|Submitted||Dec. 11, 2018|
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To Whom It May Concern:
Pursuant to the Freedom of Information Act, I hereby request the following records:
All communication between the following VA officials: Darin Selnick, David Shulkin, Lew Boone, Jeffrey F. London, Robert Wilkie, Casin Spero, John Ullyot, Gregory Giddens and former Congressmember Jeff Miller, now a lobbyist at McDermott Will and Emery (Miller's email is: firstname.lastname@example.org) between Jan. 20, 2017 and present day. Ket words include: "cerner," "Cohen," "veterans evaluation services," "proton," "triwest," "partnership" and "legislation,"
The requested documents will be made available to the general public, and this request is not being made for commercial purposes.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.
Good morning, please see the attached acknowledgement letter for your recent FOIA request submitted and transferred to the Boise VAMC for processing of our portion of your request.
Boise VA Medical Center
Good afternoon, please see the attached FOIA Initial Agency Decision Letter for your review.
Boise VA Medical Center
Good Morning Mr. Craven:
FOIA Service is in receipt of your electronic FOIA request dated December 11, 2018,
seeking all communication between the following VA officials: Darlin Selnick,
David Shulkin, Lew Boone, Jeffrey F. London, Robert Wilkie, Casin Spero,
John Ullyot, Gregory Giddens and former Congress member Jeff Miller, now
a lobbyist at McDermott Will and Emry (Miller's email is; email@example.com<mailto:firstname.lastname@example.org>)
between January 20, 2017 and present day. Key words include: "cerner,"
"Cohen," "veterans evaluation services," "proton," "triwest," "partnership" and
I have attached a copy of FOIA Services acknowledgment letter providing
you with the referral information for Veterans Administration (VA) offices
you may contact for the records you are seeking.
This concludes the FOIA Service's response to your request.
Thank you and have a great day.
Carolyn Y. Byrd, (Contractor)
FOIA ANALYST, VACO FOIA Service
Quality, Privacy, and Risk (QPR)
Office of Information and Technology (OI&T)
Cell/Office: (202) 632-7427/ Fax: (202) 632-7581
FOIA Service Hotline: 1-877-750-3642
Please take a moment and let us know how we did by completing a quick evaluation: Got a minute? Rate Our Service!<https://vaww.vashare.oit.va.gov/sites/QPR/Lists/QPR%20Customer%20Satisifaction%20Evaluation/Item/newifs.aspx>
QPR's Mission Statement:
"To instill and promote a culture of quality, privacy and risk management in collaboration with our business partners to enable a better Veteran experience."
I write to appeal your Dec. 20, 2018 partial denial of my Dec. 11, 2018 Freedom of Information Act request.
Releasing the requested information is both appropriate and expedient, given the unmistakable instruction from government officials and agency guidance that federal agencies err on the side of openness. While President Trump has remarked little on FOIA, former President Obama directed that the FOIA "be administered with a clear presumption: In the face of doubt, openness prevails." Memorandum on the Freedom of Information Act, 74 Fed. Reg. 15, 4683 (Jan. 26, 2009). This instruction is unambiguous: "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA." Id. Your partial denial was contrary to the spirit of open government described in the President’s directive. You cited numerous FOIA exemptions as sufficient reason for withholding information, yet you failed to provide any analysis as to why these exemptions apply.
On the other hand, a major policy expression against a privilege for deliberation was recently stated by Congress in the Government in the Sunshine Act: "It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." (Section 2 of Pub. L. 94-409, September 13, 1976, 5 U.S.C. §552b note.) Of course the Sunshine Act provides for open meetings of multi-member agencies and does not control access to agency records.
While you stated that FOIA exemption 5 made it impossible to fully release such records, a major policy expression against a privilege for deliberation was recently stated by Congress in the Government in the Sunshine Act: "It is hereby declared to be the policy of the United States that the public is entitled to the fullest practicable information regarding the decisionmaking processes of the Federal Government." (Section 2 of Pub. L. 94-409, September 13, 1976, 5 U.S.C. §552b note.) The requested correspondence involves routine information about government regulation and policymaking.
If your agency is unwilling to reconsider its position, I ask that you provide an index of those records deemed exempt. Your agency denied access to responsive records without providing so much as a general characterization of what those records are. I therefore request that you provide a written index of the documents that the Comptroller has deemed exempt from disclosure, as required under Vaughn v. Rosen, 484 F.2d 820, 827 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).
September 6, 2019 In Reply Refer To: 001B
FOIA Request: 19-02710-F
DEPT MR 63613
411A Highland Avenue
Somerville, MA 02144-2516
Dear Mr. Craven,
This is the Initial Agency Decision (IAD) from Office of the Secretary, U.S. Dept. of Veterans Affairs (OSVA) to your Freedom of Information Act (FOIA) request dated and received December 11, 2018, and assigned FOIA tracking number 19-02710-F. You requested:
"All communication between the following VA officials: Darin Selnick, David Shulkin, Lew Boone, Jeffrey F. London, Robert Wilkie, Casin Spero, John Ullyot, Gregory Giddens and former Congress member Jeff Miller, now a lobbyist at McDermott Will and Emery (Miller's email is: email@example.com) between Jan 20, 2017 and present day. Key words include: 'Cerner,' 'Cohen,' 'veterans evaluation services,' 'proton,' 'triwest,' 'partnership' and 'legislation.'"
Other VA FOIA offices have or are processing your FOIA requests for similar records, including the VBA FOIA office (19-02714-F), OPIA FOIA office (19-02715-F), VBA-Loan Guaranty FOIA office (19-02716-F), and VBA Central Office (19-02527-F).
IAD & Reasonable Searches Dated 12/20/18 & 7/25/19
On December 20, 2018, our search-cut off date, the OSVA FOIA Officer requested that the VA OIT office submit all responsive email records within its possession. On January 10, 2019, the VA OIT office submitted the emails, with the OSVA to conduct secondary searches.
On July 26, 2019, the OSVA FOIA Officer looked through the below email boxes with the date timeframe of January 20, 2017, to December 20, 2018:
1. Robert Wilkie,
2. David Shulkin,
3. Darin Selnick, and,
4. Casin Spero.
The OSVA FOIA Officer looked for any emails to, from, or copying Mr. Jeff Miller. This search yielded fifty-five (55) pages. After reviewing the fifty-five (55) pages, OSVA redacts some information with FOIA Exemption 6.
5 U.S.C. § 552(b)(6) exempts from required disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." FOIA Exemption 6 permits VA to withhold a document or information within a document if disclosure of the information, either by itself or in conjunction with other information available to either the public or the FOIA requester, would result in an unwarranted invasion of an individual's personal privacy without contributing significantly to the public's understanding of the activities of the federal government. Specifically, the information being withheld, as indicated on the enclosed documents, under FOIA Exemption 6, consists of names, identities, email addresses, phone numbers, cellular numbers, and facsimile numbers of: federal employees and private citizens. However, we release the names and VA contact information of VA Senior Executives. Federal employees and private citizens retain a significant privacy interest under certain circumstances, such as in instances where the release of their information could represent a threat to their well-being, harassment, or their ability to function within their sphere of employment. The federal employees and private citizens whose information is at issue have a substantial privacy interest in their personal information. In weighing the private versus the public interest, we find that there is no public interest in knowing the names, identities, email addresses, phone numbers, cellular numbers, and facsimile numbers of: federal employees and private citizens. The coverage of FOIA Exemption 6 is absolute unless the FOIA requester can demonstrate a countervailing public interest in the requested information by demonstrating that the FOIA requester is in a position to provide the requested information to members of the general public and that the information requested contributes significantly to the public's understanding of the activities of the Federal government. Additionally, the requester must demonstrate how the public's need to understand the information significantly outweighs the privacy interest of the person to whom the information pertains. Upon consideration of the records, I have not been able to identify a countervailing public interest of sufficient magnitude to outweigh the privacy interest of the individuals whose names are redacted. The protected information has been redacted and (b)(6) inserted. "Withholding a telephone number or e-mail address, alone, is not sufficient to protect that [privacy] interest; alternate means of contacting and harassing these employees would be readily discoverable on the Internet if this court ordered their names disclosed." Long v. Immigration & Customs Enf't, 2017 U.S. Dist. LEXIS 160719 (D.C. Cir. 2017).
As part of the 2007 FOIA amendments, the Office of Government Information Services (OGIS) was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. Using OGIS services does not affect your right to pursue litigation. Under the provisions of the FOIA Improvement Act of 2016, the following contact information is provided to assist FOIA requesters in resolving disputes:
VA Central Office FOIA Public Liaison:
Name: John Buck
Email Address: firstname.lastname@example.org<mailto:email@example.com>
Office of Government Information Services (OGIS)
Email Address: firstname.lastname@example.org<mailto:email@example.com>
National Archives and Records Administration
8601 Adelphi Road
College Park, MD 20740-6001
This concludes OSVA's IAD to FOIA request 19-02710-F. Please be advised that should you desire to do so, you may appeal the determination made in this response to:
Office of General Counsel (024)
Department of Veterans Affairs
810 Vermont Avenue, NW
Washington, DC 20420
If you should choose to file an appeal, please include a copy of this letter with your written appeal and clearly indicate the basis for your disagreement with the determination set forth in this response. Please be advised that in accordance with VA's implementing FOIA regulations at 38 C.F.R. § 1.559, your appeal must be postmarked no later than ninety (90) days of the date
of this letter.
Richard Ha, JD, CIPP/G
OSVA FOIA Officer
Attachment - fifty-five (55) redacted pages
Richard Ha, JD, CIPP/G
OSVA FOIA/Privacy Officer
Office of the Executive Secretary
Office of the Secretary, U.S. Dept. of Veterans Affairs (OSVA)
CWS 2nd Mon
These emails/attachments are For Official Use Only, not to be shared outside intended parties, and may not be disclosed pursuant to 5 U.S.C. § 552(b)(3) exempting the release of information that another statute prohibits; 41 U.S.C. § 4702(b) prohibiting the release of unincorporated proposals; 41 U.S.C. § 423(a) prohibiting the release of bid/proposal information or evaluations before award; 26 U.S.C. § 6103 prohibiting the release of tax identification numbers; 5 U.S.C. § 552(b)(4) exempting the release of confidential commercial information; 5 U.S.C. § 552(b)(5) under the deliberative process, attorney-client, and work product privileges; and 5 U.S.C. § 552(b)(6) protecting personally identifiable information. If you received these emails/attachments in error, you must inform the OSVA FOIA Officer and destroy them immediately. The VA reserves discovery rights including, but not limited to, objections, privileges, motions, etc.