FBI Says Files In Leak Cases Are ‘Missing'

SAN FRANCISCO — The FBI is missing nearly a quarter of its files relating to investigations of recent leaks of classified information, according to a court filing the bureau made last week.

In response to a Freedom of Information Act lawsuit, the FBI said it identified 94 leak investigations since 2001, but that the investigative files in 22 of those cases "are missing" and cannot be located. "There is no physical slip of paper on the shelf which indicates that the file has been charged out to a particular FBI employee, so therefore there is no way of knowing where the file may actually be," an official in the bureau's records division, Peggy Bellando, wrote in a December 22 declaration.

"That's an amazing number," an academic who has studied the FBI's record-keeping procedures, Athan Theoharis of Marquette University, said in an interview yesterday. "These are very sensitive investigations. ... They could be called to account for whether they are monitoring reporters. These are records that should be handled very well."

Over the past decade, the FBI has waged an epic struggle to computerize and automate its records systems. The agency abandoned a $170 million "Virtual Case File" project last year after years of Congressional hearings and critical evaluations led to the conclusion that the system would never be implemented successfully.

One frequent critic of government database programs, Barry Steinhardt of the American Civil Liberties Union, said that record makes it understandable that a substantial proportion of the leak files would be mislaid.

"It's par for the course," Mr. Steinhardt said. He noted that the Justice Department has already put about 1 million case records into a database, called OneDOJ, that is being made widely available even though the files may contain unverified or erroneous data. "They want to distribute it to law enforcement in every city in the United States, but here the FBI can't manage its own files," the critic said.

Ms. Bellando's declaration said the 22 missing files pertain to 51 cases listed as closed and not to 43 other leak cases listed as pending.

Last month, a federal judge in San Francisco, Maxine Chesney, ordered the FBI and other agencies to respond by Friday to this reporter's requests for information on the frequency and outcome of leak probes. The requests followed a spate of high-profile federal investigations into press leaks, including a special prosecutor's inquiry into the leak of a CIA operative's identity, as well as a separate case in which two pro-Israel lobbyists and a Defense Department analyst were indicted for trafficking in classified information.

The Justice Department, the FBI, the CIA, and the Department of Defense told Judge Chesney last week that they will be unable to meet the court-imposed deadline and need as many as 120 additional days to complete work on the requests, which were filed in March.

A spokeswoman for the FBI, Catherine Milhoan, said she could not comment on the ongoing litigation, but noted that the records search is continuing and has been complicated by procedures for handling classified materials. She also said all hope for recovering the missing files is not lost. "It doesn't mean there aren't other avenues in place to locate those documents," she said.

Mr. Theoharis, a professor emeritus of history, said that in the 1960s the FBI used procedures known as "do not file" and "summary memoranda" to avoid placing files in the central records system. As a result, he said, the bureau would tell judges or members of Congress that searches turned up no records, when files actually existed in a secondary system.

"There's no reason to think they're not doing the same thing today," Mr. Theoharis said. "I don't want to sound conspiratorial but I don't think one can discount this."