Over the past year, Cause of Action Institute (“CoA Institute”) has been investigating the Department of Veterans Affairs for its continued politicization (here, here, and here) of the Freedom of Information Act (“FOIA”). That politicization takes the form of “sensitive review,” which refers generally to the practice of giving certain FOIA requests extra scrutiny. Sensitive review usually entails an additional layer of review or “consultation” with interested parties before potentially embarrassing or politically sensitive records are released to the public. At its best, it almost always causes delay. At its worst, it leads to intentionally inadequate searches, politicized document review, improper redaction, and incomplete disclosure. Learn More
Department of Veterans Affairs Discloses 2014 Guidance on Intra-Agency Consultations for FOIA Requests of “Substantial Interest” to Agency Leadership
The Department of Veterans Affairs (“VA”) has released a February 2014 memorandum reiterating the need for “consultations” on certain Freedom of Information Act (“FOIA”) requests, including those of “substantial interest” to the agency’s political leadership. Cause of Action Institute (“CoA Institute”) obtained the record after submitting a disclosure request in the wake of Senate Democrats expressing concern over possible politicization of VA FOIA processes.
The memorandum, which is addressed to “Under Secretaries, Assistant Secretaries, and Other Key Officials,” indicates that VA regulations require intra-agency consultation or referral whenever incoming FOIA requests implicate records that originate with another component or prove to contain “information” of “substantial interest” to another VA office. While “referral” entails the effective transfer of responsibility for responding to a request, “consultation” refers to discussing the release of particular records.
Consultation within an agency or with other entities can be a positive practice that ensures records are processed in accordance with the law. Indeed, in some cases, “consultation” is required. Executive Order 12600, for example, requires an agency to contact a company whenever a requester seeks confidential commercial information potentially exempt under Exemption 4. Yet consultations occur in less-easily defined situations, too.
The FOIA only mentions “consultation” in the context of defining the “unusual circumstances” that permit an agency to extend its response deadline by ten working days.
[“Unusual circumstances” include] the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
Unfortunately, the phrase “substantial interest” is not itself defined. This is where problems begin. The Department of Justice’s (“DOJ”) guidance on consultation suggests that a “substantial interest” only exists when records either “originate[] with another agency” or contain “information that is of interest to another agency or component.” The DOJ’s FOIA regulations, and the Office of Information Policy’s model FOIA regulation, while not dispositive, do provide a little more context. They suggest “consultation” should be limited to cases when another agency (or agency component) originated a record or is “better able to determine whether the record is exempt from disclosure.”
CoA Institute has long sought clarification on the exact nature of a “substantial interest.” In November 2014, we submitted a public comment to the Department of Defense (“DOD”) arguing that consultation should be restricted to situations where another entity has created a responsive record or is “better positioned to judge the proper application of the FOIA exemptions, given the circumstances of the request or its familiarity with the facts necessary to judge the proper withholding of exempt material.” Although our proposed definition was admittedly non-ideal—DOD did not accept that portion of our comment—it hinted at the troubling abuse, politicization, and unjustifiable delay that can occur with consultation.
The best example of such abuse and politicization is found with “White House equities” review, which is carried-out as a form of “consultation.” As CoA Institute has repeatedly documented, however, this form of “consultation” extends far beyond “White House-originated” records or records containing information privileged by White House-controlled privileges. Instead, pre-production White House review has been extended to almost anything that is potentially embarrassing or politically damaging to the President. In May 2016, CoA Institute sued eleven agencies and the Office of the White House Counsel in an effort to enjoin the Obama Administration from continuing “White House equities” review, but that lawsuit was dismissed. It is unclear to what extent President Trump has continued the practice, although at least one other oversight group has uncovered evidence of recent White House review of politically sensitive records from the Department of Housing and Urban Development.
As for the VA, the recently disclosed memorandum is silent about the precise meaning of a “substantial interest.” But, at least for the “substantial interest” of the agency’s political leadership, the memorandum indicated that “[f]ollow-up guidance will be forthcoming.”
This is especially troubling. Last week, I discussed how DOD failed to address Inspector General recommendations concerning the agency’s so-called “situational awareness” process for notifying political leadership about “significant” FOIA requests that may “generate media interest” or be of “potential interest” to DOD leadership. I noted that agencies hide behind technical phrases—like “substantial interest” or “situational awareness”—while allowing non-career officials to inappropriately interfere with FOIA processes. This could be what is happening with the VA. Why is special “guidance” needed to identify the “substantial interest” that the VA Secretary may have in a specific request? Does this not hint of the same sort of inappropriate “sensitive” review implemented at countless other agencies?
CoA Institute has appealed the VA Office of the Secretary’s response. The 2014 memorandum was the only record produced in response to our FOIA request. The “follow-up guidance” should also have been located and disclosed. It must be made public. Other VA offices are still processing portions of our request; the Office of Inspector General, for its part, was unable to locate records about recent investigations into FOIA politicization. As further information becomes available, we will post additional updates.
Ryan P. Mulvey is Counsel at Cause of Action Institute
Democratic Senators Seek Records about “Sensitive Review” from VA, Ask Inspector General to Open Investigation into FOIA Politicization
Last week, a group of eight Democratic Senators, led by Ranking Member Jon Tester of the U.S. Senate Committee on Veterans’ Affairs, wrote to the Department of Veterans Affairs (“VA”) to express concern over the possible politicization of the agency’s Freedom of Information Act (“FOIA”) processes. The senators requested various records concerning the involvement of political appointees in the FOIA decision-making process, as well as other “sensitive review”-type policies. They also wrote to the VA’s Inspector General to request an investigation into these allegations. Among other things, the legislators sought “an assessment of the role that political appointees play in the FOIA process, what types of oversight exist to ensure employees are providing all responsive material, and who makes determinations about what is or is not responsive to a request[.]”
Sensitive FOIA review has been increasingly in the news. The most recent reports have focused on the Environmental Protection Agency (“EPA”). According to EPA Chief of Staff Ryan Jackson, the Trump Administration has added an “extra layer of review” for “politically charged” or “complex requests.” Other officials claim that “sensitive review,” and similar practices such as “White House equities” review, actually originated with the Obama White House. This latter claim is better supported by the historical record, as I (here and here) and others (here) have repeatedly argued. The Obama Administration was notorious for its efforts to delay and block the disclosure of politically damaging or otherwise newsworthy records. This is not to say the Trump Administration is innocent—it has likewise contributed to obfuscation and an overall erosion of transparency. My posts earlier this year on sensitive review at the National Oceanic and Atmospheric Administration and the Federal Aviation Administration demonstrate as much.
In the case of the VA, the agency’s watchdog previously argued, in 2010 and 2015, that there has not been regular inference by political appointees in the FOIA process. But the public has long known of internal practices at the VA that likely contribute to politicization. In August 2007, for example, the agency issued a directive concerning the processing of “high visibility” or “sensitive” FOIA requests that implicate potentially embarrassing or newsworthy records.
The potential for politicization only worsened during the Obama Administration. An October 2013 memorandum instructed all Central Office components to clear FOIA responses and productions through Jim Horan, Director of the VA FOIA Service. (Mr. Horan is still part of the leadership in the Office of Privacy and Records Management.) This clearance process imposed a “temporary requirement” for front office review—although it is unknown whether the practice continues—and entailed a “sensitivity determination” leading to unnamed “specific procedures.”
Regardless of which party or president controls the government, sensitive review raises serious concerns. Although alerting or involving political appointees in FOIA administration does not violate the law per se—and may, in rare cases, be appropriate—there is never any assurance that the practice will not lead to severe delays of months and even years. At its worst, sensitive FOIA review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure. When politically sensitive or potentially embarrassing records are at issue, politicians and bureaucrats will always have an incentive to err on the side of secrecy and non-disclosure.
Considering the new allegations of FOIA troubles at the VA, CoA Institute has submitted a FOIA request seeking further information about the agency’s sensitive review policy. We will continue to report on the matter as information becomes available.
Ryan P. Mulvey is Counsel at Cause of Action Institute.
Now is the Time for VA to Change its Culture
Yesterday, the Senate confirmed Pentagon official Robert Wilkie as the new Secretary for the Department of Veterans Affairs (“Department” or “VA”). Wilkie takes over a federal agency plagued with a culture of toxicity, politicization, and misconduct. Although recent news reports and investigations of VA leadership have been a public relations nightmare for the agency, the prescription for success for the Secretary is rather simple: implement a culture change from the top-down to develop a VA that both performs its duty to veterans and operates in an ethical and productive manner.
A recent Washington Post report found that acting VA secretary Peter O’Rourke removed or reassigned VA staff members perceived to be disloyal to President Trump and his agenda for veterans. The report said that none of the staffers were given reasons for their reassignments. O’Rourke also incorrectly claimed authority over the VA Inspector General in a letter to the Inspector General. Although it would be easy to blame O’Rourke for the Department’s toxic climate, he only took office in May 2018; the systemic issues within the VA long precede the acting secretary.
Following the Washington Post report, the U.S. Government Accountability Office (“GAO”) identified several issues within the Department regarding employee misconduct, retaliation against whistleblowers, and impunity for senior officials. Perhaps the most troubling finding was that senior officials, who perpetuate the agency’s climate, are held to a lower standard than their subordinates. The following figure shows the outcomes of seventeen misconduct cases against senior officials where disciplinary or adverse action was proposed over a 53-month period. Although twelve of the officials faced proposed actions calling for their removal based on the specific charges, only three officials were actually removed from their position. In total, 71% of senior officials who were guilty of misconduct served lesser or no disciplinary action compared to the original proposed action.
Other issues the GAO identified include:
- Poor record-keeping – the current information system for recording adverse disciplinary actions does not track employee misconduct across the Department, despite the system having the capability to include and incorporate such models.
- Poor communication within the Department – VA employee files investigated by GAO did not always contain documentation indicating that employees were informed of the reason disciplinary action was brought against them. The lack of oversight in the VA’s human resource policies increases the risk that employees will not be adequately informed of their rights during adjudication.
- Lack of Transparency – VA facilities and program offices did not always provide the supporting documentation that they used to reach their conclusions about case referrals. This calls into question whether enough evidence was gathered to make sound conclusions about disciplinary or adverse actions.
- A clear disregard for procedure – the report found that facility and program offices did not consistently follow policies and procedures for investigating allegations against senior officials. Similarly, senior officials may not have always been held accountable for misconduct, whether disciplinary action was not taken or recommended, or previous disciplinary failures were not considered in repeated offenses.
Whistleblowers provide a public service by exposing illegal or unethical activity within an organization. But whistleblowers in the VA allege that managers in their chain of command took actions against them after they reported misconduct. These alleged actions included reassignment to other locations, reduced access to computer equipment necessary to complete assignments, and social isolation from peers. Whistleblowers also were not provided adequate information by VA on how to document or file a claim of misconduct or retaliation.
The GAO report included sixteen recommendations to the VA, of which the VA concurred with nine and partially concurred with five. According to their comments to GAO, the VA plans to, among other things, have the Secretary direct the Office of Accountability and Whistleblower Protection (“OAWP”) review and issue guidance on how OAWP will discipline senior officials, and develop a functional process to ensure the implementation of whistleblower protections.
Wilkie is now the face of the VA. It is up to him to make sure that the agency implements the recommendations to protect whistleblowers and hold managers that retaliate against them accountable. Cause of Action Institute will continue to conduct oversight to make sure the VA follows through with adopting GAO’s recommendations. We have documented what happens when agencies provide lip-service instead of fixing problems. Our veterans deserve a functional and ethically-operated VA, and that can only start by repairing the climate of the agency from the top.
Chris Klein is a Research Fellow at Cause of Action Institute
The VA’s Acting Secretary Claimed He Has Authority Over the Agency’s Independent Watchdog. He’s Wrong.
Department of Veterans Affairs (VA) acting secretary Peter O’Rourke incorrectly claimed authority over the VA Inspector General (IG) in a letter sent to the IG on June 11 and published by Stars and Stripes on June 20. In the letter, O’Rourke wrote to VA IG Michael Missal:
“You also appear to misunderstand the independent nature of your role and operate as a completely unfettered, autonomous agency. You are reminded that OIG is loosely tethered to VA, and in your specific case as the VA Inspector General, I am your immediate supervisor. You are directed to act accordingly.”
The letter from O’Rourke was in response to IG Missal’s concerns outlined in a June 5 letter to the VA that claimed the agency was withholding information from the IG, including information about whistleblower complaints. By trying to strongarm the IG, not only is O’Rourke blatantly mistaken in his interpretation of federal law, but his threatening language in the letter is deeply troubling. While the relevant law, the Inspector General Act of 1978, does put IGs under “general supervision” of agency heads, it makes clear that they have their own independent authority:
“Establishment IGs [IG Act, § 3(a)]: The Act specifies that each IG ‘shall report to and be under the general supervision of the head of the establishment involved or, to the extent such authority is delegated, the officer next in rank below such head, but shall not report to, or be subject to supervision by, any other officer of such establishment.’ Except under narrow circumstances discussed below, even the head of the establishment may not prevent or prohibit the IG from initiating, carrying out, or completing any audit or investigation, or from issuing any subpoena during the course of any audit or investigation.” (Emphasis added)
The Council of the Inspectors General on Integrity and Efficiency (CIGIE) explains that “[w]hile by law, IG’s are under the general supervision of the agency head or deputy, neither the agency head nor the deputy can prevent or prohibit an IG from conducting an audit or investigation. The VA’s own Functional Organization Manual states that the VA IG is “an independent oversight entity” that “[h]as authority to inquire into all VA programs and activities.”
Simply put, an IG is an independent entity that operates separately from the oversight of any official within the agency it oversees. The independent authority of the IG ensures that investigators can conduct their work without fear of reprisal.
Cause of Action Institute has often written about the issues of having watchdogs without permanent leadership, but an uncooperative agency is a similar, if not greater, problem for accountability and oversight. The VA’s acting secretary should stop claiming authority he does not have and should not try to hinder accountability at a federal agency that desperately needs it.
Ethan Yang is a Research Fellow at Cause of Action Institute.