 1 950 as amended · see section 4• 11 • 1 th e f o 11 owing regula tions arid procedures apply within the Deparbnent of State and its component elem e nts a No paper s kept in an employee's office tha have not heen explicitly designated o r filed as personal at the time of o ri gin or rec ei pt may be remo ved from the Deparbnent or a post when the employee resi gn s transfers to another Federal agency or is otherwise separated from the Department or the Forei gn Service or at any othe r time without the approval of the Director Foreign Affairs Document and Reference Center b In the case of papers not explicitly designated as pe rsonal at the time of o rigin or rece ipt or filed as such t at contain both personal and official m atter the Director Foreign Affairs Document and Reference Center may require extracts to be prepared of the official conte·nts incorporation in the records of the Department or post concerned for c Unclassified documents relating to the performance of an employee's official duties may be copied and privately retair ed by an employee if approved by the Director Foreign Affairs Document and Reference Center 11 417 2 Respons ibility uf Administrat ive Office I The administrative section of each Departmental office or bureau and of each post has the r e spons ibil ty for the following ac lions l Reminding officials of the r ank of assistant secretary and above or rank of a mbassador ho are about to l eave the Dcpartri1cnt or the Foreign Service oi the l aws and rt gulations pertaining to the r emoval of recor ds sections -U and -117 2 Insuring that a JF--1 Security Ac kno kdgment e t cuted by each incoming official and a JF-3 St paration Statcmt nt executed by each departing official arc filed in the official's personnel folder sec 3 FA l 780 3 Sugg 'sti ng to these _ dcparting of ficials the desirability of consultin g it 1 National Archives r e pres e ntatives abo t depositing pt rsonal p a pers that might be o hil lorical interest in the National Archive or a Presidential archi ·al depository here specific rc-strictions may be plac ed on access to such papers 8 9 417 3 Declassification of P apl rs In addition to the normal procedure fo r de classification of docume nts contained in section 920 no papers may be declassified fo r the purpose of permitting their remova l rom the Deparhne nt or a post w1L1lout the consent of the Depa r tment's Executiv Secretary S S In passing upo n such de classification r equests the Executive Secretary may seek the views of other offices within the Departme 1t and pos s that may be concerned with the contents of the documents involved 10 - J OS l '•11 as hr rnay dl·li·rn1ir1P At the do of thl· r _lmi i i - t at ion t IH l' n ti rl t·r il ·d ion of p q •l· · nr Lc•1 r n-at d 11 1y l c c p t l d lo h1 deposited in al 1-c - 1drnllal lturary Slllular tt1 the JiiJr lric tliat p rYo the p a1 crs or the b st six PrQs d nt-5 To provide the Prc -jitlrnt with 1 ompl 'te nn l r ccuralc record of his tenure in off cc- lite 'i'hite House t2 if 111ust oYcrsec the prcse rrntio l of the papers 1t generates 'fhc procedures set forth in this l ument rc-pn sent the collc clive thinl ing of m my mcmb rs of the _st IT as to how b to prcs n·e papers n nd d uments for the President Compli ncc with these procedures is an expression of loyalty by the staff lo the PrcsiJcnt For thc c procecturcs to oo cficctivc it will require cooperation an l assistance of cYcry sl ff mcml t i- The security clas ification of e i ch docum nt ureparcd i 1 the ' itc llou c is l tcrminecl bv l11e I__ 1dh·idual st tr mcr ibc · writing it in accor la11cc with Executive Onler 10501-or other pplicable Executive Onl r He i- r sponsil le for i 1si ring th tt lhe classification assigned to l1i work rcflc ts the scnsiti ·ity of the mate-rial conccrn d and alw for m 1ki11g c •rtain that this cla sirication is not cxcessiYcly restric i ·c Whilo House O ce Pcp rs n in9 wilh Centre I Files 1 It i rcqu lcd that the m l ilmim poJsiblc use be m 1d of CcnJ rul Files 1 wl t he proceJurcJ li3led l cloio Jc jolfon·cr This will i id in the fo t er nnd more coinph tc retr n l of curr nt inforn i • tiou diminatc u in' cc·s i ry dnplicdicm oi files prcn' ll c c -- - i xc -oxi1 uui m n i uiz1 prcser· n tioa of Yhite J lcu c papers 2 aclt sl l i m-rmb' r hall 11u1 inla 11 his Jl 'l'· 1011al j7lcs t·z u 1l1J mm rn f H orki11 ' j lrs It 111ay keep on of ici11 L l 11 in H 1111 l clc 1rly dr 1i11 a'c ih Jm U auc 1 l'l·1 011 d 11'• i11dude u 1-r1 _ 11Jr11c un• rcl ltccl to a11y oflici d lut 1cs pcdorn 1 d by t c st o lf m' mlx r pcr -rm d ltf' 1ks p i 1 p i •1- ind J ·io li ' • i • J J ly ' l ' i t i l 1t b v or le li• Ju i - j v d •r -- tH wspnpct' i or mr r zint · lippin n nd 1piC3 of 1·onl- of ll 111·1 011111•i 11r turC' n ·lt' i11 to i p •r· sons crnpl iy111 -11t or i·Pn-in• 1'1-r 011 d Jil · -1 1011i no i11d11 h r uy 11 •il· - clr Ltls or · -or i11i 111 peas tl1 1t r-elntci to olH ai bu - i11t• - s or 1 v do t me t o t· ·cconls1 whc -t hc r oi- not au opt J n1 L ll 01· 1 'A i ·e l rn t ho coarse of o 1icial l usit '3S 3 Each stuti ofi'ir i slwll jon ·tJ N r' 1uhrl 1 l o Central Files thrc2 co iic of n t o• -D in o_ i i bu sincss consi 1tinr oj corrcs no11d 11ce awl 1 lii• J · rawla One copy of c ll oti1-er ou tgoinr ·r ela d matcrial s s 101 ld ai ·o be filed 4 Each sta r 017' 'r e dwtl jor ard re9 VJ dy to Ccnir'1-l Files ally incoming ojfi i 1 l l 1t- incs3 jrom sources other tl m 1Fl iltl Ilou i s ciff olit c j l• r action if any lv zs been le ken Each staff e n c if it so desires may keep n t opy of s uch in o ninb official Lusini s for its own working- fibs 5 Each stalf ojftce s 1w l jor11 arJ rc911liuZy to Owtrc l Files a1 y or qintJ ls of i co1 ir J c · cfrz lm vinesa from ollic · 1r hitc llouse t 1 r r 7 ' cs - f a ar lio-n ij a y itc tn t k r1t awl if uc t ori7i c 1 u cn ·not intended lo be rc turncd to thr w r clcr If l -sirc l a copy may kcpL for ti10 stntl' O rk- o T°'b 7 'Jli Ti 1- 0US o 1 P - s Nixon Administration Procedures y cusloill ar1 l t r rl tio 11 all Vh tr llr tt • Oiii · dJ•c 11_11 c nrd 1 rl 1 - I i11 p ·r •llal prcqn·ity ni tli t_J _11· d1· 1t a11d d J••1·1 to twli ront r I u111 t dis J- ' t 1 12 8 ing files 6 Each lclff o 7frc sl dl f oru rtr l lo c 1 lrr F i cJ at such ti1 1es as it dctcr1 1i11c to b c• prc l'rit c· t all 1 1 orki119 pcs oj c Zcial bwrir --- 1 cl irA n · ina ctit·c 011 l 110 longer 11t•t dcd Th o· f k w li l stored by oflicc i ll S fo tl l hy subje- t m t t r They will of cou - c dwnys bo n ·aii Lh fu lntcr referrn · 7 J 'ae i staff ot·r t ifs nu tt di cretiun m iy segrrg11tc a1ty matcn rls tit·tt it '1t•lin·r s to 1 c 1•0 r ularly e uitivc r nd tl'hich - ho ld 1 ot 1 ie 2 N bjcct matter Such n itirn 111 t criais shc cl i -e fonvar le l to th t li 1 cn tary nn till - um li -i s ns Ol tlinccl in p i ra rnphs 3 tl rot gl r in 1 ·clopc n i rkc l SE iLTlYE l EC l l - FUH STOHAGB ith the omci o - indi ·ic i al fr or 1 which th y • sc 1t m 1rkc1l on he o t- do - 1i ippropri i tc a Ii of inuntory in -nrrat t -r ns ntt 1l'i11·d This l t of invcnt ·y -h''l' d a -1 c Clit to Cc11t ral Fiks S• tit it nolat or r l r 1 a lC' in ub 1 ct lil tli i l ccn 1in 1 1at1 rial is 1 _ 11 itnm tl t· i · T w i m - r ·i d ill b 1 i 1 _ d • 1 11 l l n rs i nd t c ily l· n dc l ' il • 'h t • in- 9 cn- DECLASSIFIED AuthoritvJ i y ¼ 10 • 6' • d iviclu ll or oni -l' f -0rn wi1orn t H'Y 'H' II' r 'criv d • - Yo f 11 11 t ri J d i t i 1 ·r 1 · rcc1 • tire - - - r J11i11 1cill r ' 1 ' ·11 i 111 uj T l' i'l ·r 1 L7 l'J1· i c t ·i frd J1 1ff •1rJ •r titr Atomic 1 · u· ·gy -1 I of l J 1 wu r ·111·1r rdcd Lo Cr nlr tl F il · 11 - 1wl1 111i l1•ri d 1 Hd d I r r w mil·d tu rl w l11li - -rl'inry for - 1111 1 t 1· 1 '· - f f rrr11liun 1 r t r 1t m1·- dud · l1ti •1111u t t ill rl f c r •p -rsi ru11 1c i of tit l '01 1 1r l lo lhr Prr •·-i rn Aclclitio 1n tth·ir 0 1 t h 0 1C - tion of Cl'ntral Files m iy be obt - i c l from Fr P k fattltcws C hief o f Cc 11t ra F i c'5 l xt 10 While Hou se Ofii c o i D spositio -a cf Pu p rs Upon l e a v ing S uf 1 Upon ft rmination oj cm ifoy mc11 with f itafi cacl· staff m ember -i ill t11rn over Ids entire files lo Central F ih s with the exception of wy t' pcrwnlJl f lcs le e might i1nvc mai11tai cd 2 Personr l files includ e corrt-i i o 1dc nco nnrc atcd to any ofli inl duties pcrfo 1 ecl by the ta ff member pcr - on i l hooks pnrr p d 2ts and zieriod ica 19 d aily a r p_oi nt mcn t books c r lc g boo' s fo dC r5 of newspap r or 1p 1gazi le c1irping s nnd copies of rl'co -d - of a p ersonal n itu -c rchting to a p r son s cm loy r cnt or scn ·ic Pcr2on l fi l s s iiouid not inch d c my co pies dr i fts or wod i n pap n that r eb tc to offici i l bm inrs o ' r y 10C 1Hllmts e r r ords wh cthc r or not i do1 cd m dc or rcr cincl in foe cr u -sc of oi iciul bu ines - The ' riiilc I fou l' O ffice oi Prcsidr1 tial P aj cr - st dfd l y n • p rC' Cll· tatin of the Xation I A rc l in·3 i nu la I to 'iist st i ff members in the l trrmin t io 1 of wk1 t • nr pcr onal file s Any q- t· tion r ti1is rc irci should bi reso · -r·d w ith th 2i r i t n- cc Ly co 1• t ncting Juli csbi t St fr n ·i r r_r Ci1iri t oi t 1C O Ecc oi Prc 3i lenti d Paper Ext 2 j f5 •·m •c r ttJWn tr -mi 1 -1tir 1 ·f - lr 11 · · i-c i--1 rc i n 711 rn - ' i r · ···· • • · J' '• ·1 1 i··fc·ll e · Ls • ti L ni f c l r u •i 11 y · of c oc 1 1Ll3 1 i _ · l i A Doc1 · 1cnt u l icl c r 1 c d ur 1i d i tril tuel t 11m 1' t r 1 11 n l tt n l J 11· _ '• r t11r h ll ' l ' -l•11 r l'li 1• 1· 11d d · i 1 1• -hit 11 i _ • · • · •· ' • • • • • •• ti • f # 1 • O 0 0 ••• 0 4 0 _ • 111 d It gi l i l irm ll Jocu 1o t u•l ich lll d'- f iv 1 · •r rd n ju urc rc'la e u·ork O J t r in-ih·iriw iH' l l'i i- 4 1Yo stufi 1 1e1 1 b n t lwll a 1 11 ' 1 cr -_- it 1 - p r- m ittcd in 710 T L1r a •k re 0 I 1 - I d - 1111e14 i- r d c cnse ' 1 c s c· r contain 11 ntcrn l cl a · 1 11 v '·1··i ' • DEN'i'l - L SEC - E T Oli TO SECNET 1 r E t cu tii i Order ·o JOZ 01 • fl'i d U ' 1 i · tl1J Atom ir Enar y Acf of 195 r £njvr ' i s 1 pplied to tk r occrllml' nt 111 f r fol e1 d ic i m ake the discwwrc of suck iEjon 1 1tio c crii 1 5 h 'ac1' sfr Ji m m Jcr 1c iio d t·c-fr ' 3 r 11 1 COj io j su h docume11 s dcsc ·iocrl ir i'Jnrc gr 1p J - J 1a l lcare a list oj ll 1t 1 doc rn c J d it·i Central Files T his will cr1 J 1 1 i ' 1 o i c o- umt-nl in t he cnnt th t 11 ot he - etJp ie '5 o r l i - origii al honl l ba bt r lo t ii Tlc e discrc tiuncry a tll1ori y 5'1 1J T f d in p r Jr ph ·t r r c is c pcc cd to bi e crciFr 11 1rinJ 1 1td 11ot abu ul A 11 hit• I lu H 5 O ce t ir clncling co 11ies t licrcof tr e t 1 1 p - o rn l pro - -ty of the l' rC sidcnt nr cl s11oulcl b rc pl' tr l s id Any copil's retained by a st lff n c1 1b · · - ho 1 l b st irccl in a cure man _• - ur l 11 i1 t tir 1·d cor fidenti tlly 7 A l conficlC ntial tnd · i s fr c r 1at c · - L w l i prr tcdc l from _ptcmatt t-e cF dc rr by -p ' i p ro · iol 3 of tl e_ P resiclen ti - l L r lr - A - t c f l 55 H U i C 210S · r -1 DECLASSIFIED Authority 1 _t b y9 ¼ WHITE HOUSE C rFIC PA s Ford Administration Proc€dt1 res White House Offic Pcper5 C a5s incotion ond O classincotion The security classification and declassification of ch dccument prepared in the White Houso is governed by Execufrve Order 11652 and other applic bie Executive Orders The number of per sons authori zed to ori n' llly classify information is limited Shuuid m employee originate information which he believes to require chssification he shall protect that information with pproprin te safeguards and sh i 11 seek the guidance of the Counsel to the President E xt 2 93 who will p rovide a determination as to whether classification is necessary and the required level of any classification Whita Hol• se O ffi ce Pape rs Filing with Central Files I ' I I ' 1 I t i v req_ueJted that the maximum p ossible me be 1nade of Cerllral F iles and the p1·oced1tres l tcd beww be f olloiced This will a id in t he fa C --ter n nd more complete retrieval of current infonnation elimina te unnecessary d uplica t iou of files prevent exc SSi ve xcro l ing and ma xim ize pr« servatioa of ' Yhite H ouse papers 2 Each st aff 11tember shall maintain his per1onal ftles separate from any working files he may keep on official b usiness and clearly desi qnale them 0 3 s-uch P et Sonal fil es include correspondence unrelated to any offici al duties p erformed by t he st a tr member p ersona I books pamphlets a nJ per iodi ca ls da ily appointment books or log books folders of newspa pe_rs or magazine clippings and copies of records of a personnel nature r ebting to a person's employment or service P ersonal files should not nclude any cop ies dra fts or working papers that relate to oflic ial busin ss or n ny documents or records whet hC'r or n ot adop ted m ldc or received in tho course of official business For further discussion of personal files see the followin 6 subsection on Disposition of Papers Upon Le ving Staff 3 Each 'Jtaff offic e shall f or ward rer ul zrly to Central Files three copies of all outgoing official busine11s consi1Stin9 of correspondence and TMTM · randa One copy o all otha out 1 0in9 r eh ed materials should also e filed 4 Each staJi o fir e slw ll joru ard re 1Ufo rly to Cent a l Files any incmn ing o t icial busine 3 jrom sources other than 1Vltite louse sta if off cc afer action ii any hll s been tal ·en Each stn fI ofi ii it so de ires may keep n copy of such inco 1i 1g official businc s for its own worki '1g fi Jcs 5 Each slalf oi7ice shall jor1 card regularly to Central Fifrs any origi wls of inco11iin9 off cid business from other White louse staff oj z'ce cj u action ij any been tal en and ii such ori9incJ 3 we re not intended to be returned to the sender If d esi red a copy m i y be kept for the st i u·s working files 6 Each staff offi'ce shlJll iorward to Central Files at such times as it determines to be appropriacc all 1corking fdes of olfic-ial business 1chich are inactive• and no longer needed These files 'iill b stored by ofiice as well n s listed by sul ject m u tcr They will of course n lwa ys b avn ihble for- ht r reference 7 E ach staff ofiice at its own discretion - nay segregate any materials thcJl it bclieres to be par icularly sensi i e and ichich should not be filed by subject matl r Such S 'nsitiye rnatcri iis shoulll b forwnrdcd to the Stuff Secretary on the same bn is as outlined in p ucigr 1phs 3 through 6 in an enYelopo marked SEXSITI -E RECOnDS FO ST OR AGE with t he oilice or in diviclu l from which t hey arc sent marked on the outside and 1 3 appropriate n list oi inventory in gener 11 tcr n attached This list of in ·entory shonlJ n1 o b sent to Central File 5 so t hat notations can be made in subject files th it certain mater ial is mi ing from the fil Thc e materials will be nl d in l ocked containers and will only be made avaib blc t o the individual or office from whom they were recei ·ed 8 No d ejense material classified u nder Exee1 J ti1 e Ord er Yo l 6-53 1cith ri cla 1ift'cutio-n oj TOP SECRET or R est icted Data u 11du t he Atomic Energy Act of 1954 sh ould be f on cardt d to tral Files - 11 such mn teri ll should La fo rwarded to the Staff S ecret irv fo r stor t ' ' 9 No exceptions to t he ab ov e shall be made without the express consent o the CouMd to t he c n- - D-1 DECLASSIFIED J i 2 f9' ¼ Authority • - · • r Pres dent Addition il advice on the operation of ' Ce tral Files m iy be obtained from Fr9 nk M itthows C ief of Central FilM Ext 2210 While- House Office Papers Disposition of Papers _Upon leaving Slcff Upo-n termination of empfoyni ent ' cith the 8tafi each staff 171 3mber will turn over his entire 'files to Central Files with tlte exception of a11y perJOnal files lte might have ma intai1ted At the time of this writing the question of ownership of White House papers and related materials is the subject o Z litigation in the Federal courts In -- _ ___ -· addition a recently enacted Federal law P L 93-526 which also a rects t 1e i sue of o- v er-s i as 'rrell· ns con trol disposition and presen-ation oi 'White Hou5e papers is bcinq tested in the cou Therefore no defbition as to what constit ut 3 e personal files of a stair embe r can t sp c cally provided here However guidelines are C• developed to aid statI meml-ers in det mni i _ what fl'les and copies of doclenents m1y be moved from the 711irn Hou 3e upon ter-mi iti 1 of their employment Rep e enta tives oi the tion il Archives md the Cour sel to t he P c5ic t aro a· nihblo to assist staff members - ith t c i determinations Advice may be initially obtai ea from Frank fatthews Cniei of Centrnl Fihs Est 22-10 ·--· i I 1 I c · ·' D-2 - I 9 • --- - --- - - --- - - - -- ----------- -- - ---- - -- Records o Former Senior Officials in the Possession of Private Institutions Hoover Institute for War and Rev lution Stanford California Princeton University Dulles Stevenson Delaware University Messersmith University of Virginia Stettinius University of Michigan G Williams thru FADRC · • Library of Congress C Hull Harvard University Grew Clemson Universily · Sec Burns - - - I' '1 V 1 P FILES To 6 Dean Rusk 72 D 192 George Ball x g 10 10200 and 53 Nickolas deB Katzenbach Graham Martin 1 Safe S S N0DIS 5 Bar-Locked Cab i nets · Charles E Bohlen 3 Ba r-Loc ked Ca binets 72 D 182 3 Sa fes 71 F 132 Carlton Savage 71 D 293 Ernest K Lindley 71 D 273 Amb Sargent Schriver 71 F 133 G Mennon Williams Amb Harlan Clevel and 65 D 226 66 D 14 6 68 D 4 --- 8 and 69 D 118 65 D 398 69 F 117 and 69 F 145 Leonard C Meeke r Lega l Advis er 69 D 306 Amb Karl L Rankin 66 D 84 Amb Robert W Komer 69 D 303 Amb Loy Hender son 67 D 44 Amb J ohn N Irwin 68 D 127 Amb Ellsworth Bunker 67 D 291 Dean AcheGon 1 53 D 444 and 56 D_j5 9 Amb George HcGhe e 53 D 468 63 D 179 U Alexis Johnson 54 D 278 and 58 D 529 Amb David K E Bruce 64 D 327 Amb J Lampton Berry 62 D 292 • 70 D 98 _ Thom as L Hughes JNR Amb Philip Jessup 53 D 470 John Foster Dulles 71 D 325 Amb Robert Ells worth 71 1-' 155 Amb Joseph C Satterthwaite 72 D 232 Ar'Dlin H Meye r Willjam Rogers Richard Pedersen William Macomber 72 F 68 10708 73D3 8 7 2325 10560 and 1 05 71 a11d 68 F 132 1 VIP FILES 73 F 88 Amb Kenneth B Keating - - Amb John w 73 F 98 rr n Middendorf j - Amb J Wesley Jones Robert c ' r y_ rllr - - -1 t r-r c 'It r of' JJ t - 73 F 100 73 D 62 Brewster John N Irwin 73 D 427 Amb Kenneth Rush 72 F 81 Min Stanley M Cleveland 74 F 18 Georges Springsteen 74 D 113 Joseph J Sisco 74 Amb Roberts Smith 74 D 152 Amb Edwin M• Martin 74 Barbara M Watson 74 D 176 Harrison M Symme 74 D D D 73 D 359 131 135 217 ' DECLASSIFIED IAuthorityJ i b 795 X Ta_ II DEPARTMENT QF STATE Washlnelon D C 20S20 May 5 1976 MEMORANDUM TO P - Joseph J Sisco ' FROM · 0 FADRC - John S SUBJECT Storage of and Access to Records of Under Secretary Sisco As a follo w - up to my recent discussions with Mr Wisner I an summarizing for you the policies and procedures which the Foreign Affairs Document and Reference Center FADRC will follow in storing and granting you access to the records collected during your tenure in the Department of State A copy of 5 FAM 400 is also attached for your reference The records to which I refer are those you are presently maintaining and using in your capacity as Under Secretary for Political Affairs and those which originated in the period from 1963 to 1974 particularly during your term as 'Assistant Secretary for International Organizations and Near Eastern Affairs This latter contingent of records designdted in the attached form is already being stored for safekeeping in a secured area in FADRC Your other official records will be sent to FADRC u pon your departure from the Department Departmental policy and precedent require all departing s enior officials to deposit their official records in the c ustody of the Foreign Affairs Document and Reference Cente r f o r safekeeping Our access precedures allow the official to use the records at any t i e during Departmental office h ours Numerous officials in the past have operated under ''this system including Secretaries Rusk Acheson and Dulles a nd 43 other high-ranking Departmental officials We feel th is policy clearly satisfies the Department ' s egulations DECLASSIFIED Authority lu y95 5 -2for safeguarding sensitive materials while allowing access by former Presidential appointees and career officers to classified information which they originated reviewed signed or received while in public office 5 FAM 946 You are encouraged to deposit all your papers with the Department but you may tnke your personal papers with you if you so desire These are papers of a strictly personal character pertaining only to your private affairs and ·not to official business 5 FAM 432 For example such records would be those written or approved by you during your pre-State Department years or which are unrelated to foreign policy and official business They should have been clearly designated as personal at the time of their origin or rec eipt and separated from your official document s If they were not so designated they may be removed from the Departme nt with my concurrence as the Director of FADRC 5 FAM 417 1 'l'his follows the interpretation that records not previously designated as personal when originated or received u timate ly belong to the Department If your personal papers contain discussions of any policy watters the portions pertaining to official functions of the Department should be extracted and placed in the official records and FADRC may request you to do so 5 FAM 432 As you are no doubt well aware you may not re ove original copies of documents or classified material However upon your request the Department will sc een for declassification and removal from the Departme nt docuLlents which are no longer sensitive S S makes the final determination in this regard based upon the reco mendations from the Directors of FADRC and PA IIO l t every step of screening and declassifying your files officers in FADRC and PA HO will offer detailed technical assistance They will also be able to advise you on the procedures for eventually 4epositing papers of historical importance in the National Archives or a Presidential library 5 FAM 417 2 When your official papers · are sent to FADRC they will be stored in room 1239 at the Main Depart ent of State building When you first begin your research you will be assigned a research cubicle in room 1239 in which you will have access to your records between 9 am and 5 00 pm on ny official working day Monday through Friday You may either make prior arrangements with Mr Machak's office to come or you may simply arrive during these work hours A researcher DECLASSIFIED 1 J y9 5G ----- - ---- AuthorityI _ _ _ _ __ -3- I _ from the Retrieval Branch will be assigned to assist you with any of your research needs If alerted beforehand of your impending arrival the researcher will have the boxes containing your records ready for use - - In sum FADRC will make every attempt to ensure the security and int eg rity of your record while off e ring you as much flexibility of access as is allowed by regulation and policy preceden t s If you have any questions concerning the above procedur es please feel free to contact ea t a n y time Attachments As stated DECLASSIFIED Authority l i 19 ¼ I I I I I Prcr a rc n O v a I •I r I - _ I LV I TRAN5FER OF RECORDS 01' lll·cM lc cn·1 cc D1v1 - i 11 llccMJ c crqcc Cen ter It 0$1TION ' • '-1 ULJ1 'i l - lJ l 2 • 8 UREJ U OR PO ST 3ure 1u of 1•leur Eastern VOLUMC o ol Jln J r1 i-1 1 n_ ' rr _ l_ · 8 ___________ l n _ h ou 1 -u s 1 i l z s -------- ------ ------- - - F f _ S SECURITY CLASSIF IC TIOtl l 11 111 •l• ' 11 h r- 11 Assistan Secretary t- - - - - - - - ------------------ 0 Tor 51'crcl XJ Sr c-rcl O 01hr rt ' pcci ly l OFFICE o t- - - - -------- ---------'-----1 G RECORDS CONTROL SCHEDULE NUMf-3En 7 ACTIVIT Y OF- Rt COROS t- - 1 - -- -7 - - - - - - -- - - - - - ' ' '---------- 3 LOCA11 0N O F R E CORDS RQQ •I 6242 t------------------------- PERSON IN CHARGE OF RECORDS -- ·-- I I I I I i I I ' J 8 RECOMMENO TION FOR OtSPOSIT IDN 0 S1or igc until _ _ _ _ _ _ _ _ _ _ _ __ _ __ 10 N T r 'sa Bc' 'ch IExT2r-9 5 8N 9 r 11 c l1v r nSt•mi•Al't1v • DOth c r As c 1ctcr iincd y JJS - c t-- __ _ _ _ _ _ _ _ _ _ _ _ ___ 1 _ _ _ _ _ _ _ 1-_ _ _ _ _ _ l e-l S- - A e -t 1 t - - 9 GENE R AL DESCRIPTION or- RECOROS 1ncl11J 111g d i t cs Files mainta ined for use of Hr Sisco wht n h -ms 1 sst Secy o State for N A prior to his moving to Under Secretary for rolitic l 1 ffairs These file should be looked at only by 1- r Sisco i -1lcss Mr Sisco himself approves o someone else looking at them Files s hai should b kept for as long as tir Sisco is with the Dcp r -- le 1-c of State and then lisposal checked with him I I l • 10 ElOX LISTING OFl ICE OR OST ISC eox NUM BER oox foe ilM Use Only CONl EN1s 1nch11 hni t1 1esl LETTERS FILES - A - to inclusiVJ I 1 l 2 3 4 111 a 1 ll1Lll1 J l1lAIJ llit-Ut1 Box # l - Jl -II nox 2 - I - p Box 3 - Q-rr Box i t 4 - 'l'-Z B - - - nox s - Plus C ilcnc1ar Docks MISC OFFICE FILES - Boxas G-8 IO FILES 1 3 One envelope containing TOP SECRET covered by Rccc _J t tl325091 1 - -• l _ # t ·- 1 t O OY Cll TENSION • n brt t l'ost Actm o• iur· • 'lfr c ct ord l 1 11 l n Ol 1ctr Comn1w 1 -j-- ---- --- _ --- -- - - --------j- -X -T F N - s o - --- j-- o -- •- T- -l - - ca M fl llrco111 0 urtl 1 0 -· 1 - 1 1 •• DE ' IFIED Authority q ' 1 ---1 I 1 ' t---- 12 I ' • - ------- - ------------ - - --- - Federal Archives and Records Center 1 2 3 4 5 6 7 8 9 10 11 San Fran·cisco California Los ngelcs California Seattle Washington Denver Colorado Kansas City Missouri Fort Worth Texas Chicago Illinois Atlanta Georgia Philadelphia Pennsylvania New York New York Boston Massachusetts Federal Records Center 1 2 3 4 Dayton Ohio Mechanicsburg Pennsylvania Washington National Records Center National Personnel Records Center St Louis Missouri These Centers handle Federal Records for their regions j· Records being held indefinitely because of historical value nd for eventual use by researchers and historians - ' Depository for inactive records i e personnel files mi l itary service records etc I • - - ------ ----- _ --·--· -·-- - Six Presidential Librqries Herbert Hoover Library - West Branch Iowa Franklin D Roosevelt Library - High Park New York Harry S Truman Library - Indepen ence Missouri Dwight D Eisenhower Library - Abilene Kansas John F Kennedy Library - Waltham Massachusetts Lyndon B Johnson Library - Austin Texas DEC SIFIED Authority f 5G l DEPARTMENT OF STATE Washlniton D C 205 20 March 29 197 6 Dear Mr Safire This response is with respect to your letter of Februa ry 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 draft s if such exist in which my name appears 2 All transcripts including rough rlraft s 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 othe r official of the FBI or Mr Kissinger and President Richard · M Nixon in which the subject of 'leaks' of information was discussed ' · Mr Willi m Safire New York Times Bureau 1920 L Street N W Washington D C DECLASSIFJED J JJQ y 5ta_ Authority J 2 In the Department's letters of February 11 and March 2 it was indicated to you that since the documents encompassed by your request were not • agency r ecords within the meaning of the Freedom of Information Act you w re 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 t h at 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 t hat the current location of a docu ent d oes not control the document ' s status und er the Freedom o f I nformation Act and that documents which a re originate d in a White House office by a member · o f the President 's immediate staff such as the President ' s Special Assistant for Natio na l Securit Affairs are not subject to the Act Senate Repo rt No 93-1200 at 15 1974 It should also be noted that the memoranda of telephone conversation s h ave not been preserved as evidence of De p artment of State business As incicated in the Department ' s earlier letter the Department ' s Of f ice of the Legal Adviser determined that the doc uments you seek a r e not agency records wi t hin the meaning of the Freedom of Information Act The Offi c e of the Legal Adviser has again reviewed thi s issu e a nd has r eaff i rmed i t s or ig i na l view 2 Ha ving r e v iewed the d oclli ents covered by your requ est the Department ' s Council on Classification Policy has determined that i n the event the dpcuments you seek s h ould be d eemed to be agency records exemption 5 under the Freedom of Information Act wou l d be clearly a p p l i c abl e I t is the DESLASSIFIED Authoritvµfu y95 5Cci 3 • Council's view that these documents would be regarded as inter- agency or intra-agency memoranda describing candid working discussions cf government officials and other leading to the formulation of government decisions and policies 3 Your letter asserts that an additional claim of invasion of privacy especially in tho se matters concerning this appe llant i e yourself is in error The Department's Office of the Legal Adviser advises however th at 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 b e at stake for all of the persons mentioned as well as for the actua l 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 citiz ens The Departme nt's Office of the Legal Advise r has indicated to us that the Privacy Act does not r equi r e indexing that it would be-incongruous for l egis lation 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 citiz ens and tha t 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 11 •· In summary having reviewed your letter of February 24 the Department has conclude d that the documents you seek are not subject to disclosure under the Freedom of Information Act because they are not agency r e cords Eve n if they were deemed to be agency records the Council on Classification Policy has det e rmined that exemption 5 under the Freedom of Information Act would clearly exempt these documents from disclosure Sincerely t ·'r-l__ I Jbhn Reinhardt Chairman · Council on Classification Policy Wll LIAM $ AFIRE february 24 1976 Assistant Secretary of State for Public Affairs Chairman Council on Classification Policy Department of State Washington D C 20520 Case No 610050 Sir This is to appeal the denial of my request for - information from transcripts of telephone conversations no·w in the custody of Mr Lawrence S Eagleburger of the State Department In the State Department denial dated Feb 11 1976 in paragra ph one of page two it is stated The documents are in rough draft form and have never been reviewed for accuracy That statement is false I know from per sonal observation that in some instances Henry A Kissinger revLewed the rough draft of what purported to be a verbatim transcript of a telephone conversation made changes and ordered the document retyped I request the names of those members of the Office of Legal Adviser and other personnel of the State Department who were responsible for the preparation of the February 11 letter as well as the names of those who prepare the answer to this appeal In paragraph 2 of page two it is stated The documents are not subject to the Freedom of Information Act Both because of the nature of the documents and bec3use of Dr Kissinger's position at the time the DECLASSIFIED Authority l 1 f I 2 Assistant Secretary of State for Public Affairs documents were made they are not records of the Department of State or of any other 'agency' and thu s are not 'a gency records' within the meaning of the Freedom of Information Act · If the documents are not those of any agency what are they Does Secretary Kissinger claim that they are his personal property and not that of the U S Government Or does he claim that these are White House papers If they are White House pap er s why were they taken from the White House The White House which is aware of the existence of these paper s has made no claim to recover them The only set of these papers exists at the State Department with a State Department custodian ana it is ludicrous to pretend that they are the only White House papers not at the White House In paragraph 3 of the denial the Department -says Even if the documents in question were considere d to be 'agen y records' within the meaning of the Act they would appear to fall clearly within Exemption 5 of that Act In addition other specific statutory exemptions notably Exemption 1 would be applicable as would claims of invasion of privacy They would appear to fall clearly is nonsense They would appear is tentative and conditional clearly is certain and unconditional Exemption 5 centers on the formulation of policy The policy on leaks was adopted early in 1969 discussions of leaks and complaints thereof following that time did not deal with the formulation of policy The Department's claim of exemption 5 to conceal discussions about leaks which took place after the policy was laid down is without merit an additional claim of invasion of privacy especially in those matters concerning this appellant is in error DECLASSIFIED Authority _i 6 y9 Assistant Secretary of State for Public Affairs - As to Exemption 1 Undoubtedly some classified information exists in those documents but I have not requested classified information I have requested all tran scripts of conversations in which the subject of 'leaks' of information was discussed Such discussions cannot be said to be classified The material I have requested can be separated from the documents as is frequently done with many Freedom of Information requests Since you have claimed Exem ption 1 would you please inform me if these documents have been properly classified pursuant to such executive order In paragraph 4 of the denial the Department states Beside falling outside the purview of the Freedom of Information Act the documents are not contained in any file which is retrievable or indexed by any name or identifying symbol or code therefore they are not subject to disclo sure under the Privacy Act 5 U S C 552a If this were true then the Privacy Act 5 U S C 552a could be circumvented simply by refraining fr9m indexing material that ought to be available to citizens In your reply to this appeal please describe the method by which these documents are kept All in a jumbled-up pile or in file cabinets no order or in chronological order in illegible form or in typed sheets any cross-referencing or number of subject headings Can file clerks going through the documents in chronological order find the information requested without leaving a single location The final paragraph of your denial of these records asserts that this letter is not a denial of a 'record ' as defined in your regulations l Li ' 9t X DE ASSIFIED Authority -- I I 4 Assistant Secretary of State for Public Affairs A record cannot exist in some kind of bureau- ' cratic limbo a record must have a home These records made on government time by government personnel on government material are located at the State Department and no place else These records have been publicly described rightly or wrongly by the State Departmen t custodian as working papers of the Secretary of State To hold that they are noc State Department papers is to make a claim that defies reason and the law Accordingly I demand that you make available to me those portions of those documents previously requested as soon as diligent application of clerical help makes feasible Very truly yours c _ William Safire DE IFIED Authority I 955' a DEPARTMENT OF STATE Wuhlnrton o c 20520 2 s FEB 1976 Mr Norman Kempster The Washington Star 225 Virginia Avenue S E Washington D C 20061 Case No 610139 Dear Mr Kempster Thi s is to respond to your lette r to Secretary Kissinger of January 16 1976 in which you request u nder the Freedom of Informati on Act 11 all transcripts and summaries now in files of the Department of State of your telephone conversations wi£h President Richard M Nixon 11 We have consulted with the Office of the Legal Advise r concerning your letter That office ha ·been authori zed to review the documents that appear to be covered by your reques t for the purpose of determining whether such documents are subject to the Freedom of information Act It has advised us of the following ' •-1 1 Although your request describes some of - · the documents as II transcripts 11 this descrip- - -- tion is not entirely accurate The tjocuments - range from brief and incomplete summari es to detailed or paraphrased account s of telephone conversations The documents are in rough draft form and have not been reviewed for accuracy Your request has been treated as referring to this group of documents 2 The documents are not subject to the Freedom of Information Act Both because of the nature of the documents and because of Dr Kissinger's position at the time the documents were made -• DE ASSIFIED Authority 1 'j9 5Ca I - 2 they are not records of the Department of State or of any other agency and thus are no agen cy records within the meaning of the Freedom of Information Act --- 3 Even if the documents in question were considered to be agency records within the meaning of the Act they would appear to fall clearly within Exemption 5 0£ that Act In addition other specific statutory exemptions notably Exemption 1 would be applicable as would claims of invasion of privacy 4 Beside falling outside the purview of the Freedom of Information Act the documents are not contained in any file which is retrievable or indexed by any name or identifying symbol or code therefore they are not subject to disc osure under the Privacy Act 5 u s c 552a 5 Since this letter i s not a denial of a record under section 6 6 b of the Department of State's Preedom of Information regulations copy attached the appeal provisions of those regulations section 6 8 are not technically applicable However if you wish to bring -··· · _· · · · addit ional considerations to the Department's attention or to have a furth er review made of your request you may address a letter to the Assi stant Secretary of State for Public Affairs Chairman Cuuncil on Classification Policy Department of State Washington D C 20520 Matters presented in such a letter would be given prompt and complete consideration Sincerely - Barbara Ennis Director Freedom of Informat ion Staf f Bureau of Public Affairs ' Attachment As stated l MDSandler dc •· Clearance L MLeiqh DECLASSIFIED Authority l i5 5G _ P7t0 0 I i 0 GI 2 T f t 225 Virginia Avenue S E J u' t3 11 ' 7 pl 'lr 0 Washington D C 2006 1 fl 4 I ft l H i7 II 1 0 1r fj e- v i r r f Pti • '•r ' ·- -s fflEEc c u g· Cf - r - l u 0 ST ff 5 January 16 1976 ACTIO i'-l is assigf cd to ' r fl Fo t Dr He nry A Kissinger Secreta ry of State Sta t e Department Washin g ton D c 20520 Dear Dr Kissinger This is a request under the Freedom of Information Act for all transcripts and summaries now in files of the Department of State of your telephone conversations with Preside nt Richard M Nixon It is my understanding that these transcripts and summaries are now in the custody of Mr Lawrence Eagleburger This is of current news interest so please reply as soon as possible This is in the public interest so I request that the documents be provided without fharge l 6'urs tr ly ff 'tt-- Y Norman Kempster -- V J- - J · • - ·-· - n DECLASSIFIED J JJQ y9 G_ Authority DEPARTMENT OF STATE Washlneton D C 20520 April 26 1976 • Mr Harry M Rosenfeld Assistant Managing Editor The Washington Post 1150 15th Street N W Washington D C 20071 Dear Mr Rosenfeld This is in response to your letter of April 6 1976 in which you request disclosure under the Freedom of Information Act of transcriptions of all Secretary of State Henry A Kissinger's telephone calls as testified to by Lawrence S Eagleburger Deputy Under Secretary of State as quoted in The Washington Post March 27 1976 page A7 11 • • The Department's Office of the Legal Adviser has reviewed your request and has advised us of the following 1 The Department of State has consistently taken the position that the documents encompassed by this request are not agency records within the meaning of the Freedom of Information Act Nor are they records that have been preserved as evidence of the business of the Department of State or of any other agency as defined in the Act Since they are not agency records they need not be disclosed under the Freedom of Information Act 2 Even if the documents you request were considered to be agency records within the meaning of the Act they would be subject to specific ' DE LASSIFIED Authority 1 i 5 _ I 2 exemptions under the Act -- particularly Exemption 5 In addition disclosure of the documents would give rise to potential invasion of privacy claims 3 Since this letter is not a denial of an agency record under Section 6 6 b of the Department of State's Freedom of Information·regulations copy attached the appeal provisions of those regulations Section 6 8 are not technically applicable However if you wish to bring additional considerations to the Department ' s attention or to have a further review made of your request you may address a letter to the Assistant Secretary of State for Public Affairs Chairman Council on Classification Policy Department of State Washington D C 20520 Matters presented in such a letter would be given prompt and complete consideration Sincerely Barbara Ennis Director Freedom of Information Staff Bureau of Public Affairs Atta chment Department of State Freedom of Information Regulations • DECLASSIFIED J j b f9 5ra_ Authority ----· €l L' ·l t1 n fJ lhg-1orc l1c-st _ f '76 11 s o - f P 5 c- _I_ n --J - c • • - 1 ' WA S HINGTON D C 2 0 0 7 1 c202 2 HARR Y M ROSE N -E LD l 22- oc o · __'- r _ -· I - ' s fRE • • i r i Fo STAFF A SS • T M C t AC t G CDl'lO R N A TIONAL April 6 1 976 Mso Barbara Ennis Freed o m of Information Offi ce Bureau of Public Affairs De partment of State Room 2811 Washington D C 2 0 520 0 Dear Ms O 0 0 Ennis Pur suan t to the Free d om of Informa tio n Ac t 5 U S C § 5 52 a s amen ded I h ereby r e que st dis c l o s ure of the follo wing r ec or ds fo r i nspec tion a nd p ossible copying 0 0 0 Tran scri pt ions of all Se cre tary o f S t 2te Henry A Kissinger' s te l eph o ne c a lls a s t est i £ied to by Lawr e nce So Eag l c burger d eputy under secretary of sta te a s quot e d in The Washi ngl on Post Narch 27 1976 page Alo 0 If you r egard a ny rec o rds in the fo r egoing li s t a s exE rnpt from r e quir e d di s clo s ur e u n de r the Ac t I h e r e by request that you exercise your di scr lio n to disclo se the m n e v e rt 1'-1cless o ' I further reques t tha t you disclose the l i s ted documents as they b e c ome available to you without waiting until all the docume nts have be e n ass c rnbled o I am making this request on behalf of The Washin g t o n Post a news pap e r of general circulation in the Tashing ton D C me tropolita n area and throug hout the United Sta tes The r e cords disclo s ed pursuant to this reque st will be us e d in the pr e para tion of news article s for dis s emination to the public 0 Accordingly I request that pursuant to 5 U S 0 C § 552 a 4 A you waive all fees in the public inter es t because the furni s hing of the information soug ht by this reque st will primarily benefit the public If however you 0 0 0 April 6 1976 • Ltr to Mso Ennis FIO Dept 0 of State -- -2- decline to waive a ll fees I am prepared to pay your normal search fees and copying fees if I dec ide to copy any records but I request that you notify' me if you expect your search fees to exceed $2000 • I look forward to h earing from you prompt lyo Sincerely H½ HARRY i t gu4 1t M ROSENFELD 0 Assistant Managing Editor Nationa l HMR clg ' DECLASSIFIED i y 5r a Authority - lh This Sl'ct101 • ac read t J lc bur er J a - poneJ YE'S terda He h -te ul aac then s iJ he wocld h1H• nc comment Scn•ral former i 0 11te'of KiS51n c • d Ill lntcr iC S yesteriia th it the transcnhiri 6 of tclcphc calb wa routine 11 il f fice Ali oi them a - d not to be 1de itif c i b na'lle Several l f thes person said they thr u2nt il was r 1utine for senicr o ·c -nrr ent - --By Robert G Kaiser and Warren Bro n ·• w l u1 100 Po s Stut Scrrcto of Stnte Henry A K tn er confirmed ye·terda thll with Prcside 1t Xi on's knowled c he had recorJtd telephone com·crsations with tht' former president but said other aspects of a nE'w book on Nixon's downfall were inaccurate An aide to' Kic in er authori -ecl to comm 'nt for him on tht book The Final Da s by Hob roodward and Carl BC' '11 lem sa d There are o m in inaccuracic and si 'lifirr nt unt•·uths in this that l e Kis i iier ic net oin to con·ment 0111l Davin E enhowcr the formc-r P ·esid 'r t· son In1 ' clc111c Y s enl w that the X xon r imll • wns ever -orricd th it ixcn mi ht hill hir ••l - Tl e book a cl s 1c r i•· c in 'lud• nr Dl ·id won lee that i o-on r 11 ht t ik ' h s O n hie EiH rihO er ·a id rumors that _ on mi ht kill hi sctr ere • lo cal 1• hut add '-1 that 'l l re a· nu er anv tJl of '1Jiddr ne ·C'r f • 1r • e prc •1'cl b · thc amilv as f lr i I 1-now A· lot people in thl' ' 'hitf' llou t' d l·1n W itLr at h i i ·end •nc to O rclrJnt it11 ' fa_cn• ho er 31d LJ re nc · S E H klrnr- cr ckpu•y u11ril'r ccr ry of • tc - the K1•-•n · r 11 ll' uthor1lc- to r ' 1k tor ·n vc 'rci i - I ird111 t 1 w He I II C-' I •1_ 1 ' 'fl' l'OO c illon · -ere tr ir Th b O C i •u _r _ t c i 11 • or i e'- i h n Pl 1S70 bt t - oca l e ucl l ' 11 11_fll il tr n ' · 1 1 ·e tr n r Kh t1n-t ·° d he h d - IC'lll' I ll 0 1 O l'C Ol tn ' C i'- Ea lc t r' r I ir i c lf fl· p - • • in an i Cl ri t trom the too dn r1b111 or tto·' · •l h F t• bu1 r II 1 ' trut th it thl' -------- ---- rn • j offici ils to b' t c • sc - taries to li'-ten tr on phu c calls nd nnke r otes ro · the record One former K• - in' e - S· soet itc s 11d t ipe rc1 ord i cquipmu1t is m 11Jed i early 1 - to record call i The plat to st 11 t 1 S1 the t Quip1r c 1t tl rn I• li- a e j thro 1 _ 1 ' il tc H iasc d 1ef of s afi 1£ n d v Ha iem 10 ma ml'T1 onnciu1r i•1 h U11 a-s°' wte r -me nb ed 'ing at th time he i d scribed The Pre m e11t knew th it there was som 'one on the line to t 1ke them dO n ' ··The re i O11 10 · this as that tht-re v cul 1 be oilo up ll 'Cdcd as a re mlt of phone com·ersntions and a'•' who hH · 1 1·1 n it th - ' tic • C' •• y C Ull· c1I 111 the Ju-• ' •·1 i ni-tut on ' 1 11• • 0 II l 111d atd · • • d i he duuhtt c 111 ' SI•· • 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