UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL SECUR1TY ARCHIVE The George Washington University Gelman Library Suite 701 2130 H Street N W Washington D C 20037 Plaintiff Case No Judge v THE ARCHIVIST OF THE UNITED STATES in his official capacity 8601 Adelphi Road College Pa rk Maryland 20740-6001 COMPLAINT and THE SECRETARY OF STATE OF THE UNITED STATES in his official capacity 2201 C Street N W Washington D C 20520 Defendants COMPLAINT FOR INJJJNCTTVE RETJEF NATURE OF THE ACTION I This is an action to compel the Archivist of the United States and the Secretary of State to seek the return of transcripts of Henry Kissinger's telephone conversations concerning official business while he was Secretary of State from 1973 to 1977 the telephone transcripts Nea r tho end of his tenure as Secretary of State Mr Kissinger removed the telephone transcripts 11-qor 91 10 d OEE·l EHOl98ZOZ 9 10-dSW WoJ gz 91 I0-9Z-NVf from the State Department and purprn jted to deed them along with a host of other materials to the Library of Congress with restrictions on public access 2 Most if not all of the elephone transcripts are agency records as defined by federal law and Mr Kissinger had nq authority to remove them under the governing federal statutes and regulations 3 TI1e Archivist of the United States and the Secretary of State have failed to initiate action through the Attorney General as required by federal law to recover the telephone transcripts 4 Plaintiff National Seciµity Archive files this action pursuant to the Administrative Procedures Act APA 5 U S C §§ 701 702 706 seeking injunctive relief ordering the Secretary of State with the assistance of the Archivist to initiate action through the Attorney General to recover the telephone transcripts so that they may be accessible to the public JURISDICTION AND VENUE ' 5 This court has jurisdiction over this matter pursuant to 28 U S C § 1331 and 5 u s c §§ 701 702 706 6 Venue in this judicial district is prop r under 28 U S C § 1391 e PARTIES 7 Plaintiff National Sec lnity Archive is a non-profit public interest research institute and library based at George'Washington University The National Security Archive collects catalogues indexes and publishes declassified and unclassified government -2- z11-qor 91 BO d 0€€-l e1VOl98ZOZ 9 J0-d8 W0Jd gz 91 10-SZ-NVr documentation on national security and foreign affairs policy practices and activities and makes such records available ta historians esearchcrs and individuals throughout the country Through its research and publication activities the National Security Archive intends to use and to make available to historians journalists and researchers records on national secmity issues created by the Department of State and other federal agencies The National Security Archive has a direct interest in ensuring that these records are maintained preserved and made accessible to the public In accordance with federal law William Burr a senior analyst at the National Security Archive edited and annotated The Kissinger Transcripts New Press 1999 which contains transcripts of then-Secretary of State Kissinger's meetings with Chinese and Soviet leaders 8 Defendant Archivist of the United States Archivist is responsible for the supervision and direction of the National Archives and Records Administration 44 U S C § 2102 The Archivist's duties include providing assistance to heads of agencies in initiating actions through the Attorney General to recover records that have been unlawfully removed from an agency 44 U S C §§ 2905 a 3106 9 Defendant Secretary of State afthe United States is responsible for administering the Department of State The Secretary of State is required under the Federal Records Act to maintain al -d preserve State Department records and to take action to recover records that have been unlawfully removed from the Department 44 U S C § 3106 -3- Zlt-qor 91 60 d OSS- Slt0l98ZOZ 9 JO-ds WOJ gz 91 10-91-NVr STATUTORY FRAMEWORK 1O The Federal Records Act requires agencies to implement procedures for maintaining and preserving agency records and preventing their removal or loss 44 U S C §§ 3101 3102 3105 The State Department's procedures for maintaining preserving and disposing ofrecords are contained in the Foreign Affairs Handbook e g S FAH-4 H-200 et seq and the Foreign Affairs Manual e g 5 FAM§§ 430-435 11 An agency record is defined as all books papers or other documentary materials made or received by an agency of the United States Government under Federal Jaw or in connection with the transaction of public business and preserved or appropriate for preservation by that agency as evidence of the organization functions policies decisions procedures operations or other activities of the Government or because of the informational value of data in them 44 U S C § 3301 12 The Disposal ofRecords Act 44 U S C §§ 330l-3303a 3308-3314 provides that agency records may not be disposed without the authorization of the Archivist 13 The Federal Records Act provides a mechanism for recovering agency records that have been improperly removed from an agency An agency head must notify the A chivist of such removal and the agency head with the assistance of the Archivist must initiate action through the Attorney General for the recovery of improperly removed records 44 U S C § 3106 If the agency head fails to initiate the required action then the Archivist is required to act independcntly through the Attorney General to recover the records 44 U S C § 3106 accord 44 U S C § 2905 The legal duty imposed on the Archivist and agency heads by 44 U S C §§ 2905 -4- £l Ol98ZOZ 9 O·dS WoJ gz 91 l0·5Z-NVf and 3106 may be enforced by private litigants Armstrong v Bush 924 F 2d 282 292 D C Cir 1991 FACTUAL BACKGROUND 14 Between 1973 and 1977 Mr Kissinger served as Secretary of State under Presidents Nixon and Ford He also served as Assistant to the President for National Security Affairs between 1969 and 1975 15 During Mr Kissinger's government service his secretaries generally monitored his telephone conversations and recorded their contents by shorthand or on tape The secretaries transcribed the notes into summaries or verbatim transcripts of the conversations which related to both official business and personal matters The telephone conversations relating to official business included discussions with heads of state and foreign officials from around the world The telephone transcripts even those relating to official business were kept in files that were labeled personal 16 On October 29 1976 while still Secretary of State Mr Kissinger transferred the files containing the telephone transcripts and other materials from his office at the State Department to the New York estate of Nelson Rockefeller Prior to removing auoh files Mr Kissinger did not rec ive approval from the State Department's Foreign Affairs Document and Reference Center which had responsibility for the Department's record maintenance and disposal program Nor did he or anyone else at the State Department seek approval from the National Archives the General Services Administration or other appropriate officials responsible for the preservation of federal agency records 5- Zll-90 r 9l l l ·d 0€€-l €lt0l98ZOZ 9 JO da wo gz 91 l0-9Z-NVf 17 Rather Mr Kissinger received a legal opinion from the Legal Adviser of the Department of State records - who is not vested with authority over the maintenance and disposal of advising that the telephone transcripts were not agency records but were personal papers that Mr Kissinger was free to take with him whell he left office because they had been kept in files marked personal 18 After removing the files from the Department of State Mt Kissinger entered into two separate agreements with the Library of Congress for the transfer of the materials The first agreement dated November 12 1976 related to a set of materials which did not include the telephone transcripts The agreement limited access to the materials to individuals approved by Mr Kissinger or approved by a committee of individuals nan1ed in Mr Kissinger's will Additionally it included a prohibition on public access until 25 years after the transfer of the documents or five years after Mr Kissinger's death whichever is later 19 By a second agreement dated December 24 1976 Mr Kissinger purported to deed the telephone transcripts to the Library of Congress The second agreement incorporated by reference all of the terms and conditions of the first agreement In addition the second agreement provided for public access to the telephone transcripts only with the consent of or upon the death of the other parties to the conversations 20 Shortly after the telephone transcripts were transferred to the Library of Congress the Archivist made two separate requests to inspect such transcripts to determine whether they were State Department record and whether Mr Kissinger had the authority to remove them Mr Kissinger did not permit the Archivist to inspect the telephone transcripts -6- 211-qor 91 Zl d 0££- £lv0198ZOZ 9 l1l-dSvt wo sz 91 10-92-NVf 21 At about the same titne that the Archivist requested permission to review the telephone transcripts at the Library of Congress a reporter and two organizations filed separate Freedom oflnformation Act FOIA S U S C § 552 requests seeking access to them These requests were the subject of a lawsuit filed in 1977 in the District Court for the District of Columbia The district court ruled that the transcripts were agency records because they were prepared on government time with the assistance of government employees and resources Reporters Committee for Freedom ofthe Press v Vance 442 F Supp 383 387 D D C 1977 The court held that the records were prepared in the course of Mr Kissinger's official duties and should be returned to the State Department Ibid While the O C Circuit affirmed in relevant part 589 F 2d 1116 D C Cir 1978 the Supreme Court reversed onjurisdictional grounds without addressing the merits Kissinger v Reporters Committee For Freedom ofthe Press 445 U S 136 1980 22 After the Kissinger case was decided the Department of State and Mr Kissinger negotiated an agreement which established procedures for reviewing the telephone transcripts ond determining which of thetn had to be returned to the State Department The ai reement was never implemented Currently Department of State historians are conducting a limited review of the telephone transcripts pursuant to conditions set by Mr Kissinger Such review is not being conducted by federal officials authorized by law to preserve and dispose of agency records and Mr Kissinger who has no legal authority to restrict access to agency records by federal officials charged with preserving such records continues to assert unbridled discretion to control access to and maintain the secrecy of the telephone transcripts -7- 211-qor 911 1 d 0 -1 Elt0198202 9 ia-ds wo 92 91 lO-S2-NVf COUNTI Failure to Initiate Action for Recovery of Agency Records 44 U S C §§ 2905 a 3106 23 Plaintiffs incorporate the allegations contained in Paragraphs 1-22 as if fully set forth herein 24 By removing the telephone transcripts which have been found by a federal court to be agency records see Reporters Committee 442 F Supp at 387 without observing State Department procedures for the removal of records or obtaining the approval of the Archivist or other appropriate officials for such removal as required by the Disposal of Records Act e g 44 U S C §§ 3303 3303a Mr Kissinger unlawfully removed State Department records 25 Under the Federal Records Act the Secretary of State must notify the Archivist of the unlawful removal of agency records and with the assistance of the Archivist initiate action through the Attorney General to recover such records 44 U S C § 3106 The Secretary of State has failed to take the legally mandated steps to recover the telephone transcripts 26 The Federal Records Act also requires that if the agency head fails to initiate action within a reasonable period ohime the Archivist must act independently to initiate action through the Attorney General to recover the agency records 44 U S C §§ 2905 a 3106 Despite the failure of the Secretary of State to initiate the required action to recover the telephone transcripts the Archivist has not acted independently to initiate action through the Attorney General 27 By failing to take action to recover the telephone transcripts from the Library of Congress the Secretary of State and the Archivist are violating their statutorily mandated obligations resulting in an injury to Plaintiff Unlike documents classified as agency records -8- z11-qor 91 I d Oee- el Ol98ZOZ that can be obtained by the public through FOIA requests or otherwise the telephone transcripts are unavailable to the public-which includes foreign policy researchers such as Plaintiffpursuant to the purported but legally invalid deeds through which Mr Kissinger c mveyed these agency records to the Library of Congress Once the telephone transcripts are returned to the National Archives or the State Department as required by federal law Plaintiff will be able to obtain access to the non-exempt information contained in the telephone transcripts 28 Plaintiff is therefore entitled to injunctive relief ordering the Secretary of State with the assistance of the Archivist to comply with the statutory duties imposed by 44 U S C §§ 2905 a 3106 and initiate action through the Attorney General to recover the telephone transcripts PRAYER FOR RELIEF WHEREFORE Plaintiff prays that this Court A Enter an order requiring the Secretary of State with the assistance of the Archivist to initiate action through the Attorney General to recover the telephone transcripts B Enter an order requiring an expedited review by the State Department and the Archivist once the telephone transcripts are returned to those agencies to avoid further delay in obtaining public access to the telephone transcripts -9- ZlHOf 91 91 d 0££-1 £HOl98ZOZ 9 O-ds wo iz 91 10- Z-NVf C Award National Security Archive its costs expenses and reasonable attorneys' D Grant such other and additional relief as the Court may deem just and proper fees Dated February 13 2001 Respectfully Submitted Lee H Rubin #426933 Craig Isenberg MAYER BROWN PLATT 1909 K Street N W Washington D C 20006 202 263-3000 Kate Martin General Counsel NATIONAL SECURITY ARCHIVE The George Washington University Gelman Library Suite 701 2130 H Street N W Washington D C 20037 202 994-7000 Counsel for PlaintiffNational Security Archive -10- 11-qor 91 91 d OE - Elt0198ZOZ 9 oa-ds WOJ 1 91 10-SZ-NVf