In the case of Kissinger v. Reporters Committee for Freedom of the Press et al., 1979, former Secretary of State Henry Kissinger was sued by journalists who sought access to transcripts of his telephone conversations while in office. The reporters invoked the Freedom of Information Act (FOIA), which mandates disclosure of certain types of documents held by government agencies. However, before leaving office, Kissinger had transferred these records to the Library Congress and argued that they were no longer subject to FOIA as they were not under agency control at time requests were made. The Supreme Court ruled in favor with a 5-2 decision stating that since those documents weren't within any executive branch's possession or control when request was filed, it did not fall under FOIA jurisdiction; hence could not be retrieved through an FOIA request.

In the dissenting opinion for Kissinger v. Reporters Committee for Freedom of the Press, Justice Brennan argued that Henry Kissinger's removal and subsequent control over his telephone transcripts while he was Secretary of State constituted an "improper withholding" under the Freedom of Information Act (FOIA). He disagreed with the majority's interpretation that FOIA only applies to documents within an agency’s possession at the time a request is made. Instead, he believed it should also cover improperly removed records. According to him, this would serve as a deterrent against officials who might be tempted to remove or destroy potentially embarrassing or incriminating materials from their files before leaving office. Furthermore, he contended that if such actions were allowed without any legal recourse available through FOIA requests, it could undermine public trust in government transparency and accountability.