- DEPA RT M ENT OF STA TE Wa shin ton D C 20520 July 12 1976 MEMORANDUM TO A - Mr John M Thomas THRU A O - Mr Lawrence J • Acting FROM O FADRC - John S Pruden SUBJECT Kissinger Files X b- I have reviewed L's draft memorandum of June 19 concerning the disposition of Secretary Kissinger's records The only substantial difference I perceive between our draft and L's is one of tone and emphasis Our draft outlined a step by step procedure to be followed to transfer the records to FADRC Lon the other hand having more familiarity with how the Secretary's records are currently being handled describes the steps that have already been accomplished and more or less what remains to be done While the fina l result of both memorandums would be the same there are a few points in the L draft which I believe require clarification First the last paragraph on page two and top of page three appears somewhat ambiguous The premise is that the memoranda and transcripts of telephone conversations are not agency records and have not been preserved as a record of Department business However the reasoning that follows on page three doesn't in our opinion support that premise The first phrase Since the papers do not appear to comprise the only existing records of government decisions and policies seems to admit in a negative s e nse that they are nonethe less a record of gove rnment decisions and policies DECLASSIFIED p uthority - t-- l lff1gs- - 2 - Second the role of the FADRC research assistant referred to on page six needs to be clarified In retrospect a more appropriate title for the FADRC employee would be reference specialist The primary duties of the FADRC employee will be to retrieve documents from related files for background use by the Secretary and assist in arranging and organizing the Secretary's files but not to extract information from documents or prepare bibliographic notes or references duties which are customarily performed by a researcher in the academic community Thirdly the reference on page seven to placing documents in a security approved storage area other than Room 1239 is not clear Does this mean another area in the building or outside the building We have not consulted with SY regarding off site storage of classified material but it is our impression that they would not even consider approving a request for off site except perhaps for a Presidential Library Finally implicit throughout the memorandum is the theme that the end product of this exercise will be a set of working files which are non-record material and consequently not subject to access under FOIA We are not very comfortable with this position As you know our experience during the past few years in working with the FOIA has taught us a number of lessons Perhaps the most significant one is to be as forthcoming as possible in responding to requests for information using reason and common sense as a guide For example the Executive Branch initially took the position that if a document was marked with a security classification that it was automatically exempt from disclosure The result of that position was that the Congress amended the FOIA to require agencies to release segreable portions of material and also provided for in camera inspection of such documents by the court We are not convinced that should a requester ask for access to the Secretary's working files that the position that they are a i I I V'-- j_ _ • J I t - 3 - working file and thus non-record material and not subject to the FOIA that this position will hold We have for example had a request recently from a retired ambassador who is now teaching at Georgetown University for access under the FOIA to his working files he had accumulated and retired to the Department from his post abroad He wanted to give his students an opportunity to review the correspondence of an ambassador in action The Department decided not to deny the request on the grounds that the documents were non-record material but rather that after our review it was determined that more than half of the y records required protection in the interests of national iv security and thus providing access to only part of the ✓ t - I collection would not be of much value to the students 1 J Q JJ The ambassador agreed Employees of the Department have filed requests under FOIA recently for access to material on SALT Viet-Nam Cuba and such general topics as Crisis Management and so forth Researchers are currently working on biographical material from t Boheln files S Mennen Williams files Christian -rrerter files etc It is not inconceivable that someone cJ will file a request for the Secretary's working file L has indicated that there appears to be a legal basis to defend the position that this material is not subject to the FOIA and we believe that that argument and others must be made and we support that However we also believe that it is important not to convey the impression that any procedure or approach to handling such an important and perhaps controversial collection of records such as these working files will not eventually be tested in the courts with the possible result of some form of access There is one other objection to the L draft and that ' is the passing over of the Record Officer responsibilities _ as they are assigned to this office As outlined in our memo to Mr Sisco and our original draft on the DECLASSIFIED fp utbority N N D 9 - 4 - Kissinger papers we have an obligation to participate in the screening and inventory process and especially after retirement of the Secretary to have access to these records under whatever controlled procedures we can set up Attachment As stated D E PA RT M E N T OF STAT E Wash i n ton D C 20S20 LIMITED OF F ICI AL USE June 21 1 976 ' NODI S TO A - J ohn Th omas FROM L - Mon roe Leigh SUBJECT Disposition of The Secr etary ' s Papers '• May I have your comments on the attached draft as soon as possible Attachment - Draft Memorandum of Jun e 1 9 LIMITED OFFICIAL USE ______ --------- ----- - ------- - - ---- IA I I · DRAFT June 19 1976 LIMITED OFFICIAL USE NODIS MEMORANDUM TO The Secretary FROM M - Lawrence E agleburger oispositi6n of Your Papers and Records This memora ndum discusses the _proposed procedures for handling your papers and records upon your retirement from office h2 pr cedures would includ t e segregation of personal papers from government ocuments as well as arrangements for appropriate storage of and access to your working papersbere at the Depart ent Nature of the Documents Involved There are different categories be considered f'o of papers eha a must -·· First S S-I maintains a separate file marked HAK Personal This file is not included in system the _Department's records It has not been reduced to microfilm but is retained in paper form This file has been limited to your personal correspondence -co respondence of a personal non-business nature Since this file is marked personal and since papers in it were placed there when they were received or originated I am advised that you will be entitled under the Department's regulations 5 FAM 417 1 to retain this file when you retire LIMITED OFFICIAL USE • -2- IMITED OFFICIAL USE Second there are various personal materials such as your appointment calendars and personal telephone lists Your appointment calendars are placed in separate binders and designated with your initials Again since these materials have been designated as personal from ·sed that you will be entitled to the start I am advl retain them under 5 FAM 417 1 There are fo r file saf s maintained in your office which c6ntain your working files All or virtually all ents in these files· have duplicates of the_ docum either in the Department or at the White House Your office assistants have followed a co nsistent practice of retaining copies of only the most _essent al papers I return ng the originals to the originating office The papers retained in your working files are generally ones I for which you or your assistants have had some recurring----· need Also included are cop1 · es o f memoran · d a• o f conversa- tions from meetings in which you personally participated Finally there are inemoranda and transcripts of your telephone conversations which have been the subject of Freedom of Information Act FOIA requests In responding to the FOIA requests the Department of State with the concurrence of the Justice Department has taken the position LIMITED OFFICIAL USE I ' - • -3- - ITED OFFICIAL USE · that these memoranda and transcripts are not agency records and that they have not been preserved as a· record of Department _business ----- --- -- - to comprise the Sin e 1 y' e papers e vu JUL have government e disclosure been treated as · personal and si of invas ion of privacy would supportable basis for a claim there subject to the requirement that of private containing classified information be stored in a security-approved ---- ___ - Review of ivorkin9 Files At the time of your retiremen_t from office or shortly I b efore your working fil es shouldbe rev iewe in order to determine whether they contain a ny or igin a l copies of government r ecords -- Any original record wou ld be duplicated the dupli ca te would be placed in the working f ile s and the original record would be r eturned to the a pp ro pr_iate off ice The files would also be screened to determin e whether they contained any papers of a personal non-business nature Such mat erials of a personal nature if any would be removed fr om the working files and included with your personal corre sponde nce DECLASSIFIED LII- _' 'ED OFFICIAL lJSE p uthority NN D•9 J • • -4- LIMITED OFFICIAL USE Thus at the end of the review process your · - orking files would not contain any original records • but only copies of records Any original State Department records which may have been found would have been returned to the Department's records system Any original White House records which may have been found would similarly have been returned to the White House Your working files would then serve the sole function_of being an integral collection of copies of the working papers of a Secretary of State Physical Storage of the Working Files Following the review process and not later than your retirement from office the working files would be transferred to a special room on the first floor of the Department of State building where they would be stored in secure file cabinets within a locked room This follows the jraci ice o your predecessors Secretary Rusk and Secretary K gers as well as that · f other senior officials At present the Department's Document Center FADRC mnintains 42 such collections the tiles of oflexisting and former officials For convenience this storage facility would also be available for ny personal papers you may wish to keep there LIMITED OFFICIAL USE · • · I' • - •• - • -5- -LIMITED OFFICIAL USE I11 this way papers from your · years in government - those wh_ich ' - ere personal in nijture as well as those which relate to your government actions and decisions - could be Xept in one location Your Access to the Working Files Consistent with the practice toward other former oificials and under the Department's regulations 5 FAM 946 you wo_uld be aftorded personal access to your working files stored here at the Department Department's policy of affording such access to The former senior officials serves a number of important policy objectives -- it encourages retiring officials to store sensitive documents here at the Department it also takes into account the needs of former officials who must defend or give information concerning their - activities in office In addition to yourself you may under current Departmental procedur s designate private research assistants for access The only lim tations are that a pri- vate research assistant designated by you must have a current -top secret clearance certified by the Depart- ment's Office of Security and the research assistant must be working ·on your behalf and not pursuing his own independent research LIMITED OFFICIAL USE In the alternative the 7 • - • -6- # Department's Document Center FADRC could make a s XJv et T A- __spa ref i assistant available to you Access by FADRC Unlike the files of many other former senior officials the collection of your working files to be stored here at the Department would not include any original records but only copies The original records will already have been _placed in the Department's record system For this reason it is not foreseeable that FADRC would requ re any acce s to your collection of duplicates If in the unlikely event that FADRC could not locate a record of which there was a duplicate in your working files FADRC would contact you or your representative in order to obtain access Inasmuch as your working files would be maintained as a separate collectipn and would not be inte- t grated into the Department's records system you would have the freedom to inventory index and organize the collection in any way that see ed useful Future Historical Preservation As a single collection of the working papers of a former Secretary of State your working files will undoubtedly' have considerable historical value Under current Departmental procedures the Department's Document LIMITED OFFICIAL USE • • -7- LIMITED OFFICIAL USE Center and Historical Office can offer technical assis·tance concerning the future preservation of the col ection such as by transferring it l J3 M§ to the National Archives t ift 'cf Mal na 1 r The Department's regulations of course prohibit the · removal of classified material from secure storage areas • L YJl fSiJc lL 6$ tl tJHil O SWttlth j spa ce WI A' v ' Upon a showing ofAspae iel needA the Department would • - 5 yyif2_ • -' s consider a request to place copies of erta1 0ecWRent a I SOni L orh_ C ify--' fl 'J• _ in a ecurity approved storage area eLheI L tffi R- €he oem- __ I - ·- · assi9ned U5 youY we r ting fiies on the fi rsL floor More generally under 5 FAM 417 3 the Department would f yc U also consider requestsAthat a document or documents I from your working files be declassified so that you could remove _a copy ef lit without restriction ------·-- -'---------- _ LIMITED OFFICIAL USE _ _____ I ---- --- - _ ----· tECLASSIF 'Authority --- · f-4N D7