a _ • -0 ' - • ' ·-· r II °' ArC'hiNI ad mu WarAi DC 20a • 197 Bcll01aJ J e·Ka1117 · I · lunl UJ of-Beata D C 2Q520• - r a ca i ie ha - ta - attaaei• t ba mar er I ala nktills to your public ns ce aa l da s clapcaia t a the 14 b-ruy af Conpu mde-a tans 111d aa buacl' upm t bll' pnnmpcia tbat aucb mat erlw as e or iiem · aaaa L p1 oputy Amang theu mated ala JOI have Included a set of UflUCdpta ow 11otu that v•n a atemal 1cally kept zeflect lq tha C ca of Cll ep'bou• COll IIIDDl tiau • ' l that JOU olacmect· the advice of legal counsel In tba IQUCllellt•af Seate· ccmcamq be• e teleplum Lc trmaampt loaa I a1ao 1Qnc l ta f'11 l y the 1am1it 1va ucu e of your napana ibWtlu a 111a· Hcud t7· c4 foreip relatiou anaa and tha ccm ca c n¢n ant that cadid md •auaded co11versat1an lll th• COIM1uct of lozeip n t Lcm rmt be duq pzotacted ••t iaul -- tlLelua u Ardd V11t of the Unlte d State•t 'by authority 4ele• •t acl ma by the Admlniatntar of Caueral Se mcea l am mspona lble to • -Jo aectlcma 2103 2904 -2905 1 anll 3303 of title 44 11nlted Stataa Oltda ' fH UCl1 tmill8 that '-sd ral agucf es cnate mamt m azul apoae o the Lr ncoma in • effic laut ancl lawful mmmar aftd that die -· praena nccTCll of p e t ld torical value for eventual S po• it ill the nation al arc hival a ate111 rurthaz 1A accorda'Ac e vith titl I of the Pmlilidant lal IDcoriinga an4 Material I Praaezvaticm Ar t lt L 94-526 44 u s c 2107 nota I am esponsOle for aasmdng cuco«y an4 CODtrol of 1 1 e heai clentlal hiatadcal matddal s of the l '1m adm lnlstn tian t 'beliave these statutory a1 1tborltiu and wa ouibilltlu xequ l re that l atacluct an wpectioa of tlw docu anta1 1 materials 1118D tioDad above to verify thfl can clusiana made U4 actiou takell C01le g tha I p ECLAS IFIED ·ty NfV u 7Y9Sh_ A uthOl'l - 3EST COPY AVAILABLE J __ _r r '- · - ••• i • • I • I t 2'o can Dut tbue re11pouf dlit l 8- 1 enliac our coope-ratian in -mltt lq qaalifl c d al'Cblv1Bce fffll my staff to be iven tbe o poa tua ity to ezam lu the telephcmk tran• c r iptiou ad any related • doamllau that you have depDBf t c Idell the U'b UJ Y of Canpess 1 111 ro£u1lmal afthivista vl11 cleteniiue whether such uteri als ant f Datecl• piwce•J propaEt1 o-c vbather aoa port 1 CM of 'Chea cay b 1ti4aral ncozda or Jft 1 IDD bucoztcal materials I guaratea the plOtec da of c mfidelldal blfonaticm vld cll these arcltivlscs _ aco11Dtel' duflDa their I Upect lan In adcli ticm t ask ouz coopenu u Secaat1117 of State m pEOv td l a g access to any 11 aore4a of c wnat l au o ocu partme11t ncords 111 the Department of Bu ta t t uaillt our azeb Lvista LIi cany1Da o lt theiz talk ···-·• I I ' t wal4 appndace· your lllk1ng uragemaota vLth die LUn anan of • • t at eta ff caa 'bave acc ua co tlu ae mated ab for Cba pvzposu of tb1a dateniu d C111 When the pEacua la completecl l tl• to fonw ate a report• includ 1 as ncomuadatf cms I vbich I abaU taanit CO 011 • ' • u app r o n ate to official II h tbe '1111111 Boae· u4 t1a1 Dlpartallt of State · llucan17 I 1AIIBI I BIIOAm kdli'IDt of the Unit eel State I · · ···--------· iii 'NN5Jfq sb COPY AVAILABLE AutborttY - ------ - l • - Lit THE SECRETARY OF STAT£ ' 'PnO OI 6- I 3 6 8 i WASHINCJTUN '7anua cy 18 1977 C ' lES 'Q• s • K r H i 8 8 au Dr llhoads • % write in response to your letter of January J 11 Gich you 1Dquire about the nation of my papo s to the n1ted States for praauvaticn a the Library of congress and in pan icu l ar about that po rtion of the donation that compxises the sec etuial otes ·of rq telephone ccnvm -aations • nl l l Apparently there has been scme misun4er•tan4bg or at least incomplete informa tion 1 oon oerning this donation So that you may be apprised of what has occurred l enclose a copy of a letter t have sent to the Chairman of the Souse committee on Gove nment operations which 4aacribes in detail the acope of the donation and the $teps taken to aBsure completeness of Department of State records l J % al1s'0 encloso a ccpy· of a me orandum by • oounael to the J epartment which discusses several p oblem areas that mi9ht uise if the additional l J p rocedures contm mplated 1n your letter were hllowea With nsPQct to the procedures which bave een followed to date l have requested the reco ds officers of the Department to answer any further questions you may have concerning the I f ' II atepa taken 1 Beat ar4s I · ' _ ' • A- ------ Beney A 7x1asinger Bncloaw ea ·u atatecl abova i• Dr itames s Rhoads Al'Cbivist oft be United States Rational Archives and aec ords Service •• 41 -·· - · - - - - - - - --•----- · • --· - -· L1M0Sancl1er rr 1 14 17 x22149 WASHING ON r I near Mr Chairman2 J write in response to your letters of January 3 and J nuary ll concerning the donation of my papers to the United States for pre•ervation at the Library of Congreaa In confirmation of your conversation with ' • the Deputy Onder Secretary of State Mr Lawrence Eagleburger I wish to reiterate the following details concerning thQ s ope of the donation and the ateos undcrt ken to assure the eo11pleteness of Department o State records First all government pafers that have been donated to the Library o congress are 'copies and not original records Documents ·•officers havecarefully reviewed 'all of these papers to make cer tain that all original or record copies arc included in the appropriate files at either the Department of Sta te National Security Council or wnito House and that only copies have been incl uded in the files that have been transferred to the ibra y Second in addition to overrunent papers donated papers relating to my personal life both before and during m y years of qovernment service This porti on of the dona tion includes for e ample papors from my years at Harv•rd University ··x have · The Honorable Jack Brooks ChairlllAn Commi ttee on Government Operati ons House of Representat ives •' ··----·-· ---·--' ·-·-· -·•- - - -···-··-- c pECLA8' 1FIED Authority H_fV U 719S0 AVAIL ABLE r ' • - 2 ftir4 1 h ve donated under a separate iDStrW1ent the secretarial notes of fir telephone conversations These papers have been consistently t a eatecl as personal WO%'Jc aids 'rhe special · privacy conaiderationa raised by these notes a e zeflected in the separate inaU UD1 nt of gift COUU 1 to the Department of State has thoroughly · nvlewed the applicability of Deparb lent oi Sl ate ng lations to these papers ana has advised that Qndar these regulations an4 other legal authority tlMD papers are personal he only copies of tlleae papexs are at tbe·Library of Congress r I • 1· t ·r ' • i • t • Hovevar also puraua t to Department of State regulat1ons1 Deputy Under•Secretary 3-9leburger is at my clirec on reviewing these aotos of telephone converGAtiona and is a t racting uy significant 9cvenunent activity or decision that 1ay be reflected in then heae extracts will M to cwarde4 to the appropriate qovernment offices o r agencies for inclusion in 9ovenunent record • files i Botb in exeeut ing an4 in implementing the doaat ions to the Library of congress t have en-'4e vored to follow in bott letter and spirit the · applicable Department o State re 1 1lationg I am · · ·•·· · a4vise4 that those rigu lations which ha e biHn in feet since 1967 and which were prom lglated pursuant to 44 u s c 3101 and 3102 have been 1orupulously followed with zeapect to my papers • I vlsb to note that the Department's re911lations • erve a number of relevant policv cons1deraticr s lle y ass lre that tha Depar-anent •- has continuing •ccess to informa ion needed for the conduct cf foreign policy hey also respect privacy expecta• dons in papers that have been consistently treated •• personal his aspect of the regulations h4s anable4 nWllerous Department officials to originate aan4id diaries and notes which reflect their official ctivities and which have p oved to be invaluable historical legacies Althouqb I am I _ I ' DECLAS IFIED BE' Authority rv u 7¥9 Sb_ ·-' - ---- · · ' ' - 3 - - in a position to make a similar claim for the IDino porUon of Jl'lY papers that l have treated as personal I am convinced tbat the policy reflected in the Departffiental regulations of 1967 aetves to promote candid accounts of govez nment aervice which would not otherwise 1 e created Such accounts would certainly not lie creat e4 if the acccmpanying privacy expectationa did not continuca to be respected L ' I • I J vieb to aeaure you as I have assured others that tile Department of State will bave complete records of the foreign policy actions a4 decisions in vhicb I have participated aa r· leczetaey of State With respact t o the don at ion % have made all of t 'le paper a in question a c 1 o be praaerved for fut lre sc holars a1 an institution of unquestioned integrity the Library of COngresa As you may know the Lil ra cy has I I • t I r- --- preaaned the papers of 27 other Secretaries of state lt is my sincere hope that when the 4Dnat icn ia considered in tbia perspective it will be viewed as positive an4 rasponsible • oontributs on Best regards aenrr A Kissinger • -- c -- ----- -- - --I • •011 DECLAs IFIED Authority Aft • NfV U 7¥ q Sb i I Hit LEOAL Ai v1 • ' WAaHtHGTON MIMORANDUM 3anuary 14 19 7 • BJ a letter datea JanWl ry 4 197'1 ta 8ecreta%y of State Kissinger the AJ chivist of tile United St ltea bas inquired about S cretary lissingar•a donat ian of papers to the Library of Cong eea and in particular abaut that portion of the donation consia l ng of secretarial · I notes cf Secretary Kissing-er•s telephone c onver•• lona The letter requests that GSA archivists be pendttea to review these notes so tha they aight make t heir personal assessments as to wbe ber these notes consist of pexsonal or agency z corb Jt appeara that the request bas not taken · into aocount the fellowing factors l that the · ··· · · nature of the not es 1n question must under present lav be determined accorc ing to the Depe rtme 3 t of State regulations 2 tha the Department's ecords Interest is met i y the extract • 1 equirementJ 3 that the GSA is not an app%opriate entity to review 1 be notes becauae of its •dvocate's interest i · seeking a governmen -wiae ule for distinguishing personal from official papers 4 that other legal authority fully supports the policies reflected in tile Department of State regulations and S that Department pol cies would be prejudiced by tbe requested review 'rhia memorandum discusses · eacb of these poiDts in detail 1 ltale of Department of State Regulations lfhether the notes in question are personal or official papers must in the final analysis be ccnsiaerod in light of the Federal P ecords Act t u s c 3101 et seg Dnd the Department af Stata ----- --- - - -·----·· ---· ·· r ---- -····· DECLAS IFIED Authority NfV U 7yq sh_ BEST COPY AVAILABLE - I - • · - a- r regula1 1ans p tomul9atod under that Ace There is under present law an y carefully defined government-wide legal standard for distinguishing peraonal fmm official papers lndaecl the ab• of such a government-wide standard is the nuon Wby'the preaent Hat 10na1 Study mnmission on Bec ords and Documentf of 9edera1 Officials was onate4 Instead existing legislation 1•vea it ta each federal agency to determine how ncord 8 abo1ild be made and preserved mid to p o- •enc • v lde for •effective controls overt he c eation lldntenance and use of l'ec orcJs • t4 o s c 3101 encl 3102 i Puaoant t o tld 1 statutory authority the J eputmen of State in 1967 pm aulgated regulations concemin9 maintenance of records and in pa rtlC 11 ar concerning wbat papers a retirin official •r retain a1 personal 5 FAM 417 1 and 432 Jnumuch as these Department regulat icns are con- t 1'0111ng it is the responsibility of r·epart ment of Bute officers and not GSA archivist s to ascer- i i tain what steps are 'being taken to assure continuing nepar tment access to information which 11ay be reflected in the notes in question ind 1dliS h lllfht be Deeded for the conduct of fc2 ei911 policy · 2• 'Ille •Bxtract • Recru Lrement be Depart ment•e re911lations establish a pragmatic test for deter mininq what pape s a ntiring official may retain as persona1 tf ·paper has been explicitly designated or filed as · penoul from the time of origin or receipt it ia consiclered to be personal ancl may he retained on the other hanc I if a paper has not been so deaicJnate4 or filed or if it baa been circula ed • within the agency ic ia considered to be an 1 · · · ·· qency record 5 FAM 417 l This working test for distinguishing personal from official papers · at tenapts to respect in a realistic fashion privacy expectations that an individual Departant employee or official may have with tespect to a paper - ·· S- lid I I I 14 vu rn w ' 1 - C AVAILABLE - ' ' - - ' t • loweveJ even though a paper may be considered personal official policy maeters discussed in such a paper m ust be extracted and forwarded for incluaJ an in Department r ecnr ns s FAM 432 'l'he DepaJ taeftt has consistently construed this provision •• ref1Uirin9 a depa ting official to extract any alpificant 9overmnent activity or decision that •r be reflected in such a paper Note that the wry uiatence of an extract requirement is hase4 on the premise that therG a re categories of persanal papers which may and do contain discussions of offidal activitiaa and that such discussions of official activities do not alter the personal u e o these paper11 A present the secretarial no es of secretary Kissinger's telephone conversations ue being reviewed at his direction in order to t 'I ascertain which portic ns of them must be ext ract tld for in lusion in appropriate foreign policy r eoo d files In ligbt of this s eview · · lt oulcl be highly unusual if these same papers were to be subjected to a second review by peraons unfamiliar with the carrent atate of foreign policy We would of c ourse anticipate that in future years when foreign policy records are nomally reviewed wiLhin the State Department to determine whether they should b8 transferred an4 preserved at the National A c hives these extracts will also be reviewed for that purpose 1 l • i ' j should be not ed that no statute required Secretary Kissinger to make and retain candid • notes of telephone conversations 'l'he only uirement 1s that significant government Activities or decisions undertaken Ya Sec e ary of State by telephone be reflected in government records • bis requirement is being fully satisfied so that ' i the a9encies of the nnited States Government con- I cerned with t he conduct of foreign policy will have the information needed for tbe conduct of foreign policy in comillg yaa s Also in the event that some of these extracts may per ain directly to the Hixon or Ford Presidencies as opposed to National security Council or D epart ont of State business they are to be fo z warded far inclusion in tha 11bite House files for those pericds - · • • J A i#CCW SW fifM ij 04 f014 J IJ C CI - S pi CLAS IFIED I' _ IV I A utbotltY -- u 1Yq S1t1_ ' AVAILABLE r t·· - 3 GSA'a Advoc ato's Interest Recently the' GSA has ·espoused a view that personal pApers are limited to material per1 a Ding solely to an indivicu 1•a priva o affairs and no at 111 to his official activities Tbis view implies that tra4itionully personal materials tlike diaria1 notes and amily oorz esponclenc el wbich discuss a person'• official Act l viUes an official a ecords 'Iba GSA a4vocated this po ition in proposed · regulat ions under tho Presidential Recordings an4 Matu1alJ Preservm ion Act but it was • eaprualy rejecte4 t il $ y the congress in the past year s Res 428 R aos lSOS see R aep IIO 94•1485 of 4•5 197 bis approach1 · among others has also boa suggest eel ta tbe Rational Study Commission on Reclrd 9 and Documents of Federal Officials ' lhic h has the taa t of pr0posin9 for the first time governmentvlde 1egisl tion en the personal-official paper distil - tion tn that forum GSA ia a proponent for• daf1nition of official reco ds that is • 1 Jaaonaistebt vitb Department of State regulatio s JD view of this advocate•s interest it would not seem appropriate for GSA archivists to preempt thm tlopartment of State by xeviewin9' the notes in question we of cow se are aware of the recent GSA Bullet in rPMR B-65 November 1S l976J which ' '- 11D4Htakes to swmnarize existing law with respect to records Significantly the only paragraph in tbat summary• that is not supported DY a stat atcry citation is paraqraph le whicb • SV ces the GSA'a rec-ent proposal on the dis• t Dction between official and private papers Jn this regard no provision of the GSA Fede al •i operty Management Regulations of February 1967 contains 10 tar-reaching a definition of official records as that contained in parcgraph le of GSA Bulletin lfMR B-65 t ·otheE Le9al Authority Recent judicial decisions have fimly supported the view embcclied in partmarit of State regulations th t personal papers ean includo discussions of cffieial activities - _ I r - s - 4 Un1te4 States v First Trust Co of St Paul 251 P za di Bt Cir 1§$8 and tbat such pe sonal reoorcls of official activity re not a9ency records Porter count Chaoter v A z c 380 r supp 630 • 6 ind I 14 The same conclusion is set forth in the OHB Guidelines to the Privacy Act • I ·- c•o F R I 28952 which makes clear that •agency ncor411 do not inc lude ••uncircu lated personal raotea papers anc record - even if such •ter1als ue •in possession of agency employees and IIS• d by them in performing official functions • Also in the last government-wide pro- llOIUICUl Dt on what papers a etiring official may cetai a -- Cabinet Paper CP-59•58-4 July 27 19S9 - it states that •since such woa c-aicls as office 4 1 aries loga memo anda of c o ferenco s and tele- · phone calls are usually refle ted in actual aqeney records such wo k-aids ordinarily can be removed • ' i i 1n a related context the Department last January received a Freedom of lnformatian Act ' zequest relating to some responding to the with the Office of Legal of Juatice which orally Befo e cf tbe notes in question • request W9 consulted counsel at the t epartment concurred in our position that the notes sought were not agencr reeo ds a lbject t 0 the i'reec om of Information Act Attached for reference is A recent Department of Justice press guida ce concernin9 the e events l call • tention to the conclusion that one of the gzowads tor denying the reque t uwas that the request J ncluaecl documents which were not •agency records' within the meaning- of the Freedom cf Information Act 5 u s c SS52 b t rather personal note and %eco 4s of Mr Kissinger • 5 Pre udice to Department Interests be Department of State regulations· serve a number of important policy interests -- in particular access by the Department to full infor• mation neuded for the conduct of foreign policy and respect for privacy expectations which an inaividuAl may hav in regard to a paper that ha been c onsiatontly treated as pQrsanal It hould b noted that the respect for privacy expect tians Implicit in the Dcpart mcnt•s regulations has enable numerous Departn ent officials to originate canciicl dia ies and notes which have proved to be invaluable historical esources • -· D1£CLAS IFIED t l - ·----- NfV u 7Y95h_ ritY Autbo - 'COPY AVAILABLE I ' - 6 • If present prac tic es were chanqed so as to preclude an official's private papers from containing material concerning his conduct in office these candid and intimate sources of history would not be crea ed And of equal concexn to the Department matt rs that nre currently set down on paper might cease tc be recorded In summary it is my view that the proceoure contemplated in the Archivist's lett6r of January 4 would present a nlll lber of difficulties for the nepartment and the administration of its records policies l c r -w i• Honroe Lt igh r I ri - - T COPY AVAILABLE ___ · • - _pert ment 0f ustice P ess Guidance 12 '2 6 't • ' ha Departmen of Justice has received requests for copies of a formal legal opinion thought to have bean issued i t by the Departaltint concerning the ownership • r•tarial notes af telephone conversations of - Secl etary of Stat- Kissinger i I j_· No such opinion exists · JarlY this year however in acco aanc e with no mal p actice the Office of Legal counsel of the Departme t t 1- vu consulted informally with respet t to the p opos 5 · tenia 1 of a Freedom of Info rmation Act request whic s I I sought uch material relating to certain of Hr Xiae ln9er'• laphone conversations On the basis of a ··· pneral description of the matetia1 involved which included l oth transcribecl and untranscribecl notes the Assi tan ' •l Attorney General for the Office of Legal counsel orally i approved thf proprS ety of denyinq the req est on several j gR 'lftds cne of which was tbet the request included 4oc 11Uents which were not •a9ency records• within the taeaning of the Freedom of Xnfom a ion Act S u s c SSS2 but rather personal notes and record a of Mr ICiasinger •