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FOIA Facts: Understanding FBI Records
by Scott A. Hodes

Many FOIA requesters are confused when they make a request to the FBI and get a "no record" response even though they are sure that there is a record on the subject of their request at the FBI. The FBI isn't lying-they just have devised a system that makes requesters to go through hoops to find the information they are seeking.

If a requester sends a FOIA request to FBI Headquarters in Washington, D.C., the FBI will only check its Central Records System for main files indexed to the subject of the records that are maintained in Washington, D.C. However, many records are not indexed as main files to the FBI's Central Records System and many records are not maintained, in any form, at FBI Headquarters. This system was designed by J. Edgar Hoover-and is still pretty much the way the FBI works its records systems. Eventually, the FBI will have a computerized system that will allow its records to be maintained electronically (so that agents in various places will have easy access to them), but it has not yet been developed. (Not for lack of trying, the FBI has sunk millions of dollars into trying to do this, but so far all attempts have been major busts.) The new system will allow searches to be performed like internet search engine searches are done now, but that is millions of taxpayer dollars down the road.

As said above, only certain records are maintained at FBI Headquarters. As almost all investigations take place in a Field Office-not at FBI Headquarters, records of investigations are where the investigation was. While some of the records will be sent to FBI Headquarters, the Field Office will have a record of the investigations done there. So a request made to FBI Headquarters for an investigation may very likely get a "no record" response if the investigation was never reported to FBI Headquarters.

And requests made to FBI Field Offices (and FBI Headquarters as well) for various topics may also come back as "no records" responses if the subject of the request was not indexed as an FBI main-file. Generally, the FBI will index subjects of investigations as "main files" and other items of interest in these files as "cross" or "see" references. A person interviewed in an investigation or of some type of interest to the investigation but not a suspect will often be indexed as a "cross" or "see" reference by the FBI.

When the FBI gets a FOIA request, they usually only search for main files-if someone is a "cross" or "see" reference, So requesters can commonly get a "no records" response even if the request is made to a Field Office where the subject was indexed as a "cross" or "see" reference in the FBI's Central Records System.

The point of this article isn't to argue that the system the FBI uses in searching for FOIA requests is proper or not. It's to allow requesters to make requests that will result in finding the records searched the first time sought. Thus, it is important to make FOIA requests to not only to FBI Headquarters, but to FBI Field Offices. And it is important to ask for main files and "cross" or "see" references. If a request comes back as a "no record" response, make sure to read the letter thoroughly to see what and where the FBI searched. It is not uncommon for "cross" or "see" reference files to not be searched for even if they are sought in the original request. I suggest a follow up request for only the "cross" or "see" reference files if a requester is unsure if these files were searched for initially.

It is important to know that just because someone or something was mentioned in an FBI File; it may not have been indexed as a main file or cross reference. While FBI regulations dictate what should be indexed, there is some discretion, especially to cross or see references. Thus, just because someone's name appears in an FBI file it may not be indexed to the Central Records System. And if it's not indexed, a FOIA request for the records will come back as a "No Records" response almost every time.

Finally, not all criminal records are maintained by the FBI. State and Local criminal investigations and records of crimes not under the jurisdiction of the FBI are not maintained by the FBI. Thus, the FBI will only have records of its investigations, not of the DEA or Immigration Services. Requests for those agencies should be made to the agency that created the record.


About The Author
Scott A. Hodes is a sole practitioner in Washington, D.C., practicing Information and Privacy Law. Mr. Hodes assists clients in gaining access to government records under the FOIA, Privacy Act and other federal agency access provisions. Prior to entering private practice, Mr. Hodes was an attorney at the Department of Justice for over a decade. He served in the FBI's Freedom of Information/Privacy Act Section from 1998 until 2002 as the Acting Chief of that Section's Litigation Unit. Mr. Hodes served at the Department of Justice's Office of Information and Privacy from 1991 until 1998. His website is InfoPrivacylaw.com, and he is a member of the DC and Maryland bars.