Introduction
June files. Zero files. I-drive. The FBI has a history of putting information in locations unknown outside the bureau, making them almost impossible to access from the outside. Now with the discovery of a new drive, a federal judge has ordered the FBI to explain by June 30 whether it is using a previously unknown record-keeping system to hide evidence from defense lawyers.
Concerns about the use of shared drives accessible only to FBI agents are not the first time this issue has come to light. The FBI’s use of these drives goes back at least a decade, and has been criticized by defense lawyers for years as a way for the bureau to handpick what information is made public and what is kept secret — even from federal judges and prosecutors.
Starting in 1996, the bureau began keeping files on something known as the I-drive. The goal of the I-drive was to have FBI agents file all their information into one place. A supervisor would then review the information and decide what would go into the official FBI case files.
While it sounds like a good way to streamline the massive amounts of data gathered by the bureau in any given case, defense lawyers and judges alike have condemned the system. That’s because anything not included in the official case file is not considered discoverable — it does not have to be turned over to anyone outside the bureau, including in response to FOIA requests or to defense lawyers working on a case.
After a 2004 AP article brought the existence of the I-drive to light, groups such as the National Association of Criminal Defense Lawyers started directing attorneys to specifically request information from the I-drive when making requests of the FBI. But the recent revelation of an S-drive, with the same purpose as the I-drive, may have rendered that moot.
“If it wasn’t such an affront to the Constitution it’d almost be humorous,” said Jesse Trentadue, a lawyer whose legal battles with the FBI helped bring both the I-drive and S-drive to light. The fact that the FBI has set up another drive with the same purpose but a different name creates a “constantly moving target. You think you’ve exposed them and it’s over, and they set up another.”
On May 11, Trentadue says he was in court demanding information from the I-drive when the Department of Justice lawyer representing the FBI mentioned the existence of the S-drive — the first public mention of such a drive. Judge Clark Waddoups, a George W. Bush appointee who was presiding over the case in Utah, ordered the FBI to provide more information about the drive by the end of June.
Two days later, Waddoups issued his written order on the matter, which demanded the FBI affirm whether it had provided “incomplete or otherwise misleading information” to the court and demanded that the bureau search for anything requested by Trentadue on both the I and S drives in response to his FOIA requests.
Waddoups decision was based, in part, on a 2009 case known as Islamic Shura Council of Southern California v. Federal Bureau of Investigation, where a central California judge ruled that the FBI did not respond correctly to the plaintiff’s FOIA request because the agency had not searched beyond the official case files.
By not providing a full response that included information on these drives to the FOIA request, “The Government previously provided false and misleading information to the Court,” according to Judge Cormac Carney. “The Government asserts that it had to mislead the Court regarding the Government’s response to Plaintiffs’ FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court.”
“The Court simply cannot perform its constitutional function if the Government does not tell the truth.”
Jim Dempsey of the Center for Democracy and Technology, a nonprofit civil liberties group, doesn’t think there’s anything “nefarious” about the drives. To him, they sound like the most recent version of the longstanding view in the FBI that their case files represent the “cleaned up coherent version of events.”
He said the fact these drives exist is a better option that what the FBI had traditionally done. In the past, after the interview summaries were typed up and cleaned, the notes would be thrown out. And while presenting a clean interview document has its benefits, doing so may create an “overly sanitized version of reality.” Because of that, Dempsey said the files should be subject to discovery and FOIA requests.
“Clearly the average person would want to say ‘I see the nice neat version over here, let me see the messy version,’” Dempsey argued. “Once the nice neat version is called into question you want to see the messy version and maybe a different reality emerges. “
Jesse Trentadue, however, is one of many lawyers who say the system is indefensible. “They do it for two reasons,” Trentadue said, “to avoid handing info over to defense counsel in a criminal case, evidence that could be exculpatory, and to frustrate people making FOIA demands.”
The NACDL’s Jack King agreed these drives are a way for the FBI to hide information. “What I think these drives are, are places to keep documents they don’t want to throw away but they never want anyone to see,” he said. “The FBI never throws anything away, but they seem to have trouble finding stuff that doesn’t fit with their theory of the case.”
By not including the information from these drives in their case files, the FBI is withholding information from federal prosecutors as well. While that would seem counter intuitive, King said it’s simply part of how the FBI operates. “The bureau has its own culture, and part of that culture is helping the prosecutor out by not messing up the case by not giving info that would hurt the case.”
The FOIA process is particularly impacted by the use of these drives. Like other government agencies, the FBI is legally required to respond to FOIA requests to the best of their ability. However, even the most well-meaning FOIA officer may be stymied by the use of the hidden drives.
All FOIA searches are run through the FBI’s automated case management system, which uses a computerized index to find the files. But if a file was kept on the shared I-drive and not put into the official case file, it would not come up during a search. “You could do a computer search your whole life and you would not get those documents,” Trentadue said.
The FBI has a history of hiding files from discovery. In the 1970s, information requesting special internal handling was placed listed as a “June file,” requiring at least one judge to directly order the FBI to search the files for information. According to case filings, the June files designation ended in 1978, but through the 1990s the FBI continued its use of “Zero” files, which were reports “containing information that the FBI would not general want declassified to the defense and were kept separate from a specific case file,” according to 2001 court testimony given by a former FBI agent.
Given the FBI’s past actions, King isn’t hopeful the new discoveries of the S-drive will have a lasting impact. Just like when the I-drive came to light, he said, “There’ll be some immediate real and cosmetic changes and then things will go back to the way they always were, with the bureau deep-sixing stuff that they don’t like.”
“The practice and the culture is so ingrained that I don’t think things will change in our lifetimes.”
The FBI did not respond to multiple telephone and email requests for comment for this story.
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