Public access to FBI records could be diminished if the bureau wins a court fight to limit the extent of searches required for documents requested under the Freedom of Information Act, a principal law to ensure openness in government.
In court, the FBI is defending a recent automated search that missed some documents released years earlier in a separate case under the act, known by its initials, FOIA.
Representing the FBI, the Justice Department asked a federal judge this month to dismiss the lawsuit and said its request should not be undermined “by an unsuccessful search for a document as long as the search was adequate.”
Justice Department guidelines say the law requires a search “reasonably calculated to uncover all relevant documents.”
Legal and academic critics say the search in this case did not meet that standard. They said they suspected that the transfer of records from paper to electronic files had become an excuse for doing cursory searches that the government knew would not retrieve all relevant documents.
“We all thought that digitization of government documents and electronic FOIA would mean greater public access, but time and again we’ve seen government agencies use it as an excuse for obfuscation,” said Jane Kirtley, a journalism professor at the University of Minnesota who has waged many FOIA battles. “They say, ‘We don’t have the software set up to find what you’re looking for.’”
Death of prisoner triggered controversy
The lawsuit in question was filed by a lawyer in Salt Lake City, Jesse Trentadue, who is pursuing a theory that his brother Kenneth was murdered in a federal prison isolation cell in Oklahoma City on Aug. 21, 1995. Kenneth Trentadue’s bloody and bruised corpse raised questions of foul play among many officials, but local and federal investigations ruled his death a suicide.
Last summer, Trentadue requested:
- A Jan. 4, 1996, message from FBI Director Louis Freeh’s office to the Oklahoma City and Omaha, Neb., offices that discussed the 1995 Oklahoma City federal building bombers (the FBI’s OKBOMB case) and a Midwest gang of bank robbers (the FBI’s BOMBROB case). He enclosed a newspaper story with excerpts from the message.
- The FBI’s record of an interview that Trentadue says he gave an agent and two Justice Department officials on Aug. 12, 1996, which discussed the lawyer’s dead brother and the bank robbery gang, including a member who resembled Kenneth.
- All documents about any connection between the Southern Poverty Law Center and eight people from the OKBOMB and BOMBROB investigations or a white supremacist compound in Elohim City, Okla.
Search supposedly comes up empty
The FBI told Trentadue on Nov. 18 that it had found no documents matching his requests.
Trentadue responded Nov. 30 by filing with the court a copy of the January 1996 message, which he had learned in the meantime had been released under FOIA in 1997. Trentadue also submitted a copy of an August 1996 teletype from Freeh’s office that said two of the bank robbers were present when Oklahoma City bomber Timothy McVeigh called the Elohim City compound. That, too, had been released years earlier under FOIA.
Trentadue asked the court to order another FBI search.
But this month, the Justice Department told the court that, despite not discovering those documents, “the FOIA search in this case was reasonable.”
David M. Hardy, chief of the FBI’s record and information dissemination section, told the court that the FBI had searched the general indices to its central records system and two shared computer drives in the Oklahoma City office.
Hardy acknowledged, however, that the indices are not complete. “The FBI does not index every name in its files,” Hardy told the court. Other than the subjects, suspects and victims, names in FBI files are indexed at the discretion of the investigating agent and supervisors if they are “considered pertinent, relevant or essential for future retrieval.”
It is not clear whether any other federal agency has an index like the FBI’s.
Given the details Trentadue provided, Rebecca Daugherty, director of the FOI Service Center at the Reporters Committee for Freedom of the Press, said the government’s response “doesn’t sound reasonable.”
The FBI should not “ignore the map given by the requester,” Daugherty said. “If a requester can accurately describe a case so the agency can easily find the file, then it’s reasonable to search that case file.”
Search keywords requested
Citing the litigation, Assistant FBI Director Cassandra Chandler would not say how much detail requesters must supply to extend a search beyond FBI indices to case files.
Hardy said the FBI used the search term “OKBOMB” for the January 1996 message, “Trentadue, Jesse” for the interview report and “Southern Poverty Law Center” for the broad request.
Chandler would not say how the “OKBOMB” search could have failed to produce the January message from Freeh, in which the first listed subject was “OKBOMB.” Trentadue also supplied the correct date and sender, two accurate recipients and direct quotations.
David A. Schulz, a lawyer in New York who has represented The Associated Press in FOIA matters, said the FBI should have searched at least for all the names Trentadue listed.
Despite refusing in court this month to redo the search even after Trentadue supplied copies of two messages, the FBI changed its response once the AP inquired about the case.
Mike Kortan, a spokesman for the FBI, said that after Trentadue supplied the two documents, the FBI was able to find them and would provide him copies.