Case 2:08-cv-00788-CW-SA Document 108 Filed 06/28/12 Page 1 of 33

Jesse C. Trentadue (#4961) 8 East Broadway, Suite 200 Salt Lake City, UT 84111 Telephone: (801) 532-7300 Facsimile: (801) 532-7355 jesse32@sautah.com 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. : : : PLAINTIFFS 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 Memorandum1 that FBI Defendants filed on June 15, 2012 in further support of their Motion for Summary Judgment.2
1

Doc. 104. Doc. 60. The FBI is also submitting this Supplemental Memorandum in

opposition to Plaintiffs Renewed Motion 56(d) Motion for Discovery. Doc. 90.

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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 Governments wrong doing when he said that: Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be in peril if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law; and invites every man to 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 Rule

56(d) Motion for Continuance. Doc. 90..

2

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against governmental corruption and to hold the government accountable for its actions.3 The public interest in disclosure under FOIA is also at its greatest when there is evidence of governmental wrongdoing.4 And the timing of this fight 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 Justices 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 FBIs claim that its only obligation under FOIA in this case is to search for evidence of the Governments wrongdoing, not to find that evidence when it could easily do so.

Virgil v. Andrus, 667 F.2d 931, 938 (10 th Cir. 1982). See Lissener v. United States Custom Service, 241 F.3d 1220 (9 th Cir. 2001). 3

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PROCEDURAL HISTORY On May 13, 2011 the Court entered its Order, granting in part and denying in part, Plaintiffs Motion to Continue Summary Judgment Proceedings Pending Discovery, 5 In that Order, the Court also directed Defendants: (1) to affirm 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)6 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;7 (2) to 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;8 (3) to advise the Court whether the ECCs located at FBI Headquarters, 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
5

Doc. 82.

Doc. 32-2, 52; Doc. 32-20, 5; Doc. 32-21, 8; Doc. 32-2,3; Doc. 32-24, 5; and Doc.38-2..
7

Id. 1. Id. 2. 4

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requested materials would not be located in any of those locations;9 (4) to either 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;10 and (5) Mr. Hardy was 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.11 The FBI responded to the May 13, 2011, Order with a Third Supplemental Declaration 12and a Fourth Supplemental Declaration 13 from Mr. Hardy. On March 21, 2012, the Court conducted a hearing to consider the FBIs supplemental evidence. At the conclusion of that hearing, the Court announced that it was

Id. 3. Id. 4. Id. 5. Doc. 83-1. Doc. 97-1. 5

10

11

12

13

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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.14 On June 30, 2012, the FBI submitted a Fifth 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 FBIs Motion for Summary Judgment and in opposition to Plaintiffs Motion for Continuance. 16 These Declarations, however, are almost unintelligible, which seems to be the FBIs standard response to a highly sensitive FOIA request.17
14

Doc. 103. Doc. 104-2. See Doc. 61-2, 66-1, 83-1, 97-1 and 104-2.

15

16

The videotapes and documents Plaintiff is seeking were also requested in 1998 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 Courts criticisms of the Government actions in that case offer insight on the FBIs 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 FBIs records. Defendants efforts have been disappointing. It has filed 6

17

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Furthermore, few of Mr. Hardys statements in these Declarations qualify as evidence and should not be considered by the Court because they are not based upon Mr. Hardys 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,18 who was assigned to the OKBOMB investigation on April 20, 1995.19 In stark contrast to Mr. Hardys 44 pages of Declaration statements, Mr. Johnsons ten pages of Declaration statements are grounded on

summary judgment motions, accompanied by cursory arguments and sketchy, at times almost unintelligible, affidavits. In the Courts 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 Agencys decision to withhold records from disclosure. Doc. 70-17, p 3.(emphasis added).
18

Doc. 91, p. 37; and Doc. 70-1. Doc. 70-191, p. 37. 7

19

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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. Hardys convoluted and shifting responses to each paragraph of the Courts 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. (1) FBIs Response: 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.21 Mr. Hardy does not revisit that affirmation in his subsequent Declarations. No such affirmations, however, was submitted for the
20

Id. 1. Doc. 83-1, 5. 8

21

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five other affiants in this case, who were the CIAs affiants. According to opposing counsel, this was not been done because: The declarations submitted during summary judgment briefing on plaintiffs CIA FOIA requests have no bearing on any issue currently before the Court. . . .22 B. (1) Plaintiffs Rebuttal: Although the FBI did not directly revisit Mr. Hardys 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. Hardys

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 Court for clarification on the scope of this potion of its Order.
23

22

Doc. 104, pp. 2-7. 9

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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. Hardys 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. Hardys 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. SAC071088-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.25 That observation was obviously the basis for the Court requiring Defendants to affirm whether in this

24

Doc. 104-2, s 4 - 9. Doc. 82, p. 2.(emphasis added). 10

25

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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 Courts Order concerning the requirement that affiants affirm under oath their truthfulness, that Order was directed at Defendants, and the CIAs 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

26

Doc. 32-20, p. 3, 6. 11

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segregable, non-exempt portion of these documents exists27 and; also on the basis of the national security exemption, even refusing to confirm or deny the existence of records responsive to Plaintiffs request.28 (7) Given the Government and Mr. Hardys lack of truthfulness and

candor in Islamic Shura Council case, how could anyone reasonably conclude that this part of the Courts 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 Agencys 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.

27

Id. at 5. Doc. 32-2, p. 3, 5. 12

28

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A. (1)

FBIs Response: 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 FBIs automated system, and at the same time deleted from the IDrive.29 Mr. Hardy stated, too, that the I-Drive in use during OKBOMB no 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.30 Mr. Hardy also claimed that no search was conducted of either the I-Drive or the S-Drive because any materials potentially responsive to Plaintiffs 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

29

Doc. 83-1, 15. Id. at 16. Doc. 83-1, 15 and 16. 13

30

31

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B. (1)

Plaintiffs Rebuttal: 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 Courts Order. 32 Yet, it is obvious from Mr. Hardys 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. Hardys 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.33 Mr. Hardy would again appear to be deceptive when he said that any evidence control documents related to the missing Hanger and Murrah Building

32

Doc. 104-2, 13.

See Doc. 98-1. This drive in the Oklahoma City Field Office would have been a good place for Mr. Hardys staff to have looked for the requested videotapes and documents, but they apparently did not do so. 14

33

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videotapes would have been located by the electronic searches that have already been conducted.34 Mr. Hardy is being deceptive because he knows that not all 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.37 Index cards are physical paper records,

34

Doc. 97-1, 7. Trentadue v. Federal Bureau of Investigation, Civil No. 2:04cv772, Doc. 44. Id. at Doc. 98-2. Id. at 6. 15

35

36

37

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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.39 Mr. Hardy likewise admitted in his Declaration that the key words in the General Indices may be searched either manually or through the automated indices [or] ACS.40 More importantly, Hardy admitted, too, that: 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

38

See id. at 7. Id. at 30. Id. at 5-10. Id. p. 4, 10. 16

39

40

41

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(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.42 Neither could it be honestly said that a manual 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 FBIs 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 Offices 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, 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.
43

42

Doc. 82, 3. 17

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currently located.44 Mr. Hardy states that both searches failed to locate the missing videotapes.45 Plaintiffs Rebuttal: (1) It would seem to be a simple matter for Mr. Hardys 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.46 In making 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 Offices EEC along with other OKBOMB evidence.47 Since this videotape and documents were the subjects of a FOIA lawsuit, there surely must be an FBI record describing and/or identifying

44

Doc. 97-12, 6.

Doc. 83-1, 7-9. Mr. Hardy had earlier told the Court that a manual search for the missing videotapes would be extremely burdensome. Doc. 66-1, 7 (emphasis added).
46

45

83-1, 6. Doc. 107, pp. 19-20. 18

47

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this evidence and, perhaps, revealing its current location. Mr. Hardys staff should be required to do another search or inquiry at FBI Headquarters or his Offices 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. A. (1) FBIs Response: 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.48 Thereafter, Plaintiff advised the 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

48

Doc. 83-1, 11. 19

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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.50 Mr. Hardy says that this is so because paper versions of 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 B. (1) Plaintiffs Rebuttal: Mr. Hardy is again being misleading when he speaks about the

Doc. 97-1, 8. The FBI further stated that it hasnot specifically determined the 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 Courts permission, Plaintiff is willing to conduct the searches that he has requested and that the Court has ordered be done.
50

49

Doc. 104-2, 18. Id. 20

51

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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 FBIs evidence collection, records and retrieval systems.53 Mr.

52

Doc. 91, pp. 42-43. Doc. 70-1 and Doc. 91, p. 37. 21

53

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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. Johnsons Declarations, and the documents Plaintiff has provided to the Court,54 it was obvious that a manual search of Sub-file D would 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. Hardys 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. A. (1) FBIs Response: 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 plaintiffs FOIA request, including tapes from the Murrah Building or any additional Hanger tape other than the tape that plaintiff already
54

Doc. 91, Exhibits 6 - 10. 22

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received, and do not know of anyone who would know where additional tapes would be located.55 In his Fifth Supplemental Declaration, submitted after his 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) that: While it is always a possibility that responsive documents might have been misfiled and thus could be located some where other than in the OKBOMB file (though it would be impossible to know where). I am not aware that this is the case, and a reasonable search did not and would not locate any such documents (if they exist) because they would not be in a location likely to contain responsive documents.57 Mr. Hardy likewise said in his Third Supplemental Declaration

55

Doc. 83-1, 20.

Doc. 104-2, 20.(emphasis added). Mr. Hardy inserted the same qualifier into 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.
57

56

Doc. 83-1, 20.(emphasis added). 23

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B. (1)

Plaintiffs Rebuttal: The statement in Mr. Hardys 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 Courts Order, and illuminating. It is contrary to Curts May 13, 2011, Order because that Order did not confine Mr. Hardys 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. Hardys 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 Courts Order.58 Nevertheless, even if Mr. Hardy was correct in his reasoning on
58

See Doc. 104-2, 20. 24

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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 drivers side of the truck; . . .[and video footage from the Regency Tower cameras also shows the initial explosion.59 (4) The article states that the FBIs 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.
59

See Doc. 107, pp. 11-12. 25

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(5)

Similarly, during McVeighs 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.60 Mr. Hardy and his 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.62 Plaintiffs FOIA request was much broader than that and included not only surveillance cameras tapes from specific buildings, including the Murrah, Regency Towers and YMCA

60

Doc. 107-10. Doc. 107-4.

61

62

Doc. 104-2, 19.

26

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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, Plaintiffs

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 by 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. 36 containing the same request. Furthermore, because FOIA requests are to be liberally and broadly construed, it cannot be disputed that Plaintiffs 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 th Cir. 1990).
64 63

Doc. 107, pp. 11-18. 27

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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 agencys response raises serious doubts as to the completeness and good faith of the Agencys search, discovery is appropriate on the question of whether the agency has conducted a thorough search for the records.65 In this case, Plaintiff submits that under what appears to be a totality of the circumstances test articulated by the 10th Circuit in Trentadue v. FBI,66 he has meet the standard for discovery..

37A Am.Jur.2d Freedom of Information Acts, 503(emphasis added). See Info. 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. Secy of Health, Educ. & Welfare, 628 F.2d 748, 751 (1st Cir. 1980); Niren v. INS, 103 F.R.D. 10 (Or. 1984); 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 th Cir. 2009); Judicial Watch, Inc. v. United States Dept. Of Commerce, 127 F.Supp.2d 228 (D.C. D.C. 2000.)
66

65

572 F.2d 794 (10 th Cir. 2009). 28

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According to the Trentadue Court, under the FOIA the reasonableness of FBI Defendants search and Plaintiffs 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?67 A totality of the circumstances test is also employed by the 10th Circuit to determine 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.69 If so, then the 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

67

Id., 572 F.2d at 798. United States v. Richardson, 86 F.3d 1537 (10 th Cir. 1996). Id. at 1545. 29

68

69

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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.70 Consequently, hearsay evidence may form the basis for the issuance of a search warrant.71 Probable cause for the issuance of a search warrant can likewise

70

See Jones v. United States, 362 U.S. 257, 269 (1960). United States of America v. Mathis, 367 F.3d 1200, 1204-05 (10 th Cir. 2004). 30

71

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be based upon multiple layers of hearsay.72 In order to establish the probable cause for a warrant, it is also not necessary to reveal the identities of the individuals providing the hearsay information.73 Thus under the Fourth Amendments 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 agencys 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 Governments bad faith.74 In both situations, the purpose is to look for evidence necessary to prove a

72

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

73

See Giza v. Secretary of Health, Education and Welfare, 628 F.2d 748, 7511 (1 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).
74

31

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crime or other wrongdoing in a subsequent proceeding. And Plaintiff has made the evidentiary showing required for the discovery he needs to oppose the FBIs Motion for Summary Judgment. CONCLUSION The FBIs Motion for Summary Judgment should be denied and Plaintiffs Motion for Continuance and Discovery should be granted. DATED this 28th day of June, 2012. /s/ jesse c. trentadue Jesse C. Trentadue Pro Se Plaintiff

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

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CERTIFICATE OF SERVICE I hereby certify that this 28th day of June, 2012, I electronically filed the 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. WYER United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, D.C. 20530 Tel: (202) 616-8475 JARED C. BENNETT, Assistant United States Attorney 185 South State Street, #300 Salt Lake City, Utah 84111 Tel: (801) 524-5682 Attorneys for Defendants

/s/ jesse c. trentadue

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