FILED

United States Court of Appeals

Tenth Circuit

July 2, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JESSE C. TRENTADUE,

Plaintiff - Appellee,

v. No. 08-4207

FEDERAL BUREAU OF

INVESTIGATION; FEDERAL

BUREAU OF INVESTIGATION’S

OKLAHOMA CITY FIELD OFFICE,

Defendants - Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. NO. 2:04-CV-00772-DAK)

Nicholas Bagley, Assistant United States Attorney, Appellate Staff Civil

Division, (Gregory G. Katsas, Assistant Attorney General, Brett L. Tolman,

United States Attorney, and Mark B. Stern, Assistant United States Attorney,

Appellate Staff Civil Division, with him on the brief), of Washington, D.C. for

Defendants-Appellants .

Jesse C. Trentadue, pro se.

Before TACHA, EBEL, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.
1

We see no purpose in expanding upon Mr. Trentadue’s beliefs concerning

the connection between the investigations and his brother’s death. 

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Jesse Trentadue, apparently spurred by concern about the death of his

brother in federal custody, has vigorously sought information concerning

investigations conducted by the Federal Bureau of Investigation (FBI).1

 This

appeal arises out of his suit under the Freedom of Information Act (FOIA),

5 U.S.C. § 552, to obtain records of the FBI’s investigation into the infamous

bombing of the Alfred R. Murrah Federal Building in Oklahoma City in 1995. 

His request is limited to records that relate to the Southern Poverty Law Center

(SPLC) and its founder Morris Dees. After initially producing no records, the

FBI eventually provided 19 redacted documents, and the district court ruled that

the agency need not conduct any further searches of its records. Several months

later, however, Mr. Trentadue moved the court for permission to depose Terry

Nichols, a convicted conspirator in the Oklahoma City bombing, and David Paul

Hammer, a death-row inmate who purportedly had discussed the bombing with a

fellow inmate, Timothy McVeigh, who was executed for his role in the bombing. 

In support of the motion, Mr. Trentadue submitted declarations by Nichols and

Hammer. The court granted the motion over the FBI’s objections. 

The FBI appeals the discovery order, and we reverse. The FBI submitted

declarations to the district court that provide a consistent and uncontradicted

showing that it has conducted an adequate search for the records requested by
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Mr. Trentadue, and there is no reason to believe that depositions of Nichols and

Hammer would produce evidence relevant to this FOIA case. 

I. FOIA

FOIA was enacted to enable the public to examine government records. 

See Campaign for Responsible Transplantation v. FDA, 511 F.3d 187, 190 (D.C.

Cir. 2007) (“FOIA is a disclosure statute enacted to facilitate public access to

Government documents.” (internal quotation marks omitted)). The general rule

under FOIA is that a person is entitled to copies of a federal agency’s records

upon making a request that “reasonably describes such records” and that complies

with required procedures for such requests. 5 U.S.C. § 552(a)(3)(A)(i). Certain

categories of records, however, are exempt from disclosure. See id.

§ 552(b)(1)–(b)(9) and § 552(c)(1)–(c)(3). When a request is made, the agency

ordinarily must “determine within 20 [business] days . . . whether to comply with

such request and shall immediately notify the person making such request of such

determination and the reasons therefor . . . .” Id. § 552(a)(6)(A)(i). If the agency

decides to comply with the request, “the records shall be made promptly

available” to the requester. Id. § 552(a)(6)(C)(i). If the agency decides not to

comply, the requester can seek relief in federal court. District courts have

“jurisdiction to enjoin the agency from withholding agency records and to order

the production of any agency records improperly withheld from the complainant.” 

Id. § 552(a)(4)(B).
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FOIA does not set forth a general standard regarding how hard an agency

must look to find requested records. On that issue the sole relevant provision,

which was added in 1996, states: “In responding under this paragraph to a

request for records, an agency shall make reasonable efforts to search for the

records in electronic form or format, except when such efforts would significantly

interfere with the operation of the agency’s automated information system.” Id.

§ 552(a)(3)(C) (emphasis added); Pub. L. 104-231, § 5(4), 110 Stat. 3048 (1996).

Although § 552(a)(3)(C) concerns only electronic searches, it appears to reflect

an implicit assumption by Congress that an agency’s search for records need only

be “reasonable” in scope and intensity. The circuit courts to address the issue

have so construed FOIA - both in its original form, see Nat’l Cable Television

Ass’n, Inc. v. FCC, 479 F.2d 183, 192 (D.C. Cir. 1973), and since § 552(a)(3)(A)

acquired its present form in 1974, see Meeropol v. Meese, 790 F.2d 942, 956

(D.C. Cir. 1986) (adequacy of search “is measured by the reasonableness of the

effort in light of the specific request”); Weisberg v. Dep’t of Justice, 705 F.2d

1344, 1351 (D.C. Cir. 1983); Goland v. CIA, 607 F.2d 339, 352 & n.78, 369–70

(D.C. Cir. 1978); Gillin v. IRS, 980 F.2d 819, 822 (1st Cir. 1992) (following

Meeropol); Ruotolo v. Dep’t of Justice, Tax Div., 53 F.3d 4, 9 (2d Cir. 1995)

(agency need not perform search that is “unreasonably burdensome”); Abdelfattah

v. U.S. Dep’t of Homeland Sec., 488 F.3d 178, 182 (3d Cir. 2007) (per curiam);

Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009)
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(following Meeropol); Patterson v. IRS, 56 F.3d 832, 841 (7th Cir. 1995)

(following Meeropol); Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1383 (8th Cir.

1985) (“[T]he search need only be reasonable; it does not have to be

exhaustive.”); Zemansky v. U.S. EPA, 767 F.2d 569, 571 (9th Cir. 1985)

(“[A]dequacy of the search . . . is judged by a standard of reasonableness . . . .”)

(internal quotation marks omitted); Miccosukee Tribe of Indians of Fla. v. United

States, 516 F.3d 1235, 1257 (11th Cir. 2008) (following Meeropol). 

We follow our sibling circuits. Their “reasonableness” rule is a realistic

interpretation of FOIA. Although FOIA might be read to demand that an agency

provide every nonexempt requested document regardless of the cost of locating it,

we doubt that Congress would have chosen to impose “unreasonable” burdens on

agencies in that regard. 

In light of the reasonable-search requirement, the focal point of the judicial

inquiry is the agency’s search process, not the outcome of its search. “The issue

is not whether any further documents might conceivably exist but rather whether

the government’s search for responsive documents was adequate[,] . . . [which is

determined under] a standard of reasonableness, and is dependent upon the

circumstances of the case.” Weisberg, 705 F.2d at 1351 (brackets, citations, and

internal quotation marks omitted); see Rugiero v. U.S. Dep’t of Justice, 257 F.3d

534, 547 (6th Cir. 2001) (“The question focuses on the agency’s search, not on

whether additional documents exist that might satisfy the request.”); Office of
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Info. & Privacy, U.S. Dep’t of Justice, Freedom of Information Act Guide at

103–13, 954–58 (2007); 1 James T. O’Reilly, Federal Information Disclosure

§ 7:4 at 164 (3d ed. 2000) (“The courts require reasonable, not extraordinary,

searches by the agency. . . . The test is adequacy of the search, not existence of

any record.”). The reasonableness of an agency’s search turns on “the likelihood

that it will yield the sought-after information, the existence of readily available

alternatives, and the burden of employing those alternatives.” Davis v. Dep’t of

Justice, 460 F.3d 92, 105 (D.C. Cir. 2006).

II. BACKGROUND AND PROCEEDINGS BELOW

A. The FOIA Request

On July 19, 2004, Mr. Trentadue submitted a letter to the FBI and its

Oklahoma City Field Office, making two requests under FOIA. The first request

was for a January 4, 1996, “memorandum from former FBI Director [Louis] Freeh

concerning Morris Dees and the Southern Poverty Law Center (‘SPLC’)” (which

we will call “the Freeh Memorandum”). J.A. Vol 1 at 39. The memorandum,

according to Mr. Trentadue, referenced an “SPLC informant at Elohim City,” id.,

the site of what he characterizes as a “white supremacist paramilitary camp

compound” in Oklahoma that included persons purportedly involved in the

Oklahoma City bombing, id. Vol. 4 at 986. Mr. Trentadue’s letter attached a

newspaper article describing the Freeh Memorandum.

Mr. Trentadue’s second request was for records 
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which, directly or indirectly, report upon, concern, reference or refer

to Morris Dees’ and/or the SPLC’s involvement with and/or

connection to the following: Elohim City, OKBOMB, BOMBROB,

Tim McVeigh, Richard Guthrie, Terry Nichols, Dennis Mahon,[]

Robert Millar, Michael Brescia, Peter Langan and/or Andreas

Strassmeir including all contacts Dees or the SPLC may have

indirectly had with the foregoing through informants.

Id. Vol. 1 at 40. OKBOMB is a reference to the FBI’s investigation of the

Oklahoma City Bombing. BOMBROB refers to the FBI’s investigation of the

Mid-West Bank Robbery Gang, a group of neo-Nazis who, according to

Mr. Trentadue, were “suspected by the FBI of being involved in the robbery of

banks to fund attacks upon the government of the United States.” Id. at 47. The

request continued:

In searching for documents - records responsive to this Freedom

of In[f]ormation Act request, I want you to look beyond the official

files at FBI Headquarters and the Oklahoma City Field Office. 

Specifically, in addition to all responsive documents - records from

the FBI’s official files, I want all responsive documents - records

from the I - Drive, S - Drive and/or any other electronic device used

for purposes of document - evidence storage, retention, holding,

review, etc. at FBI Headquarters and/or the Oklahoma City Field

Office, including any responsive documents - records from temporary

document, record, data and/or evidence storage locations, files and/or

facilities regardless of where such storage files or facilities are

located.

Id. at 23.

One week later the FBI sent to Mr. Trentadue a form letter confirming

receipt of his FOIA request.

B. Mr. Trentadue’s Suit 
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1. The Claim and Summary-Judgment Motions

Because the FBI had not produced the requested records within 20 business

days, see 28 C.F.R. § 16.6(b), Mr. Trentadue initiated a FOIA suit against the FBI

and the FBI Oklahoma City Field Office on August 20, 2004, in the United States

District Court for the District of Utah. (We will refer to the defendants jointly as

the FBI.) He alleged that the FBI had a duty under FOIA to produce the

requested documents and that there was no legal basis to withhold them. 

(Mr. Trentadue later amended his complaint to pursue an additional FOIA request. 

For simplicity, we will address that request only when relevant to this appeal.)

The FBI answered on September 20. It sought dismissal of the complaint,

asserting that it was “exercising due diligence to process [Mr. Trentadue’s]

requests as quickly as possible.” J.A. at 55. 

Mr. Trentadue then moved for partial summary judgment with respect to

the Freeh Memorandum, arguing that he had already seen the memorandum,

which the FBI had produced in response to a FOIA request from someone else. 

He also argued that the FBI had waived any exemptions to production under

FOIA by failing to assert them in the letter to him or in its answer to the

complaint.

On November 22 the FBI responded to Mr. Trentadue’s partial-summaryjudgment motion and filed its own summary-judgment motion, contending that it

had responded to his request and that his claims were now moot. It said that it
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could not provide documents concerning Morris Dees unless it received proof of

his death or a privacy waiver signed by him. As for the remainder of

Mr. Trentadue’s FOIA request, the FBI said that it could not find any requested

documents. Its memorandum attached a letter to Mr. Trentadue sent by the FBI

on November 18. The letter stated, “Based on the information you provided, we

have not located [the Freeh] memorandum through a search of our indices of our

Central Records System . . . .” Id. at 77. And with respect to the remainder of

Mr. Trentadue's request (other than the allegedly protected information regarding

Dees), the letter said that a search “of the indices in our Central Records System

files both at FBI Headquarters and in the Oklahoma City Field Office[] has

revealed no responsive records.” Id. at 78.

2. Mr. Trentadue’s Allegations of Bad Faith and the FBI

Responses

Mr. Trentadue responded to the FBI’s memorandum by arguing that the FBI

was intentionally withholding documents and acting in bad faith. To support this

allegation, he submitted a redacted copy of the Freeh Memorandum that he had

requested and a redacted teletype (which he terms the “BOMBROB-Funding

Memorandum”) that he claimed to be “from FBI Director Louie Freeh dealing

with the very subjects of Plaintiff’s FOIA Request.” Pl.’s Combined Mem. in

Opp’n to FBI Defs. Mot. for Summ. J. & Pl.’s Rule 56(f) Mot. for Continuance

Pending Disc. at 5–6, Trentadue v. FBI, No. 2:04 CV 00772 DAK (D. Utah
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Nov. 30, 2004). He asserted that these two documents revealed that “FBI

Defendants and/or the SPLC had an informant at Elohim City who reported that

two weeks before the bombing of the Murrah Building Tim McVeigh contacted

Elohim City trying to recruit others to assist him in carrying out that attack . . . .” 

J.A. 82. Thus, according to Mr. Trentadue, the “FBI Defendants knew about and

fail[ed] to prevent the attack upon the Murrah Building,” and therefore had an

incentive to withhold documents showing such knowledge. Id. at 82–83

(emphasis omitted). Mr. Trentadue also submitted a declaration from a retired

FBI agent, stating his belief (1) that the teletypes were authentic, and (2) that “it

would be a simple matter to retrieve either of these teletypes” through searches of

the “respective case files for the serial[] [numbers] entered on or about the date of

each teletype.” Id. at 96. As the former FBI agent observed, the Freeh

Memorandum listed two file numbers belonging to the OKBOMB investigation,

174A-OC-56120 and 91A-OM-41859, and the BOMBROB-Funding Memorandum

listed a third file number belonging to that investigation, 100A-PH-79375. In

addition, Mr. Trentadue argued that Dees’s privacy interest was outweighed by

the substantial public interest in disclosure. Finally, Mr. Trentadue filed a request

under Federal Rule of Civil Procedure 56(f) for a continuance “until Plaintiff has

completed limited discovery on the existence of the documents and/or records in

question.” Pl.’s Combined Mem. in Opp’n at 3, Trentadue, No. 2:04 CV 00772

DAK (Nov. 30, 2004).
2

Mr. Hardy described the CRS as follows:

(10) The Central Records System (“CRS”), which is utilized

by the FBI to conduct searches in response to FOIA and Privacy Act

requests, enables it to maintain all information which it has acquired

in the course of fulfilling mandated law enforcement responsibilities. 

The records consist of administrative, applicant, criminal, personnel,

and other files compiled for law enforcement purposes. This system

consists of a numerical sequence of files broken down according to

subject matter. The subject matter of a file may relate to an

individual, organization, company, publication, activity, or foreign

intelligence matter. Certain records in this system are maintained at

FBIHQ [FBI headquarters]. Records that are pertinent to specific

field offices are maintained in those field offices.

(11) Access to the CRS is afforded by the General Indices,

(continued...)

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On January 4, 2005, the FBI replied. It clarified that its position was not

“that responsive documents do not exist, only that [its] search did not locate any

documents responsive to Plaintiff’s request.” The Federal Defs. Reply Mem. in

Supp. of their Mot. for Summ. J. & in Opp’n to Pl.’s Mot. to Strike & Stay Dis.

(Defs. Reply) at 6, id. (Jan. 4, 2005). It maintained that it had made a good-faith

effort to search for the requested documents, warranting summary judgment. To

establish its good-faith search efforts, it attached to its reply a December 9, 2004,

declaration of David Hardy, Section Chief of the Record/Information

Dissemination Section of the FBI’s Records Management Division in Washington,

D.C. The declaration explained that the FBI’s indices to its Central Records

System (CRS) generally refer only to subjects of investigations, suspects, and

victims, although other names may be indexed by an investigator or supervisor if

considered relevant or necessary for later retrieval.2

 It then described the search
2

(...continued)

which are arranged in alphabetical order. The General Indices

consist of index cards on various subject matters that are searched

either manually or through the automated indices. The entries in the

General Indices fall into two categories:

(a) A “main” entry—A “main” entry

carries the name corresponding with a

subject of a file contained in the CRS.

(b) A “reference” entry—“Reference”

entries, sometimes called “crossreferences,” are generally only a

mere mention or reference to an

individual, organization, etc.,

contained in a document located in

another “main” file.

(12) Access to the CRS files at FBI field divisions is also

afforded by the General Indices (automated and manual), which are

likewise arranged in alphabetical order, and consist of an index on

various subjects, including the names of individuals and

organizations. Searches made in the General Indices to locate

records concerning a particular subject, such as the Southern Poverty

Law Center, are made by searching the subject requested in the

index. FBI field divisions have automated indexing functions.

(13) On October 16, 1995, the Automated Case Support

(“ACS”) was implemented for all Field Divisions, Legal Attaches

(“Legats”), and FBIHQ. Over 105 million records were converted

from automated systems previously utilized by the FBI. ACS

consists of three integrated, yet separately functional, automated

applications that support case management functions for all FBI

investigative and administrative cases, which are:

(a) Investigative Case Management (“ICM”)—ICM

provides the ability to open, assign, and close investigative and

administrative cases as well as set, assign, and track leads. The

Office of Origin (“OO”), which sets leads for itself and other

divisions, as needed, opens a case. The offices that receive leads are

referred to as Lead Offices (“LOs”), formerly known as Auxiliary

Offices. When a case is opened, it is assigned a Universal Case File

Number (“OCFN”), such as “12-SU-34567,” which is utilized by all

FBI offices, including FBIHQ, that are conducting or assisting in the

(continued...)

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2

(...continued)

investigation. The “12” indicates the type of investigation, “SU”

indicates the Office of Origin of the investigation, and “34567”

denotes the individual case file number for that particular

investigation.

(b) Electronic Case File (“ECF”)—ECF serves as the

central electronic repository for the FBI’s official text-based

documents. ECF supports the universal serial concept, where only

the creator of a document serializes it into a file, providing single

source entry of serials into the computerized system. All original

serials are maintained in the OO case file.

(c) Universal Index (“UNI”)—UNI continues the

universal concepts of ACS by providing a complete subject/case

index to all investigative and administrative cases. Only the OO is

required to index; however, the LOs may index additional

information as needed. UNI, an 84.5 million record index, provides

functions to index names to cases and to search names and cases for

the FBI’s investigative and administrative cases. Names of

individuals or non-individuals are recorded with identifying

information, such as sex, race, event date, date or place of birth,

locality, Social Security number, or address.

(14) The decision to index names other than subjects,

suspects, and victims is a discretionary decision made by the

investigative FBI Special Agent (“SA”), the supervisor in the field

division conducting the investigation, and supervising FBI SA at

FBIHQ. The FBI does not index every name in its files; rather, it

indexes only that information considered pertinent, relevant, or

essential for future retrieval. Without a “key” (index) to this mass of

information, information essential to ongoing investigations could

not be readily retrieved. The FBI files would thus be merely archival

in nature and could not be effectively used to serve the mandated

mission of the FBI, which is to investigate violations of federal

criminal statutes. Therefore, the General Indices to the CRS files are

the means by which the FBI can determine what retrievable

information, if any, the FBI may have in its CRS files on a particular

subject matter or individual

Decl. of David M. Hardy at 4–7, Attach. to Defs. Reply, Trentadue, No. 2:04 CV

00772 DAK. 

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for the records requested by Mr. Trentadue, stating that the search for records
3

The declaration stated:

(16) A search of the CRS indices at FBIHQ and the Oklahoma

City Field Office, and the search of the I and S drives at the

Oklahoma City Field Office for records which directly or indirectly,

report upon, concern, reference or refer to the SPLC’s involvement

with and/or connection to Elohim City, BOMBROB, OKBOMB,

Timothy McVeigh, Richard Guthrie, Terry Nichols, Dennis Mahon,

Robert Millar, Michael Brescia, Peter Langan and/or Andreas

Strassmeir including all contacts the SPLC may have indirectly had

with the foregoing through informants revealed that FBIHQ and the

Oklahoma City Field Office have no records responsive to plaintiff’s

request. The search was performed using the search term “Southern

Poverty Law Center” as that would be the file containing the

information sought. The search was performed using the search

term “OKBOMB” as that is [the] file under which the memorandum

would have been placed.

(17) A search for records pertaining to Morris Dees will be

conducted upon receipt of the completed Privacy Waiver and

Certification Form which the FBI provided to plaintiff by letter dated

November 18, 2004. In the absence of this privacy waiver, the

records, if they exist, are exempt from disclosure pursuant to

Exemptions 6 and/or 7(C), 5 U.S.C. §§ 552(b)(6), (b)(7)(C). To date,

plaintiff has not submitted this form to the FBI.

Id. at 8–9. 

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referring to Dees was awaiting a proper privacy waiver and that the search for the

other records, using “Southern Poverty Law Center” as the search term, was

fruitless.3

On February 17, 2005, the FBI submitted a second declaration by

Mr. Hardy. Attached to the declaration was a redacted copy of the Freeh
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Memorandum. The declaration explained why the FBI was now able to produce

the document:

(7) The initial search of the CRS indices at FBIHQ and the

Oklahoma City Field Office, (“OCFO”) for [the Freeh Memorandum]

revealed that, based on the information provided in plaintiff’s initial

request letter to FBIHQ and the OCFO, the FBI could not locate the

original document.

(8) The initial search of the CRS indices at FBIHQ and the OCFO

for the [Freeh Memorandum] was conducted by using the search term

“Southern Poverty Law Center” as described in the Hardy

Declaration ¶ 12. Additionally, a search for the memorandum using

the name “Timothy McVeigh,” failed to reveal the [Freeh

Memorandum].

(9) Based on new information [the redacted version of the Freeh

Memorandum submitted by Mr. Trentadue] attached as Exhibit A to

plaintiff’s November 23, 2004 REPLY MEMORANDUM IN

FURTHER SUPPORT OF MOTION FOR PARTIAL SUMMARY

JUDGMENT, it was determined that the document was a teletype

dated January 4, 1996. An electronic search of file 174A-OC-56120

for teletypes dated January 4, 1996, was conducted. This additional

search revealed the teletype in question which was contained within

the FBI’s OKBOMB investigative file which investigation was

conducted pursuant to 18 U.S.C. § 844(d).

Second Decl. of David M. Hardy at 3–4 (footnote omitted), Trentadue, No. 2:04

CV 00772 DAK (Feb. 17, 2005). The declaration did not detail search efforts to

find the so-called BOMBROB-Funding Memorandum.

3. The District Court’s Initial Ruling

On May 5, 2005, the district court denied the FBI’s summary-judgment

motion, and granted Mr. Trentadue’s partial-summary-judgment motion. “Given

the specific nature of [Mr. Trentadue’s] requests . . . and [his] specific evidence
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that at least some of the requested documents do exist and reasonably should have

been found by the FBI,” the district court found that the FBI’s search “was not

reasonably calculated to discover[] the requested documents.” J.A. Vol. 1 at 159. 

It concluded that “[w]hen the FBI’s computer search did not identify any

responsive documents, it was incumbent upon the FBI to review the actual files

for such documents.” Id. at 160. 

In a footnote the district court provided further reason why it doubted the

adequacy of the FBI’s search. It cited documents provided by Mr. Trentadue

regarding his FOIA request for records relating to the FBI investigation of his

brother’s death. One document was a teletype from FBI headquarters to its field

offices instructing that documents prepared for the investigation “must not be

uploaded into the Automated Case Support [(ACS)] system” without prior

approval. Id. at 159 n.2 (emphasis omitted). Two other documents were FBI

teletypes that the court characterized as indicating that “the FBI lobbied former

Senator Don Nickels of Oklahoma to obtain his assurances that no Senate

Judiciary Committee oversight would take place with respect to the FBI’s

handling of the Trentadue investigation.” Id. at 159–60 n.2.

The district court also ruled that privacy concerns did not justify

withholding or redacting documents because the public interest in the information

outweighed any privacy interests of the individuals involved. Accordingly, the

court ordered that by June 15 the FBI must (1) produce unredacted versions of the
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Freeh Memorandum and the BOMBROB-Funding Memorandum, and (2)

manually search the OKBOMB files numbered 100A-PH-79375, 174A-OC-56120,

and 91A-OM-41859—the file numbers listed on the redacted copies of the

teletypes that Mr. Trentadue had provided the court—for documents responsive to

Mr. Trentadue’s FOIA request. The court denied as moot Mr. Trentadue’s motion

for a continuance pending further discovery, but added that “[u]pon motion, the

court will permit Plaintiff to conduct discovery should the FBI fail to produce

documents and/or records responsive to his FOIA request.” Id. at 160. 

4. FBI’s Motion for Reconsideration and District Court’s

Revised Order

The FBI moved for reconsideration of the district court’s order. It claimed

that (1) the redacted material in the Freeh Memorandum was exempt from

disclosure because it would compromise the identity of and information provided

by a confidential informant; (2) the BOMBROB-Funding Memorandum did not

reference the SPLC and therefore was not responsive to Mr. Trentadue’s initial

FOIA request; and (3) the additional search ordered by the court would be unduly

burdensome. 

In support of its motion, the FBI submitted a third declaration from David

Hardy. Hardy stated that file number 174-OC-56120, one of the three files to be

searched under the court’s order, contained about 1,152,000 pages. He asserted

that the manual search ordered by the court would be “extremely time consuming
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and unprecedented in the history of the FBI FOIA Program.” Id. at 204. (The

agency’s brief below estimated that such a manual search would require

“thousands of work hours to complete.” Id. at 192.) Mr. Hardy also described

interim search efforts that the FBI had conducted in an attempt to comply with the

order. He said that the FBI had manually searched two of the three files named in

the order, which contained about 4,100 pages. And with respect to the 174A-OC56120 file, the agency had performed an electronic search. He described that

search as a 

“text search” of the ZyIndex which is not a shared drive, but rather is

an automated system component which has been used by the

OKBOMB Task Force. ZyIndex is an off-the[-]shelf software

application that indexes words and phrases to allow an electronic

retrieval of documents. An initial “text search” conducted on the

ZyIndex indicates that there are approximately 340 documents that

are potentially responsive to plaintiff’s request. It took two

individuals two days to conduct this burdensome search of the index

for the terms “Elohim/Poverty;” “Elhoim/Poverty;”

“OKBOMB/Poverty;” “BOMBROB/Poverty;” “McVeigh/Poverty;”

“Guthrie/Poverty;” “Nichols/Poverty;” “Mahon/Poverty;”

“Millar/Poverty;” “Brescia/Poverty;” “Langan/Poverty;” and

“Strassmeir/Poverty.”

Id. at 205 (footnotes omitted). The 340 potentially responsive documents had not

yet been reviewed by the agency to weed out duplicates and to determine whether

the documents were responsive and not covered by FOIA exemptions. 

In addition, Mr. Hardy provided the context behind the FBI’s teletype

instructing its field offices not to upload into the ACS system any documents

from the investigation into the death of Mr. Trentadue’s brother. Such uploading,
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Mr. Hardy explained, would have made the text of these classified documents

available electronically, thereby jeopardizing the security and privacy of FBI

employees. (Apparently, some FBI employees were subjects of the investigation

and others were witnesses.) The documents would still be retrievable through an

electronic search of the FBI’s computerized indices. 

The district court stayed its initial order pending further briefing. It added

that “[t]o the extent that [the FBI has] discovered documents that are responsive

to Plaintiffs’s FOIA requests (as interpreted by [the FBI]) and to which [the FBI

does] not assert any FOIA exemption, [it] shall produce such documents as they

become available.” Id. at 239. On July 22, 2005, the FBI produced 17 documents

and filed a “Notice of Release of Documents to Plaintiff” with the court. Id. at

240.

Still unsatisfied, Mr. Trentadue filed a response to this notice on July 28,

2005. He claimed that the documents produced were improperly redacted and

that the FBI could have produced more documents because (1) the documents

produced referenced other responsive documents (e.g., enclosures with teletypes)

that were not produced; (2) the oldest document produced was generated a week

after the Oklahoma City Bombing, even though the FBI’s undercover

investigations had allegedly begun before the bombing; and (3) the FBI still had

not yet performed searches using the terms “Morris Dees” or the initials “SPLC.”
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The FBI responded that its production of the 17 documents was not in bad

faith. It maintained that it had not omitted documents that were referenced by the

documents it had produced. Another declaration from David Hardy explained that

“[i]f a released document referred to or referenced another document, the referred

to or referenced document was also released if it, too, was responsive to

plaintiff’s FOIA requests . . . .” Id. Vol. 2 at 497. Likewise, “[e]nclosures

referred to by a released document were included in the July 21 release, if the

enclosures were located in the FBI’s search. There were two such enclosures.” 

Id. at 498. Hardy noted that follow-up searches were sometimes necessary to

locate these enclosures, because “[a]s a general matter, in the filing process,

enclosures often become separated from their cover documents.” Id. Two

enclosures were not located. One was a floppy disk; Hardy stated that “[f]loppy

disk enclosures are destroyed in the ordinary course.” Id. The other was a

newspaper article, although the article was “identified [in the released document]

with sufficient specificity for [Mr. Trentadue] to obtain the document from public

sources, should he so desire.” Id.

In an order issued on March 30, 2006, the district court declined to

reconsider its earlier finding that the FBI’s initial search had not been reasonably

calculated to uncover responsive documents. The court did, however, agree with

the FBI that it need not produce the BOMBROB-Funding Memorandum, whose

failure to mention either Dees or the SPLC made it nonresponsive to
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Mr. Trentadue’s initial FOIA requests. And it agreed with almost all the FBI’s

redactions. Most relevant to this appeal, it “relieved [the FBI] of conducting a

manual search of the OKBOMB file . . . .” Id. Vol. 3 at 902. Instead, the court

ordered the FBI to conduct searches like those already conducted but using the

names “Morris Dees” (overruling the FBI’s privacy contention) and “SPLC” (the

FBI had employed the search term poverty in its ZyIndex to cull documents

mentioning the Southern Poverty Law Center). The court noted:

[I]t is so troubling that . . . the disclosed documents also refer to

other attachments that at one time appear to have accompanied the

document, yet these documents have not been produced. While the

FBI’s failure to discover documents is not necessarily an indication

of bad faith, it is puzzling that so many documents could be

referenced but not produced. But given the nature of Plaintiff’s

initial FOIA request and the searches that have been conducted by

the FBI thus far, the court declines to order further searches beyond

what the court has ordered above. It appears likely, however, that

the FBI has not seen the last FOIA request from Plaintiff.

Id. at 901. After further searching, the FBI produced one additional document.

5. Mr. Trentadue’s Motion for Discovery and District Court’s

Ruling

In February 2007, eight months after the FBI’s production of the additional

document, Mr. Trentadue filed the motion that generated this appeal. The motion

seeks authorization to take videotaped depositions of Terry Nichols, who was

convicted for his role in the Oklahoma City Bombing, and David Paul Hammer, a

death-row inmate who claimed to have discussed the bombing in detail with

Timothy McVeigh while the latter was on death row. In the motion
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Mr. Trentadue reiterated his allegation that the FBI’s production of documents

had been in bad faith because other responsive documents—especially ones

created before the bombing—had to be in FBI files. The depositions of Nichols

and Hammer, he asserted, would “set forth facts establishing a link between

Elohim City and the Murrah Building bombing,” thereby “establishing FBI

Defendants’ apparent complicity in that crime through informants,” id. Vol. 4 at

988, and would provide evidence of “FBI Defendants’ bad faith response to

Plaintiff’s FOIA requests,” id. at 1008. To support his motion, Mr. Trentadue

submitted declarations by Hammer and Nichols, both of whom gave accounts of

alleged involvement of government informants in the bombing.

The FBI opposed the motion, arguing: (1) the district court lacked

jurisdiction to grant discovery because the district court had already resolved all

issues in the case and had no authority under FOIA to order discovery designed

only to further a private investigation into terrorism; and (2) Mr. Trentadue had

provided no grounds for reopening the case under Federal Rule of Civil Procedure

60(b) and had presented no evidence to support a suspicion that Defendants had

inadequately responded to his FOIA request.

Stating that it had never closed the case, the district court granted

Mr. Trentadue’s discovery request. With respect to the merits of the discovery

request, the court cited its earlier order stating that “[u]pon motion, the court will

allow Plaintiff to conduct discovery should the FBI fail to produce documents
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and/or records responsive to [his] FOIA requests.” Id. at 1155 (internal quotation

marks omitted; first brackets in original). The court then explained:

In light of (1) the court’s previous finding that the FBI’s original

search was not reasonably calculated to locate responsive documents;

(2) the troubling absence of documents to which other documents

referred; and (3) the information that Plaintiff has thus far discovered

from Terry Lynn Nichols and David Paul Hammer, the court is

persuaded that it continues to maintain jurisdiction over this action,

and, furthermore, that by allowing the requested depositions,

Plaintiff may be better able to identify the existence of other records

responsive to his FOIA request that have not yet been produced.

Id. 

The FBI filed a motion for reconsideration. It reiterated its earlier

arguments, but also stressed that discovery in a FOIA action should be limited to

“the scope of the agency’s search for responsive documents and its indexing and

classification procedures,” not expanded into “a fishing expedition into the

investigatory action taken by the agency . . . .” Id. at 1161. Because Nichols and

Hammer lacked any knowledge of the FBI’s search for records, the FBI argued,

deposing them would be tantamount to “conduct[ing] discovery into the

Oklahoma City bombing investigation,” an unprecedented move given that neither

Mr. Trentadue, nor the court, cited any authority allowing for depositions of

nonagency personnel. Id. The FBI also argued, alternatively, that the court

should prohibit video recording of the depositions out of concern for prison

security.
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The district court denied Defendants’ motion except that it ordered that the

video show only the deponents and placed other restrictions on the use of videorecording equipment. The court closed the case, but added that “[i]f Plaintiff is

correct and through these depositions he discovers the existence of records

responsive to Plaintiff’s FOIA request, he may file a motion to reopen the case.” 

Id. at 1313.

III. DISCUSSION

The issue before us on appeal is whether the district court properly

authorized the depositions of Nichols and Hammer. The FBI argues that such

discovery is inappropriate because (1) the FBI has submitted detailed affidavits

establishing the reasonableness of its search, and the district court never found

the described search to be inadequate or to have been conducted in bad faith; (2)

discovery in FOIA proceedings is limited to the adequacy of the agency’s search

processes, not its outcome; (3) the depositions of Nichols and Hammer can

provide no information about the nature or scope of the agency’s search; (4) the

declarations of Nichols and Hammer do not even mention the Southern Poverty

Law Center or Morris Dees, which are the subjects of the FOIA request; and (5)

videotaped depositions of federal prisoners present substantial security concerns.

We review the district court’s discovery order for abuse of discretion. See

Wood v. FBI, 432 F.3d 78, 82 (2d Cir. 2005) (discovery in FOIA case). “A

district court abuses its discretion where it commits a legal error or relies on
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clearly erroneous factual findings, or where there is no rational basis in the

evidence for its ruling.” Breaux v. Am. Family Mut. Ins. Co., 554 F.3d 854, 866

(10th Cir. 2009) (internal quotation marks omitted).

In our view, issuance of the discovery order was an abuse of discretion. 

The only proper purpose that we can see for the depositions of the two prisoners,

Nichols and Hammer, would be to establish that the FBI likely possesses

documents encompassed by Mr. Trentadue’s request. But taking the depositions

for that purpose would be improper because (1) Mr. Trentadue has provided no

reason to doubt (a) that the FBI has performed the searches described in the

declarations submitted by it and (b) that there are no reasonable methods by

which the FBI could locate the requested records beyond those described in the

declarations; and (2) there is no reason to believe that the depositions could

produce evidence of the existence of unproduced responsive records. 

First, as we explained at the outset of this opinion, the issue in a FOIA

lawsuit challenging an agency’s search for records is not whether there exist

further documents responsive to a FOIA request but whether the agency

conducted a reasonable search for responsive documents. Perhaps the FBI’s

initial search was inadequate (an issue we need not address), but the searches

ultimately conducted were very thorough. Not only did it search its CRS indices

for records described in Mr. Trentadue’s FOIA request, but it manually searched

two files and conducted a ZyIndex search of the principal file relating to the
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Oklahoma City Bombing. Apparently, the only additional search that could have

been conducted would have been a manual search of more than one million pages

in that principal file—a search that, according to the FBI, would be an

unprecedented FOIA effort by the agency that would take thousands of hours of

work. To be sure, the FBI’s description of its search effort was in the form of a

declaration, not cross-examined testimony. But declarations and affidavits are the

widely accepted, even the preferable, means for an agency to respond to concerns

about the adequacy of a FOIA search. We agree with the Sixth Circuit:

In discharging this burden [to show the adequacy of its search], the

agency may rely on affidavits or declarations that provide reasonable

detail of the scope of the search. In the absence of countervailing

evidence or apparent inconsistency of proof, such affidavits will

suffice to demonstrate compliance with the obligations imposed by

the FOIA.

Rugiero, 257 F.3d at 547 (citations, brackets, and internal quotation marks

omitted). See Becker v. IRS, 34 F.3d 398, 405 (7th Cir. 1994) (“An agency may

establish the reasonableness of its search through affidavits.”); Church of

Scientology of Cal. v. IRS, 792 F.2d 146, 151 (D.C. Cir. 1986) (Scalia, J.)

(“Summary judgment . . . would require an affidavit reciting facts which enable

the District Court to satisfy itself that all appropriate files have been searched,

i.e., that further searches would be unreasonably burdensome. Such an affidavit

would presumably identify the searched files and describe at least generally the

structure of the agency’s file system which makes further search difficult.”);
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Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (per curiam) (“The

peculiarities inherent in FOIA litigation, with the responding agencies often in

sole possession of requested records and with information searches conducted

only by agency personnel, have led federal courts to rely on government

affidavits to determine whether the statutory obligations of the FOIA have been

met.”); James T. O’Reilly, supra § 7:5 at 165 (“In general, an agency search is

adequate where the affidavit shows a good faith effort to use reasonable means to

produce the information sought.”). “Discovery relating to the agency’s search

and the exemptions it claims for withholding records generally is unnecessary if

the agency’s submissions are adequate on their face, and a district court may

forgo discovery and award summary judgment on the basis of submitted affidavits

or declarations.” Wood, 432 F.3d at 85 (brackets and internal quotation marks

omitted).

An agency “is not required to reorganize its filing system in response to

each FOIA request,” Goland, 607 F.2d at 370; and Mr. Trentadue has failed to

suggest any search method that the FBI has not used other than a manual search

of the primary Oklahoma City Bombing file—an unreasonably burdensome search

that the district court ultimately relieved the FBI from undertaking. Nor has

Mr. Trentadue presented any reason to believe that the FBI’s descriptions of its

searches have been flawed in any respect. He and the district court have

expressed surprise and concern that the agency did not produce enclosures and
-28-

other documents referenced in disclosed documents; but the declaration from the

section chief of the FBI’s Record/Information Dissemination Section explained

that only two enclosures (a floppy disk destroyed in the ordinary course and a

newspaper article) were missing and the undisclosed cross-referenced documents

were not covered by Mr. Trentadue’s FOIA request. In sum, the FBI’s

declarations provide an internally consistent and uncontradicted record that it

conducted an adequate search for the documents requested by Mr. Trentadue. See

SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (“Agency

affidavits are accorded a presumption of good faith, which cannot be rebutted by

purely speculative claims about the existence and discoverability of other

documents.” (internal quotation marks omitted)). 

In this light, the discovery sought by Mr. Trentadue cannot be justified. He

has failed to show any possibility that the depositions of Nichols and Hammer

would produce relevant evidence in this case. See Oppenheimer Fund, Inc. v.

Sanders, 437 U.S. 340, 351–52 (1978) (“Discovery of matter not ‘reasonably

calculated to lead to the discovery of admissible evidence’ is not within the scope

of Rule 26(b)(1).”); Fed. R. Civ. P. 26(b)(1) (discovery permitted if it is

“reasonably calculated to lead to the discovery of admissible evidence”); see also

id. 26(b)(2)(C)(iii) (courts must limit otherwise-permissible discovery if “the

burden or expense of the proposed discovery outweighs its likely benefit,

considering the needs of the case, the amount in controversy, the parties’
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resources, the importance of the issues at stake in the action, and the importance

of the discovery in resolving the issues”). Nichols is a convicted coconspirator in

the Oklahoma City Bombing and Hammer is a death-row inmate and alleged

confidant of Timothy McVeigh, who has been executed for the offense. Nichols

and Hammer clearly have no knowledge regarding FBI procedures in filing and

searching for records—which are the only relevant matters in FOIA litigation

challenging an agency’s records search. Only present or past agency employees

would have knowledge of those matters, which readily explains why we have

been cited to no precedent for deposing nonagency personnel in FOIA cases. 

Mr. Trentadue (and apparently the district court) may have supposed that the

depositions would reveal that the FBI must have created a record that has not

been produced in response to Mr. Trentadue’s FOIA request. But even if the

existence of such a record were relevant, it is pure speculation that such a

revelation would be forthcoming. After all, Mr. Trentadue’s FOIA request was

limited to records relating to Morris Dees and the SPLC, yet the declarations of

Nichols and Hammer submitted by Mr. Trentadue to the district court make no

mention of either Dees or the SPLC.

To conduct the discovery requested by Mr. Trentadue would be an abuse of

judicial process.

IV. CONCLUSION
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We REVERSE the district court’s order granting Mr. Trentadue’s motion to

conduct discovery. The parties’ motions to supplement the appendix and the

record are DENIED.