The missing fingerprints, part 4*

(*or the myriad ways to answer a yes-or-no question)

In a mid-day moment of inspiration, I realized that I could contact the FBI’s public affairs office seeking comment about their actions on Ronald Tammen. As a former fed who had worked in other public information offices, I knew that reporters did that sort of thing all the time. In fact, it always made me proud to live in a country where a reporter could contact a government agency with questions and have them directly responded to. They could be from anywhere—the New York Times or the Pahrump (Nevada) Mirror. Readership didn’t matter. Here I was, a wannabe author, a quasi member of the press. Why couldn’t I do it too?

On October 29, 2015, I sent the following to the FBI public affairs office:

For a book I am writing, I’m seeking comment from an FBI spokesperson on the following:

Background:

It appears from FBI’s past actions that the FBI has confirmed Ronald Tammen, Jr., (FBI #358 406 B), who has been missing since 1953, to be deceased. This is evidenced by the following:

— Tammen’s fingerprints were expunged from the CJIS database in 2002, when Mr. Tammen would have been 69 years of age. It is CJIS policy to expunge fingerprints when a person is 110 years of age or seven years after a person’s confirmed death.

— In 2010, the FBI’s FOIA office released to me documents on Tammen  without requesting authorization or proof of death. Likewise, authorization or proof of death was not requested for Lyndal Ashby, whom I’ve subsequently discovered died in 1990. Such proof was required for missing persons William Arnold and Raymond Harris. 

Questions for Comment:

For these reasons, I am seeking a comment from an FBI spokesperson in response to these questions:

Is it true that the FBI has confirmed that Ronald H. Tammen, Jr., is dead?

IF YES:

1. How did the FBI confirm Ronald Tammen, Jr.’s, death?
2. When did the FBI confirm Ronald Tammen, Jr.’s, death?
3. Where is Mr. Tammen’s body?

IF NO:

1. Why were Ronald Tammen’s fingerprints purged in 2002?

If the FBI confirms a death of a missing person, is the next of kin usually notified?

IF YES:

1. Why didn’t the FBI notify surviving members of the Tammen family that they had confirmed Ronald Tammen’s death?

Thank you, in advance, for your responses to these questions.

Yeah, I know, I could have eased up on all the follow-up questions and just left it at the single yes-or-no question for starters. I could have always followed up later. However, if the FBI hadn’t confirmed Ron Tammen to be deceased, any PR rep worth his or her salt could have easily provided the shortest of responses and sent me on my way. Something like: The FBI has no additional information that would confirm whether the subject is alive or dead. Unfortunately, we have no information as to why his fingerprints were destroyed in 2002. Seriously, that’s all they’d have had to do—if the FBI hadn’t confirmed Ronald Tammen to be dead, that is.

Instead, I received this email:

“Thanks for contacting the FBI.  Your request was forwarded to me for review and handling.  I contacted the FBI’s Criminal Justice Information Services Division (CJIS).  They informed me that you should submit a FOIA request in order to obtain the information you are seeking.  The following link will provide some guidance on submitting a FOIA request https://www.fbi.gov/foia/sample-fbi-foia-request-letter.  If you have further questions, do not hesitate to email or call me.  Thanks again for contacting the FBI.”

As instructed, I didn’t hesitate to call her. To my surprise, she picked up. Here’s how our conversation went, taken from notes I’d written after-the-fact (comments are paraphrased as closely as I could recall at the time):

I told her I had already been through the FOIA process and there are no more documents. Because of my lawsuit, I’m not even allowed to submit a FOIA request on the Tammen case unless I think there is a source that hasn’t been searched. I said that I was seeking a statement from the FBI saying whether Ronald Tammen was dead based on their actions.

FBI rep: I asked them, and they said that you needed to submit a FOIA request.

JW: I FOIA’d information on four guys. You returned docs on two of them, and for the other two, you told me I had to prove they were dead or I needed their approval. The other guy whose docs you sent to me—Lyndal Ashby—I’ve since discovered is dead. Which leads me to believe that you know that Ron is dead. You also discarded Ron’s fingerprints, which is another sign that you think he’s dead. And that is what I’m asking. Something is causing you to act in a certain way and I am requesting a statement based on your actions.

FBI rep: The FBI has a right to decline requests.

JW: So the FBI is declining my request for a statement? Are you a spokesperson?

FBI rep: No, ma’am. You cannot use me as a spokesperson.

She then said that they were declining on the basis that they didn’t have documents to back up what I was asking for.

JW: I feel like we’re going in circles here. It’s not about documents. It’s about actions. Something is causing the FBI to treat these cases differently. I’m seeking an FBI statement on whether the FBI has concluded Ron Tammen to be dead based on your actions.

Again, she said that I would not be receiving a statement from them.

My reasoning during that thoroughly enjoyable exchange was I felt that there must be some way in which the FBI’s FOIA office could tell whether or not Ronald Tammen was confirmed dead without having the information exist in document form. Remember that FOIA is all about documents, be they hard-copy or electronic. I wondered if there were some database that they could check.

Regardless, the public affairs rep was so insistent that I submit a FOIA request, I wondered what request I might be able to submit that didn’t drift into the forbidden territory of my former lawsuit. I decided that emails were fair game and submitted a FOIA request on all internal communication that was sent among CJIS staffers pertaining to their decision to purge Tammen’s fingerprints in 2002.

Several weeks later, I was told that they’d checked their Central Records System (CRS) and came up empty. I appealed on the basis that, while I was no expert, I didn’t think staff emails would be in their CRS, which is the catch-all system that holds current and past case files on virtually everyone whose ever been investigated by the FBI, from Al Capone to Busic Zvonko, and anything else on its radar. In my view, employee emails would be stored on an email server. In March, I received a response from an Appeals staff member, who boiled things down to this:

“After carefully considering your appeal, I am affirming the FBI’s action on your request. The FBI informed you that it could locate no records subject to the FOIA in its files. I have determined that the FBI’s response was correct and that it conducted an adequate, reasonable search for records responsive to your request. The FBI determined that, depending on the reason for the purge, there would have been no emails created, or if there were, they would be well past the records retention period for such records.”

So there were no emails. I think I’ve mentioned before that I don’t take no for an answer terribly well, especially when I think I’m being yanked around. However, another awesome aspect of our democracy is that an average citizen such as myself can contact her or his congressional representative or senator for assistance with a federal agency that isn’t being particularly responsive in providing a service that is part of its mission. Most requests probably have more to do with Social Security checks, veterans’ benefits, and whatnot, not so much journalistic inquiries seeking an answer to a yes-or-no question. Nevertheless, I thought I’d give it a whirl. I contacted my senator, and asked if he’d be willing to approach the FBI on my behalf. He accepted my request and one of his staffers contacted the FBI’s Office of Congressional Affairs with my question and related follow-ups.

I was optimistic. They could give my small-potatoes self the brush-off, but a sitting U.S. senator? Surely, they’d address any questions coming from him promptly and truthfully.

A little over two months later, the FBI’s deputy general counsel at the time—a guy named Gregory A. Brower—contacted my senator with a response.

It opened like this:

“This letter is in response to your email dated March 29, 2016, which was sent to the Federal Bureau of Investigation (FBI) on behalf of your constituent, Ms. Jennifer W. Wenger, who is requesting information as to whether or not the FBI searched Sentinel as part of her original FOIA request. The matter was referred to the FBI’s Office of the General Counsel (OGC) for response.”

How my simple question about whether or not they’d confirmed Tammen to be dead morphed into “whether or not the FBI searched Sentinel,” I’m not sure. Before that moment, I’d never heard of Sentinel.

“Sentinel is the FBI’s next generation case management system for FBI investigative records generated on or after July 1, 2012,” Mr. Brower explained. Since Tammen’s case was from 1953, it obviously wouldn’t apply. Fine, I thought, but what about the question I’d actually asked?

Mr. Brower then went into great detail about my entire FOIA experience with them, reliving every thrilling twist and turn, even disclosing information to my senator that I’d been told by my lawyer I was not permitted to make public. I’m not going to reveal that information on this blog, despite Mr. Brower’s (perceived) breach, because, quite frankly, I don’t want to piss these guys off any more than I already have. Truth be told, they seem humorless. If I showed you the letter, you’d see what I mean.

But there was something else that Mr. Brower told my senator that I couldn’t let go unchallenged. Mr. Brower spoke of how “Ms. Wenger received unprecedented access” and, later, “Ms. Wenger obtained special access” to certain information concerning the Tammen investigation as part of our settlement agreement.

His use of the terms “special” and “unprecedented” to describe my access to information about the Tammen case is, well, slightly overstated. As I’d discovered by then, the information I received is available to any person on the planet with an internet connection. Sure, they tailored it to their liking by rearranging a few sentences, switching out a couple of words, and adding two tidbits of info that took a minimal amount of research, but it was pretty much wholly ripped off from a write-up found on a well-known missing persons website called The Charley Project. The good news is that you won’t have to pay thousands of dollars in legal fees to access it. I give you, Good Man followers, the source of the FBI information that I received as a result of my settlement:

http://charleyproject.org/case/ronald-henry-tammen-jr

(If you’re wondering when The Charley Project had posted the original version, I contacted the person who manages the website to find out. She told me she was the author and she posted it on March 1, 2005. I’m thinking some FBI staffer lifted it from the website around the time Frank Smith came calling requesting Ron’s fingerprints in 2008, but that’s just a hunch.)

OK, back to my little saga. I made the above points to my senator’s staffer—that the FBI didn’t address the question at hand, that this wasn’t a FOIA request, and that my access to information from the settlement was neither special nor unprecedented—and, God bless him, he went back to Mr. Brower on my behalf.

Mr. Brower’s response was a lot shorter, and again, he stuck with his original talking points: she sued us, we settled, we don’t have to give her another thing on Ronald Tammen. He closed with this:

“If she has questions about the FBI’s response to her FOIA request, which was resolved by the settlement agreement, she should pursue resolution through the proper legal avenues.”

I thanked my senator and his staffer for their efforts, and decided that the FBI’s wall was impenetrable. I gave up, and moved on to other parts of my research.

Until last week, that is. As I was writing up this blog post, I started mulling over what a database would be like in which the FBI tracks anyone who has been fingerprinted. We already know that fingerprints and other biometric information are kept in a giant database called Next Generation Identification (NGI). Let’s imagine that there’s a field in which information can be entered stating whether or not a person has been confirmed dead, and, if so, the date in which they were confirmed dead. To the best of my knowledge, that information wouldn’t be considered FOIAable. It would be one or two fields in a ginormous database, not a bona fide document. But without such a system, how would they even know when it’s time to purge a confirmed dead person’s fingerprints after seven years—the institutional memories of its employees?

“Hey, Fred?”

“Yeah, Barney?”

“Wasn’t it seven years ago that we finally learned that Mr. Slate had died? You know, the guy from Pahrump whose fingerprints we’ve had on file since the 1970s?”

“Has it been seven years? Well, I’ll be. You’re right!”

“I’d say it’s high time we expunged those prints!”

Methinks not. With a fair amount of trepidation, I decided that I needed to go back to the FBI one more time. This was, after all, a question about departmental protocol. I wasn’t asking them about Ronald Tammen, Lyndal Ashby, or anyone else in particular. I just wanted to know how CJIS knew when it was time to purge fingerprints. Maybe no individual is alerted. Maybe the deadline hits and the fingerprints are expunged automatically. Either way, that would be a hypothetical means in which the FOIA office could retrieve info that stated whether someone listed as missing had been confirmed dead.

Last Tuesday, I sent an email to the public affairs person who’d contacted me before, requesting an answer to that question within the week. No one has responded in time for this post. (Of course, you’ll be the first to know if anyone does.)

At least one point bears repeating, a point that reaffirms my faith in the decency of people. If the FBI hasn’t confirmed Tammen to be dead, “NO” would have been the most obvious and easiest of responses to my question. Instead, some representatives hid behind FOIA, while another used legalese as pushback and even changed the question. If the FBI has confirmed Tammen to be dead, no one lied to me. If someone from that organization knows the answer to be “YES,” perhaps he or she can be convinced that the right thing to do is to come forward and let Tammen’s surviving family members know what happened. You know how to reach me. And I won’t share your name with a soul.