concurring in part and dissenting in part.
As the Court recognizes, the requesters are entitled to prevail in this FOIA action if the State Department “has (1) ‘improperly’; (2) ‘withheld’; (3) ‘agency records.’” Ante, at 150. The Court assumes, without deciding, that “agency records” have been requested and then concludes that no such records have been “withheld.” The Court states, and I agree, that an agency cannot “withhold” documents unless it has either custody or control of them. It then goes on, however, to equate “custody” and “control” with physical possession, holding that FOIA is simply inapplicable to any “document which has been removed from the possession of the agency prior to the filing of the FOIA request.” Ibid.1
I cannot agree that this conclusion is compelled by the plain language of the statute; moreover, it seems to me wholly inconsistent with the congressional purpose underlying the Freedom of Information Act. The decision today exempts documents that have been wrongfully removed from the agency’s files from any scrutiny whatsoever under FOIA. It thus creates an incentive for outgoing agency officials to remove potentially embarrassing documents from their files in order to frustrate future FOIA requests. It is the creation *162of such an incentive, which is directly contrary to the purpose of FOIA, rather than the result in this particular case,2 that prompts me to write in dissent.
In my judgment, a “withholding” occurs within the meaning of FOIA whenever an agency declines to produce agency records which it has a legal right to possess or control. A determination that documents have been withheld does not end the inquiry, of course, for a court must still determine whether the withholding was “improper” for purposes of the Act. Thus, in my view, correct analysis requires us to confront three separate questions in the following order: (1) are any of the requested documents “agency records”? (2) if so, have any of them been withheld because they are in the legal custody of the agency? and (3) if so, was the withholding improper?
I
Everyone seems to agree that the summaries of Dr. Kissinger’s State Department telephone conversations3 should be considered “agency records” subject to disclosure under FOIA if they were “agency records” under the definitions set forth in the Federal Records Act (FRA). The parties disagree, *163however, as to the proper application of that Act to the facts of this case. The requesters argue that the summaries were “records” under the FRA because they were documents “appropriate for preservation” by the agency under 44 U. S. C. §3301. Dr. Kissinger, , on the other hand, argues that the summaries were personal papers which he could dispose of at will under the FRA and which were never subject to disclosure under FOIA. The Government takes an intermediate position, arguing that the summaries, were “agency records” only to the extent that they contained significant information that was not reflected in other agency records.4
I cannot accept Dr. Kissinger’s argument that the summaries are private papers. As the District Court noted, they were made in the regular course of conducting the agency’s business, were the work product of agency personnel and agency assets, and were maintained in the possession and control of the agency prior to their removal by Dr. Kissinger. *164They were also regularly circulated to Dr. Kissinger’s immediate staff and presumably used by the staff in making day-today decisions on behalf of the agency. Finally, Dr. Kissinger himself recognized that the State Department continued to have an interest in the summaries even after they had been removed, since he had a State Department employee review them in order to extract information that was not otherwise in thé agency’s files. App. 248a. Under these circumstances, I find it difficult to believe that none of the summaries was “appropriate for preservation” by the agency. Thus, although a remand might be necessary, as the Government suggests, see n. 4, supra, to determine which summaries were agency records and which were not, it is clear that at least some of them fell within that category at the time Dr. Kissinger removed them from his files at the State Department.5
II
The second question to be considered is whether the State Department continued to have custody or control of the telephone summaries after they were removed from its files so that its refusal to take steps to regain them should be deemed a “withholding” within the meaning of the Freedom of Information Act. As I stated at the outset, I do not agree with the Court that the broad concepts of “custody” and “control” can be equated with the much narrower concept of physical possession.6 In my view, those concepts should be applied to *165bring all documents within the legal custody or control of the agency within the purview of FOIA. Thus, if an agency has a legal right to regain possession of documents wrongfully removed from its files, it continues to have custody of those documents. If it then refuses to take any steps whatsoever to demand, or even to request, that the documents be returned, then the agency is “withholding” those documents for purposes of FOIA.
In this case, I think it is rather clear that the telephone summaries were wrongfully removed from the State Department’s possession.7 Under these circumstances, the State *166Department’s failure even to request their return 8 constituted a “withholding” for purposes of FOIA.
III
The third and most difficult question is whether the State Department’s “withholding” was “improper.” In my view, the answer to that question depends on the agency’s explanation for its failure to attempt to regain the documents. If the explanation is reasonable, then the withholding is not improper. For example, I would not find an agency’s inaction improper in a case in which it simply did not know where the documents were located or had no interest whatsoever in retrieving them. The FOIA does not require federal agencies to engage in prolonged searches for documents or institute legal proceedings that will not yield any appreciable benefits to the agency.
On the other hand, if the agency is unable to advance a reasonable explanation for its failure to act, a presumption arises that the agency is motivated by a desire to shield the documents from FOIA scrutiny.9 Thus, if the agency be*167lieved or had reason to believe that it had a legal right to the documents and that the documents were still valuable for its own internal purposes and nevertheless did not attempt to regain them, its inaction should be deemed an improper withholding.
In this case the State Department refused the FOIA requests on the ground that the telephone summaries were not agency records and, in any event, were no longer within the agency’s custody or control. By the time the FOIA actions were filed, there was substantial reason for doubting the Department’s resolution of the first issue, inasmuch as the General Counsel of GSA had rendered a legal opinion that the documents were probably agency records and should be returned to the Government for proper archival screening.10 Because of their very nature, there was also substantial reason for believing that, if they were agency records, the summaries would have to be considered valuable documents. Finally, the fact that the documents had been removed by the head, of the agency shortly before the expiration of his term of office raised an inference that the removal had been motivated by a desire to avoid FOIA disclosure. *168Under these circumstances, it is at least arguable that the continued inaction of the State Department, contrary to the views of the Archivist, was improper.
Accordingly, I believe the District Court had jurisdiction under FOIA to determine (a) whether the telephone summaries were in fact agency records and (b) if so, whether the State Department’s failure to seek return of the documents was improper. The court’s disposition of those issues seems to me to have been somewhat premature, however. Once the litigation began, the State Department changed its position and contended that it could not determine whether it should seek return of the summaries without first inspecting them. Pursuant to an agreement with Dr. Kissinger, the Department and the Archivist began the process of sifting through the records. That process had not yet been completed when the District Court handed down its decision. Because the agency’s informed opinion of the documents’ status and their value was in my view relevant to a determination of whether its actions were “improper,” I think the court’s order was premature. I would therefore remand to give the Government an opportunity to finish its examination of the documents.
The Court states that “[i]n such a case, the agency has neither the custody nor control necessary to enable it to withhold.” Ante, at 150-151.
I do not mean to imply that there was any improper motive for Dr. Kissinger’s removal of the documents in this ease. Nor do I believe that the decision the Court reaches today will necessarily lessen the re-questers’ access to the information contained in the summaries of Dr. Kissinger’s telephone conversations. Many, if not all, of the significant decisions reflected in those summaries are also reflected in other agency records, which are still in the State Department’s possession. Also, it is not clear how many of the summaries, even if subject to FOIA, would be exempt from production because they contain either classified or purely personal information. See 5 U. S. C. §§ 552 (b) (1) and (b) (6).
I agree with Part III of the Court’s opinion that the summaries of Dr. Kissinger’s telephone conversations when he was a Presidential adviser were not “agency records” subject to disclosure under FOIA when they were created and did not become “agency records” when they were later stored in Dr. Kissinger’s files at the State Department.
The Government argues that Dr. Kissinger had an obligation under the State Department’s records management program to record permanently all oral “ [decisions, commitments, and discussions of any significance.” 5 FAM § 423.2-1 (1974). Thus, he should have extracted all significant information pertaining to agency business from his telephone summaries and entered that information in the agency’s permanent records. To the extent that he did not do so, the telephone summaries remain the sole written evidence of that information and thus should be considered “agency records.” However, to the extent that Dr. Kissinger saw to it that the information was properly recorded elsewhere, the Government argues that the summaries became "non-record materials” which could be disposed of with the agency’s permission. (The Government concedes that some nonrecord materials may be subject to disclosure under FOIA while in the agency’s possession; it takes the position, however, that such materials are not subject to either the FOIA or the FRA after they have been relinquished.)
Because it believes that the degree of duplication between the summaries and records still in the agency’s possession cannot be determined from the evidence presented in this case, the Government argues that a remand would be appropriate if the issue of whether the summaries were “agency records” must be decided.
The fact that extracts were not made until after the summaries had been transferred to the Library of Congress indicates that, even under the Government’s view, some of the summaries must have been “agency records” at the time they were removed from the State Department. Moreover, during the course of the litigation Dr. Kissinger granted permission to the Archivist and the State Department to review the summaries in order to determine whether they should seek their return as “agency records” despite the existence of the. summaries. Brief for Federal Parties 14, n. 11.
The Court’s reference to subpoenas is instructive. See ante, at 154. Under Rule 34 of the Federal Rules of Civil Procedure, a party is required *165to produce requested documents if they are within his “possession, custody or control.” The same standard applies to subpoenas duces tecum issued under Rule 45, see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2454, p. 425 (1971). In construing these Rules the courts have rejected a narrow physical-possession test, focusing instead on whether the subpoenaed party has a legal right to custody or control of the documents in question. See, e. g., United States v. International Business Machines Corp., 71 F. R. D. 88, 91 (SDNY 1976); Buckley v. Vidal, 50 F. R. D. 271, 274 (SDNY 1970); 8 C. Wright & A. Miller, Federal Practice and Procedure §2210 (1970). Thus, if this case involved compliance with a discovery request rather than an FOIA request, I doubt very much that the agency could justify its failure to produce the documents on the ground that the agency head had wrongfully removed them from the agency’s physical possession just before the subpoena was served.
Once Dr. Kissinger’s argument that the summaries were private papers is rejected, it becomes clear that the Federal Records Act and Records Disposal Act were violated by the transfer of the papers to the Library of Congress. If the summaries were agency records, as the requesters argue, then the State Department could not properly relinquish them without obtaining the approval of the General Services Administration. Under the Records Disposal Act GSA’s approval would be conditioned on a showing that the documents were no longer needed in the “transaction of its current business” and did not have “sufficient administrative, legal, research, or other value to warrant their further preservation by the Government.” 44 U. S. C. §§3303, 3303a (1976 ed. and Supp. II).
If, on the other hand, the summaries could have been converted from “records” to “non-record materials” as the Government suggests, the State Department still would have been required to take steps prior to *166relinquishing them to assure itself that all significant information had been properly extracted for inclusion in more formal State Department files. The fact that such steps were not taken until after the summaries had been deeded over to the Library of Congress makes their removal from the agency by Dr. Kissinger unlawful even under the Government’s theory.
The Archivist did make several requests for the documents. App. 99a-116a. The fact that Dr. Kissinger refused those requests, however, does not demonstrate that a similar request by the State Department would also have been refused.
The Court recognizes that.there might be situations where documents were removed from the agency in order to avoid FOIA requests and suggests that its strict “physical-possession” standard might be “displaced” under these circumstances, ante, at 155, n. 9. As a practical matter, however, the Court’s suggestion provides little comfort to the intended beneficiaries of the Act. For, if an agency can make a sufficient response to a request by simply denying physical possession, it will be a rare case indeed *167in which the ordinary citizen can overcome that denial by proof of improper motivation. Moreover, it would be unseemly to invite litigation and discovery into the subjective motivation of agency officials responsible for processing the flood of paper that threatens to engulf today’s bureaucracy. Focusing attention on the agency’s reason for not reacquiring the documents, rather than on the individual employee’s motive for removing them in the first place, seems to me to be a preferable way of eliminating the incentive to transfer documents to avoid disclosure under FOIA.
GSA, and in particular the. Archivist, has supervisory responsibility over the various agencies’ records management and disposal programs. See, e. g., 44 U. S. C. §§2904, 2906, 3102, 3302, and 3303a (1976 ed. and Supp. II). Thus, an opinion by GSA’s General Counsel could be expected to give a more authoritative and impartial view of the technical issue of what constitutes an agency record than an opinion by the State Department’s legal counsel, given after the documents had already been removed.