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.
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.
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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 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.
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.
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.
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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.
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.
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.
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.
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.
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.
Bradley Hennings joined Chisholm Chisholm & Kilpatrick as an attorney in January 2018 and currently serves as a Partner in the firm. His practice focuses on the U.S. Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims.
