## Facts

- Henry A. Kissinger’s secretaries recorded and summarized his telephone conversations, creating “telephone notes.”
- After leaving office, Kissinger transferred the notes from the State Department to a private location and later donated them to the Library of Congress subject to access restrictions.
- Multiple requesters filed Freedom of Information Act (FOIA) requests with the State Department seeking the telephone notes, including:
  - A request for notes from Kissinger’s period as Assistant to the President for National Security Affairs (filed while the notes were still in Kissinger’s State Department office).
  - Requests for notes from Kissinger’s tenure as Secretary of State (filed after the notes had been transferred to the Library of Congress).
- The State Department denied the requests on the grounds that the notes were not “agency records” and, for the later requests, that the Department lacked custody and control after the transfer.
- Requesters sued under FOIA against Kissinger and federal entities, seeking declarations that the notes were agency records and orders compelling their return and processing under FOIA.
- The district court found the notes had been wrongfully removed and ordered return for FOIA processing; the court of appeals largely affirmed and directed the State Department to use its authority to retrieve the Secretary-of-State notes.

## Issues

1. Whether telephone notes created while Kissinger served as Assistant to the President for National Security Affairs or as Secretary of State were “agency records” subject to FOIA.
2. Whether FOIA authorizes courts to order an agency to recover documents removed from the agency’s custody and control before the FOIA request was made.

## Decision

- The Supreme Court reversed the court of appeals insofar as it required the State Department to retrieve the notes for FOIA processing.
- FOIA relief was unavailable for the requests made after the notes had been transferred out of the State Department because the agency lacked the custody or control necessary for “withholding” under FOIA.
- Notes created while Kissinger served as a presidential adviser (National Security Affairs) were not FOIA agency records because that function is not an “agency” covered by FOIA.
- As to notes from Kissinger’s time as Secretary of State, the Court assumed arguendo they could have been agency records while held by the Department, but held that FOIA did not authorize a court to compel retrieval once the Department no longer possessed or controlled them.
- The Court noted that any illegality in removing records was a matter for other statutory schemes, not FOIA.

## Legal Principles

- FOIA applies only to “agency records” that an agency creates or obtains and controls at the time of the FOIA request.
- “Improper withholding” under FOIA presupposes that the agency has possession or control of the requested records; if records have been removed, there is no FOIA withholding by the agency.
- FOIA’s remedial provision authorizes courts to order production of records an agency is withholding, not to order retrieval from third parties or to enforce records-retention duties through FOIA litigation.
- Materials generated by the President’s immediate personal staff or units whose sole function is to advise and assist the President are outside FOIA’s definition of “agency,” and their records do not become FOIA records merely because they are stored at an agency.

## Conclusion

The Court held that FOIA does not permit courts to compel agencies to recover records removed from agency custody before a request, and it rejected FOIA coverage for records created by presidential advisers outside FOIA’s definition of an “agency,” limiting FOIA to records an agency controls when the request is made.


Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980)