Processing notes for Tampa Tribune FOIA request to Veterans Affairs

CJ Ciaramella filed this request with the U.S. Department of Veterans Affairs of the United States of America.
Tracking # 14-03905-F ; 14-00260-A
Status
Completed

Communications

From: CJ Ciaramella

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

All processing notes for FOIA request #14-02738-F

I also request that, if appropriate, fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

In the event that fees cannot be waived, 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.

Sincerely,

CJ Ciaramella

From: Department of Veterans Affairs

Harden, Willie R. (R&K Enterprise Inc.) would like to recall the message, "Acknowledgement Letter for FOIA Request".

From: Department of Veterans Affairs

Dear Requester Ciaramella,

I'm attaching the Acknowledgement letter regarding your FOIA Request.

Thank you,

Willie Harden

FOIA SME Liasion Officer

Office of Privacy & Records Management (005R1)

(202) 382-2314

Classification: Internal Use\\Not VA Sensitive
This message has been categorized by Harden, Willie R. (R&K Enterprise Inc.)
on Tuesday, April 01, 2014 at 1:48:00 PM in accordance with VA Handbook 6500

From: Department of Veterans Affairs

An acknowledgement letter, stating the request is being processed.

From: MuckRock

This is a follow up to a FOIA request (copied below) that was forwarded to your agency. For all future responses, where possible please use the e-mail address from which this communication was generated.

Thank you.

From: Department of Veterans Affairs

A fix is required to perfect the request. The request has been rejected as being too vague, burdensome or otherwise unprocessable.

From: CJ Ciaramella

To whom it may concern,
I received a denial of my FOIA request #14-03905-F for not reasonably describing the records sought. I therefore clarify my request:

Pursuant to the Freedom of Information Act, I request the following components of the administrative file for FOIA request #14-02738-F:

- copy of the original foia request
- Acknowledgement letter
- Expedited processing decision
- documentation of search for and location of records
- documentation supporting Agency Decision
- Copies of ALL correspondence
- Document Decisions
- Decision on the merits

If some of these records are disclosable and others are exempt, please provide the disclosable records and let me know the exemption(s) preventing disclosure of the rest.

Please note that according to 5 U.S.C. § 552(b): "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."

Feel free to call if this request requires additional clarification. Thank you,

CJ Ciaramella
(503) 951-9863

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 27, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-03905-F.

Thank you for your help.

From: Welge, Wayne D.

Mr. Ciaramella,
Please see the attached letter in response to your inquiry. Thank you.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on March 27, 2014. Please let me know when I can expect to receive a response, or if further clarification is needed. You had assigned it reference number #14-03905-F.

Thank you for your help.

From: Department of Veterans Affairs

The request has been rejectedby the agency.

From: CJ Ciaramella

Dear FOIA Officer:
This is a Freedom of Information Act appeal regarding my FOIA request, No. 14-03905-F, acknowledged by your office on April 1, 2014.

I write to appeal the blanket application of Exemption 5(b) to withhold the requested records: processing notes for another FOIA request from the Tampa Tribune.

For an agency to invoke the deliberative process privilege, it must satisfy two requirements: The communications must be both pre-decisional and deliberative. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)

In its rejection notice, VA asserts that the located documents are pre-decisional and would injure the deliberative process: "Until a decision is made regarding the e-mail messages, premature release of the document may confuse the public." However, according to the Tampa Tribune, the information it sought was subsequently released, and an appeal was not filed. It is unclear what decision remains to be made if the FOIA case in question was closed.

Federal agencies regularly release such processing notes in response to FOIA requests. I have received processing notes from the Drug Enforcement Agency and the Department of Health and Human Services, among other agencies. The VA is the first federal agency I have encountered to withhold in full the processing notes of a FOIA request. This blanket denial conflicts with 5 U.S.C. § 552(b): "Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection."

VA has failed to meet its burden under the FOIA to show that all of the responsive records are both pre-decisional and deliberative, and therefore non-segregable.

Furthermore, the issue at hand is of great public interest: How the VA's FOIA office handled requests for information on the nation-wide scandal regarding patient deaths and delays at VA hospitals. News outlets, members of Congress, and transparency groups have called on VA to be more transparent in light of the continuing problems at the agency.

Please note that the "core purpose of the FOIA" is "contribut[ing] significantly to public understanding of the operations or activities of the government." Department of Defense v. F.L.R.A., 114 S.Ct. 1006, 1012 (1994).

And that "In the Act generally [...] there is a strong presumption in favor of disclosure." Local 598 v. Department of Army Corps of Engineers, 841 F.2d 1459, 1463 (9th. Cir. 1988).

In 2009, President Barack Obama issued a directive to all federal agencies that FOIA "should be administered with a clear presumption: In the face of doubt, openness prevails." Moreover, the President instructed agencies that information should not be withheld merely because "public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears."

I therefore appeal the VA's determination and request that, not only in the letter but the spirit of the Act, as well as the President's transparency directives, the agency release the records.

In the event this appeal is denied, the Agency is required to provide a written response describing the reasons for the denial, names and titles of each person responsible for the denial, and the procedures required to invoke judicial assistance in this matter. 5 U.S.C. § 552(a)(6)(ii), 7 C.F.R. § 1.8(d). I await your prompt reply.

Sincerely,

CJ Ciaramella
(503) 951-9863
1600 K ST NW SUITE 200
Washington, DC 20005

From: Department of Veterans Affairs

A letter stating that the request appeal has been received and is being processed.

From: Department of Veterans Affairs

A letter stating that the request appeal has been succesful.

From: Welge, Wayne D.

Mr. Ciamarella,
My office is tracking this FOIA via FOIA # 14-03905-F. FOIA # 14-00260-A was the Office of General Counsel appeal number that has subsequently been closed. I received the appeal remand in my office and have completed my review. I anticipate final processing of this request by the end of this week or early next week (around April 5). Thank you for your patience.

From: Welge, Wayne D.

Mr. Ciaramella,
Attached is the revised Initial Agency Decision response to the remanded FOIA request (OGC Appeal # 14-00260-A; VISN 8 FOIA # 14-03905-F). Please contact me if you have any questions. Thank you.

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