VA Rebuked for ‘Tactics’ in Sorting FOIA Matters

(CN) - A watchdog group's records lawsuit must be dismissed, but U.S. Department of Veterans Affairs "tactics" in fulfilling the FOIA request are open to question, a federal judge ruled.

In May 2008, an email from Department of Veterans Affairs psychologist Dr. Norma Perez which the ruling states was "widely interpreted as suggesting that VA employees should refrain from giving PTSD diagnoses in order to cut costs," was leaked and led to a congressional hearing.

The nonprofit Citizens for Responsibility and Ethics in Washington (CREW) filed a Freedom of Information Act request with the agency, seeking records related to "guidance" on PTSD diagnoses. The VA denied the document request as being overly broad and imposing "an extremely burdensome search effort" on its employees.

The nonprofit sued the agency in August 2008, saying it not only did not produce the requested records - specifically, Perez's email -- but also, as a related matter, wrongly denied the group's request for a fee waiver.

The VA moved for summary judgment in September 2009, asserting that it had performed an adequate search and produced all records responsive to the nonprofit's request.

CREW opposed the motion, arguing that, "although Dr. Perez's email was dated March 20, 2008, the VA's declarations revealed that its search of its electronic records 'did not reach back to that time, but rather included only e-mail messages dating back to December 9, 2008.'"

The VA later explained in reply that it was unable to recover e-mails created before that date because the agency's "regular rotation of backup tapes precluded the recovery of older e-mail messages," according to the opinion written by U.S. District Judge Paul L. Friedman.

The nonprofit responded by suggesting the agency deliberately destroyed documents that were clearly responsive to its FOIA request, but the VA was eventually able to provide the Perez email in supplemental document releases after it found in several receipts' inboxes.

Judge Friedman granted the VA's motion for summary judgment Wednesday, holding that the nonprofit's argument "is negated by the fact that the VA has produced the allegedly destroyed documents."

However, Friedman went on to order the agency to show why attorneys' fees should not be awarded for "the additional time and effort CREWs attorneys were required to expend due to the VA's tactics."

"[The court] is deeply troubled by the VA's litigation conduct in the case: inaccurate declarations were left uncorrected for months despite the fact that already-executed declarations to the contrary existed but were withheld, apparently as a litigation tactic," the judge wrote. "Nothing stated in defendant's motion for reconsideration or other filings has done anything to mitigate that concern."

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