An Investigation of the Belated Production of Documents
in the Oklahoma City Bombing Case
March 19, 2002
Office of the Inspector General
CHAPTER SEVEN
OIG RECOMMENDATIONS
We believe it is important to acknowledge the many difficulties faced by the OKBOMB investigators, both on the Task Force and in the field, and the general success they had in overcoming those difficulties. This case involved the FBI's entire organizational structure, thousands of employees, tens of thousands of investigative reports and over a million records, and the investigation of tens of thousands of individual leads. Most of the investigative work was accomplished in a short time frame of only a few months. The perpetrators were arrested and tried. And according to the appellate courts that have reviewed the matter, they received fair trials. The belated documents should not undermine the significant accomplishments of the individuals who assisted in the OKBOMB investigation.
The real significance of the belated documents and the OIG investigation of the circumstances surrounding them is much broader than the impact of the problem on the OKBOMB case. What we found in essence was that the FBI has not spent enough time, money, and attention on document management. It is not the glamorous part of the agency's mission. We found a wide variety of flaws in the FBI's information systems. The FBI has known about many of these problems for some time, either because the OIG has discussed them in other reports (some of which we discuss in this chapter) or because the FBI has found them through their own reviews. Little has been done to remedy those problems, however.
The tragic attacks occurring on September 11, 2001, demonstrate that the FBI continues to be faced with cases of the scale and dimensions of OKBOMB and that the lessons learned from OKBOMB continue to be relevant. While OKBOMB occurred over six years ago, the FBI's document management process remains generally unchanged, as does the technology on which it depends. In one of several criticisms about the FBI's lack of current technology, the FBI's Assistant Director for Information Resources noted that employees of the FBI, an information gathering agency, only had access to the Internet through a limited number of machines and could only e-mail other FBI employees. He compared the deficiency to agents only being able to telephone other agents.
We believe that now is the opportune time for the FBI to reexamine its document management process in the context of the technology available today as well as the technology that is likely to be available in the future. We believe that the goal should be to build a system that is efficient, reliable, user friendly, and expandable.
The vast majority of our recommendations concern automation systems. Although the automation system did not cause the belated documents problem, an effective automation system would likely prevent the reoccurrence of another such problem. But, while improvements to the FBI's automation may provide benefits for the discovery process, the real benefits would be seen much earlier - in the investigative stage and in improvements to employee productivity.
Significant effort needs to be put into planning a true information management system that 1) can be used to track information; 2) can be used to search for information; and 3) can eliminate the need for independent databases. The FBI is in the process of creating a new generation of automation - Trilogy. We did not investigate Trilogy and therefore do not know the exact design specifications for that system. Nonetheless, we set forth some of our observations and recommendations regarding information management and automation that may prove useful during the process of developing and implementing Trilogy.
While the FBI has spent many resources developing automation systems, it has not fully utilized them. Most of the senior managers to whom we spoke acknowledged that they had no understanding of ACS, did not use it, and relied on their secretaries to obtain information off of the computer for them. They complained that the system was too difficult to use. Indeed, about the only consistent information we received during our investigation was the universal dislike for ACS by supervisors, agents, and support personnel. On the other hand, personnel in the Information Resources Division believed that some of the complaints about ACS were the result of field managers' and FBI Headquarters' lack of commitment to automation - in other words, the system seemed cumbersome because employees refused to familiarize themselves with it.
Based on our own observations, we agree that ACS is extraordinarily difficult to use, has significant deficiencies, and is not the vehicle for moving the FBI into the 21st century. It is also true, however, that rather than aggressively trying to remedy its automation problems the FBI has tolerated the development of duplicative systems: one paper and one automated. The FBI is simply too big and the cases are too large to continue to rely on paper as the chief information management tool. Yet, because the FBI has tolerated the continued reliance on paper as an alternate system, the FBI's automation systems have suffered. Inefficiencies have been created, such as when field offices wait for the "electronic communication" to arrive through the mail before acting on it. In addition, when some employees are not utilizing the automated system properly, the data in the system becomes unreliable because it is not complete.
Any new automated system will meet the same fate as ACS unless FBI managers commit to using it and enforce its use throughout the FBI. That is not to say that paper will suddenly disappear from the FBI. We are not ready to advocate for a completely "paperless" organization given that the FBI must interact with prosecutors, defense attorneys, and court systems and must keep track of documents and evidence that are received from individuals outside the FBI. But we believe that the FBI must commit to relying on automation as the primary means for accessing, retaining, and transferring information. This means, at a minimum, that all employees must be extensively and properly trained and that the efficient use of automation must become part of the basic job requirements.
The FBI also needs to foster and maintain an attitude throughout the agency that information management is an important part of the FBI's function, rather than a sudden focus on the issue when a crisis is at hand. On several occasions the OIG has advised the FBI that it had significant information management problems, yet little was done to remedy the deficiencies.
In our July 1999 report on the Justice Department's campaign finance task force, we carefully tracked ten critical pieces of intelligence information and how they were handled by the FBI and the Department. We found that key information from the critical documents at issue either had not been entered into ACS in a manner that could be searched or had not been entered into ACS at all. We also found that many of the FBI personnel we interviewed were not well versed in the use of the FBI's database system and had erroneous beliefs about the way it operated. We recommended that the FBI amend its practices and regulations so that more information is entered into ACS and its computer databases. We also recommended supplementary training for FBI agents on ACS, which we called "crucial to the integrity and utility of the ACS system." Yet, despite agreeing to do so, the FBI never implemented any of these actions.
In a report issued in November 1999, we described significant deficiencies in the FBI's investigation into the death of a federal inmate, Kenneth Michael Trentadue, and the FBI's handling of the evidence in that case. For example, the FBI misplaced for several years negatives of photographs taken of the body and the cell. The FBI was unaware that it possessed an important piece of evidence involving chain of custody and, after the OIG discovered its existence and asked that it be preserved, the original was destroyed because the FBI failed to safeguard adequately the document. We also found that documents had been misplaced, serials had been uploaded to the wrong file in ACS, evidence from a different case was in the file, and differing versions of the same electronic communication were in the file.
The OIG's Lost Trust report, completed in February 2001, also described significant failures by FBI agents who failed to turn over evidence to prosecutors during a series of cases that began in 1989 into corruption in the South Carolina General Assembly. In those cases, the FBI failed to disclose to prosecutors important FD-302s and failed to disclose others in a timely fashion. We concluded that the documents were not intentionally withheld but that the FBI's failure to produce these documents was the result of inadequate record-keeping and inadequate organization of the files, which was exemplified by the fact that FBI agents and prosecutors had to depend upon the records of defense counsel's paralegal to determine whether and when a document had been produced in discovery. We described how the FBI's case files were in substantial disarray and disorder and how the FD-302s were not even filed in the official file. We concluded that the FBI agent on the case was overwhelmed with the amount of work and that FBI managers provided insufficient support to ensure that the files were organized.
These reports illustrated significant deficiencies in the attention the FBI gave to handling documents appropriately or correcting deficiencies that were identified, and in our view, gave insufficient responses to addressing those problems. The reports also show that even on cases involving many fewer documents, the FBI had difficulty tracking and processing its documents effectively.
Although former Director Freeh imposed a one-day "stand down" to focus on document management, until the FBI as an institution places more emphasis on managing the information that it has, problems will continue to exist. The problems may not be as publicly exposed as they were in OKBOMB, but they will continue to bedevil individual agents and prosecutors. We also would note that although this problem has been framed in terms of the defense not getting access to certain material, some of the information also did not get to the prosecutors. The failure to manage information properly has important implications for the prosecutors' own trial preparation. When information must flow through cases, agents, and even agencies, the FBI must have in place a reliable, trustworthy, and useful information management system.
The primary cause of the belated documents was the difficulty of moving, without error, thousands of documents through the many procedural steps and physical locations required by the FBI's document management system. The development of Trilogy offers an opportunity for the FBI to simplify its entire document management system. Supervisors could, for example, review electronic versions of documents rather than having paper be sent from agents, to secretaries, to rotors, and then to supervisors.
Another related recommendation is to reduce the number of record-keeping formats, all of which require different procedures. During our interviews, numerous agents and supervisors questioned the need for the mindboggling variety of forms utilized by the FBI, particularly the need for inserts. Although we were told the difference between FD-302s and inserts, in practice it appears that substantive information is placed both on FD-302s and inserts. Indeed, in OKBOMB, the inserts were disclosed to the defense because the prosecutors could not make a useful distinction between the information on the FD-302s and the information on the inserts.
We believe that the use of inserts can lead to problems. Important information, which may not seem important to the FBI agent writing the insert, can get lost simply because it is placed on the wrong form. The use of inserts also can create discovery problems. Inserts are rarely disclosed; many, possibly most, prosecutors do not know that they exist and rarely see them. Based on the information that we received, some agents believe that inserts are not discoverable, and some agents may even use them because of that fact. In fact, a report is discoverable or not based on the information contained within it, not because of the format of the report.
We recommend that the FBI evaluate its record keeping procedures with the goal of simplifying the process. This process should be integrated with the development of Trilogy as some forms or documents currently in use might be eliminated with a new computer system.
In addition, if the FBI believes that it is necessary or useful to have a document that is a true "original," then it needs to revise its system for creating them. Practices in the field have circumvented the FBI's policies regarding originals. One possibility would be to have a stamp to mark documents as "originals." Another possibility is the use of electronic signatures, which would allow the FBI to transmit "original" documents electronically, thereby preventing the loss of documents and creating an audit trail.
Some of the criticism of ACS involves obvious problems that have been known by the FBI for some time. The system is not user friendly. Relatively simple tasks require numerous steps. As one supervisor told us, he keeps sets of instructions under the glass on his desk so that he can remember how to use ACS to review the leads assigned to his agents. In addition, the system crashes or freezes often. We observed this problem repeatedly. When we interviewed administrative personnel in various field offices and asked them to show us something on ACS, the system often stopped working. Field offices were unable to use ACS to find OKBOMB documents when Headquarters asked them for explanations. If these problems are not fixed, then Trilogy will be as ineffective as ACS.
We received conflicting information regarding the development of ACS. Field personnel told us that the field was not sufficiently consulted during the development phase while Headquarters personnel told us the field had been extensively consulted. The development of Trilogy should involve agents, supervisors, and rotors so that the people who actually use the computer system will have a say in how the system will meet their needs. In addition, the system designers need to know how the system actually will be used in the field.
For tracking purposes, ACS's universal serialization system is a clear improvement over FOIMS. However, we cannot say that as a result there will never be another OKBOMB-type problem with documents. First, universal serialization does not guarantee that every item in the FBI's files can be accounted for. Only FBI-generated documents can be uploaded into the system. Therefore, there is still the potential for documents to be lost, misfiled, and misplaced. Second, uploading documents from a word processing system into a database, as is required by ACS, adds an extra step and increases the opportunities for a document to be lost.
One solution to the uploading problem is to integrate the creation of FBI generated documents into the automated system. We understand that other agencies, such as the Bureau of Alcohol, Tobacco and Firearms, create the document in the system that also tracks it.
Although ACS allows full-text retrieval, it is not an effective case management tool. One reason is that performing searches for documents in ACS is too time consuming. Accordingly, any new system should have easy to use search capabilities so that separate systems, such as ZyIndex, can be eliminated.
For major cases and crisis situations, Rapid Start and ZyIndex are used to compensate for ACS's deficiencies.106 We believe that the FBI should work toward eliminating crisis management software (as well as eliminating other independent systems). The goal should be to build document management and lead tracking systems that are expandable to meet every situation. Using separate systems to manage particular cases creates problems. For one, personnel have to be trained on different systems. Since Rapid Start and ZyIndex are used infrequently, the training is often forgotten before it is used. One individual told us that although she had received training a few years ago, she is not confident in her current skills, particularly given that ZyIndex had been upgraded since her training. In addition, it is difficult to get information from ACS into ZyIndex. Consequently, hard copies and disks still have to be sent, thereby reducing efficiency and increasing the chances for items to be lost.
Increasing the number of database systems in use increases the chances that information will not be found since not every employee will know or think to check every system.107 Having information in separate systems that cannot communicate with each other increases the number of steps required to get complete and thorough information about particular individuals or subjects. Indeed, at the time of our investigation Rapid Start did not have a field to note the serial number of the document that responded to the lead. Therefore, to find the response to a lead, hard copies of the response had to be kept with a hard copy of the lead creating additional steps, complexity, and opportunities for error within the document management system. This has serious ramifications in the current environment when it is particularly important for agents to be able to quickly and easily access all known information about particular individuals.
Although we believe that separate database systems can lead to problems, others disagreed and told us that they did not believe that Rapid Start in particular should be integrated into ACS. They believed that integrating Rapid Start with other databases would severely reduce its effectiveness as a crisis management tool by making it too complex or too slow. While it may be true that integrating Rapid Start into ACS would create difficulties, it also may be true that integrating it with a different, more effective database would not create the same problems. We did not resolve this issue, but we believe it is an important one for the FBI to consider in the development of Trilogy.
No automation system will be effective unless personnel receive adequate training. We conducted a limited review of the FBI's computer training. New agents receive ten hours of training on ACS. Two in-service classes are also offered: a 2-day class that most agents eventually take and a 3-day class usually taken by support personnel. We were told that 10 hours was insufficient to teach new agents how to effectively use ACS, although we acknowledge that even with 16 weeks of training there is still only so much time that can be devoted to any one subject. The FBI Information Resources Training unit, which is responsible for new agent and in-service computer training, also told us that they believed that they had not received clear guidance as to what ACS skills agents need to perform their jobs effectively. Therefore, the training unit believed that it was not necessarily teaching the minimum set of skills agents really needed.
The training unit also noted that agents are not required to demonstrate minimum ACS competence to graduate from the training academy. Although there are certain skills that agents must have in order to graduate (for example, firearms skills, knowledge of legal issues, and investigative techniques), ACS competence is not included in these "core" skills. In addition, because there is no consistent policy on ACS training and levels of competence, there is widespread variation among the field offices on ACS use.
Accordingly, we recommend that the FBI evaluate its computer training in order to develop a clear understanding of what agents need to perform their job duties effectively. As one aspect of its commitment to an automated system, the FBI should consider whether computer usage should be considered part of the core skills needed to graduate from the new agents training academy. The FBI should also consider mandatory refresher training to ensure that agents are kept abreast of changes to the system and that they are using the technology available to them.
During the course of our investigation, we observed other issues involving disparate problems.
Although there are traps for the unwary regarding the sending of leads,108 we found more significant problems with field offices' procedures for responding to leads. As we discussed in Chapter Six, a significant portion of the field offices failed to respond appropriately to Shackelford's and Richmond's leads. Field offices lost leads, ignored leads, failed to respond timely, and responded inaccurately.
In many instances, these failures were the result of the lack of adequate systems to manage leads. One contributing factor is that ACS does not efficiently notify individuals that leads exist. As we were told, it is not a "you've got mail" system. As a result, some offices wait for the hard copy to arrive. This increases delays and increases the potential that leads will not be handled at all.
Another serious problem is the inappropriate use of the designator "cover" to indicate action on a lead. In a few instances, individuals inappropriately marked "cover" when they had done nothing on the lead. In other instances, however, offices seemed to have systems permitting leads to be "covered" even though the task set out in the lead had not actually been completed. We believe that the FBI cannot effectively manage leads without a clear understanding of what constitutes "covering" a lead. Field offices also do not consistently use the comments field in ACS that shows what has been done to complete the lead. We recommend that procedures be initiated to require that leads cannot be covered without an explanation of what has been done to cover it, such as the serial number of the FD-302 or other document that completed the task assigned in the lead. We also recommend that future automation systems incorporate the means to allow supervisors to easily review leads, to be informed of outstanding leads, and to be informed of how leads have been handled. It would be particularly useful if a tickler system were incorporated automatically to allow both the agent and the supervisor to know that a lead deadline date was approaching. And some of ACS's eccentricities need to be eliminated, such as the automatic setting of a 60-day deadline for "immediate" leads.
Although Rapid Start is fairly effective as a major case lead tracking system, improvements can be made. In addition to the recommendation regarding integrating lead tracking with a document management system, we also recommend:
The FBI is particularly good at putting substantial resources into a crisis in a short period of time. That capacity greatly increases its ability to investigate major crimes rapidly. However, the use of large numbers of persons on temporary duty (TDY) can create problems, and the shorter the rotation period the more problems that are created.
For one thing, although it should not have to be said, field office managers should not use major investigations as an opportunity to offload problem employees. If the employees are not performing effectively in the field office, it is unlikely that they are going to perform better in a crisis environment with less supervision.
The FBI should consider whether there are viable alternatives to short rotation periods. In some cases, short rotations may be necessary because individuals are unable to be away from home for extended periods. On the other hand, it may be that field office managers are reluctant to let good employees who are working on other matters leave for extended periods. In the latter case, we believe that priorities should be shifted to allow for extended details. Although we appreciate that lengthening the rotation period may reduce the number of individuals available, the reduction in problems may improve the effectiveness of the team.
We understand that supervisors periodically conduct file reviews. Because we did not investigate this particular issue in depth, we do not know how thoroughly supervisors actually examine the administrative aspects of the file as opposed to the substantive aspects, such as whether the agent is interviewing the appropriate individuals. We suspect, given time constraints and the press of other duties, that many supervisors do not focus on whether documents are drafted, filed, uploaded, indexed, and otherwise handled properly. Consequently, the FBI should consider whether the administrative officer should initiate file reviews. We understand that the Columbia Division has instituted such a system. If done properly, these reviews would likely reveal individual and systemic deficiencies.
Several field offices indicated that they had difficulty filling and keeping filled their IMA positions. Some managers asserted that the low pay for this position made it difficult to fill. Our sense was that this is an important position in the office and to the extent that IMA positions go unfilled or filled by unqualified individuals, the efficiency of the office is reduced. Several FBI managers suggested that given the important computer skills needed, the position could be upgraded. We would recommend that the FBI evaluate the IMA position and determine whether the position needs to be reclassified or whether other steps are needed to ensure that the FBI maintains full and capable staffing for these positions.
We also understand that the number of IMAs has shrunk as the FBI focused on hiring agents. Managers complained that while there was formerly one rotor per squad, squads now share rotors with the result that there are often backlogs in filing. It may be that at one time it was considered that computer systems would reduce the number of IMAs needed. Because ACS did not eliminate paperwork requirements, however, the FBI continues to need substantial clerical support. Unless Trilogy substantially reduces the need for transmitting and filing hard copies, the FBI should evaluate whether it needs to budget for more IMA positions.
While the FBI and the Department of Justice have initiated in-service training on investigating and prosecuting certain types of emerging or complex crimes (for example, health care fraud and computer crimes), neither organization has done a particularly effective job at learning about administrative and organizational issues from prior cases. Different prosecutors and agents tend to supervise major cases, and each new investigative and prosecutorial leader must develop an organizational and administrative structure and develop solutions for innumerable problems, even though many of the issues have been dealt with time and time again in prior cases.
We spoke to several prosecutors and lead investigators of major cases, all of whom said that they had never been "debriefed" about the difficulties, challenges, or issues that they had faced. We believe that some process should be instituted formally to capture the wealth of knowledge that is gained when major cases are investigated and prosecuted. Either the Department of Justice or the FBI should be charged with the responsibility of ensuring that some procedure exists to learn from past efforts. One possibility is to have periodic working groups that would meet, perhaps gathering personnel from several cases (including former employees), to discuss major case problems, issues, and solutions. These ideas ultimately would be distilled into protocols (discussed below) that could be used by the personnel assigned to subsequent cases.
We raised this issue with several individuals during our interviews. While most generally thought the idea had merit, several raised potential problems. One such problem was the difficulty of getting individuals to talk about or acknowledge their mistakes. While learning from mistakes is valuable, we do not believe that the focus of the discussion necessarily needs to be on identifying mistakes or identifying individuals who made mistakes. Rather, the focus should be on identifying various challenges and how to solve them. As just one example, it would be useful to know that the FBI's chief crisis document management tool, ZyIndex, requires that the field send documents loaded onto floppy disks. That information could be incorporated into a set of instructions that would be immediately sent to the field rather than having a new investigative team figure it out many days into the investigation, as happened with the OKBOMB investigation.
Another problem that individuals raised was whether a written document would be discoverable by defendants. We believe that a written document that focuses on procedures for organizing and running major case investigations would not be discoverable any more than the law enforcement agencies' procedural manuals are discoverable. In any case, we do not believe that the possibility that the document might be discoverable should prevent the Department and the FBI from taking steps to improve future investigations and prosecutions.
We were told that the OKBOMB Task Force repeatedly was forced to develop solutions for problems as it went along. To some extent, this is inevitable. Even the best planning is unlikely to foresee every issue that will arise given that every case is unique factually. But, we believe that having a protocol in place at the very beginning of a major case would improve the effectiveness of the investigative team, particularly in the early, often chaotic days of a crisis or major investigation.
The protocol should address issues likely to be faced by the investigative team. The protocol could include a set of instructions that would be sent out immediately to all field offices and Legats regarding, among other issues, document management. The protocol should specifically set out what is to be sent to the Office of Origin, the number of document copies to be included, whether disks are needed, the subfiling system to be used, and specific instructions for handling subpoenas, telephone records information, and other key items. These instructions would be developed in a non-crisis atmosphere when due consideration could be given to the possible ramifications of different actions.
The protocol also could discuss, even if it did not completely resolve, other issues that might be faced by prosecutors and investigators during the investigation, such as discovery issues, including the scope of discovery and how to organize discovery; how to get information from other agencies; different databases that should be checked to get information; and other important topics. The protocol might include samples of correspondence, motions, or other items thereby saving time reinventing these documents.
The FBI should consider training a cadre of experienced administrative personnel who could be deployed immediately to organize the information management and administrative aspects of major investigations. It would also be beneficial to assign an individual with managerial responsibility for the administrative side of the investigation. In OKBOMB, although there were many individuals with responsibility for some aspect of the administrative effort - such as discovery or filing or ZyIndex - there did not seem to be one person in charge of ensuring more broadly that information management was in place and running smoothly.
We recommend that the FBI's Office of General Counsel review the FBI's policy of authorizing the destruction of documents while litigation is pending. Although the destruction policy only pertains to copies and only under certain guidelines, as we have seen in this instance, the field offices ignored the guidelines, and the retention of copies was important. Accordingly, the Office of General Counsel should consider whether any destruction should take place during pending litigation and whether destruction logs should include more complete information about the files being destroyed.
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