jesse trentadue 6 28 2012 response to fbi defendants supplemental memornadum and support of...

Jesse C. Trentadue (#4961)

8 East Broadway, Suite 200

Salt Lake City, UT 84111

Telephone: (801) 532-7300

Facsimile: (801) 532-7355

[email protected]

Pro Se Plaintiff

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

JESSE C. TRENTADUE,

Plaintiff,

vs.

FEDERAL BUREAU OF

INVESTIGATION, UNITED STATES

DEPARTMENT OF JUSTICE OFFICE

OF INFORMATION AND PRIVACY,

and UNITED STATES CENTRAL

INTELLIGENCE AGENCY,

Defendants.

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

PLAINTIFF’S RESPONSE TO FBI

DEFENDANTS’ SUPPLEMENTAL

MEMORANDUM FILED IN

SUPPORT OF THEIR MOTION FOR

SUMMARY JUDGMENT

Case No.: 2:08cv788 CW

Judge Clark Waddoups

Plaintiff, Jesse C. Trentadue, hereby submits this Memorandum in

response to the Supplemental Memorandum that FBI Defendants filed on June1

15, 2012 in further support of their Motion for Summary Judgment.2

Doc. 104.1

Doc. 60. The FBI is also submitting this Supplemental Memorandum in 2

opposition to Plaintiff’s Renewed Motion 56(d) Motion for Discovery. Doc. 90.

Case 2:08-cv-00788-CW-SA Document 108 Filed 06/28/12 of 33

mailto:[email protected]

INTRODUCTION

Pursuant to the Freedom of Information Act (“FOIA”), Plaintiff is seeking

videotapes and other records in the possession the FBI which, if produced, may

very well expose governmental wronging or failings in the Oklahoma City

Bombing case (“OKBOMB”). Almost a century ago, Supreme Court Justice

Brandeis warned the American people about the Government’s wrong doing when

he said that:

Decency, security and liberty alike demand that governmentofficials shall be subjected to the same rules of conduct that arecommands to the citizen. In a government of laws, existence of thegovernment will be in peril if it fails to observe the lawscrupulously. Our government is the potent, the omnipresentteacher. For good or for ill, it teaches the whole people by itsexample. Crime is contagious. If the government becomes alawbreaker, it breeds contempt for the law; and invites every manto become a law unto himself. . . .

Olmstead v. United States, 277 U.S. 438, 485 (1928).

FOIA was undoubtedly enacted into law to address the concerns voiced so

long ago by Justice Brandeis. FOIA was designed to insure an informed citizenry,

which is so vital to the functioning of a democratic society, in order to guard

Therefore, Plaintiff is also submitting this Memorandum support of his Renewed Rule56(d) Motion for Continuance. Doc. 90..

2


against governmental corruption and to hold the government accountable for its

actions. The public interest in disclosure under FOIA is also at its greatest when3

there is evidence of governmental wrongdoing. And the timing of this fight4

between Plaintiff and the FBI over OKBOMB records and evidence should not be

ignored.

Our Country is inching towards a possible constitutional crisis triggered

by the Department of Justice’s apparent concealment of documents about “Fast

and Furious,” a scandal involving the deaths of two border patrol agents as a

result of the Government having given weapons to foreign criminals. But Fast

and Furious may just be the tip of the iceberg. OKBOMB is potentially the

iceberg of Governmental wrongdoing and/or incompetence. And that is why the

Court should not accept the FBI’s claim that its only obligation under FOIA in this

case is to search for evidence of the Government’s wrongdoing, not to find that

evidence when it could easily do so.

Virgil v. Andrus, 667 F.2d 931, 938 (10 Cir. 1982). 3 th

See Lissener v. United States Custom Service, 241 F.3d 1220 (9 Cir. 2001). 4 th

3


PROCEDURAL HISTORY

On May 13, 2011 the Court entered its Order, granting in part and denying

in part, Plaintiff’s Motion to Continue Summary Judgment Proceedings Pending

Discovery, In that Order, the Court also directed “Defendants”: (1) to affirm5

whether in this case Mr. Hardy or any other of their affiants (Martha M. Lutz, Earl J.

Chidester, Anne C. Costa, Michael Mullaney and Rena Y. Kim) had misrepresented6

information or provided incomplete or otherwise misleading information to the

Court under an asserted right to protect the interests of the United States; (2) to7

search the I-Drive and S-Drive for evidence as to the location of the missing

videotapes and, if no search was conducted, to explain why such a search would

not be reasonably calculated to locate the requested videotapes and other

materials; (3) to advise the Court whether the ECCs located at FBI Headquarters,8

the Oklahoma City Field Office and the FBI Crime Lab had been manually

searched and, if not, explain why there was no reasonable likelihood that the

Doc. 82.5

Doc. 32-2, 52; Doc. 32-20, 5; Doc. 32-21, 8; Doc. 32-2,3; Doc. 32-24, 5; and6

Doc.38-2..

Id. ¶ 1.7

Id. ¶ 2.8

4


requested materials would not be located in any of those locations; (4) to either9

manually search OKBOMB physical files at FBI Headquarters, the FBI Oklahoma

City Field Office and the FBI Crime Lab for the requested videotapes and other

materials that were collected during the first 14 days following the Oklahoma City

Bombing, or provide evidence as to why such a search would be too burdensome

to undertake; and (5) Mr. Hardy was to submit a Declaration stating that he does10

not know of either the existence or likely locations of the missing videotapes, and

that he is otherwise unaware of anyone else who may know of the existence of

likely locations of the videotapes. 11

The FBI responded to the May 13, 2011, Order with a Third Supplemental

Declaration and a Fourth Supplemental Declaration from Mr. Hardy. On12 13

March 21, 2012, the Court conducted a hearing to consider the FBI’s supplemental

evidence. At the conclusion of that hearing, the Court announced that it was

Id. ¶ 3.9

Id. ¶ 4.10

Id. ¶ 5.11

Doc. 83-1.12

Doc. 97-1.13

5


prepared to rule, whereupon the FBI asked to submit additional evidence. The

Court granted that request, and gave the FBI until June 15, 2012, in which to

submit any “additional evidence.” On June 30, 2012, the FBI submitted a Fifth14

Supplemental Declaration from Mr. Hardy. 15

Altogether, including his Fifth Supplemental Declaration, Mr. Hardy has

submitted approximately 44 pages of sworn statements in support of the FBI’s

Motion for Summary Judgment and in opposition to Plaintiff’s Motion for

Continuance. These Declarations, however, are almost “unintelligible,” which16

seems to be the FBI’s standard response to a highly sensitive FOIA request. 17

Doc. 103.14

Doc. 104-2. 15

See Doc. 61-2, 66-1, 83-1, 97-1 and 104-2. 16

The videotapes and documents Plaintiff is seeking were also requested in 199817

by a reporter by the name of David F. Hoffman. See Doc. 107, p. 19. That request ended

up before the United States District Court for the Western District of Oklahoma in

Hoffman v. United States Department of Justice, Case No. 5:98CV1773. Because of the

then ongoing criminal prosecutions of Timothy McVeigh and Terry Nichols, this

evidence was not released to Hoffman. But the Hoffman Court’s criticisms of the

Government actions in that case offer insight on the FBI’s behavior in the instant case,

and those criticisms were:

This case has been pending now for 2-1/2 years. Defendant has

received numerous opportunities to justify the exemptions invoked

during the administrative process to deny Plaintiff access to the FBI’s

records. Defendant’s efforts have been disappointing. It has filed

6


Furthermore, few of Mr. Hardy’s statements in these Declarations qualify as

“evidence” and should not be considered by the Court because they are not based

upon Mr. Hardy’s personal knowledge, they are conclusory in nature, they contain

multiple layers of hearsay and/or because Mr. Hardy otherwise lacks the necessary

foundation to make those so called statements of fact.

Plaintiff, on they other hand, has provided the Court with, in addition

significant FBI documents and other evidence, two Declarations from former FBI

agent Emanuel Johnson, who was assigned to the OKBOMB investigation on18

April 20, 1995. In stark contrast to Mr. Hardy’s 44 pages of Declaration19

statements, Mr. Johnson’s ten pages of Declaration statements are grounded on

summary judgment motions, accompanied by cursory arguments

and sketchy, at times almost unintelligible, affidavits. In the

Court’s view, Defendants’ conduct has been unacceptable, to the

point that one might question whether the FBI has viewed its

FOIA obligations seriously. The Court is not an adjunct of the

Department of Justice that can be asked to accept the correctness of its

position without question or to assume facts not in evidence.

Defendants must supply sufficient information to permit judicial

review of the Agency’s decision to withhold records from disclosure.

Doc. 70-17, p 3.(emphasis added).

Doc. 91, p. 37; and Doc. 70-1.18

Doc. 70-191, p. 37.19

7


personal knowledge, for which he has the necessary background and experience to

make.

STATEMENT OF FACTS

The relevant facts will be presented in the form of a summary Mr. Hardy’s

convoluted and shifting responses to each paragraph of the Court’s May 13, 2001,

followed by a rebuttal from Plaintiff.

I. The Court ordered Defendants to affirm whether in this case

Mr. Hardy or any other of their affiants had misrepresented information or

provided incomplete or otherwise misleading information to the Court under an

asserted right to protect the interests of the United States. 20

A. FBI’s Response:

(1) Mr. Hardy stated in his Third Supplemental Declaration that

“I affirm that I have not misrepresented information or provided incomplete or

otherwise misleading information to the court under an asserted right to protect the

interests of the United States.” Mr. Hardy does not revisit that affirmation in his21

subsequent Declarations. No such affirmations, however, was submitted for the

Id. ¶ 1.20

Doc. 83-1, ¶ 5.21

8


five other affiants in this case, who were the CIA’s affiants. According to

opposing counsel, this was not been done because: “The declarations submitted

during summary judgment briefing on plaintiff’s CIA FOIA requests have no

bearing on any issue currently before the Court. . . .” 22

B. Plaintiff’s Rebuttal:

(1) Although the FBI did not directly revisit Mr. Hardy’s affirmation

of truthfulness to the Court, they did indirectly revisit that matter. The FBI, for

example, devotes the majority of its Supplemental Memorandum to the fact that

Mr. Hardy has submitted Declarations in numerous FOIA cases, which apparently

have been accepted without challenge.23

(2) However, the fact that no one may have challenged Mr. Hardy’s

qualifications as a affiant in these other FOIA cases is of no import. It is of no

import because Plaintiff has done so in the instant case, and for good reasons. Mr.

Hardy states in his Fifth Supplemental Declaration that specific unidentified

members of his staff conducted the searches which the Court ordered to be done,

Doc. 97, pp. 6-7. It should be noted, that the Defendants never asked the Court22

for clarification on the scope of this potion of its Order.

Doc. 104, pp. 2-7.23

9


and reported the results of their searches to Mr. Hardy, who then summarized that

information in his Declaration.

(3) These same unidentified staff members are also alleged to have

spoken with other unidentified FBI personnel in Oklahoma City to obtain

information about documents, videotapes and searches, and a summary of that

information also finds its way into Mr. Hardy’s Declaration. But the FBI,

according to Mr. Hardy, will not reveal the names of the individuals who actually

participated in these searches or require them to submit Declarations because he

fears for their personal safety.24

(4) With respect to Mr. Hardy’s veracity, one need look no further

than the fact that this Court has observed that “[i]n the case of Islamic Shura

Council of Southern California v. Federal Bureau of Investigation, No. SAC07-

1088-CJC, 2011 WL 156476 (S.D. Cal. April, 2011), the court found the

Government, and Mr. Hardy specifically, to have provided false and misleading

information to the court through sworn statement.” That observation was25

obviously the basis for the Court requiring Defendants to affirm whether in this

Doc. 104-2, ¶’s 4 - 9.24

Doc. 82, p. 2.(emphasis added).25

10


case Mr. Hardy or any other affiants had misrepresented information or provided

incomplete or otherwise misleading information.

(5) Although opposing contends that the CIA did not fall with in the

scope of the Court’s Order concerning the requirement that affiants affirm under

oath their truthfulness, that Order was directed at “Defendants,” and the CIA’s

refusal to have its affiants state under oath that they had not misrepresented

information or provided incomplete or otherwise misleading information to the

Court under an asserted right to protect the interests of the United States is

disturbing and suspicious, as well as non-compliant.

(6) More importantly, it was not reasonable for the CIA, its affiants

and/or their counsel to presume, without clarification from the Court, that this

portion of the Order did not apply them. The CIA produced very few documents

in response to Plaintiff FOIA Request. The CIA did so based exclusively upon

sworn statements from its affiants to the effect that ‘[r]elease of these material

would reasonably be expected to cause serious damage to the national security;”26

“[n]one of the documents can be released, even in part, as no reasonably

Doc. 32-20, p. 3, ¶ 6.26

11


segregable, non-exempt portion of these documents exists” and; also on the basis27

of the national security exemption, even refusing to confirm or deny the existence

of records responsive to Plaintiff’s request. 28

(7) Given the Government and Mr. Hardy’s lack of truthfulness and

candor in Islamic Shura Council case, how could anyone reasonably conclude that

this part of the Court’s May 13, 2011, Order did not apply to the CIA? Nor

should they be exempt from complying when the Court is basically preclude from

looking behind the national security curtain raised by the CIA and, therefore, had

to rely almost exclusively upon the truthfulness of the Agency’s affiants in

denying Plaintiff access to those records. Now, however, the CIA is unwilling to

have its affiants affirm under oath their truthfulness?

II. The Court ordered the FBI to search their I-Drive and S-Drive for

evidence as to the location of the missing videotapes and, if no search was

conducted, to explain why such a search would not be reasonably calculated to

located the missing evidence.

Id. at ¶5.27

Doc. 32-2, p. 3, ¶ 5.28

12



(1) In his Third Supplemental Declaration, Mr. Hardy stated that the

I-Drive was where FBI “temporarily stored electronic medial prior to its final

approval” and that “[o]nce final approval was received, the material was added to

the official investigative case file, which includes indexing the material in the

ACS, the FBI’s automated system, and at the same time deleted from the I-

Drive.” Mr. Hardy stated, too, that the I-Drive in use during OKBOMB no29

longer exists, and that the “FBI currently has an S-Drive, known as a common

drive or shared drive,” which apparently replaced the I-Drive. Mr. Hardy also30

claimed that no search was conducted of either the I-Drive or the S-Drive because

any materials potentially responsive to Plaintiff’s FOIA request would have been

located by the computerized searches that the FBI previously did of their ZyIndex

and ACS data bases, and because the S-Drive was not in use until after 2001, so

there is no reason to believe the S-Drive would contain any responsive

documents. 31

Doc. 83-1, ¶15.29

Id. at ¶16.30

Doc. 83-1, ¶¶ 15 and 16. 31

13



(1) In his Fifth Supplemental Declaration, Mr. Hardy states that the

S-Drive is not longer “shared drive.” Suddenly, he claims that “there is no single

‘S-Drive’ in existence today that would contain all information that may have

been migrated from the I-Drive system . . . ” and, therefore, there is suddenly

nothing to search in response to the Court’s Order. Yet, it is obvious from Mr.32

Hardy’s description of the purpose for the I-Drive and S-Drive, that material not

approved for transfer to the official investigative case file must remain in those

Drives. In addition, Mr. Hardy’s contention that the S-Drive could not possibly

contain any OKBOMB materials because it did not come into existence until after

2001, and is not a shared drive, does not appear to be accurate.

(2) As recently as 2005 the OKBOMB case file was “restricted.” And

something like the S-Drive was apparently being used to store and presumably cull

evidence. Mr. Hardy would again appear to be deceptive when he said that any33

evidence control documents related to the missing Hanger and Murrah Building

Doc. 104-2, ¶ 13.32

See Doc. 98-1. This drive in the Oklahoma City Field Office would have been33

a good place for Mr. Hardy’s staff to have looked for the requested videotapes and

documents, but they apparently did not do so.

14


videotapes would have been located by “the electronic searches that have already

been conducted.” Mr. Hardy is being deceptive because he knows that not all34

investigative documents are uploaded in to the ACS.

(3) In response to another FOIA action seeking OKBOMB records,35

Mr. Hardy also submitted a Declaration to the United States District Court for the

District of Utah, which seriously impeaches what he has represented to the Court

in the instant case. Namely, that despite his representations in this case to the

contrary, not all evidence and records are uploaded into the ACS, that records and

evidence not uploaded into the ACS must be retrieved manually, and that the

General Indices make manual searches relatively easy.36

(4) According to the Declaration submitted by Mr. Hardy in the prior

OKBOMB FOIA action, the General Indices is arranged in alphabetical order.

“The General Indices consist of index cards that contain key words relevant to the

record for which each card is created.” Index cards are physical paper records,37

Doc. 97-1, ¶7.34

Trentadue v. Federal Bureau of Investigation, Civil No. 2:04cv772, Doc. 44.35

Id. at Doc. 98-2.36

Id. at ¶ 6.37

15


not digital files, and they require manual, not computer searches or they are

meaningless. 38

(5) Mr. Hardy states in his earlier Declaration that the decision to

index names in the General Indices, however, is a discretionary decision made by

the FBI Special Agent or support personnel assigned to the investigation and/or

FBI Headquarters. Mr. Hardy likewise admitted in his Declaration that “the key39

words in the General Indices may be searched either manually or through the

automated indices [or] ACS.” More importantly, Hardy admitted, too, that:40

“Many documents are not uploaded for various reasons, including the records

level of classification, security reasons, or privacy concerns. Records that have

not been uploaded in the ECF must be “retrieved manually in paper form from FBI

files once appropriate record number (i.e., the serial number) has been identified

using the Central Indices or Universal Index.” 41

See id. at ¶ 7.38

Id. at ¶ 30.39

Id. at ¶¶ 5-10. 40

Id. p. 4, ¶ 10.41

16


(6) Consequently, it could not be honestly said that the computerized

searches conducted by FBI Defendants in this case were reasonably calculated to

locate the missing videotapes. Neither could it be honestly said that a manual42

search or review of the General Indices for the missing videotapes would be

difficult. Nevertheless, Mr. Hardy did both and under oath.

III. The Court ordered the FBI to search the ECCs located

at FBI Headquarters, the Oklahoma City Field Office and the FBI Crime Lab. 43

FBI’s Response:

(1) Mr. Hardy stated that the ECC at the FBI Crime Lab was searched

but not the ECC at the Oklahoma City Filed Office. According to Mr. Hardy,

instead of searching the Oklahoma City Field Office’s ECC’ a search was done of

the “Evidence Control Room” in the warehouse where all Bombing materials are

Nevertheless, in his Third Supplemental Declaration filed in the instant case,42

Mr. Hardy assured the Court that there are no “gaps” in the CRS and ACS evidence

tracking and retrieval system that could possibly be relevant to this case. Doc. 83-1, ¶ 13.

Mr. Hardy insisted that this is so because “CRS and ACS are where the FBI electronically

files and indexes all material that it deems relevant to investigations.” Id.(emphasis in

original). But this is clearly not so. Mr. Hardy freely admitted that some records are

considered too sensitive to be up loaded to the CRS or ACS and evidence the FBI deems

“irrelevant” apparently never finds its way into these two data bases.

Doc. 82, ¶ 3.43

17


currently located. Mr. Hardy states that both searches failed to locate the missing44

videotapes. 45

Plaintiff’s Rebuttal:

(1) It would seem to be a simple matter for Mr. Hardy’s staff to search

the ECC located in the Oklahoma City Field Office, and they should be required to

do so. Mr. Hardy also states that no search was conducted at FBI Headquarters

because there is no ECC at FBI Headquarters “or any similar repository of

physical evidence called by any other name” at FBI Headquarters. In making46

this statement, Mr. Hardy ignores the fact that during the Hoffman case it came to

light that one videotape and 300 responsive documents were being kept at FBI

Headquarters and NOT in the Oklahoma City Field Office’s EEC along with other

OKBOMB evidence. Since this videotape and documents were the subjects of a47

FOIA lawsuit, there surely must be an FBI record describing and/or identifying

Doc. 97-12, ¶6.44

Doc. 83-1, ¶¶ 7-9. Mr. Hardy had earlier told the Court that a manual search for45

the missing videotapes would be “extremely burdensome.” Doc. 66-1, ¶ 7 (emphasis

added).

83-1, ¶ 6.46

Doc. 107, pp. 19-20.47

18


this evidence and, perhaps, revealing its current location. Mr. Hardy’s staff should

be required to do another search or inquiry at FBI Headquarters or his Office’s

own records for this evidence and related documents.

IV. The Court ordered the FBI to manually search OKBOMB

physical files for entries during the first 14 days following the Oklahoma City

Bombing for documents showing the location of the missing videotapes or provide

evidence as to why such a search would be too burden some.


(1) In his Third Supplemental Declaration, Mr. Hardy represented to

the Court that no manual search was done because it would take an employee 18

months to review the 450,000 pages of documents gathered during the two week

period immediately following the Bombing. Thereafter, Plaintiff advised the48

Court that the search only need to be done in Sub-file D of the official case file,

which contained a much smaller number of documents. Mr. Hardy then submitted

a Fourth Supplemental Declaration, in which he stated that because a manual

search of Sub-file D is not likely to produce any responsive documents, he had not

Doc. 83-1, ¶ 11.48

19


made any effort to determine how burdensome it would be to conduct a manual

search of Sub-file D. 49

(2) In his Fifth Supplemental Declaration, Mr. Hardy now claims that

a manual search for documents referring to the evidence collected by the FBI

during the first 14 days of the OKBOMB investigation would be virtually

impossible “because those records could be anywhere in the paper files in the

OKBOMB Warehouse.” Mr. Hardy says that this is so because paper versions of50

records gathered from outside the Oklahoma City Field Office (i.e., by other FBI

Field Offices) are stored in boxes and have not been arranged in chronological

order.51


(1) Mr. Hardy is again being misleading when he speaks about the

Doc. 97-1, ¶ 8. The FBI further stated that it has“not specifically determined the49

burdens that would be involved in a manual search of Sub-file D, but that the likely

benefit of such as search are too low to justify imposing any additional burdens upon

them. Doc. 97, p. 19. With the Court’s permission, Plaintiff is willing to conduct the

searches that he has requested and that the Court has ordered be done.

Doc. 104-2, ¶ 18.50

Id.51

20


paper version of evidence records not being in chronological order because the

records being stored in boxes are clearly the records from other FBI Field Offices,

which evidence records would have had nothing to do with videotapes and

documents Plaintiff has requested.

(2) The videotapes and related documents requested by Plaintiff

would have been taken into evidence by the Oklahoma City Field Office; such as

the Hanger videotape for which the FBI has produced chain of custody records. 52

It is thus obvious that the evidence documents prepared by agents out of the

Oklahoma City Field Office are in chronological order; otherwise how could Mr.

Hardy have earlier represented to the Court that it would take one of his staff 18

months to review the 450,000 pages of documents gathered during this 14 day

window following the bombing?

(3) Furthermore, when Mr. Hardy told the Court that he did not wish

to speak to the burden of conducting a manual search of Sub-file D, retired FBI

agent Emanuel Johnson Jr. provided the Court with two detailed Declarations

describing the FBI’s evidence collection, records and retrieval systems. Mr.53

Doc. 91, pp. 42-43.52

Doc. 70-1 and Doc. 91, p. 37.53

21


Johnson explained in those Declarations how evidence was collected in that case,

monitored and easily retrieved by manual searches/reviews of key FBI files and

logs. Based upon Mr. Johnson’s Declarations, and the documents Plaintiff has

provided to the Court, it was obvious that a manual search of Sub-file D would54

not be time consuming since by May 7, 1995 (which was more than 2 weeks after

the Bombing), there were only several thousand documents in that file. Mr.

Hardy’s staff, therefore, should manually search the Sub-file D, or allow Plaintiff

to do that search.

V. Finally, the Court ordered Mr. Hardy to submit a Declaration

stating that he does not know of either the existence or likely locations of the

missing videotapes, and that he is otherwise unaware of anyone else who may

know of the existence of likely locations of the videotapes.


(1) Mr. Hardy responded by stating in his Third Supplemental

Declaration that “I am unaware of the existence or likely location of additional

tapes responsive to the plaintiff’s FOIA request, including tapes from the Murrah

Building or any additional Hanger tape other than the tape that plaintiff already

Doc. 91, Exhibits 6 - 10.54

22


received, and do not know of anyone who would know where additional tapes

would be located.” In his Fifth Supplemental Declaration, submitted after his55

initial response to the May 13, 2011, Order, Mr. Hardy mysteriously revises his

earlier statement about the Murrah Building tapes to say: “I also neither know,

myself, nor know of anyone else who may know where any such videotape

footage might be found within the custody, control, or possession of the FBI.” 56

(2) Mr. Hardy likewise said in his Third Supplemental Declaration

that:

While it is always a possibility that responsivedocuments might have been misfiled and thus could be locatedsome where other than in the OKBOMB file (though it wouldbe impossible to know where). I am not aware that this is thecase, and a reasonable search did not and would not locate anysuch documents (if they exist) because they would notbe in a location likely to contain responsive documents.57

Doc. 83-1, ¶ 20.55

Doc. 104-2, ¶ 20.(emphasis added). Mr. Hardy inserted the same qualifier into56

his statement about his of the whereabouts of the original Hanger videotape. Id. at ¶ 19.

And Mr. Hardy further states that, without any evidence or confirmation, the original

videotape was given back to Trooper Hanger. Id. at p. 11, fn. 5.

Doc. 83-1, ¶ 20.(emphasis added).57

23



(1) The statement in Mr. Hardy’s Fifth Supplemental Declaration

suddenly limiting his knowledge about the location of the missing videotapes and

other records to those persons or places “within the custody, control or

possession of the FBI” is both contrary to the Court’s Order, and illuminating. It

is contrary to Curt’s May 13, 2011, Order because that Order did not confine Mr.

Hardy’s knowledge to the FBI. It is illuminating because it would appear from

that change that now Mr. Hardy or his staff may very well have located that tape in

the possession of another Agency.

(2) Likewise apparent from Mr. Hardy’s Declaration is the fact that

neither he nor his staff appear to have sought out information from persons who

might have information concerning the videotapes and documents; such as Agent

McNalley, the person who apparently prepared the Time line entries concerning

surveillance tapes of the Bombing. Agent McNalley was not contacted Mr. Hardy

or his staff because McNalley was a Secret Service Agent and Mr. Hardy felt that

any information possessed by McNalley was beyond the FOIA request and the

Court’s Order. Nevertheless, even if Mr. Hardy was correct in his reasoning on58

See Doc. 104-2, ¶ 20.58

24


McNalley, there were others sources of information on the missing videotapes

within the FBI that he should of probed.

(3) In a December 1995 edition of Media Bypass Magazine, for

example, there was a story about two FBI agents from the Los Angeles Field

Office and one FBI agent from the Oklahoma City Field Office being under

investigation for attempting to sell or otherwise copying and distributing footage

of the Bombing from surveillance cameras which, according to that story,

included: “excellent footage of the Ryder truck and the suspects-McVeigh and

John Do. No.2-leaving the vehicle;” “a third camera reportedly captured the actual

initial detonation. . .;” “footage from the YMCA camera shows a suspect

resembling Tim McVeigh stepping down from the driver’s side of the truck;” “. .

.[and video footage from the Regency Tower cameras also shows the initial

explosion.” 59

(4) The article states that the FBI’s Office of Professional

Responsibility was investigating the matter. The files concerning those

investigations would have been a place for Mr. Hardy or his staff to have looked

for the missing videotapes and documents, but they appear not have done so.

See Doc. 107, pp. 11-12.59

25


(5) Similarly, during McVeigh’s Preliminary Hearing, FBI agent

Hersely testified about having seen still photographs of the bomb being delivered

to the Murrah Building that had been produced from footage taken by an exterior

video camera on the Regency Tower Apartment Building. Mr. Hardy and his60

staff also seem to have ignored Agent Hersely in their quest for the evidence.

They also ignored the videotape from the ATM at the Regency Tower which,

according to FBI records, indicates that the truck was parked in front of the

Federal Building for as little as four minutes prior to exploding.”61

(6) In paragraph 19 of his Fifth Supplemental Declaration,

Mr. Hardy again tries to mislead by insisting that the only tapes at issue in this

dispute are the original Hanger tape and the Murrah tapes. Plaintiff’s FOIA62

request was much broader than that and included not only surveillance cameras

tapes from specific buildings, including the Murrah, Regency Towers and YMCA

Doc. 107-10.60

Doc. 107-4.61

Doc. 104-2, ¶ 19.62

26


Buildings, but also any other tapes showing the bomb being delivered on the

morning of April 19, 1995. 63

(7) As written and as required to be interpreted by the law, Plaintiff’s

request would have covered the Regency Tower ATM film as well as any film

cobbled together by FBI personnel from the video footage requested by Plaintiff.

Yet, in addition to the Murrah Building videotapes, Plaintiff did not receive the

videotape described by Agent Hersley during the McVeigh Preliminary Hearing,

the ATM film described in FBI records or the YMCA and other videotapes

described in the Media Bypass article.64

Plaintiff asked for the videotapes taken on the morning of April 19, 1995 by63

security or surveillance cameras located on the Murrah Building and ten other near by

buildings. Doc. 61-2, pp.33-36,and 44-45. Plaintiff also made clear in that his FOIA

request included the surveillance tape or tapes showing “the Ryder truck pulling up to

the Federal Building and the pausing (7-10 seconds) before resuming into a slot in

the front of the building” and “the truck detonation 3 minutes and 6 seconds after

the suspects exited the truck” that was described in the Secret Service Time line: “To

repeat myself for emphasis, I would like copies of these tapes showing McVeigh and

another person delivering the bomb to the Murrah Building on the morning of April 19,

1995, and the detonation of that bomb. I want these videotapes even if they are not

among those [specific] videotapes I have asked for in paragraphs 1 through 11

above.” Doc. 61-2, pp. 44-45(emphasis in original). See also Doc. 61-2, p. 36containing the same request. Furthermore, because FOIA requests are to be liberally

and broadly construed, it cannot be disputed that Plaintiff’s request for the bomb delivery

videotapes would cover all such tapes, regardless of whether they were from ATMs or

surveillance cameras. See Anderson v. Dept. of Health and Human Services, 907 F.2d

936,1 (10 Cir. 1990).th

Doc. 107, pp. 11-18.64

27


UNDER THE TOTALITY OF THE CIRCUMSTANCES TEST, PLAINTIFF HAS MADE THE NECESSARY SHOWING

OF BAD FAITH FOR DISCOVERY

When there is reason to believe that the agency is either withholding

records or did not conduct an adequate “good faith” search for the materials,

discovery is allowed under FOIA. Simply put, if the agency’s response raises

serious doubts as to the completeness and good faith of the Agency’s search,

discovery is appropriate on the question of whether the agency has conducted a

thorough search for the records. In this case, Plaintiff submits that under what 65

appears to be a totality of the circumstances test articulated by the 10 Circuit inth

Trentadue v. FBI, he has meet the standard for discovery.. 66

37A Am.Jur.2d Freedom of Information Acts, § 503(emphasis added). See Info.65

Acquisitions Corp. v. Dept. of Justice, 444 F.Supp. 458 (D.C. 1978); Murphy v. Fed.

Bureau of Investigation, 490 F.Supp. 1134 (D.C. 1980); Giza v. Sec’y of Health, Educ. &

Welfare, 628 F.2d 748, 751 (1 Cir. 1980); Niren v. INS, 103 F.R.D. 10 (Or. 1984);st

Weisberg v. Dept. of Justice, 543 F.2d 308 (D.C. Cir. 1976); Van Strum v. U.S. E.P.A.,

680 F.Supp. 349 (D. Or. 1987). More importantly, even after an Agency claims that it has

“complied substantially” with its FOIA obligation discovery, including depositions, are

permissible to test the veracity of that claim. Weisberg v. USDOJ, 617 F.2d 365 D.C. Cir.

1980). The discovery permitted under FOIA is designed to disclose the “malfeasance” of

the government. See Trentadue v. FBI, 572 F.3d 795 (10 Cir. 2009);th Judicial Watch,

Inc. v. United States Dept. Of Commerce, 127 F.Supp.2d 228 (D.C. D.C. 2000.)

572 F.2d 794 (10 Cir. 2009).66 th

28


According to the Trentadue Court, under the FOIA the reasonableness of

FBI Defendants’ search and Plaintiff’s possible need for discovery depends upon

the likelihood that the search actually conducted would yield the sought-after

records/information, whether there are readily available alternatives for obtaining

the records/information, and the burden of employing those alternatives? A67

totality of the circumstances test is also employed by the 10 Circuit to determineth

probable cause for the issuance of a search warrant, which is an analogous

situation. 68

Within a probable cause search warrant context, the totality of the

circumstances test means that the Court makes a practical, common sense analysis

of the totality of the circumstances to determine if there is a fair probability of that

evidence of a crime will be found in the place to be searched. If so, then the69

warrant can constitutionally be issued. In the context of this case, a totality of the

circumstances test means that the Court makes a practical, common sense analysis

of the totality of the circumstances to determine if there is a fair probability that

Id., 572 F.2d at 798.67

United States v. Richardson, 86 F.3d 1537 (10 Cir. 1996).68 th

Id. at 1545.69

29


FBI Defendants did not conduct an adequate search for the records/information,

and whether these materials can be found with additional searches that are not

unreasonably burdensome.

If the Court concludes that there is a fair probability that the FBI

Defendants did not conduct an adequate search and/or that the records/information

can be found with additional searches that are not unreasonably burdensome then

discovery including, but not limited to additional Court ordered manual and

computerized searches, should be allowed. More importantly, however, the same

evidentiary standards for determining the probable cause to issue a search warrant

should apply to establishing the need for discovery under the FOIA case.

The United States Supreme Court has made clear that there is a different

standard of proof used in obtaining a search warrant to look for evidence of a

crime than the standard governing use of any evidence found in a subsequent

criminal trial. The proof necessary to obtain a warrant need not be admissible at

trial. Consequently, hearsay evidence may form the basis for the issuance of a70

search warrant. Probable cause for the issuance of a search warrant can likewise71

See Jones v. United States, 362 U.S. 257, 269 (1960).70

United States of America v. Mathis, 367 F.3d 1200, 1204-05 (10 Cir. 2004).71 th

30


be based upon multiple layers of hearsay. In order to establish the probable72

cause for a warrant, it is also not necessary to reveal the identities of the

individuals providing the hearsay information. Thus under the Fourth73

Amendment’s totality of circumstances standard, the evidence which FBI

Defendants now challenge would collectively support the issuance of a warrant to

search various FBI facilities for the missing videotapes.

The analogy to the evidentiary standards applied to the issuance of a

search warrant is even more compelling when one considers that in a FOIA case,

the requestor has no access to subpoenas or discovery tools to obtain admissible

evidence to establish the agency’s bad faith. The purpose of the discovery in a

FOIA case is also similar to the purposes of search warrant. With a search

warrant, the Government is looking for evidence of a crime. Similarly, in a FOIA

case the purpose of the discovery is to obtain evidence of the Government’s bad

faith. In both situations, the purpose is to look for evidence necessary to prove a74

See $149,422.43 in U.S. Currency, 965 F.2d 868, 874 n.3 (10 Cir. 1992).72 th

Id.73

See Giza v. Secretary of Health, Education and Welfare, 628 F.2d 748, 7511 (174 st

Cir. 1980)(whether a thorough search for the records has take place); Niren v. INS, 103

F.R. D. 10(D.C. Or. 1984)(to determine adequacy of agency search and basis for claims

of exemptions).

31


crime or other wrongdoing in a subsequent proceeding. And Plaintiff has made

the evidentiary showing required for the discovery he needs to oppose the FBI’s

Motion for Summary Judgment.

CONCLUSION

The FBI’s Motion for Summary Judgment should be denied and Plaintiff’s

Motion for Continuance and Discovery should be granted.

DATED this 28 day of June, 2012.th

/s/ jesse c. trentadue Jesse C. TrentaduePro Se Plaintiff

T:\6000\6201\1\FOIA Appeal\CIA\PLAINTIFF RESPONSE TO SUPPLEMENTAL MEMORNADUM and SUPPORT OF

CONTINUANCE.wpd


CERTIFICATE OF SERVICE

I hereby certify that this 28 day of June, 2012, I electronically filed theth

foregoing MEMORANDUM with the U.S. District Court. Notice will automatically be

electronically mailed to the following individuals who are registered with the U.S.

District Court CM/ECF System:

KATHRYN L. WYERUnited States Department of JusticeCivil Division, Federal Programs Branch20 Massachusetts Avenue, NWWashington, D.C. 20530Tel: (202) 616-8475

JARED C. BENNETT, Assistant United States Attorney185 South State Street, #300Salt Lake City, Utah 84111Tel: (801) 524-5682

Attorneys for Defendants

/s/ jesse c. trentadue

33


jesse trentadue 6 28 2012 response to fbi defendants supplemental memornadum and support of...

Documents

fbi defendants

case okbomb

fbi headquarters

cwsa document

fbi crime lab

plaintiffs motion

fbi oklahoma city field

government accountable