FOIA, which stands for the Freedom of Information Act, is a statute (i.e. a federal law). FOIA allows groups or individuals to request documents that are considered public records from government agencies. This week, CCK attorney Maura Clancy and founding partner Robert Chisholm break down the FOIA process and discuss how to submit a FOIA request, how to fight back if the VA denies your request, and how we use FOIA to benefit our clients.
Robert: Hi, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick and with me today is —
Maura: Maura Clancy.
Robert: And, we’re going to be talking today about FOIA. So Maura, what is FOIA?
Maura: FOIA stands for the Freedom of Information Act. It is a statute and it is a way that we can actually request documents that are considered public records from government agencies, in particular from VA.
Robert: And because we work with VA, we make a lot of requests under the Freedom of Information Act, FOIA.
Maura: Yes we do.
Robert: Okay. And so, can you tell me in general terms how one goes about and makes a request?
Maura: Sure. So, to submit a FOIA request is very simple. You just need to submit a written request for the information that you’re seeking to the FOIA service for the agency that you’d like the information from. There’s a webpage on the VA website about how to use the FOIA service. You just need to be able to describe with enough detail the documents that you’re seeking.
Robert: And, can anyone seek records? It doesn’t just have to a law firm for example?
Maura: No, it can be an individual. It can be somebody acting on behalf of an individual or in our case, it can be a law firm.
Robert: Okay. So if you make a request, if one makes a request under FOIA, does the government have to turn over everything?
Maura: Well, if the documents that you’re seeking are disclosable under FOIA, and they’re public records, they should eventually turn them over. But, there are many exemptions under the statute that they might claim apply and forbid disclosure of the documents so you might run into some hurdles that way.
Robert: Are there any costs associated under FOIA that you have to pay for example?
Maura: Yes. There can be costs associated if you request voluminous documents or you know several thousand pages of documents that get turned up in response to your request. But usually, the FOIA service officer will send you an estimate and ask if you would like to accept the charges and receive the documents. So you do have a way out before you’re charged the cost.
Robert: So you will get some kind of written notice either yes, we’re going to turn over the documents or yes, if you pay a hundred dollars, we’re going to turn the documents or no?
Robert: We’re not going to turn over the documents at all.
Robert: Okay. If the VA says, “No, we don’t want to turn over those documents.” What are the options then?
Maura: Well, if they give you a letter that says, you know essentially denying your request and then they give you the reasons why they don’t believe they have to produce the documents, you do have a way to appeal those determinations. Usually, those letters will give you instructions for how to submit an appeal. So if you are not satisfied with the denial or you believe that it was incorrectly made, you can file of an administrative appeal within the agency as to that determination.
Robert: And eventually, if the VA continues to deny it or whatever agency, I think you have the right to go to U.S. district court.
Maura: Yes. As long as you follow the procedures for the appeal, you can end up in court.
Robert: So, in practical terms, why would we as a law firm want to use FOIA?
Maura: We find that FOIA is most useful when we identify certain problematic trends in the agency or we notice that the agency is making decisions on a regular basis that are based upon a misstatement of the law or a misinterpretation of the law. So when we notice a problem like this that’s more systemic, more global, it’s affecting a lot of our clients, we try to submit a FOIA request for information that might help us uncover why this problem is ongoing at the agency level and maybe what information we can obtain to help us make the best arguments that we can on our clients’ behalf.
Robert: So it’s really an opportunity for us to see what the agency is doing sort of on a global level in some cases, and then to prepare our best arguments for those clients to help them win their claims.
Robert: Can you give a concrete example of one of these FOIA request that we’ve done recently?
Maura: Sure. So recently we received a determination in one of our client’s cases and VA was citing a policy letter that’s issued by the AMO or the Appeals Management Office, and we had never seen any reference to this policy letter before. We had never been able to read the policy letter. So, in order to make successful arguments on our client’s behalf in that particular case, we FOIA-ed a copy of the policy letter because we don’t believe we can effectively do our job without knowing what kind of administrative decisions and policies are being handed down in VA.
Robert: It sounds kind of secret if they have a secret policy that we don’t know about. So as soon as we learn about the secret, we have to ask about it.
Maura: Essentially yes, I mean we don’t want to be going in blind in the way we make arguments and if they’re giving us a reason to believe that they are denying claims based on information that we don’t have access to, that’s certainly something that we want to submit a FOIA for because we can probably obtain it that way.
Robert: So one of the other things I think that we’ve done as a law firm is, we’ve been having trouble getting decisions from the VA for our clients. So the VA has an obligation under the law to send us written notice of a decision so that if we disagree with it or the client disagrees with it, they can appeal. What have we done about that?
Maura: We noticed as you said that an ongoing problem is the lack of receipt of decisions. And so, as a result, we weren’t always having enough time to prepare appeals because the decision being mailed to us is what triggers the deadline and so it would eat into our deadline time. So, we submitted a FOIA request to VA for all of the decisional documents that were issued in our clients’ cases in about a two and a half year span. And we were hoping to get this data from VA and cross-reference with our records and determine in which case are we missing a decision and in which case do we potentially have a problem with respect to an appeal deadline.
Robert: So that sounds really serious to me and if I were a veteran, I’d be concerned that my representative wasn’t given a copy of the decision. But, if the VA fails to mail us the decision and we don’t appeal it within the timeframe, that’s on VA. It’s not on us and we can make arguments as I understand it, to correct that.
Maura: Right. And having a FOIA request and having our objection to their bad mailing procedure sort of preserved in the way of a FOIA request, gives us a nice way to make an argument that they should accept the appeal out of time because we had good reason for not submitting it before because they simply didn’t mail us the decision.
Robert: So, can you give some other examples of FOIA requests that we’ve done over the years?
Maura: Sure. So, we have submitted a FOIA request for the number of grants for SMC, Special Monthly Compensation. We wanted to see how many of these types of claims VA was granting so we submitted a request for the data. We were able to get it broken down by the type of grant and by the particular year in which it was issued so it gave us a better sense of how they were handling those types of claims.
Robert: So, Special Monthly Comp are benefits in addition to sort of the schedular and they usually involved more serious injuries.
Robert: We also I think made requests for extraschedular information, so grants for TDIU under 4.16(b) and under 3.321 so-called extraschedular grants and that was again an opportunity for us to sort of examine globally over the last few years how many of these grants the agency is making. But that’s not all we do, we also try and get some other things. So, give me one last example if you would.
Robert: I’m thinking about the Board of Veterans’ Appeal here.
Maura: Of course. So, every month, we actually submit a FOIA on the first of every month to the Board of Veterans’ Appeals. It’s a way for us to keep tabs on their production. So we specifically ask for the number of decisions they render, the number of grants, denials, and remands within that number and this gives us a better sense of how many decisions will be coming down the pipeline for our clients, how many of those will be grants, how many denials we need to be mindful of. And it’s also a good way to observe trends over time in how many decisions that the Board is issuing overall.
Robert: So, as we’ve looked at the data over the years, it isn’t — the Board isn’t making the same amount of decisions every month. In fact, it can fluctuate month to month and year to year.
Robert: So it’s important for us to have sort of an understanding of what those numbers look like.
Robert: I don’t have any other thoughts about FOIA. Did you have any last thoughts about it?
Maura: Nothing in particular, just that it’s a really good vehicle for getting information. It’s a good way to identify information on a more global level, not — that’s not particular to one client or to five clients but it can be very helpful as to many claims that we handle. So, it’s a good tool that we use on a daily basis here.
Robert: It is pretty easy too. At the end of the day, you just send in a letter to the right officer and you get the request response one way or the other.
Maura: You just need patience and persistence with the FOIA officers and you can hopefully get what you need.
Robert: Patience and persistence with the VA pays off as well. This is Robert Chisholm and Maura Clancy from Chisholm Chisholm & Kilpatrick. Thank you.