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Department of Veterans Affairs Freedom of Information Act (FOIA)


By: Department of Veterans Affairs

Department of Veterans Affairs Freedom of Information Act (FOIA) Requester’s Reference Guide

Table of Contents

I. Introduction
II. Access to Certain Records without a FOIA Request
III. Where to Make a FOIA Request
IV. How to Make a FOIA Request
V. Response Times VI. Expedited Processing VII. Fees VIII. Fee Waivers IX. Initial Request Determinations X. Administrative Appeals XI. Judicial Review

I. Introduction

The Freedom of Information Act (FOIA), which can be found in Title 5 of the United States Code, Section 552, was enacted in 1966. It provides that any person has the right to request access to federal agency records or information. All agencies of the Executive Branch of the United States Government are required to disclose records upon receiving a written request for them, except for those records (or portions of them) that are protected from disclosure by the nine exemptions and three exclusions of the FOIA. This right of access is enforceable in court, and it is supported at the administrative agency level by the "citizen-centered and results-oriented approach" of a presidential executive order.
The FOIA does not, however, provide access to records held by Congress or the federal courts, by state or local government agencies, or by private businesses or individuals. All States have their own statutes governing public access to state and local government records; state agencies should be consulted for further information about them.
This Reference Guide is designed to familiarize you with the specific procedures for making a FOIA request to the Department of Veterans Affairs (VA). The process is neither complicated nor time consuming. Following the guidance below will make it more likely that you will receive the information you are seeking in the shortest amount of time possible. This Reference Guide also includes descriptions of the types of records maintained by different parts of the agency, some of which are readily available through means other than the FOIA, including through the World Wide Web. The VA home page on the World Wide Web is at: www.va.gov and our FOIA home page is at: http://www.foia.va.gov/ .

First, it is important to understand that there is no central office in the government that processes FOIA requests for all federal agencies. Each agency responds to requests for its own records. Therefore, before sending a request to VA you should determine if VA is the agency most likely to have the records you are seeking. Each agency should have its own FOIA reference guide, so if the records you are interested in are kept by another agency, you may wish to request a copy of that agency's guide from its FOIA office or view it on that agency's FOIA site on the World Wide Web. A list of the principal FOIA contacts at other federal agencies is attached can be found at: https://www.justice.gov/oip/find-foia-contact-doj/list.

Other general sources of information about how to make a FOIA request
include:

"Your Right to Federal Records." This pamphlet is a joint publication of the General Services Administration and the Department of Justice. It is available for sale for one dollar per copy from the Federal Citizen Information Center, Department 320N, Pueblo, CO 81009 or (888)
878-3256. It also can be accessed on the Justice Department's FOIA site on the World Wide Web under "Reference Materials."

"A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records" This report is published by the Committee on Government Reform of the House of Representatives and is available for sale at the U.S. Government Printing Office by calling (202) 512-1808.

Also, a more general publication, the "Consumer Action Handbook," describes which federal agencies are responsible for specific consumer problems and where to write for assistance on them. Single copies of this publication may be obtained for free by calling (888) 878-3256. This booklet also can be accessed on the General Services Administration's site on the World Wide Web at: www.consumeraction.gov.

In December 2005, President Bush issued Executive Order 13392 entitled "Improving Agency Disclosure of Information." This order establishes the position of Chief FOIA Officer - a high-level official who monitors FOIA implementation throughout the agency, recommends to the head of the agency such adjustments to practices and policies as may be necessary, and prepares reports on the agency's performance in implementing the FOIA.

It also requires all federal agencies to establish one or more FOIA Requester Service Centers and FOIA Public Liaisons to assist FOIA requesters with inquiries about the FOIA process in general and their FOIA requests in particular.

A listing of VA’s FOIA Requester Service Centers can be found on the VA FOIA home page, and our listing of FOIA Public Liaison Officers is posted at:

http://www.foia.va.gov/FOIA_Contacts.asp.

II. Access to Certain Records without a FOIA Request

All agencies are required to make certain types of records, created by the agency on or after November 1, 1996, available electronically. If you have access to the World Wide Web, you will not need to make a FOIA request to obtain access to these records. These records include:

Final opinions and orders made in the adjudication of cases;

Final statements of policy and interpretations which have not been published in the Federal Register;

Administrative staff manuals and instructions to staff that affect members of the public;

Copies of records that have been the subject of a FOIA request and that also are the subject of sufficient public interest or curiosity that the agency believes that other persons are likely to request (or already have requested) them; and

The agency's annual FOIA report - which includes such information as the number of FOIA requests received by the agency, the amount of time taken to process requests, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the agency's handling of FOIA requests.

III. Where to Make a FOIA Request

The Department of Veterans Affairs is organized into three large Administrations (the Veterans Health Administration, the Veterans Benefits Administration, and the National Cemetery Administration) and a number of management offices. Additionally, each Administration has a large number of subordinate field activities. Within VA, each Administration, management office and field activity processes its own records. Therefore, your request will receive the quickest possible response if it is addressed directly to the field activity, management office, or Administration that you believe has the records you are seeking.

Because, over time, individual employees of the Department of Veterans Affairs may change job positions, it is not recommended that you address your request to a specific person. Rather, you should include the notation "Freedom of Information Act Request" on the front of your request envelope and also at the beginning of your request letter. In this way you will be sure that the responsible individual receives your request without delay.

If you know the office that maintains the records you are seeking, you should write directly to that office or contact the VA Central Office FOIA/Privacy Act Officer for the custodian of the record. If you do not know, submit the request as follows:

For medical records, to the Director of the VA medical facility where the individual was last treated or to the FOIA Officer at Veterans Health Administration, VA Central Office.

For National Cemetery records, to the Director, National Cemetery Area Office, or to the FOIA/Privacy Act Officer, National Cemetery Administration, VA Central Office.

For other benefits records, to the FOIA/Privacy Act Officer at the VA Regional Office serving the individual's jurisdiction, or to the FOIA/Privacy Act Officer of the Veterans Benefits Administration, VA Central Office. The VA Toll-Free number (1-800-827-1000) will connect you to the nearest regional office.

For all Inspector General records, to the Office of the Inspector General, VA Central Office.

For all other records, to the VA FOIA/Privacy Act Officer, VA Central Office.

The address for the VA FOIA/ Privacy Act Officer is:

Department of Veterans Affairs Director, Records Management Service (005R1B)810 Vermont Avenue, NW Washington, DC 20420

If your request is sent to the VA Central Office FOIA/Privacy Act Office, it will be reviewed to determine which VA office has custody of the records. The request will then be forwarded to that office's VA Central Office FOIA/Privacy Act Officer for review and response or further dissemination to the office which has custody of the records. Before submitting a FOIA request, please visit VA's 1-Stop customer Service Inquiry Page or the Frequently Requested Documents webpage to determine if the information you are seeking is available on online.

IV. How to Make a FOIA Request

A FOIA request can be made for any agency record. This does not mean, however, that VA will disclose all records sought. As noted above, there are statutory exemptions that authorize the withholding of information of a sensitive nature. When VA does withhold information from you, it ordinarily must specify which exemption of the FOIA permits the withholding. You should be aware that the FOIA does not require agencies to do research for you, to analyze data, to answer written questions, or to create records in order to respond to a request. Although, as discussed immediately below, certain information may be required from a FOIA requester, no special form is required by VA. Requests must reasonably describe the VA records sought, be in writing, either handwritten or typed; they may be submitted by mail or fax; and they must bear the signature of the requester.

In making your request you should be as specific as possible with regard to names, titles, dates, places, events, subjects, recipients, the component(s) likely to maintain that record, etc. If known, you should include any file designations or descriptions for the records that you want. But the more specific you are about the records or types of records that you want, the more likely it will be that VA will be able to locate those records. Additionally, you should be aware that VA ordinarily will use the date they begin a record search as the "cut-off" date for determining what records that are responsive to your FOIA request. If you do not provide the necessary information, the FOIA office will advise you of what additional information is required before further processing your request.

Under certain circumstances you may be entitled to receive more information under the Privacy Act of 1974 (a separate federal statute) than under the FOIA. Under the FOIA, generally anyone can request access to any agency record. Privacy Act requests are more limited and can be made only by:

U.S. citizens or aliens lawfully admitted for permanent U.S. residence; or

Individuals seeking information about themselves.

Privacy Act records are maintained in a system of records maintained under specific names or other personal identifiers. Even if a request does not mention the Privacy Act, however, VA automatically treats requests as being made under both the FOIA and the Privacy Act whenever it is appropriate to do so. In this way, requesters receive the maximum amount of information available to them under the law.

V. Response Times

All federal agencies are required to respond to a FOIA request within twenty business days, excluding Saturdays, Sundays, and legal holidays. This time period does not begin until a perfected request (information requested is clearly stated, request is signed, and there are no pending fee issues) is actually received by the FOIA office that maintains the records sought. An agency is not required to send out the releasable documents by the last business day; it can send you a letter informing you of its decision and then send you the documents within a reasonable time afterward. Some offices within VA, such as our Administration Headquarters receive thousands of requests each year. Many of these requests require a line-by-line review of hundreds or even thousands of pages of documents. Although VA makes every effort to respond to FOIA requests as quickly as possible, in some cases it simply cannot do so within the specified time period. This may be due either to the size of the request or to the fact that the center has a backlog of previously received requests that are waiting processing.

The FOIA office may extend the response time for an additional ten business days when:

the office needs to collect responsive records from various directorates and offices,

the request involves a "voluminous" amount of records that must be located, compiled, and reviewed, or

the office needs to consult with another agency or other VA offices that have a substantial interest in the responsive information.
When such a time extension is needed, the FOIA office will notify you of this in writing and offer you the opportunity to modify or limit the scope of your request. Alternatively, you may agree to a different timetable for the processing of your request.

If a determination on your request is not made within the applicable time period and you have not agreed to a different response timetable, you may file suit in federal court to pursue a response. If, however, the court concludes that you have unreasonably refused to limit your request or to accept an alternate timetable for response, the court may find that the component's failure to comply within the statutory time period is justified.


The court may excuse the lack of a timely response if the component demonstrates that it has a backlog of requests that were received before yours, that it processes its requests on a first-come/first-served basis, and that it is making reasonable progress in reducing its backlog of pending FOIA requests. In such cases, the court may postpone its consideration of your lawsuit until the agency reaches your request in its processing backlog.


Alternatively, Executive Order 13392, dated, December 14, 2005, provides FOIA requesters the opportunity to request that an agency’s FOIA Requester Service Center(s) check on the status of their FOIA requests. As mentioned above, the Department of Veterans Affairs has established such a center for each of its management offices, with a FOIA Public Liaison named for each, whom FOIA requesters may contact by telephone if they are dissatisfied with the response of the center's FOIA Requester Service Center. FOIA requesters are strongly encouraged to make use of these new services.

VI. Expedited Processing

Under certain conditions you may be entitled to have your request processed on an expedited basis. However, you should realize that when a FOIA request is expedited for one requester, it results in an additional delay for previous requesters who are already waiting for a response. Therefore, in an effort to treat all requesters equitably, VA ordinarily will process an initial FOIA request or an administrative appeal of a request's denial ahead of others only in cases in which there will be a threat to someone's life or physical safety, or where an individual will suffer the loss of substantial due process rights if the records are not processed on an expedited bases. In most cases, a request will not be expedited merely on the basis that the requester is facing a court deadline in a judicial proceeding. In both criminal prosecutions and civil litigation there is a document-disclosure process known as "discovery," which gives the parties certain rights to obtain relevant information apart from the FOIA. These discovery rights usually are sufficient to protect the requester's due process rights.

The FOIA also requires that requests be processed on an expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. Requests are not expedited under this provision merely on the basis that the requester is a representative of the news media. Similarly, VA also expedites requests when the subject is of widespread and exceptional media interest and the information sought involves possible questions about the government's integrity which affect public confidence.


A request for expedited processing must be accompanied by a statement setting forth the reasons why your request should be expedited. You should certify that the reasons you have given are true and correct. The FOIA office will be required to notify you of its decision about whether to grant expedited processing within no more than 10 calendar days after receiving your letter. If the FOIA office denies your request for expedited processing, you will be advised of your right to submit an administrative appeal of that denial.

VII. Fees

There is no initial fee to file a FOIA request; in fact, in the majority of requests made to VA, no fees are ever charged. By law, however, an agency is entitled to charge certain fees, which depend on the particular category of FOIA requester that you fall into.
For the purposes of assessing fees, there are four categories of requesters.

Commercial use requesters - requesters who will use the information to further a commercial, trade, or profit interest

Educational and non-commercial scientific institutions - certain schools and institutions of higher learning or vocational education that conduct a program of scholarly research

Representatives of the news media - persons actively gathering information of interest to the public for an organization that is organized and operated to publish or broadcast news to the general public

All other requesters - all requesters that do not fall within the other three categories

FOIA requesters are responsible for specifying what fee category they are in. If a requester submits a FOIA request on behalf of another person or organization, it is the underlying requester’s identity and intended use that determines the fee category.


Fee Schedule

The following fee schedule applies to all offices within the VA. The duplicating fees provided in the schedule are also applicable to requests processed under the Privacy Act.

A. Search and review (review applies to commercial-use requesters only)

Fees are based on: the hourly salary of the employee(s) involved (base salary plus locality payment), plus 16 percent for benefits.

B. Duplication

Pages no larger than 8.5 x 14 inches, when reproduced by standard office copying machines.
$.15 per page ($.30 for double-sided copying)
Color copies of pages no larger than 8.5 x 11 inches.
Direct cost to VA
Pages larger than 8.5 x 14 inches Color copies of pages no larger than 11 x 17 inches.
Direct cost to VA
Photographs and records requiring special handling (e.g., because of age, size, or format).
Direct cost to VA

C. Electronic Records

Charges for services related to processing requests for electronic records.
Direct cost to VA

D. Certification

Each certificate of verification attached to authenticate copies of records.
Direct cost to VA

E. Postage/Mailing

Charges that exceed the cost of first class postage. Examples of such charges are express mail or overnight delivery.
Postage or Delivery charge
You may always include in your request letter a specific statement limiting the amount that you are willing to pay in fees. If a FOIA office estimates that the total fees for processing your request will exceed $25, it will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you continue to want all of the records involved, you will be asked to express your commitment to pay the estimated fees and the processing of your request will be suspended until you agree to do so. You ordinarily will not be required to actually pay the fees until the records have been processed and are ready to be sent to you.

If, however, you have failed to pay fees within thirty days of billing in the past, or if the estimated fees exceed $250, you may be required to pay the estimated fees in advance, before the records even are processed. If you agree to pay fees and then fail to do so within 30 days of billing, you may be charged interest on your overdue balance and VA will not proceed with any further requests from you until payment in full has been made.

If you agree to pay fees for searching for records, be aware that you may be required to pay such fees even if the search does not locate any responsive records or, if records are located, even if they are withheld as entirely exempt.

VIII. Fee Waivers

You may request a waiver; however, fee waivers are limited to situations in which a requester can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. Requests for fee waivers from individuals who are seeking records pertaining to them usually do not meet this standard because such disclosures usually will not result in any increase of the public's understanding of government operations and activities. In addition, a requester's inability to pay fees is not a legal basis for granting a fee waiver. It should be noted that the granting of a fee waiver, which is done on a general public-interest basis under the statute, is entirely separate and distinct from the limitations on fees that are discussed in the previous section.

IX. Initial Request Determinations

Once the FOIA office has processed your request and any fee issues have been resolved, they will send you a written initial determination. In the vast majority of cases, VA FOIA offices will include any documents that can be disclosed along with the determination letter, though in some cases, the documents themselves may be sent within a reasonable time afterward. The FOIA provides access to all federal agency records (or portions of those records), except for those records that are withheld under any of nine exemptions or three law enforcement exclusions. The determination letter will advise you of whether any information is being withheld pursuant to one or more of the exemptions. When a page of a record is being withheld in its entirety, the component ordinarily specifies the number of pages being withheld or makes a reasonable effort to estimate the volume of the withheld information.

The exemptions authorize federal agencies to withhold information covering:

(1) Classified national defense and foreign relations information;

(2) Internal agency rules and practices;

(3) Information that is prohibited from disclosure by another federal law;

(4) Trade secrets and other confidential business information;

(5) Inter-agency or intra-agency communications that are protected by legal privileges;

(6) Information involving matters of personal privacy;

(7) Records or information compiled for law enforcement purposes, to the extent that the production of those records:

could reasonably be expected to interfere with enforcement proceedings,

would deprive a person of a right to a fair trial or an impartial adjudication,

could reasonably be expected to constitute an unwarranted invasion of personal privacy,

could reasonably be expected to disclose the identity of a confidential source,

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or

could reasonably be expected to endanger the life or physical safety of any individual;

(8) Information relating to the supervision of financial institutions; and

(9) Geological information on wells. The three exclusions, which are rarely used, pertain to especially sensitive law enforcement and national security matters.

The law enforcement exclusions authorize federal agencies to withhold:

(1) Information concerning an investigation or proceeding involving a possible violation of criminal law when there is reason to believe that the subject of the investigation is not aware of its existence and disclosure of the records could reasonably be expected to interfere with the investigation or proceeding.

(2) Information concerning the threatened identification of confidential informants in criminal proceedings if they are maintained by a criminal law enforcement agency under the informant's name or personal identifier.

(3) Information which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified.

X. Administrative Appeals
You may file an administrative appeal if:

You are not satisfied with a FOIA office's initial determination;

You disagree with the center's withholding of information or you might believe that there are additional records responsive to your request that the center failed to locate;

You have requested expedited processing or a fee waiver and the FOIA office has not granted that request; or

You may appeal a determination that what has been requested is not reasonably described, that a record does not exist or cannot be located, that a record is not readily reproducible in the form or format requested, that the requested information is not a record subject to the FOIA, or a determination regarding the charging of a fee.
You should be advised of your right to file an appeal in the initial determination letter sent by the FOIA office or in a letter denying your request for expedited processing or a fee waiver. All appeals must be made in writing and addressed to:

Office of General Counsel (024),
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
Attn: “FOIA APPEAL”

Both the front of the envelope and the appeal letter should contain the notation: “Freedom of Information Act Appeal."

 
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