Kissinger v. Reporters Committee for Freedom of the Press
Headline: Limits FOIA by holding agencies need not sue third parties to retrieve records removed before a request, blocking court-ordered recovery and narrowing public access to documents once outside agency custody.
Holding: The Court ruled that FOIA does not permit courts to require an agency to recover documents that were removed from agency possession before a FOIA request, so refusing to sue for their return is not an 'improper withholding'.
- Prevents courts from ordering agencies to recover records taken before a FOIA request.
- Shifts record recovery to the Archivist and Attorney General under records laws.
- Reduces FOIA access when requested records are outside agency custody.
Summary
Background
The dispute involves Henry Kissinger’s written summaries of telephone conversations, the State Department, the Library of Congress, and several requesters (a columnist, the Military Audit Project, and reporter groups). Kissinger moved his secretarial summaries from his State Department office to private custody and later deeded them to the Library of Congress. Some FOIA requests were filed; only one was filed before the notes were removed. Lower courts ordered the Library to return some materials to the State Department for FOIA processing.
Reasoning
The Court addressed whether an agency “withholds” records under FOIA when the records were already removed from agency possession before a FOIA request. The majority said FOIA duties require that records be in the agency’s possession or control at the time of the request. The Court relied on the statute’s language, legislative history, and FOIA’s procedural limits to conclude an agency’s refusal to sue a third party for return is not an “improper withholding.” The Court therefore reversed the order forcing return of records taken before the requests and affirmed denial for other requested materials.
Real world impact
The ruling means journalists and others cannot use FOIA to force agencies to recover records that were already out of agency custody, leaving recovery to administrative remedies and possible suits by the Archivist or Attorney General. The decision leaves unresolved how to treat records wrongfully moved to evade FOIA or when an agency still has legal control.
Dissents or concurrances
Justice Stevens would treat custody and control more broadly and would remand to let the agency inspect and possibly be found to have improperly withheld; Justice Brennan argued FOIA should sometimes reach records removed from agency custody to prevent evasion.
Opinions in this case:
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