WASHINGTON — Empower Oversight has filed a lawsuit against the United States Department of Veterans Affairs (VA) seeking to compel it to produce documents related to the VA’s failure to respond to correspondence from Senate Judiciary Committee Ranking Member Charles Grassley. He had requested information about allegations—which have since been confirmed by the VA’s Office of Inspector General—of financial conflicts of interest involving the former Executive Director of the Education Service of the VA’s Veterans Benefits Administration.
The lawsuit involves a Freedom of Information Act (FOIA) request that Empower Oversight submitted to the VA on August 6, 2021, and charges that the VA violated the FOIA when it failed to respond timely to Empower Oversight’s request, failed to conduct a reasonable search for records, and failed to disclose all responsive records.
As an example, the VA improperly redacted hundreds of pages of records, claiming the deliberative process privilege under FOIA Exemption b(5). However, many such records appear to include factual information, which is not covered by the deliberative process privilege and, hence, not protected by FOIA Exemption b(5).
Perhaps the VA’s most egregious abuse of FOIA Exemption b(5) involves its redaction of its answers to Senator Grassley’s April 2, 2021, letter, that were dated May 20,2021, but were never transmitted. The answers are contained in a document entitled Department of Veterans Affairs (VA) Responses to Questions from Senator Charles Grassley. The document includes the text of the questions posed by Senator Grassley and below each question, the “VA Response” is set forth. However, the VA improperly redacted the full text of each of these 24 “VA Response(s)” in their entirety, purportedly pursuant to Exemption b(5). Yet, Senator Grassley’s questions call for factual answers, which are not exempt and must be disclosed pursuant to the FOIA. For example:
Question 3. Had former Principal Undersecretary Jamie Manker ever been recommended for suspension for accepting gifts as prohibited by law?
Question 6: If the VA is aware that market sensitive information was potentially leaked, has the VA investigated this leak of information?
Question 7: Did the VA Office of General Counsel ever provide a legal opinion with respect to Mrs. Bogue and her involvement with any of her husband’s companies?
Question 10a: If Mrs. Bogue did report her husband on a public financial disclosure form, did she report Mr. Bogue’s employer(s)? If not, why not?
Opinions, recommendations, or proposed solutions are the types of internal communications covered by the deliberative process exemption. Communications about facts are not. These and other questions in Senator Grassley’s letter call for facts. Principal Undersecretary Manker was either recommended for suspension, or he was not; the VA was either aware that market sensitive information was leaked or potentially leaked, or it was not; the VA either investigated such a leak or it did not; the VA’s Office of General Counsel either provided legal opinions to Ms. Bogue about her financial interest (i.e., her husband’s business dealings relative to VA business), or it did not; and Ms. Bogue either reported her husband’s financial interests on her financial disclosure reports, or she did not. Thus, any factual information hidden under the VA’s redactions to the document, Department of Veterans Affairs (VA) Responses to Questions from Senator Charles Grassley are not protected by FOIA Exemption b(5).
The VA has failed to respond to the substance of Senator Grassley’s request for information. But, pursuant a report from the VA’s Office of Inspector General, the public now knows the answers to some of Senator Grassley’s questions (e.g., Ms. Bogue acted contrary to ethics guidance she received from VA officials and she provided insufficient detail about her spouse’s business in her 2019 and 2020 public financial disclosures). Yet, the public is still in the dark concerning the VA’s responses to the allegations involving Ms. Bogue’s conflicts, its handling of market sensitive information, and its failure—for more than a year—to respond to a legitimate oversight request from Senator Grassley. The information sought by Empower Oversight’s FOIA request will shed light on these and other questions, providing the public the transparency that it rightly deserves from its government.
If you have first-hand information you’d like to disclose to assist Empower Oversight with these inquiries, please contact us confidentially here.