• In August 2018, a group of eight Democratic Senators, wrote to the Department of Veterans Affairs (VA) to express alarm over the possible politicization of the agency’s Freedom of Information Act (FOIA) processes. Specifically, they were concerned about the involvement of political appointees in the FOIA decision-making process.
  •  Cause of Action Institute (CoA Institute) submitted a FOIA request to the VA seeking records about the agency’s “sensitive review” process, but the agency only disclosed a single document. After considering CoA Institute’s appeal, the VA Office of General Counsel ordered supplemental searches for additional records.
  • “Sensitive review” raises serious transparency concerns because the involvement of political appointees in FOIA administrative can lead to severe delays and, at worst, improper record redaction and incomplete disclosure.
  • Whenever politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will have an incentive to enforce secrecy and non-disclosure.

Earlier this year, CoA Institute opened an investigation into the sensitive review process at the VA. As I mentioned in an earlier post, the public has long been aware of internal practices at the agency that could open the door to FOIA abuse. During the Bush Administration, the VA issued a directive concerning the processing of “high visibility” or “sensitive” requests that implicated potentially embarrassing or newsworthy records. The Obama White House subsequently updated that guidance in October 2013, when the VA instructed its departmental components to clear FOIA responses and productions through a centralized office. This clearance process imposed a “temporary requirement” for front office review and entailed a “sensitivity determination” leading to unnamed “specific procedures.”

Another record recently disclosed to CoA Institute illustrates how the VA again updated its sensitive review process in February 2014. According to the memorandum, the agency intended to continue its “long standing” procedure for notifying leadership of incoming FOIA requests that may be “substantial interest to the Office of the Secretary.” Exact guidance on the sorts of requests that would trigger such review, however, was still under development at the time. It is unknown how the notification process was implemented in the absence of that guidance.

To date, the VA has failed to disclose any further records about sensitive review. CoA Institute successfully appealed the Office of the Secretary’s final response, and the agency’s Office of General Counsel ordered additional searches on remand. A precise deadline for a supplemental response was not given, but we will provide updates as any additional records become available.

In light of its commitment to open government, CoA Institute has been a leader in examining cases of sensitive review at other agencies, including the National Oceanic and Atmospheric Administration and the Federal Aviation Administration. We also have analyzed the practice at the Environmental Protection Agency on several occasions (here, here, and here). A recent press report concerning the EPA confirmed our warnings about the potential for delay when “sensitive” or politically charged records are targeted for special processing.

Regardless of which party or president controls the government, sensitive review poses a serious threat to government transparency. Alerting or involving political appointees in FOIA administration can lead to severe delays and, at its worst, contribute to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.

Ryan P. Mulvey is Counsel at Cause of Action Institute.

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018