C-File Law Suit

[RBrogen]

Curious if anyone here has gone through the FOIA and had to ultimately sue the VA in Federal District Court to force them to provide their C-File in a more timely manner?  FOIA's are required to be fulfilled in 20 business days by law assuming no special circumstances.  Obviously the VA isn't going to respond to anything in 20 days but when it goes on for 6 months or longer that is ridiculous and slows our ability to address claim denials/issues quickly.  I just filed a FOIA appeal and was sent a letter from the Office of General Counsel, Veterans Administration that my FOIA request was DENIED under FOIA Exemption 6 but remanded to be provided via the Privacy Act.  The issue is that the Privacy Act process has no deadline so they can take as long as they want, while the FOIA actually has deadlines and a process for relief when they don't do what they are supposed to.  From my understanding, this is a tact the VA uses to confuse people into thinking it is a Privacy Act request and not a FOIA request.

Any thoughts would be greatly appreciated.

 

[ShrekTheTank]

This is interesting, but I have no idea.

[RBrogen]

17 minutes ago, shrekthetank1 said:

This is interesting, but I have no idea.

I say this because I did some research and found this lawyer who specializes in veteran's claims and who is a vet himself.  According to his information (and templates for use), you use the FOIA process to hold the VA accountable because it has a deadline for producing the documents (which the VA tries to ignore).  According to this lawyer, the VA says that you can't use FOIA because it should be a Privacy Act request and tells veterans that their FOIA is denied but it will be responded to under the Privacy Act request path.  The problem with that is that FIRST: the have no legal reason for denying a veteran their own c-file via FOIA, SECOND:  The Privacy Act has NO DEADLINE so the VA can stall as long as they want without any worries.

The FOIA process is 

- FOIA ORIGINAL REQUEST (time it and mark 20 business days) :  I did this in March 2019 and my FOIA request shows in my E-Benefits.  I have had ETA deadlines pass but still have not received my C-File.

- FOIA APPEAL REQUEST (sent to original FOIA recipients as well as Office of General Counsel Veterans Affairs):  I did this on July 17, 2019, CERTIFIED MAIL and got myself a letter from the Office of the General Counsel today July 27, 2019.  The letter said my FOIA was denied for FOIA Exemption 6 but remanded to be handled under the Privacy Act path.  Now, FOIA Exemption 6 "protects records the release of which would lead to clear unwarranted invasion of personal privacy."  Uhhhhh, it's MY C-FILE, MY INFORMATION so no invasion of personal privacy.  See the rub here?

- Lawsuit for failure to comply with FOIA laws which should cover filing fees and if you hire an attorney. :  Getting ready to do this next week if when I call then FOIA mediator listed on the Appeal denial letter, I'm not satisfied with his answer.  I'm also going to be doing a filing fee waiver of the $195 filing fee so hopefully the filing won't cost me anything since I'm doing it myself.

 

Edited July 27, 2019 by RBrogen

[Patton]

I really don't understand why our C-File is not on eBenefits and / or VA.gov? It could be set up just like our VA Medical records. Then we would have access to it when we need it and it would free up VA employees to work on claims / appeals. 

I am still waiting on my C-File after filing an FOIA in January. It took them 2 months before it even showed up on VA.gov. It finally closed a little over a week ago, so hopefully it is in the mail. My ETA deadline was June 23, 2019.

The VA always make things harder than they should be.

[RBrogen]

13 minutes ago, Patton said:

I really don't understand why our C-File is not on eBenefits and / or VA.gov? It could be set up just like our VA Medical records. Then we would have access to it when we need it and it would free up VA employees to work on claims / appeals. 

I am still waiting on my C-File after filing an FOIA in January. It took them 2 months before it even showed up on VA.gov. It finally closed a little over a week ago, so hopefully it is in the mail. My ETA deadline was June 23, 2019.

The VA always make things harder than they should be.

They don't make it easy because if vets have all of the information it makes it more likely that they will find new conditions to claim.

 

[Patton]

I agree. If it was not for sites like Hadit.com, I would not even know that they had one on me. My first VSO never brought it up!

Best of luck with resolving this!

[GeekySquid]

5 hours ago, RBrogen said:

my FOIA request was DENIED under FOIA Exemption 6

your post brings up an interesting situation. I have to admit you are the first veteran I have heard of being denied their C-File under FOIA Exemption 6. I am sure you are not alone, just my limited exposure to that event.

I did a little quick research and Justice.Gov provides some illuminating points on FOIA and Exemption 6...information you may have or want.

https://www.justice.gov/oip/foia-guide-2004-edition-exemption-6

Second, the Court articulated the general rule that the identity of a FOIA requester cannot be taken into consideration in determining what should be released under the Act. With the single exception that of course an agency will not invoke an exemption when the particular interest to be protected is the requester's own interest, the Court declared, "the identity of the requesting party has no bearing on the merits of his or her FOIA request." (24)

 

further the link reads:

It also is important to remember that while the government may voluntarily or involuntarily waive its right to an exemption when its own interests are at stake, it cannot waive an individual's privacy interests under the FOIA by unilaterally publicizing information about that person. (100) The privacy interest inherent in Exemption 6 "belongs to the individual, not the agency holding the information," and "the fact that otherwise private information at one time or in some way may have been placed in the public domain does not mean that a person irretrievably loses his or her privacy interest in the information."

Essentially what you are saying happened, assuming it is your own c-file, is a violation of the Law and in clear contradiction to SCOTUS several appeals court rulings.

You might just have a legal case if you have the funds to fight it.