How to submit a FOIA Request for VA Claims
FOIA requests can be an extremely beneficial tool when gathering evidence to support a veteran’s claim for VA disability benefits. However, filing a FOIA request can be a frustrating process. To learn what a FOIA request is and how to submit one, continue reading.
What Is FOIA?
FOIA is an acronym that stands for Freedom of Information Act. The Freedom of Information Act is a statute (i.e., a federal law). It was passed in 1967 and provides the public with the right to request records from any federal agency.
Under the Freedom of Information Act, federal agencies are required to disclose any information requested — with a few exceptions.
What Are the Exemptions to the Freedom of Information Act?
The Freedom of Information Act has nine exemptions in which federal agencies are not required to release the information that was requested. These exemptions are:
- The information needs to be classified in the interest of national defense or foreign policy;
- The information is related solely to the interpersonal rules and practices of an agency;
- The information is protected from disclosure by another statute;
- The information protects trade secrets and commercial or financial information that is obtained from outside the government;
- The information is records exchanged within or between agencies that are normally privileged in the civil discovery context, meaning records that are protected by the deliberative process privilege and are less than 25 years old, attorney work-product privilege, or attorney-client privilege;
- The information is about individuals in personnel and medical files and would constitute a clearly unwarranted invasion of personal privacy;
- The information is compiled for law enforcement purposes, but only to the extent that the information:
- Could reasonably be expected to interfere with enforcement proceedings,
- Could deprive a person of their right to a fair trial,
- Could be an unwarranted invasion of personal privacy,
- Could be expected to disclose the identity of a confidential source,
- Could disclose techniques and procedures for law enforcement investigations or prosecutions,
- Could endanger the life or physical safety of any individual;
- The information is related to the supervision or regulation of financial institutions; and
- The information protects geological and geophysical information and data, such as maps, concerning wells.
What Is the Privacy Act of 1974?
The Privacy Act of 1974, which was amended to the present-day 5 U.S.C. 552a, protects individuals against unwarranted invasions of their privacy stemming from federal agencies’ collection, maintenance, use, and disclosure of personal information about them. Examples of this information include a person’s name; social security number; or other identifying number or symbol.
What is a FOIA Request?
Submitting a FOIA request allows groups or individuals to request documents that are considered public records from government agencies. For VA disability claims, the most relevant agency for FOIA requests is the Department of Veterans Affairs (VA). Veterans may wish to make a FOIA request to obtain files or documents to use as evidence in support of their VA claim or appeal.
How to Submit a FOIA Request
To submit a FOIA request, you must submit a written request for the information you are seeking from the Agency, in this case VA. In this request, it is crucial that you provide enough detail about the documents you are seeking. This allows the VA to easily locate what you are looking for.
Anyone can submit a FOIA request, such as an individual; someone acting on behalf of an individual; or an organization like a law firm. We at CCK have filed countless FOIA requests in pursuit of information.
There is no specific form that needs to be used when making a request. The person, or organization, can also specify the format in which they would like to receive the records, such as printed or in electronic form.
It is important to note that VA has a decentralized system for fulfilling FOIA requests. The type of information or records you are seeking, such as VBA records; VHA records; or military records, will determine the location to which you should submit your request.
VA’s website includes a page about how to use the FOIA service. The page gives information about where to send your written request; how to get in contact with VA’s FOIA service officers; and other helpful details.
Roadblocks to FOIA Requests
Exemptions to the Freedom of Information Act
As mentioned above, there are some exceptions to FOIA requests. VA officials may claim that one of the above-listed exemptions applies to your request, thereby blocking the disclosure of certain documents. However, denials like this can be appealed, as is explained below.
Costs Associated with FOIA Request
There are sometimes costs associated with a FOIA request. If, for example, the type of information you request turns up several thousand pages of documents, then you may be asked to pay a fee for copying and production.
Usually, the FOIA service officer will send you an estimated cost and ask if you would like to accept the charges and receive the documents, or, alternatively, refuse the charges and therefore the documents. As such, you will be given written notice before any fees are charged to you.
Lengthy FOIA Request Process
FOIA requests are processed by the Agencies that receive them, in the order that they are received. The time it takes to process a request can depend on a variety of factors, such as the Agency that is processing the request; the complexity of the request; and how backlogged the Agency, or VA in this case, that received the request is.
Requests can also be categorized as simple or complex. A simple request is one that may be more targeted and require fewer pages of records. A complex request is typically for a high volume of documents and may take additional steps to process, search for, and send the records. Simple requests can be processed faster than complex ones.
All these factors can contribute to how long a FOIA request can take. At CCK, we have seen some requests take months to be fulfilled.
What Happens When VA Denies a FOIA Request?
If you disagree with the denial of your initial request, then you can file an administrative appeal with VA to try to overturn the determination.
If VA (or another Agency) continues to deny the request, and you have exhausted the administrative appeal process, then you can take the appeal to a U.S. District Court.
How Does CCK Use FOIA for Our Clients?
As a law firm, we find that FOIA is most useful when we identify problematic trends within the agency. We might submit a request when, for example, we notice that VA is regularly making decisions based on a misstatement or misinterpretation of the law.
When we notice systemic or global problems like this, problems that are affecting many of our clients, we submit a FOIA request. In the request, we ask for information that might help us uncover why the problem is ongoing and will help us make the best argument that we can on our clients’ behalf.
