29 December 2012

VA Resists C-123 Veterans' FOIA for Agent Orange Data

Early last year, LtCol Paul Bailey submitted our formal FOIA (Freedom of Information Act request) to the Veterans Administration, seeking information about how VA officials managed their participation in two meetings with C-123 veterans hosted by Senator Burr's staff in Washington DC. Our request to the Air Force for their materials had been granted earlier. It is our fear that the VA participants approached the question of C-123 dioxin contamination with a mindset of denial, rather than even-handed scientific concern. In went our FOIA as we hoped to learn about how we were treated at the meetings.

Result? $5000 in pushback from the VA as they denied the perfectly valid appeal! To prevent us getting information about ourselves. $5000 to make sure we'd never get it! $5000 to make sure veterans would never learn that VA officials approached our concerns about Agent Orange exposure with a determination not to uncover the truth, but instead to construct any argument necessary to prevent our access to VA medical care and benefits. Our concerns for this FOIA focused on uncovering all the information located by the VA, how they interpreted it, what instructions they gave their officials and whether those instructions were neutral or whether those instructions were to

Government agencies usually can't bury information like this without running up against the FOIA itself, but obviously there are times when the requested information might cause bureaucrats discomfort. This seem to be one of those instances. Solution? Delay. Delay. Delay. Delays then followed by charging prohibitive fees for the information requested! That's the VA solution to keep embarrassing information out of the hands of C-123 veterans.

But we have rights and options, and one was to appeal the VA's pricing and refusal to provide an expedited response. Paul submitted that appeal in May and the GSA took until late November to get around to refusing it..again! They claimed the FOIA law required VA to charge us because only journalistic, educational, and not-for-profit requests can be free. Another free category - information requested is in the public interest and informs the public of how the government operates. VA's Assistant General Counsel Deborah McCallum wrote Paul about her refusal to grant his appeal even though we were fully justified, but she was also required to tell us of a final route for an appeal before going to court: The Office of Government Information Services (OGIS) acts as a final arbiter of our rights to this information - and so we submitted our appeal on behalf of The C-123 Veterans Association on December 24, 2012.

In this last out-of-court appeal, we explained our journalistic presence in the form of blogs, web sites and newsletters, We explained that the public is intensely interested in both Agent Orange and veterans health care. We explained that we have no commercial interest in the requested materials, and that the Air Force honored an identical request, using the same FOIA law and regulations, and that the information is, after all, about US!

 In it, we explained the justification for our FOIA and the reasons its denial were improper. Now...we are waiting once again. The impact: we won't have the data in time for the 15 Jan 2013 briefing we are scheduled to give the Institute of Medicine's Agent Orange committee, but we will have both the VA and the Air Force extensive collections of materials ready to give Congress early in 2013 as we continue our struggle.

So...more waiting, more hoping. Keep the faith!

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