Henry Kissinger's phone transcripts remain secret in the Library of Congress, and Congress apparently has some more right-to-know legislating to do. These are the results of a curious decision by the United States Supreme Court that seems to say an official can keep a government agency's files from the public simply by physically taking them from the agency. A lower court had ruled that Mr. Kissinger "wrongfully removed" the voluminous records of his phone conversations as Secretary of State which he eventually gave under 25-year seal to the Library of Congress. But the Supreme Court majority said that, wrongful or not, the removal of documents from an agency means the agency cannot be found "improperly withholding" them under the Freedom of Information Act. So the historians, reporters, and others who sought the materials in court will be deprived of an extraordinary source of information on US diplomacy during the controversial Kissinger years.
Now that this case is closed, researchers on those years face the challenge of fleshing them out through other sources. Author William Shawcross has shown in his book on Cambodia, "Sideshow," how much material can be obtained -- without access to Mr. Kissinger -- through interviews and governmental documents. By applying under the Freedom of Information Act, and turning to the act's appeals process when denied various papers, he amassed thousands of pages. In his foreword he acknowledges: "The Freedom of Information Act is a tribute to the self-confidence of American society; it recognizes rights of citizens that are hardly to be conceived elsewhere in the world."
Did Congress intend such an act to provide the kind of legal loophole through which Mr. Kissinger has slipped his transcripts? If not, it ought to take another look at the legislation and give the Supreme Court an unmistakable basis for judgment next time. The original 1966 law is definite in exempting certain information whose disclosure would "constitute a clearly unwarranted invasion of personal privacy." We do not advocate publicizing such information. But the means of withholding any information should not be the wrongful removal of it from government files.
Here the Supreme Court's dissenting opinions are worth recommending to the legislators. Associate Justice Brennan: "If the F.O.I.A. [Freedom of Information Act] is to be more than a dead letter, it must necessarily incorporate some restraint upon the agency's powers to move documents beyond the reach of the F.O.I.A. requester." Associate Justice Stevens: The majority interpretation "creates an incentive for outgoing agency officials to remove potentially embarrassing documents from their files."
Did Secretary Kissinger say anything embarrassing on his official phone? The nation will have to live in suspense for a quarter of a century.