I asked the VA to show its work.
I asked for these records so other disabled veterans can see how this office operates.
The Chicago VA office received 24 different requests for records about how it operates.
Its first solution was to pretend they were all one request.
Its second was to deny free access without doing the required public-interest review.
Its third was to reject faster handling after missing the deadline and reading only half its own rule.
By Bob Scott
Then it charged me $319.96 to find the evidence about itself.
After I paid, the VA said that money covered only one of the 24 requests.
That leaves 23 more.
The VA thinks a $319 bill is a stop sign. It does not understand veterans.
I will pay it 23 more times if that is what it takes.
I want the records. I want to prove what happened. I want disabled veterans to see how this office operates.
Ultimately, I want them to receive the benefits that were wrongly stripped from them.
The full recordAll 16 findings
The three main findings appear above. The complete record follows here.
1It aggregates unrelated matters. Every rule forbids that
The letter says
The above FOIA requests are now aggregated into one request under 26-23766-F.
The rule, in full
38 C.F.R. § 1.561(k)38 C.F.R. § 1.561 · Fees
(k) Aggregating requests. Whenever a FOIA Officer reasonably believes that a requester or group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the FOIA Officer may aggregate those requests and charge accordingly. FOIA Officers may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, the FOIA Officer will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
Why it fails
The 24 include an email signature-block policy (26-23842-F), a staff phone roster (26-23845-F), counselor performance standards (26-23777-F), decision-letter templates (26-24305-F), the audit trail of one veteran’s case (26-23781-F), and hotline complaint data (26-25536-F). Section 1.561(k) ends with this bar. Section 1.556(c)(2) ends with the same words. The statute says “shall not be aggregated.”
2It cites the time-limit clause as fee authority
The letter says
Please be advised, that FOIA also provides that agencies “may” promulgate regulations “providing for the aggregations of certain requests by the same requestor or by a group of requestors acting in concert … and the requests involve clearly related matters.” Id § 552(a)(6)(B)(iv).
The rule, in full
5 U.S.C. § 552(a)(6)(B)(iv)5 U.S.C. § 552 · Public information; agency rules, opinions, orders, records, and proceedings
(iv)
Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.
Why it fails
That clause sits in § 552(a)(6)(B), the provision on time limits and “unusual circumstances.” It lets an agency write rules that treat related requests as one request for the purpose of a time extension. It says nothing about fees. The letter aggregates “for the purpose of avoiding the assessment of fees” and cites the timing clause for it. VA’s own rule for that clause is § 1.556(c)(2), in the section titled “Timing of responses to requests.”
The letter says
A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees.
The rule, in full
38 C.F.R. § 1.561(k)38 C.F.R. § 1.561 · Fees
(k) Aggregating requests. Whenever a FOIA Officer reasonably believes that a requester or group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the FOIA Officer may aggregate those requests and charge accordingly. FOIA Officers may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, the FOIA Officer will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
Why it fails
The rule has one trigger: a reasonable belief that one request was cut into pieces to avoid fees. The letter recites the rule and never applies it. It does not say that belief exists, or what it rests on. The 24 requests were filed on six dates over 27 days, on different subjects. They are not portions of one document.
4The decision is up to 21 days late. The limit is 10
The letter says
For these reasons, I have denied your request for expedited processing of your FOIA request.
The rule, in full
38 C.F.R. § 1.556(d)(3)38 C.F.R. § 1.556 · Timing of responses to requests
(3) Within 10 calendar days of its receipt of a request for expedited processing, the FOIA Officer shall determine whether to grant the request and will provide the requester written notice of the decision. If the FOIA Officer grants a request for expedited processing, the FOIA Officer shall give the request priority and process it as soon as practicable. If the FOIA Officer denies the request for expedited processing, the requester may appeal the denial, which appeal shall be addressed expeditiously.
Why it fails
The letter is dated August 14. By its own receipt dates, 14 requests arrived July 14, so their decisions were due July 24: 21 days late. Two arrived July 15: 20 days late. One arrived July 23 and four arrived July 24: 12 and 11 days late. One arrived July 27: 8 days late. One was decided in time: 26-25210-F, received August 10. The letter lists no received date for 26-25536-F. The statute sets the same 10 days at 5 U.S.C. § 552(a)(6)(E)(ii)(I).
5It claims an analysis and applies no factor
The letter says
Based on the analysis of the information presented in your request, I have determined that VBA is not required to waive the fees associated with producing records responsive to your FOIA request. Therefore, I am denying your fee waiver request.
The rule, in full
38 C.F.R. § 1.561(n)(2) and (3)38 C.F.R. § 1.561 · Fees
(2) Records responsive to a request will be furnished without charge or at a charge reduced below that established under paragraph (d) of this section where a FOIA Officer determines, based on all available evidence, that the requester has demonstrated that:
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(3) To determine whether the fee waiver requirement under paragraph (n)(2)(i) of this section is met, the FOIA Officer will consider the following factors:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. The requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. The FOIA Officer will not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is important enough to be made public.
Why it fails
VA’s rule lists four factors the officer will consider. The letter recites the statute, lists the factors in its own words, and applies none of them to any request. The records sought are VA’s own workload reports, audits, complaint statistics, performance standards, and policies. Those are “the operations or activities of the government” by definition. The letter never says otherwise. It gives the same paragraph for all 24 requests.
The letter says
if the agency reasonably believes that such requests actually constitute a single request … and the requests involve clearly related matters.
The rule, in full
38 C.F.R. § 1.556(c)(2)38 C.F.R. § 1.556 · Timing of responses to requests
(2) Where the FOIA Officer reasonably believes that certain requests from the same requester, or a group of requesters acting in concert, actually constitute the same request that would otherwise satisfy the unusual circumstances specified in this paragraph, and the requests involve clearly related matters, the FOIA Officer may aggregate those requests. Multiple requests involving unrelated matters will not be aggregated.
Why it fails
The rule needs both findings at once. The letter states the conclusion and proves neither. It never invokes unusual circumstances under § 1.556(c)(1) either, and that is the only setting in which this rule operates.
7It hides the right to appeal the expedited denial
The letter says
For these reasons, I have denied your request for expedited processing of your FOIA request.
The rule, in full
38 C.F.R. § 1.556(d)(3)38 C.F.R. § 1.556 · Timing of responses to requests
(3) Within 10 calendar days of its receipt of a request for expedited processing, the FOIA Officer shall determine whether to grant the request and will provide the requester written notice of the decision. If the FOIA Officer grants a request for expedited processing, the FOIA Officer shall give the request priority and process it as soon as practicable. If the FOIA Officer denies the request for expedited processing, the requester may appeal the denial, which appeal shall be addressed expeditiously.
Why it fails
The rule preserves an appeal of this denial and requires that the appeal move fast. The letter gives no appeal path, no address, and no deadline. A right the letter hides cannot be used.
8No notice of the right to appeal
The letter says
Should you have any questions or concerns related to this letter please feel free to contact us at: VAVBACHI.FOIA@VA.GOV.
The rule, in full
38 C.F.R. § 1.557(e)38 C.F.R. § 1.557 · Responses to requests
(e) Adverse determinations of requests. When a component makes an adverse determination denying the request in any respect, the component FOIA Officer shall promptly notify the requester of the adverse determination in writing. Adverse determinations include decisions that a requested record is exempt from release in whole or in part, does not exist or cannot be located, is not readily reproducible in the form or format sought by the requester, or is not a record subject to the FOIA; adverse determinations also include denials regarding requests for expedited processing and requests involving fees, such as requests for fee waivers. The adverse determination notice must be signed by the component head or the component's FOIA Officer, and shall include the following:
(1) The name and title or position of the person responsible for the adverse determination;
(2) A brief statement of the reason(s) for the denial, including any FOIA exemptions applied by the FOIA Officer in denying the request;
(3) The amount of information withheld in number of pages or other reasonable form of estimation; an estimate is not necessary if the volume is indicated on redacted pages disclosed in part or if providing an estimate would harm an interest provided by an applicable exemption;
(4) Notice that the requester may appeal the adverse determination and a description of the requirements for an appeal under § 1.559 of this part; and
(5) Notice that the requester may seek assistance or dispute resolution services from the VA FOIA Public Liaison or dispute resolution services from the Office of Government Information Services.
Why it fails
This letter makes two adverse determinations: it denies expedited processing and it denies a fee waiver. VA’s rule names both as adverse determinations and requires an appeal notice with the § 1.559 requirements. The letter gives an email address. The statute requires the same notice at 5 U.S.C. § 552(a)(6)(A)(i)(III)(aa). VA’s own fee letter of August 10, for this same request number, carried the full notice. This one carries none.
9No FOIA Public Liaison. No OGIS
The letter says
Should you have any questions or concerns related to this letter please feel free to contact us at: VAVBACHI.FOIA@VA.GOV.
The rule, in full
5 U.S.C. § 552(a)(6)(A)(i)5 U.S.C. § 552 · Public information; agency rules, opinions, orders, records, and proceedings
(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall—
(i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of—
(I)
such determination and the reasons therefor;
(II)
the right of such person to seek assistance from the FOIA Public Liaison of the agency; and
(III) in the case of an adverse determination—
(aa)
the right of such person to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and
(bb)
the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and
Why it fails
The statute and VA’s rule at § 1.557(e)(5) both require the same two notices in an adverse determination: the FOIA Public Liaison, and dispute resolution through the Office of Government Information Services. The letter names neither. A shared branch mailbox is not a liaison.
10It applies the fee rule without citing it, and turns “may” into “will”
The letter says
When VBA has reason to believe that a requester is attempting to divide a request into a series of requests on a single subject or related subjects for the purpose of avoiding the assessment of fees, VBA will aggregate any such requests and charge accordingly.
The rule, in full
38 C.F.R. § 1.561(k)38 C.F.R. § 1.561 · Fees
(k) Aggregating requests. Whenever a FOIA Officer reasonably believes that a requester or group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the FOIA Officer may aggregate those requests and charge accordingly. FOIA Officers may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, the FOIA Officer will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
Why it fails
This sentence tracks 38 C.F.R. § 1.561(k), the VA fee rule on aggregation. The letter never cites it. The fee action rests on no stated authority. The letter also changes “may aggregate” to “will aggregate.” The rule gives the officer a discretion. The letter states it as a duty.
11The stated common thread does not describe the requests
The letter says
We are aggregating the subject FOIA requests for the information regarding the mini master file as is contained in the master Corporate database.
The rule, in full
No rule needed. The defect is inside the letter itself.
Why it fails
The letter gives one subject for all 24. But a signature-block policy, a phone roster, performance plans, letter templates, training materials, and audits are not records about any case file. Most of the 24 ask for policies, reports, and aggregate data, not for anything held in a master file.
12The letter contradicts itself in the next sentence
The letter says
Please be advised, that the master Corporate system isn’t a database it’s a repository.
The rule, in full
No rule needed. The defect is inside the letter itself.
Why it fails
One sentence grounds the aggregation on records in “the master Corporate database.” The next sentence says the system is not a database. The letter cancels its own reason.
13It misquotes the statute and drops the sentence that defeats it
The letter says
which would otherwise satisfy the unusual circumstances specified in this specified in the subparagraph, and the requests involve clearly related matters.” Id § 552(a)(6)(B)(iv).
The rule, in full
5 U.S.C. § 552(a)(6)(B)(iv)5 U.S.C. § 552 · Public information; agency rules, opinions, orders, records, and proceedings
(iv)
Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated.
Why it fails
The quotation repeats “specified in this specified in the subparagraph.” The statute says “specified in this subparagraph.” The quotation also stops one sentence early. The sentence it drops is the one that blocks this aggregation.
14One boilerplate denial covers 24 requests. None is examined
The letter says
Your expedited processing requests fails to demonstrate how failure to obtain the requested record on an expedited basis poses an imminent threat to the life or physical safety of an individual. Nor did your FOIA request qualify for expedited processing under the second test as you have failed to demonstrate why there is an urgency to inform the public concerning actual or alleged Federal Government activity.
The rule, in full
38 C.F.R. § 1.557(e)38 C.F.R. § 1.557 · Responses to requests
(e) Adverse determinations of requests. When a component makes an adverse determination denying the request in any respect, the component FOIA Officer shall promptly notify the requester of the adverse determination in writing. Adverse determinations include decisions that a requested record is exempt from release in whole or in part, does not exist or cannot be located, is not readily reproducible in the form or format sought by the requester, or is not a record subject to the FOIA; adverse determinations also include denials regarding requests for expedited processing and requests involving fees, such as requests for fee waivers. The adverse determination notice must be signed by the component head or the component's FOIA Officer, and shall include the following:
(1) The name and title or position of the person responsible for the adverse determination;
(2) A brief statement of the reason(s) for the denial, including any FOIA exemptions applied by the FOIA Officer in denying the request;
(3) The amount of information withheld in number of pages or other reasonable form of estimation; an estimate is not necessary if the volume is indicated on redacted pages disclosed in part or if providing an estimate would harm an interest provided by an applicable exemption;
(4) Notice that the requester may appeal the adverse determination and a description of the requirements for an appeal under § 1.559 of this part; and
(5) Notice that the requester may seek assistance or dispute resolution services from the VA FOIA Public Liaison or dispute resolution services from the Office of Government Information Services.
Why it fails
The letter recites the two statutory tests, then says the requests fail them. It never states what any request said, or why that falls short. It speaks of “your FOIA request” in the singular. No request is named. Repeating the standard in the negative is not a reason.
15It weighs two grounds. VA’s rule has four
The letter says
The FOIA states that a “compelling need” may exist in either of two situations.
The rule, in full
38 C.F.R. § 1.556(d)(1)38 C.F.R. § 1.556 · Timing of responses to requests
(1) Requests will be processed out of the order in which they were received by the component responsible for processing the FOIA request and given expedited treatment when VA determines that:
(i) The failure to obtain the requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) There is an urgency to inform the public concerning actual or alleged Federal government activity, if the request is made by a person primarily engaged in disseminating information;
(iii) In the discretion of the FOIA Officer, the request warrants such treatment; or
(iv) There is widespread and exceptional interest in which possible questions exist about the government's integrity which affect public confidence.
Why it fails
The statute defines “compelling need” in two ways. VA’s own rule adds two more grounds: the officer’s discretion, and widespread and exceptional interest in the government’s integrity. The letter never mentions either. It decided on an incomplete standard.
16It weighs a commercial interest it never identifies
The letter says
the magnitude of the identified commercial interest of the requester is not sufficiently large, in comparison with the public interest in disclosure, that the disclosure would be “primarily in the commercial interest of you.”
The rule, in full
38 C.F.R. § 1.561(n)(4)38 C.F.R. § 1.561 · Fees
(4) To determine whether the fee waiver requirement under paragraph (n)(2)(ii) of this section is met, the FOIA Officer will consider the following factors:
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. The FOIA Officer shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(2) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration.
(ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The FOIA Officer ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
Why it fails
The letter speaks of “the identified commercial interest of the requester.” It identifies none. The requester is a veteran asking for oversight records about his own program. The rule also says requesters shall be given a chance to explain this factor. Nobody asked.
