Kissinger v. Reporters Committee for Freedom of the Press case brief

Kissinger v. Reporters Committee for Freedom of the Press case brief summary
445 U.S. 136 (1980)

CASE SYNOPSIS

Petitioner, a former National Security Advisor and Secretary of State, and respondents, requesters under the Freedom of Information Act, challenged the decision of the United States Court of Appeals for the District of Columbia Circuit, compelling production of telephone transcripts made by petitioner while serving as Secretary of State and denying respondents' requests for transcripts produced while he served as National Security Advisor.

CASE FACTS
Petitioner, a former National Security Advisor (Advisor) and Secretary of State (Secretary), deeded transcripts of telephone conversations to the Library of Congress. One respondent made a Freedom of Information Act (FOIA) request before the transcripts were moved, for transcripts made while petitioner was Advisor. Two respondents requested transcripts made during both of petitioner's tenures, but made their requests after the transcripts were moved. The lower courts ordered production of the transcripts made by petitioner while Secretary, but denied production of those made while he was Advisor.

DISCUSSION

• On certiorari, the Court affirmed in part and reversed in part, resulting in none of the requested transcripts being produced. 
• The Court held that the transcripts requested after transfer were not improperly withheld because they were not in the possession or control of an agency subject to FOIA at the time of the request, and the agency was not required to institute a retrieval action. 
• As to transcripts requested prior to transfer, the court held that they were not agency records because they were made while petitioner was on the President's personal staff, and not covered by FOIA.

OUTCOME

The court reversed the order compelling production of transcripts made by petitioner while Secretary. They had been moved and were, therefore, not improperly withheld under the Freedom of Information Act (Act), because they were not in the possession of an agency when requested. The court affirmed the order denying requests for transcripts made while petitioner was Advisor because as personal presidential staff he was not covered by the Act.

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