State Secrets

How to keep them

Federal officials intent on shielding records from journalists, biographers and other inquirers may have hit upon a very simple way: remove the files from the agency involved before anyone seeks access under the Freedom of Information Act (FOIA). In a case involving transcripts and summaries of telephone conversations that Henry Kissinger recorded during his years in Government, the Supreme Court last week ruled 5 to 2 that the State Department had no obligation to retrieve those records for members of the public.

Two lower courts had ruled against Kissinger. They said that the records of phone conversations he made while serving as the President's National Security Adviser should remain under wraps, but that those from his 3 1/2 years at State were within the reach of the FOIA. In December 1976, shortly before he left office, Kissinger donated these documents to the Library of Congress (which is not covered by the FOIA) under a complex deed that limits access to them until the year 2001 at the earliest. Since Kissinger's donation came before the FOIA requests were made by the Reporters Committee for Freedom of the Press and other groups, the Supreme Court concluded that State could not be said to be wrongfully "withholding" the documents. The proper remedy, said the majority, is the Federal Records Act, which allows agencies to seek retrieval of files they believe should not have been removed. State has not yet decided whether to pursue Kissinger's records.

As with last month's Snepp decision, which backed the CIA's right to enforce its secrecy pledge on former agents, the new ruling is likely to help Government keep a tighter lid on its secrets.

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