FOIA Basics: How to use the Freedom of Information Act

Robert: Hi, this is Robert Chisholm from Chisholm
Chisholm & Kilpatrick and with me today is– Maura: Maura Clancy. Robert: And, we’re going to be talking today
about FOIA. So Maura, what is FOIA? Maura: FOIA stands for the Freedom of Information
Act. It is a statute and it is a way that we can
actually request documents that are considered public records from government agencies, in
particular from VA. Robert: And because we work with VA, we make
a lot of requests under the Freedom of Information Act, FOIA. Maura: Yes we do. Robert: Okay. And so, can you tell me in general terms how
one goes about and makes a request? Maura: Sure. So, to submit a FOIA request is very simple. You just need to submit a written request
for the information that you’re seeking to the FOIA service for the agency that you’d
like the information from. There’s a webpage on the VA website about
how to use the FOIA service. You just need to be able to describe with
enough detail the documents that you’re seeking. Robert: And, can anyone seek records? It doesn’t just have to a law firm for example? Maura: No, it can be an individual. It can be somebody acting on behalf of an
individual or in our case, it can be a law firm. Robert: Okay. So if you make a request, if one makes a request
under FOIA, does the government have to turn over everything? Maura: Well, if the documents that you’re
seeking are disclosable under FOIA, and they’re public records, they should eventually turn
them over. But, there are many exemptions under the statute
that they might claim apply and forbid disclosure of the documents so you might run into some
hurdles that way. Robert: Are there any costs associated under
FOIA that you have to pay for example? Maura: Yes. There can be costs associated if you request
voluminous documents or you know several thousand pages of documents that get turned up in response
to your request. But usually, the FOIA service officer will
send you an estimate and ask if you would like to accept the charges and receive the
documents. So you do have a way out before you’re charged
the cost. Robert: So you will get some kind of written
notice either yes, we’re going to turn over the documents or yes, if you pay a hundred
dollars, we’re going to turn the documents or no? Maura: Yes. Robert: We’re not going to turn over the documents
at all. Maura: Right. Robert: Okay. If the VA says, “No, we don’t want to turn
over those documents.” What are the options then? Maura: Well, if they give you a letter that
says, you know essentially denying your request and then they give you the reasons why they
don’t believe they have to produce the documents, you do have a way to appeal those determinations. Usually, those letters will give you instructions
for how to submit an appeal. So if you are not satisfied with the denial
or you believe that it was incorrectly made, you can file of an administrative appeal within
the agency as to that determination. Robert: And eventually, if the VA continues
to deny it or whatever agency, I think you have the right to go to U.S. district court. Maura: Yes. As long as you follow the procedures for the
appeal, you can end up in court. Robert: So, in practical terms, why would
we as a law firm want to use FOIA? Maura: We find that FOIA is most useful when
we identify certain problematic trends in the agency or we notice that the agency is
making decisions on a regular basis that are based upon a misstatement of the law or a
misinterpretation of the law. So when we notice a problem like this that’s
more systemic, more global, it’s affecting a lot of our clients, we try to submit a FOIA
request for information that might help us uncover why this problem is ongoing at the
agency level and maybe what information we can obtain to help us make the best arguments
that we can on our clients’ behalf. Robert: So it’s really an opportunity for
us to see what the agency is doing sort of on a global level in some cases, and then
to prepare our best arguments for those clients to help them win their claims. Maura: Exactly. Robert: Can you give a concrete example of
one of these FOIA request that we’ve done recently? Maura: Sure. So recently we received a determination in
one of our client’s cases and VA was citing a policy letter that’s issued by the AMO or
the Appeals Management Office, and we had never seen any reference to this policy letter
before. We had never been able to read the policy
letter. So, in order to make successful arguments
on our client’s behalf in that particular case, we FOIA-ed a copy of the policy letter
because we don’t believe we can effectively do our job without knowing what kind of administrative
decisions and policies are being handed down in VA. Robert: It sounds kind of secret if they have
a secret policy that we don’t know about. So as soon as we learn about the secret, we
have to ask about it. Maura: Essentially yes, I mean we don’t want
to be going in blind in the way we make arguments and if they’re giving us a reason to believe
that they are denying claims based on information that we don’t have access to, that’s certainly
something that we want to submit a FOIA for because we can probably obtain it that way. Robert: So one of the other things I think
that we’ve done as a law firm is, we’ve been having trouble getting decisions from the
VA for our clients. So the VA has an obligation under the law
to send us written notice of a decision so that if we disagree with it or the client
disagrees with it, they can appeal. What have we done about that? Maura: We noticed as you said that an ongoing
problem is the lack of receipt of decisions. And so, as a result, we weren’t always having
enough time to prepare appeals because the decision being mailed to us is what triggers
the deadline and so it would eat into our deadline time. So, we submitted a FOIA request to VA for
all of the decisional documents that were issued in our clients’ cases in about a two
and a half year span. And we were hoping to get this data from VA
and cross-reference with our records and determine in which case are we missing a decision and
in which case do we potentially have a problem with respect to an appeal deadline. Robert: So that sounds really serious to me
and if I were a veteran, I’d be concerned that my representative wasn’t given a copy
of the decision. But, if the VA fails to mail us the decision
and we don’t appeal it within the timeframe, that’s on VA. It’s not on us and we can make arguments as
I understand it, to correct that. Maura: And having a FOIA request and having our objection to their bad mailing procedure sort of preserved in the way of a FOIA request, gives us a nice
way to make an argument that they should accept the appeal out of time because we had good
reason for not submitting it before because they simply didn’t mail us the decision. Robert: So, can you give some other examples
of FOIA requests that we’ve done over the years? Maura: Sure. So, we have submitted a FOIA request for the
number of grants for SMC, Special Monthly Compensation. We wanted to see how many of these types of
claims VA was granting so we submitted a request for the data. We were able to get it broken down by the
type of grant and by the particular year in which it was issued so it gave us a better
sense of how they were handling those types of claims. Robert: So, Special Monthly Comp are benefits
in addition to sort of the schedular and they usually involved more serious injuries. Maura: Exactly. Robert: We also I think made requests for
extraschedular information, so grants for TDIU under 4.16(b) and under 3.321 so-called
extraschedular grants and that was again an opportunity for us to sort of examine globally
over the last few years how many of these grants the agency is making. But that’s not all we do, we also try and
get some other things. So, give me one last example if you would. Maura: Sure. Robert: I’m thinking about the Board of Veterans’
Appeal here. Maura: Of course. So, every month, we actually submit a FOIA
on the first of every month to the Board of Veterans’ Appeals. It’s a way for us to keep tabs on their production. So we specifically ask for the number of decisions
they render, the number of grants, denials, and remands within that number and this gives
us a better sense of how many decisions will be coming down the pipeline for our clients,
how many of those will be grants, how many denials we need to be mindful of. And it’s also a good way to observe trends
over time in how many decisions that the Board is issuing overall. Robert: So, as we’ve looked at the data over
the years, it isn’t — the Board isn’t making the same amount of decisions every month. In fact, it can fluctuate month to month
and year to year. Maura: Yes. Robert: Okay. Maura: Definitely. Robert: So it’s important for us to have sort
of an understanding of what those numbers look like. Maura: Right. Robert: I don’t have any other thoughts about
FOIA. Did you have any last thoughts about it? Maura: Nothing in particular, just that it’s
a really good vehicle for getting information. It’s a good way to identify information on
a more global level, not — that’s not particular to one client or to five clients but it can
be very helpful as to many claims that we handle. So, it’s a good tool that we use on a daily
basis here. Robert: It is pretty easy too. At the end of the day, you just send in a
letter to the right officer and you get the request response one way or the other. Maura: You just need patience and persistence
with the FOIA officers and you can hopefully get what you need. Robert: Patience and persistence with the
VA pays off as well. This is Robert Chisholm and Maura Clancy from
Chisholm Chisholm & Kilpatrick. Thank you.

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