The Supreme Court agreed yesterday to decide whether transcripts of Henry A. Kissinger's phone conversations in the White House and the State Department-transcripts made by government secretaries-are "personal papers" that he can withold from public view.
The justices granted Kissinger's petition for review of an appellate court ruling that most of the transcripts are "agency records" and thus covered by the Freedom of Information Act.
The court also granted a separate petition contesting the secrecey accorded Kissinger's transcripts during the first 31/2 years of the Nixon adminstration when his sole title was assistant to the president for national security affairs. Later, from September 1973 until November 1975, he was both secretary of state and White House national security affairs adviser. He served only as secretary of state in the final 141/2 months of the Ford administration.
The court will hear argument in the term starting in October and will rule by mid-summer 1980. The decision will have wide implications for the scope of the Freedom of Information Act throughout the government.
Throughout Kissinger's eight years in office, his secretaries monitored his phone conversations (except for those with his prospective wife, Nancy), took shorthand notes, transcribed them, and filed the transcripts in what he calls "my personal files."
There is no indication in the record that persons at the other end of the line were told of the procedure. "I think you can assume he didn't tell them," a reporter was told by a source familiar with the case.
"My purpose in causing the notes to be made was to create a rough record of those of my daily phone conversations to which I or my immediate staff might wish to refer in order to follow up on matters discussed orally," Kissinger said in an affidavit filed in the court of U.S. District Court Judge John Lewis Smith Jr. The affidavit continued:
"There was nothing unusual about this; many other high-level officials at the White House, the State Department and other departments . . . have for decades followed the same practice of transcribing telephone conversations and filing them with their private papers."
In January 1977, however, William P. Rogers, who preceded Kissinger as secretary of state, said he had had calls monitored only infrequently, and only after notifying the other party. Dean Rusk, who preceded Rogers, said he had monitored calls only on substantive matters. He estimated that only about 10 percent of this conversations were monitored.
In the same month, only a week after taking office, Secretary of State Cyrus R. Vance banned the secret monitoring of phone conversations, in keeping with a policy adopted by the Carter administration. A spokesman for Zbigniew Brzezinski, now the president's national security affairs, adviser, said yesterday, "Monitoring telephone conversations is not our practice."
In a December 1976 column, Jack Anderson and Les Whitten wrote, "Kissinger told us that only official calls were transcribed."
In the affidavit, by contrast, Kissinger said that "the transcribed notes give details of my conversation with friends, journalists. . . and other people. . . Many of these conversations were of a purely personal character. . ."
There also is uncertainty about when Kissinger first gave thought to donating his papers to the United States. The Affidavit suggests it was in late 1976, because he speaks of thinking of the donation "as the end of my term as secretary of state drew near. . . "
But in "The Final Days," published in April 1976, Bob Woodward and Carl Bernstein disclosed that at the end of the Nixon administration in 1974, Kissinger had the transcripts, along with other sensitive papers, moved to the estate of then-Vice President Rockefeller in Pocantico Hills, N.Y.
he book reported that Kissinger had the files returned to the White House after being told by a legal adviser that it was against the law to store classified materials outside government facilities.
In the affidavit, Kissinger said that the State Department's legal adviser, Monroe Leigh, first advised him in early 1976 that the transcripts "were my personal papers which I would be free to retain when I left office." Kisinger said Leigh repeated the advice "in a number of subsequent discussions" and summarized it in a memo of Nov. 11, 1976.
Almost simultaneously, however, the National Archives and Records Service, reissuing a ruling of earlier years, defined personal papers as "material pertaining solely to an individual's private affairs." This was also the gist of long-standing State Department regulations.
In the preceding month, Kissinger said in the affidavit, he decided to transfer the transcripts form his State Department office, and, having no suitable storage place of his own, "received permission from. . . Rockefeller to place them in a large bank-type vault at his estate in Pocantico Hills. . . "
In mid-December 1976, the affidavit says, Kissinger decided to add the transcripts to the files he already had agreed to donate to the library of Congress as custodian for the United States.
He restricted access to himself and his appointees for 25 years or five years after his death, whichever is later. Thereafter, members of the public could see the transcripts with the consent or upon the death of the other party to the conversation.
Kissinger, terming the materials "work aids" that "had no other function," said in the affidavit that "I did not idit (the transcripts) as they were made, or any other time."
This is explicitly disputed by William Safire, a former Nixon speechwriter who became a New York Times columnist. In columns and in his 1975 book "Before the Fall," Safire has said that at least once he saw Kissinger personally editing the Transcripts, that he saw pages bearing Kissinger's handwritten editing, and that the editing made Kissinger appear more loyal to Nixon than he had been.
Kissinger's handling of the papers was challenged successfully before Judge Smith, who was affirmed by the U.S. Districtr Court of Appeals here, by the Reporters Committee for Freefom of the Press, the Military Audit Project, the American Historical and American Political Science Associations and nine authors and journalists, including Safire.
The lower courts concluded that the transcripts were produced on government time, with the aid of government personnel and resources, and that they were unlawfully removed from the State Department, and should be returned.