VA rejects Freedom of Information Act request for missing open government plan


The VA is being neither open nor transparent about its missing open government plans or policies.

On March 29, 2018, I made a Freedom of Information Act request to the United States Department of Veterans Affairs (VA) in which I asked the agency for the open government plan, self-assessment and progress report that it prepared in 2016, recommendations for opening government data from the U.S. Digital Service, and other materials related to transparency and accountability prepared for former Secretary David Shulkin.

The FOIA request followed over a year of asking the agency for this plan and progress report, after it told me it would produce them in October 2016 — and then subsequently did not disclose, breaking its commitment to transparency, failing to comply with President Barack Obama’s open government mandate, and continuing to fall short of the transparency and accountability that veterans, their caregivers and the American public deserves.

This April, the Department of Veterans Affairs denied my FOIA request with a scanned-in letter from John Buck, Director of the Office of Privacy Information and Identity Protection, embedded below.

Buck cited Exemption 5 under the FOIA in his letter (embedded above) using the following justification. (Added emphasis is mine.)

Exemption 5 permits the Government to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party in litigation with the agency.” The most commonly invoked privilege incorporated within Exemption 5 is the deliberative process privilege. This privilege protects the decision-making processes of Government agencies, and protects advisory opinions, recommendations, and deliberations. Specifically, three policy purposes consistently have been held to constitute the basis for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and supervisors; (2) to protect against premature disclosure of proposed policies before they are finally adopted; and (3) to protect against public confusion that might result from disclosure of reason and rationales that were not in fact ultimately the ground for an agency action. I have determined that the draft/straw-man of the VA’s 2017 Open Government plan must be withheld pursuant to Exemption 5 of the FOIA, 5 U.S.C. 552(b)(5) and 49 CFR 7.13(c)(5).

It is both ironic and absurd that an open government plan, self-assessment, progress report that was mandated by President Barack Obama is not already only.

Those materials and the recommendations for open government should also be proactively disclosed for public comment at, not less withheld from public access.

The VA advised me that I can appeal this partial determination, contact the VA’s FOIA Public Liason, or request mediation services through the Office of Government Information Services.

I intend to do so.

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