An Investigation of the Belated Production of Documents
in the Oklahoma City Bombing Case
March 19, 2002
Office of the Inspector General
RESPONSES BY FIELD OFFICES TO
2000-2001 REQUESTS FOR INFORMATION
Another aspect of the belated documents story is the often inadequate manner in which field offices responded to the leads in Shackelford's December 2000 EC and Richmond's January and March 2001 ECs. We found that many field offices failed to respond at all, failed to respond accurately, or failed to respond timely. The failures indicate a disturbing lack of attention to administrative detail, which may indicate larger problems with administrative management and supervision. These findings raise serious questions regarding the FBI's attention to detail, managerial accountability, and the reliability of information sent by field offices to Headquarters and to other field offices.
In this chapter we also discuss the destruction of documents by some field offices. Thirteen field offices destroyed documents in response to Shackelford's December 2000 EC authorizing them to do so, and two offices destroyed documents prior to receiving the 2000 EC. As we discuss in this chapter, these field office files may have contained other documents that had not been disclosed properly to the defense.
In ACS, all leads assigned to a specific field office are sent electronically to a central account (known as the "lead bucket") in that field office. Each office has established protocols instructing the central account to re-route each lead to a manager, squad, or staff member within the office, based on the lead's classification prefix. Thus, an office might instruct ACS to route all leads with a "174" prefix to the squad responsible for domestic terrorism; all leads with a "66F" prefix might be routed to the Administrative Officer. After viewing the lead, the individual to whom the lead is assigned is presented with several options: to assign the lead to another individual or squad within that office; to transfer the lead to another Division; or to mark the lead as "covered," or completed. Choosing the "Cover" option brings up a new screen that includes, among other sections, a disposition field, in which the individual can - but is not required to - explain what actions he or she took to cover the lead. A lead that is assigned can in turn be reassigned. The person to whom the lead is reassigned has the option to reassign the lead yet again or to mark it as "covered" after completing the required task.
We found that field offices responded inaccurately to leads. Some offices inaccurately marked a lead as "covered" by allowing personnel, usually an SAC or ASAC's secretary, to mark a lead as "covered" even though the lead had simply been reassigned to someone else in the office. In some cases, offices inappropriately marked a lead as "covered" when the office had not in fact taken any action to handle the lead. In other instances, we found that offices provided inaccurate substantive information in their responses. We set forth a few examples in this section, but there were others.
Baltimore personnel marked leads as covered when they had not completed the assigned task. In Baltimore, Shackelford's December 20, 2000, lead was assigned to the Baltimore File Supervisor on December 30, 2000. The File Supervisor said she did not work on it immediately because it involved reviewing files for destruction, which she believed could wait. In February 2001, the File Supervisor received a promotion. Two days before she left her old assignment, on February 21, she received the January 30, 2001, lead from Oklahoma City.92 According to the File Supervisor, on February 23, she gave both the December and January leads to her supervisor, the Supervisory Administrative Specialist (SAS), told the SAS she had not finished the assignment, and told the SAS where the documents were located to complete the leads. The File Supervisor then marked in ACS that both the December 20, 2000, and January 30, 2001, leads were "covered." The File Supervisor acknowledged to the OIG that she made a mistake when she marked the leads as covered. She also said that she did not tell the SAS that she had marked the leads as covered. The File Supervisor stated that she hoped that the SAS would complete the task and "catch up" with the fact that the computer indicated the lead had been covered.
The SAS denied that the File Supervisor had spoken to her about completing the leads. She recalled that she had spent time with the File Supervisor in February 2001 reviewing matters that needed to be handled until a new person was hired. The SAS was confident that the File Supervisor had never reassigned anything to her. During the OIG interview, the SAS recalled seeing a serial dealing with a "174" classification when the File Supervisor was cleaning out her office in February 2001. The SAS said that she did not read the serial and that the File Supervisor said that she would handle it. When shown the January 30, 2001, EC from Oklahoma City, the SAS told the OIG that it could have been the serial she discussed with the File Supervisor. A few days after the File Supervisor left her position, the SAS checked ACS for open leads. She said that she found none.
The Administrative Officer told the OIG that when he received the March 15, 2001, lead, he recalled the January 30 lead. When he checked ACS for the January 30 lead's status, he saw that it had been covered. He then marked the March lead as "covered" as well without checking to see what had been done. The OIG asked the Administrative Officer about the requirement in the March EC to provide Oklahoma City with the name of the individual who was "certifying" the search for the OKBOMB documents. The Administrative Officer said that he believed that the File Supervisor would have given her name when she responded to the January EC and therefore he did not think that he needed to send another name to Oklahoma City.93
Like Baltimore, Columbia responded inaccurately to the January 30 EC from Richmond. Columbia sent a February 5, 2001, EC stating, "On 01/05/2001, a search was conducted and no documents re OKBOMB were located in the Columbia Division." In fact, Columbia had one entire volume and various other materials in locations throughout the office.94
The paralegal who drafted the February 5 EC had no recollection of reviewing the incoming EC, preparing the outgoing EC, or of conducting any search for OKBOMB documents. She stated that she normally handled expungement requests and that in the course of doing so she would check the automated records to determine if files existed. She conceded, however, that the automated records showed numerous references to Columbia OKBOMB files. The paralegal told the OIG that she must have responded under the mistaken belief that she was responding to an expungement request and under the further mistaken belief that she had conducted a search for responsive records with negative results. The paralegal acknowledged, however, that the title of the January 30, 2001, EC was "Destruction of Field Files and Records" rather than "expungement" and that the text of the incoming EC varied significantly from standard expungement requests.
In response to the January 30 EC, New York City sent an EC to Oklahoma City dated March 1, 2001, stating that it had no OKBOMB materials. However, in May 2001, New York City located 57 volumes of OKBOMB material.
The File Supervisor who had been assigned to the January 30, 2001, lead told the OIG that she called the appropriate rotor to ask if the office had anything on OKBOMB. The rotor responded that he would check. According to the File Supervisor, the rotor called her back and told her that there were no OKBOMB files. The File Supervisor relayed this information to her supervisor, who drafted the response to Oklahoma City. The rotor, however, told the OIG that he was "99.9 percent" sure that he never had a conversation with the File Supervisor regarding OKBOMB files. He stated that he is confident that he would not have told her that New York City had no OKBOMB files because he knew that it did.
Denver did make efforts to find the Denver OKBOMB files in response to the ECs coming from Oklahoma City. Yet, Denver personnel still failed to find numerous volumes of material because of failures in Denver's filing system.
In Denver, the December 20, 2000, EC was routed to the Freedom of Information/Privacy Act (FOI/PA) Coordinator, who handles file destruction as a collateral duty. According to the FOI/PA Coordinator, in response to this EC she looked on the shelves in the closed files section of the office, looked on the rotor file in the appropriate squad area, asked the squad secretary to look for any OKBOMB files in her space, and spoke to several employees about the Denver OKBOMB files. The Denver OKBOMB Rotor told the FOI/PA Coordinator that he believed that the Denver Auxiliary Office file had already been sent to the Task Force. The FOI/PA Coordinator prepared an EC dated January 18, 2001, to Shackelford stating that she was unable to locate any OKBOMB files in Denver.
With respect to the January 30, 2001, EC, the Administrative Officer told the OIG that she assigned the lead via ACS to the FOI/PA Coordinator. The FOI/PA Coordinator said that it would have been routed to her but that she did not recall seeing it. Denver took no action in response to this EC.
When the March 15, 2001, EC came in, the Administrative Officer assigned this lead to the SAS. The SAS told the OIG that she looked for the Denver files in the closed files section of the office, spoke to the case agent about the possible whereabouts of the Denver files, and spoke to the former Administrative Officer. She said she was told that Denver had already sent all of its OKBOMB files to Oklahoma City, and she prepared an EC to Oklahoma City on April 3, 2001, to that effect.
In fact, the Denver OKBOMB files were in the Denver office and were discovered on May 12, 2001. Several employees were in the office on May 12 - a Saturday - to search for "original OKBOMB documents" in response to the May 11 Headquarters' EC. While walking through the closed files section of the office, the Administrative Officer tripped over some unlabeled boxes on the floor. When the Administrative Officer asked the File Supervisor what the boxes contained, the File Supervisor said that the boxes contained Auxiliary Office files, although she was not aware what specific files were in the boxes. The Administrative Officer and the File Supervisor opened the boxes and discovered several OKBOMB volumes.95 The File Supervisor told the OIG that she subsequently was able to determine that the files had been returned to Denver from the Information Technology Center (ITC) in Butte, Montana, on October 14, 1998. The File Supervisor said she had been told by a previous File Supervisor, who had left the Division in October 2000, that many Denver Auxiliary Office files had been shipped a few years earlier for destruction to the archives unit at the ITC and that the files had been returned as they were deemed unsuitable for destruction. These files had remained in several unlabeled boxes in the closed files section of the office.
The File Supervisor, who knew about the boxes in the closed files section, had been unaware of the earlier searches for the OKBOMB Auxiliary Office files. The FOI/PA Coordinator and the SAS who were looking for the Auxiliary Office files had been unaware that the boxes in the closed files section of the office contained Auxiliary Office files.96
Two days after the discovery of the five volumes, the Administrative Officer ordered a complete review of the closed files section and 32 additional volumes of OKBOMB material were found and shipped to Oklahoma City.
Newark informed Oklahoma City on January 30, 2001, that "as the result of searches done in the Newark office," Newark did not possess any OKBOMB material. On March 26, 2001, Newark "certified" that all of its OKBOMB material had been forwarded to Oklahoma City. However, Newark did not provide the name of the employee responsible for making the certification, as had been requested by Richmond's March 15, 2001, EC.
Despite Newark's responses indicating it had no OKBOMB material, it found its entire OKBOMB Auxiliary Office file when it searched in response to the May 11, 2001, EC from Headquarters. In response to the OIG survey, Newark explained:
The items were located in a closed file storage room that was being utilized for Auxiliary Office files that were closed prior to the conversion of ACS. The files located in this area were not filed in any particular order, ie. by file number, field office, and/or classification. It was after a file by file review that items related to the Oklahoma City bombing investigation were discovered.
In response to the January 30, 2001, EC from Richmond, the Philadelphia File Supervisor sent two boxes of material to Oklahoma City. The File Supervisor told the OIG that she found the materials in the "closed files" section of the office.
The March 15, 2001, EC was routed to the counterterrorism squad rather than to the administrative supervisors. A counterterrorism relief supervisor searched the closed files section and found no OKBOMB material. She then checked with the File Supervisor and the OKBOMB case agent who informed her that all OKBOMB materials had been sent to Oklahoma City. An EC was sent to Oklahoma City on March 20, 2001, stating that "Philadelphia has conducted a thorough search of the Philadelphia Division and has no further materials pertaining to OKBOMB in its possession."
On May 13, 2001, in response to the May 11 EC from FBI Headquarters, the counterterrorism squad supervisor checked ACS and learned for the first time of the March 15 and January 30 ECs. The supervisor checked closed files and the administrative files and did not find any OKBOMB materials. He also consulted the case agent who assured him that all OKBOMB material had been sent to Oklahoma City.
On May 14, 2001, however, the case agent searched the counterterrorism "workbox" room and found 12 original OKBOMB documents.97 The case agent told the OIG that he had checked the workbox room in the past and had not seen the files. He said that he had no excuse or explanation; he could only state that this time when he looked in the room he found the files.
On May 16, 2001, the Philadelphia ASAC received a call from FBI Headquarters informing her that information in Headquarters informant files indicated that Philadelphia may have additional OKBOMB documents in its informant files. The ASAC then located two additional OKBOMB related documents in the informant files. The Informant Coordinator advised the OIG that she had not searched the informant files, since she understood that it was the responsibility of the case agents to review their respective informant files and they were responsible for the contents of the files.
In many cases, the evidence contradicted the explanations provided by the field offices when they responded to Headquarters' May 12, 2001, request for explanations as to why the field offices had not provided OKBOMB materials to the Task Force before the OKBOMB defendants' trials. We did not analyze all of the explanations but we provide a few examples.
Although Mobile asserted in its explanation that it had not been required to send non-pertinent information to the OKBOMB Task Force, we found teletypes from the Task Force to all field offices clearly stating that non-pertinent information was to be sent. (See Chapter Three, Section III C 5.) Even more inexplicable were New Haven's and New Orleans' statements that FBI policy permitted field offices to keep original FD-302s and inserts. Not only was this assertion of FBI policy contradicted by other offices' responses, the FBI's administrative manual specifically states:
Original FD-302s and 1A envelopes are to be forwarded to the [Office of Origin] at time prepared and/or acquired with exception of those 1A envelopes which are to be returned to the contributor in the jurisdiction wherein they were obtained.
See MAOP § 2-4.3.2.
FBI personnel that we interviewed also confirmed that they understood that originals were to be sent to the OKBOMB Task Force in accordance with standard FBI policy. And OKBOMB Task Force teletypes repeatedly emphasized that originals were to be sent to the Task Force.
Baltimore stated in its response to the May 12 EC:
Previous communications requested that field offices send original or xeroxed documents relative to the Oklahoma bombing. At the time of the request, Baltimore had 12 volumes of files as well as 1A's relative to this case. Baltimore opted to Xerox copies rather than send original documents. During the Xeroxing of these documents, the two inserts and three 1A's were inadvertently missed. Clearly, this was a clerical error on the part of the Baltimore Division.
In fact, the instructions from the Task Force consistently instructed the field to provide originals as well as multiple copies. Both the Baltimore OKBOMB case agent and the squad supervisor told us that they understood that originals had to be sent to the OKBOMB Task Force during the course of the OKBOMB investigation. We asked the Baltimore Administrative Officer what the basis was for the explanation that he provided to FBI Headquarters. The Administrative Officer said that in preparing the explanation he spoke to his administrative subordinates and the SAC. He said that the only explanation he could provide was that when the documents were copied in 1995-1996, these particular documents simply were not copied and, therefore, never forwarded. The Administrative Officer said that he could not think of any other reason and that he was trying to come up with "any explanation." He added that it was his understanding that an Auxiliary Office keeps originals and sends copies of documents to the Office of Origin. He then told the OIG that he was not confident about his understanding.
Los Angeles stated in its response that it was "quite certain" that all investigative material had been furnished contemporaneously to Oklahoma City in part because it had established a "meticulous" tracking system for OKBOMB material. Los Angeles acknowledged in its response to FBI Headquarters that, despite its tracking system, it had improperly failed to send in 18 1B's (consisting of 17 audiotapes and 1 videotape) because it had not looked in its Elsur material when responding to the OKBOMB Task Force's 1995-1996 requests. Los Angeles asserted, however, that it had sent the transcripts of the audiotapes to the Kingman, Arizona, Command Post and the OKBOMB Task Force contemporaneously. The OIG examined the Los Angeles files and found a fax cover sheet showing that two transcripts were being faxed to the FBI's Kingman, Arizona, Command Post. We found no record that the transcripts had been sent to the OKBOMB Task Force. In addition, the prosecutor who dealt with the issue involved with the tapes stated that he had never seen the transcripts.
Los Angeles also asserted that the OKBOMB Task Force should have had all Los Angeles material before trial because Los Angeles had copied and mailed the entire Los Angeles OKBOMB file to the OKBOMB Task Force in late 1996. This explanation was based on information provided by a former supervisor who stated that he was certain everything had been sent to the OKBOMB Task Force because he recalled asking an agent and the squad rotor to copy Los Angeles' entire Auxiliary Office file and to send it to the Task Force. When we interviewed personnel in Los Angeles, however, we discovered that this answer was based on the former supervisor's misunderstanding of actions that had been taken by the agent in 1996. The agent said that he reviewed the entire Auxiliary Office OKBOMB file looking for FD-302s that had been requested by the Task Force because they related to teletypes. He only copied a select portion of the file in response to the specific request from the Task Force. The rotor also did not recall ever copying the entire case file.
In addition to these examples, several offices identified specific belated documents that they asserted had been sent to the OKBOMB Task Force based on the offices' search through ACS for airtels. Our review of 31 explanations showed that 17 were accurate, 9 were inaccurate, and we had insufficient information to prove or disprove the accuracy of the remaining 5.
Many offices did not act on Shackelford's December 20, 2000, lead expeditiously because there was no time period set out for the action. We do not criticize these offices for not acting promptly because we believe it was an appropriate managerial decision to determine that file destruction was not a high priority, particularly given the lack of any urgency stated in the EC. On the other hand, records may have escaped destruction because some field offices "lost" the December 20, 2000, lead. In some offices we found that the lead disappeared without any response or conscious decision to postpone the response. In some cases, administrative personnel could not recall ever seeing the lead.
In Columbia, for example, the Administrative Office recalled the December 2000 lead and stated that it had been reassigned to the File Supervisor. The File Supervisor told the OIG that he did not recall the lead. He said that Columbia at one time had a system of assigning leads that occasionally led to leads "falling through the cracks."
In the Atlanta Division, the File Supervisor, the Supervisory Administrative Specialist, and the Administrative Officer could not recall seeing the December 20, 2000, EC. The Supervisory Administrative Specialist and the Administrative Officer thought it went to the investigative squad for action. Yet, neither the SAC, the primary squad relief supervisor, nor the two co-case agents recalled seeing the December 20, 2000, EC.
Neither the Philadelphia Administrative Officer nor the File Supervisor recalled the December 2000 EC, and it was not acted upon.
The December lead was not the only lead that was not acted upon. In Denver the Administrative Officer recalled assigning the January 30, 2001, lead to the FOI/PA coordinator. The FOI/PA coordinator told the OIG that she did not recall seeing it. The File Supervisor also did not recall the lead, and Denver did not respond to it.
Several offices marked the March 15, 2001, lead as covered because they had sent files in response to the January 30 lead. These offices sent no further written response to Oklahoma City. However, as previously noted, the March 15 lead requested additional information. Offices also marked the December 20, 2000, lead as covered based on the premise that they knew where the files were and were waiting for some time in the future to do the actual destruction.
As previously discussed, FBI procedures require that teletypes with an "immediate" designation must be given priority handling throughout each area of dispatch and receipt. Even though the January 30, 2001, EC was for "immediate" action, some offices took weeks to even assign the lead. In Baltimore, the lead was not assigned to the individual responsible for handling it until February 21, 2001. The Los Angeles closed File Supervisor did not receive the December 2000 lead until mid-January and then received the January 30 lead in early February. Ultimately, Los Angeles did not send its six boxes of material to Oklahoma City until March 1, 2001.98 The Los Angeles Elsur supervisor did not receive the January 30 EC until March 14 and sent materials on March 19. New York City's response to the January 30, 2001, lead requiring "immediate" action was dated March 1, 2001. The Jackson, Mississippi, Division did not send material until March 19. It stated in its response to the OIG survey that it had found the OKBOMB files, but the Administrative Officer wanted changes made to the transmittal document. Nothing further was done until Jackson received the March 15, 2001, EC repeating the request for documents.
The FBI's ACS computer system may have contributed to the delayed responses. Both the January 30 and March 15 ECs stated on the lead that immediate action was required. Yet, we noticed that in ACS the deadline for action on the January 30, 2001, EC was April 2, 2001. The deadline for action on the March 15, 2001, EC was May 18, 2001, two days past McVeigh's original execution date. We were told that whenever the EC precedence is "Immediate," ACS automatically assigns a deadline date 60 days after the "Set Date." We also were told that the deadline date cannot be changed manually.
To add to the confusion, several offices told us that the March 15, 2001, lead had been discontinued.99 We verified that the lead had been accidentally discontinued on April 10, 2001, because an Oklahoma City rotor was trying to move the lead from one file to another in ACS. ACS automatically discontinued the lead in the original file. The rotor was not aware of the problem, however, and the lead was not reset until May 10.100 Some offices also reported that they were not on the distribution list for the March 15 lead and were unaware of it.
During the course of the investigation, the OIG reviewed hundreds of communications between and among FBI Headquarters, the OKBOMB Task Force, and the field offices. These communications include teletypes and airtels, and more recently electronic communications. They include communications to and responses from the domestic terrorism case squads, as was the case with most of the communications in the 1995-97 period, and communications to and responses from the administrative staff, as was the case with the ECs in the 2000-2001 period. Viewed as a whole, a troubling fact becomes evident: a significant number of these communications contain information that is, at best, inaccurate and misleading. In addition, offices failed to respond to leads, lost leads, and responded after deadlines had passed. If the communications among the FBI components in the OKBOMB investigation are not unique in this sense, a problem of significant consequence exists.
Numerous teletypes during the 1995-97 time period advised the Task Force and Headquarters that field offices had searched their files for original OKBOMB-related documents and evidence, yet many of these files yielded original FD-302s and other documents when searched by Oklahoma City in 2001. In 2001, a number of field offices responding to Oklahoma City's call for all OKBOMB materials wrongly reported the absence of any OKBOMB materials or failed to locate and produce all the OKBOMB materials in their custody. What is perhaps most surprising is that this problem is not restricted to communications between line staff, but occurs with equal frequency in communications approved by field office executive management to senior Headquarters personnel. For example, we found numerous inaccurate statements in the response to the Deputy Director's May 12 directive to the field offices to submit an explanation for the belated production of documents; in each case, the response had been approved by the field office SAC.
Several of these inaccuracies may be explained in whole or in part by the field offices' understandable difficulty in crafting a response without ready access to their Auxiliary Office files. Additionally, it might be reasonable to expect some ambiguity and imprecision in responses attempting to recreate events that occurred almost six years before, and we recognize the pressures on the field offices to respond to directives issued by the highest levels of the FBI with short timelines. But in several instances the misinformation transmitted to Headquarters appeared to be the result of managers not making sufficient inquiry of the basis for the explanation that was being provided to Headquarters. The fact that the subject matter relates principally to office administrative functions and not an ongoing substantive investigation should not justify relaxing the expectation that the information relayed by field offices is reliable and that supervisors have taken steps to ensure its accuracy.
Thirteen offices destroyed OKBOMB documents in response to Shackelford's December 20, 2000, EC. Two other offices destroyed documents prior to the EC. The destruction of these documents appears to have been undertaken pursuant to FBI destruction policy, which allows for the destruction of Auxiliary Office copies. However, the loss of Auxiliary Office copies means that there may have been more documents that should have been disclosed to the defense but were not.
The FBI's file destruction policies, developed in conjunction with the National Archives, are set forth in the FBI's MAOP, Part II, Section 2-4.5. The FBI Archive Specialist, currently Shackelford, is responsible for administering the file destruction policies and training FBI personnel in its requirements.
File destruction rules vary depending on the case classification, whether the office in question is the Office of Origin or the Auxiliary Office, and whether special circumstances exist. Generally, according to the MAOP, in bombing cases the Office of Origin may destroy the file after 20 years. Auxiliary Office files for such cases, however, may be destroyed one year from the date of the last relevant communication. The Auxiliary Office need not notify the Office of Origin that it intends to destroy its Auxiliary Office files, assuming it adheres to the general destruction policies.
Office of Origin files designated by FBI Headquarters in consultation with the National Archives as having "national historical significance" should not be destroyed but instead must be permanently retained for eventual transfer to the National Archives. According to Shackelford, by "coding" a case file, as the FBI did by designating the Oklahoma bombing matter "OKBOMB," the FBI effectively declares a file of national historical significance, thereby prohibiting destruction of the Office of Origin files. Importantly, however, Auxiliary Office files related to such cases are not affected by such classification and remain subject to the general destruction policies (one year from the last relevant communication).101 Similarly, Shackelford stated that while the FBI's administrative manual provides that matters in pending litigation are not subject to file destruction, this restriction, too, does not apply to Auxiliary Office files.102 According to Shackelford, in both instances the reason for the distinction between Office of Origin and Auxiliary Office files is that Auxiliary Office files are presumed to consist only of copies. To ensure that only copies are destroyed, the destruction rules and FBI destruction training both emphasize that any original documents or materials in the Auxiliary Office files are to be removed from the files and forwarded to the Office of Origin prior to the destruction of the Auxiliary Office files.
Field offices must keep a record of file destruction by noting the case number and date of destruction on a specified form.
The field offices that destroyed records insisted that they only destroyed copies of materials that had been sent to the OKBOMB Task Force. While probably true with regard to most of the destroyed documents, there is no way of determining with certainty whether any originals not sent to OKBOMB also were destroyed. Moreover, even destruction of copies could impact the belated documents. Over half of the belated documents consist of copies. It is possible that, if the field offices had sent the materials to Oklahoma City for analysis rather than destroying them, some of those documents would not have been found in ZyIndex and would have been considered to be belated. In other words, without the documents to compare with ZyIndex, it is difficult to know whether the universe of belated documents would have been larger.
We attempted to determine whether any potentially discoverable material had been destroyed based on the information that the field offices provided to us in the survey. Although FBI procedures require that a log be kept of all records destroyed, there is no requirement that the field offices itemize the items destroyed. Six of the offices indicated in the survey that they had no log. The others provided logs specifying some limited information, such as the date of destruction, but not the nature of the documents destroyed.
Six offices stated that they destroyed only teletypes. The other offices either explicitly acknowledged destroying FD-302s or could not rule out that FD-302s had been destroyed. Therefore, some materials within the discoverable categories were destroyed by the field offices in response to the December 20, 2000, EC. The chart on the following page shows the field offices that destroyed documents and the nature of the documents they said were destroyed.
Table 6: Document Destruction
|Field Office||After 12/20/00 EC?||Nature of Documents||Log||ACS Checked?|
|Birmingham||Yes||Airtels; ECs; TTs; 302s
(stamped or notation that had been sent to OC)
|Buffalo||Early 2000||Copies of teletypes||No||No|
|Chicago||Yes||302s and other materials;
copies/notation that original had been sent
|Jacksonville||Yes||Copies of teletypes, EC's, 302s,
inserts, photos, videos
|Kansas City||Yes||The teletype sub-file containing
incoming and outgoing teletypes
|Las Vegas||1998||Work copy file; unknown contents; only copies||No||No|
|Memphis||Yes||Documents already uploaded or previously sent
to OKBOMB; 302s, ECs, inserts
|Milwaukee||Yes||15 volumes: Duplicate teletypes,
ECs, 302s and inserts
|New Haven||Yes||All copies; 85 original items sent to OKC;
teletypes and misc. documents not further clarified
|Omaha||Yes||Copies of incoming teletypes||Yes||No|
|Phoenix||Yes||18 volumes of incoming teletypes||Yes||No|
|St. Louis||Yes||Subfile 1; 8 volumes of incoming teletypes||Yes||No|
|San Diego||Yes||Portion of 1 subfile: DMV and other records checks
(fax cover sheets indicating had been sent to OKBOMB)
|Springfield||Yes||All documents other than 105 sent to Okl. City;
Through a labor intensive process, the FBI may be able to obtain some information about the documents that were destroyed although they cannot recreate the actual document. By using ACS, FBI personnel may be able to identify certain key information about the items that were destroyed.103 The discoverable materials - FD-302s, inserts, and 1As - can then be checked against ZyIndex and the hard copy records to determine whether they were disclosed to the defense. If, however, it was determined that some of the destroyed documents had not been disclosed to the defense, the FBI would only have limited information about the document; the substance of the information on the document would not be available. The FBI was in the initial stages of reviewing the work needed to undertake this process when the events of September 11, 2001, interceded, and they stopped the process. Accordingly, at this date, we do not know what, if any, effect the document destruction had on the number of belated documents.
We also questioned why the information about the destroyed documents had not been reported to the defense or the court during the proceedings regarding McVeigh's execution. Connelly said that he had never been told that documents had been destroyed. He further stated that he had not reviewed the archivist's December 20, 2000, EC and therefore was not aware that the field offices had been given permission to destroy documents. He said that he would have informed the defense and the court if he had known about the document destruction.
We also asked the FBI's General Counsel, Larry Parkinson, what he knew about the destruction of documents. Parkinson said that he was aware of the Columbia Division's missing documents that were presumed to have been destroyed; however, he was not aware that other field offices had destroyed material. Parkinson acknowledged that sometime in May 2001 he had read Shackelford's December 20, 2000, EC granting the field offices authority to destroy documents. He said, however, that at that time he and everyone else involved in resolving the problem at FBI Headquarters were focused intently on making sure that there were no other OKBOMB documents remaining in the possession of the field offices that had not been forwarded to Oklahoma City. He conceded that he did not really concentrate on the possibility that documents had been destroyed. He also stated that one of the reasons he had not focused on the issue was because the OIG was investigating the belated documents problem.104
Defenbaugh and White also told the OIG that they had no knowledge that documents had been destroyed during the archival process. Defenbaugh reiterated that he had not been aware of the archival process when it started and when he learned about it, he did not focus on the fact that destruction of copies might be a problem. White told the OIG that he assumed that nothing had been destroyed because of the January 30, 2001, EC instructing the field offices not to destroy OKBOMB materials.
Other senior FBI officials, including Jarboe and Watson, also acknowledged being aware by mid-May 2001 of Shackelford's December 20, 2000, EC authorizing the destruction of documents. Both officials stated that they were focused on other issues, such as getting documents to Oklahoma City, and they took no steps to determine whether documents had been destroyed by the field offices.
Richmond said that she was aware that some field offices had destroyed documents because at least one, Chicago, wrote in its response to Richmond's January 30 EC that it had destroyed some of its file. Richmond said that she did not consider the impact of the destruction on the discovery problem. She said that her primary concern was that destruction made it more difficult for her to find documents when Headquarters or field offices contacted her with questions.
Vernon also acknowledged being aware that some field offices destroyed documents, although she was unsure when she learned that fact. She said that she did not raise the issue with anyone because she assumed that FBI officials and the OKBOMB prosecutors who were working on reviewing the documents would have been aware of the issue from reading Shackelford's December 20, 2000, EC.
We believe that the court and defense counsel should have been informed of the FBI's destruction of documents, in addition to being given the belated documents, while McVeigh's stay of execution was being litigated. The prosecutor, Sean Connelly, said that had he been told, he would have notified the court and the defense about it in the litigation concerning McVeigh's request for a stay. A breakdown in the FBI prevented defense counsel from learning information about the destruction of documents. While the notification should have happened, the fragmented nature of the process for dealing with the belated documents made it difficult for individuals to appreciate the significance of the December 20 EC. We also found that FBI supervisors did not understand the role that copies played in the review process and assumed that the destruction of copies would not affect the process.
We did observe a few other issues relating to document destruction that merit comment. Given our understanding that the FBI requires offices to keep a destruction log, we questioned the field offices that said they destroyed documents but did not keep logs. Several of the offices indicated that they did not keep logs because they were the Auxiliary Office rather than the Office of Origin. We did not find such an exception to FBI policy in the administrative manual. One office responded to the OIG survey by stating that it had kept no log of its destruction but sent us the log when we conducted follow-up interviews. Another office failed to respond to our request in the OIG survey for the destruction log but then sent the log when we conducted the follow-up interviews.
We also found that even though the field offices destroyed documents pursuant to Shackelford's authorization, they did not follow the guidelines set forth in his EC. Shackelford authorized field offices to destroy items that had been uploaded to ACS; yet only one office stated that they checked ACS before destroying the material. When asked to explain, a few offices stated that ACS was restricted, although none of them attempted to have the restriction lifted before proceeding with the destruction. Others stated that ACS was not checked because it was not required by FBI policy, because the employee handling the destruction was experienced, and because the documents had been serialized. If the offices had followed instructions and only destroyed documents that had been uploaded into ACS, we could determine with more confidence whether the OKBOMB defendants had received copies of the documents that were destroyed.
On May 16, 2001, the Columbia Division notified Stenhouse, who had led the FBI's review of the second wave documents, that Columbia could not find 11 volumes of Columbia's OKBOMB file. Columbia ASAC Paul LaCotti, Jr. told the OIG that Columbia Division personnel searched the office for OKBOMB materials in response to the May 11, 2001, EC from Headquarters. Columbia found volume 12 on the pending files rotor. According to LaCotti, based on this search Columbia realized that 11 volumes of the case file were missing. LaCotti stated that the entire office was searched without success. In addition, FBI Headquarters and Oklahoma City were contacted to see if they had the files; both responded negatively.
Columbia personnel told the OIG that they had moved offices in early 1999. The Administrative Officer stated that he felt certain the files had been moved out of the old building. He stated that there had been a log of items moved out of the building, although he was not certain that anyone had checked the inventory when the files were moved into the new space. The Administrative Officer reported destroying the log about a year after the move. The Administrative Officer also raised the possibility that the 11 volumes had been destroyed. He told the OIG that after the move the File Supervisor had assigned a night shift employee to destroy all eligible Auxiliary Office files.
The File Supervisor told the OIG that Columbia searched for the files for several days. He said that he and others talked with everyone, currently employed and retired, who might have had any contact with the files and that "everyone looked everywhere." The File Supervisor drafted an EC dated May 17, 2001, to FBI Headquarters summarizing Columbia's efforts. The EC stated that on May 14, 2001, 28 current and former employees were contacted and from May 14 through May 16, 39 locations, including all safes and file cabinets in the Columbia Division had been searched. The File Supervisor told the OIG that three possibilities were equally likely: (1) the files had been lost, (2) the files had been destroyed by the night shift employee, or (3) the files had been sent at some point to Oklahoma City.
Although some Columbia personnel thought it highly likely that the files had been destroyed, the evidence on that point is not clear. The night shift employee responsible for destroying Columbia's eligible files stated that she did not recall destroying any OKBOMB files, although she also acknowledged that the case number would have meant nothing to her. She pointed out, however, that her destruction logs do not list any OKBOMB destruction. She stated that she filled out a form for each file volume just prior to shredding it, noting the file number along with the date of destruction. The employee told the OIG that she believed it would have taken her weeks to destroy 11 volumes of files (because file destruction was done as an adjunct to her regular duties), and she thought it extremely unlikely that she would destroy 11 volumes over such a period without recording any of them. In addition, we were told that the Columbia OKBOMB volumes had been changed from brown covers to red covers prior to the move to the new offices. The night shift employee said that she had not destroyed any files with red covers.
In summary, 11 volumes of files in one of the FBI's most important cases disappeared without any record as to their disposition.
After being notified of the missing Columbia documents, Stenhouse led a project to identify the missing documents and determine whether they had been disclosed to the defense before the defendants' trials. The FBI concluded that 854 documents were missing but only 27 would have been discoverable (FD-302s or inserts). After the review of the 27 documents was completed, the FBI concluded that 26 had been disclosed to the defense.105 The one insert that had not been disclosed was an insert listing telephone subscriber information. The telephone subscriber information had been disclosed on another FD-302.
In addition to these problems, Richmond also had considerable difficulty getting the materials from Baltimore in May 2001. According to Richmond, she contacted Baltimore because it had not responded to the various ECs she had sent. She said that she called several times and either was unable to locate individuals, such as the Administrative Officer, or the people she spoke to seemed to have no idea what she was talking about. Finally, on May 10, she spoke to the Administrative Officer, who apologized and agreed to have the files hand-carried to Oklahoma City. Richmond said that when she received the files, she observed that the volumes were numbered from 1 through the ending number. Volume 3 was missing, however. She then had to call and have Baltimore locate that volume. The Baltimore SAS recalled that on Tuesday, May 8, 2001, she received a call from someone in Oklahoma City (that is, Richmond) referring to a prior EC. The SAS said she told the caller that the matter would have been handled by the former File Supervisor who would return the call on Thursday, May 10, when she returned to the office. The SAS said that the caller called again on Wednesday, May 9, and spoke to another support employee who also told the caller that the former File Supervisor would handle the issue on Thursday. The File Supervisor said she was told the morning of May 10 by the support employee that Oklahoma City had called and said the OKBOMB documents had never been sent. The File Supervisor said that she was furious that the SAS claimed that she did not know anything about the matter. The File Supervisor then boxed up the materials and, at Oklahoma City's request, the files were hand-carried to Oklahoma City by a Baltimore special agent. On the evening of May 10, the File Supervisor received a call at home from the Administrative Officer who informed her that Oklahoma City had reported that a volume was missing from the Baltimore files. The File Supervisor returned to the office and found the volume on a shelf above where the other volumes were located.
[The Supervisory Special Agent] has no knowledge of this lead. Birmingham can find no indication that any steps were taken to cover the lead. However, it should be noted that the lead was marked 'DISCONTINUED' in ACS.
No field office may engage in file destruction until all litigation matters have been searched through the office indices and relevant files identified and marked for retention pending resolution of the litigation. Case files which bear the notation that files are being retained due to pending litigation are to be maintained until notification is received from FBIHQ that the litigation has been resolved. MAOP 2-4.5.1(3).
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