36C77618Q0085-004.pdf

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Department of Veterans Affairs Veterans Health Administration Washington, DC 20420

VHA DIRECTIVE 1935

Transmittal Sheet February 5, 2018

VHA FREEDOM OF INFORMATION ACT PROGRAM

1. REASON FOR ISSUE: This Veterans Health Administration (VHA) directive establishes a VHA-wide program for the implementation of the Freedom of Information Act (FOIA) and establishes policy to comply with FOIA. This directive must be used to document and facilitate the appropriate disclosure of agency records maintained by VHA under FOIA.

2. SUMMARY OF CONTENT: This VHA directive establishes:

a. Policy for the VHA FOIA Program. This policy requires VHA-wide compliance with all applicable laws, regulations, Executive Orders and implementation policies, directives and handbooks pertaining to FOIA;

b. Responsibilities for implementing, managing, and monitoring the VHA FOIA Program;

c. Instructions on compliance with the Freedom of Information Act; and

d. References related to the VHA FOIA Program.

3. RELATED ISSUES: VA Handbook 6300.3, Procedures for Implementing the Freedom of Information Act.

4. RESPONSIBLE OFFICE: The VHA Office of Informatics and Information Governance, Health Information Governance Office, Information Access and Privacy (10A7B) is responsible for the content of this directive. Questions should be referred to the Director, VHA FOIA Office at 704-245-2492.

5. RESCISSIONS: None.

6. RECERTIFICATION: This VHA directive is scheduled for recertification on or before the last day of February 2023. This VHA directive will continue to serve as national VHA policy until it is recertified or rescinded.

Carolyn Clancy, M.D.

Executive in Charge

DISTRIBUTION: Emailed to the VHA Publications Distribution List on February 7, 2018.

February 5, 2018 VHA DIRECTIVE 1935 i

CONTENTS

VHA FREEDOM OF INFORMATION ACT PROGRAM

1. PURPOSE

2. BACKGROUND

3. DEFINITIONS

4. POLICY

5. RESPONSIBILITIES

6. PROCEDURAL REQUIREMENTS

7. FOIA EXEMPTIONS FROM PUBLIC ACCESS TO VHA RECORDS

8. REFERENCES

APPENDIX A

FOIA LITIGATION AND ANNUAL REPORT TO CONGRESS .....................................A-1

VHA FREEDOM OF INFORMATION ACT PROGRAM

1. PURPOSE

This Veterans Health Administration (VHA) directive establishes policy and assigns responsibilities for managing and conducting the VHA Freedom of Information Act (FOIA) Program in accordance with FOIA, Executive Branch guidance and policy, and Department of Veterans Affairs (VA) policy. This VHA directive promotes uniformity in the VHA FOIA program and takes precedence over all VHA component publications that supplement and implement the VHA FOIA program. AUTHORITY: Title 5 United States Code (U.S.C.) 552; Title 38 Code of Federal Regulations (CFR), Sections 1.550- 1.562.

2. BACKGROUND

a. FOIA, 5 U.S.C. 552, implemented in VA by 38 CFR 1.550-1.562 provides that any person has the right to obtain access to federal agency records, except to the extent that such records or portions of them are protected from public disclosure by one of the nine FOIA exemptions or by one of three special law enforcement record exclusions.

b. FOIA compels disclosure of reasonably described VHA records or a reasonably segregated portion of the records to any person upon written request, unless one or more of nine exemptions apply to the records. A FOIA request may be made by any person (including foreign citizens), partnerships, corporations, associations, and foreign, State, or local governments. VHA records are made available to the greatest extent possible in keeping with the spirit and intent of FOIA. All FOIA requests must be processed in accordance with the FOIA statute, applicable regulations, and this directive.

c. The VHA FOIA Program applies to records that are: Created, collected, used, maintained, or transmitted by or for VHA; under VHA authority and control; that document the organization, functions, policies, decisions, procedures, operations or activities of VHA; or contain information appropriate for retention or preservation by VHA because of the value of the information.

3. DEFINITIONS

a. Adverse Determination. An adverse determination is a decision by a FOIA Officer to withhold all or part of a requested record pursuant to an exemption, deny a fee category claim by a requester, deny a request for waiver or reduction of fees, deny a request to review an initial fee estimate, deny a request for expedited processing, confirm that no records were located during the initial search, a determination that a record is not readily reproducible in the form or format sought by the requester, a determination that what has been sought is not a record subject to FOIA or make any determination that a requester may believe is adverse in nature.

b. Agency. An agency is any executive department, military department, government corporation, government-controlled corporation, or other establishment in the executive branch of the Federal government, or independent regulatory entity.

c. Agency Records. Agency records include all documents or records created or obtained by an agency of the government that are in an agency’s possession and control at the time a FOIA request is received. Four factors determine an agency’s control: The intent of the creator of the document to retain control over the record; the ability of the agency to use and dispose of the record as it sees fit; the extent to which agency personnel have read or relied upon the document; and the degree to which the document was integrated into the agency’s record systems or files. Information maintained by an entity pursuant to a Government contract for a VHA component for the purposes of records management is considered in the VHA component’s possession.

Records created by an agency employee in the course of employment, including Emails, may be either agency records or personal files.

d. Appeal. An appeal is a requester’s written disagreement with an adverse determination under FOIA.

e. Beneficiary. A beneficiary is a Veteran or other individual who has received benefits (including medical benefits) or has applied for benefits, pursuant to 38 U.S.C.

f. Business Day. A business day is the time during which typical Federal government offices are open for normal business. It does not include Saturdays, Sundays, or Federal legal public holidays. The term “day” means a business day unless otherwise specified.

g. Business Information. Business information is confidential or privileged commercial or financial information obtained by VA from a submitter that may be protected from disclosure under Exemption 4 of FOIA.

h. Calendar Day. A calendar day is any day of the week, month or year, including Saturdays, Sundays or Federal legal public holidays.

i. Complaint. Complaint is a term that may arise under two circumstances. First, a complaint is a gap between service expectations and actual experience. A complaint may be expressed verbally, or in writing, to any employee, as well as to officials outside of the facility, such as congressional officers or Veterans Service Officers. Second, a complaint may arise in the context of litigation or legal proceedings. In such circumstances, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a legal claim against VA.

j. Component. Components are each distinct VA entity, including administrations, staff offices, services, or facilities.

k. Deliberative Information. Deliberative information is internal advice, recommendations, or subjective evaluations that are reflected in records relied upon in the decision-making process of an agency, whether within or among agencies.

l. Direct Costs. Direct costs are those expenditures a VHA component actually incurs in searching for, reviewing, and duplicating documents to respond to a FOIA request. For example, direct costs may include the salary of the employee performing the work (the basic rate of pay plus 16 percent of that rate to cover benefits) and the costs of operating duplicating machinery. Not included in direct costs are overhead expenses such as the cost of space, heating, or lighting the facility in which the records are stored.

m. Electronic Records. Electronic records are records (including Email) created, stored, and retrievable by electronic means.

n. Expedited Processing. Expedited processing means giving a FOIA request priority for processing ahead of other pending requests because VA has determined that the requester has shown an exceptional need or urgency for the records as provided in this directive.

o. Freedom of Information Act (FOIA). FOIA was enacted in 1966, and taking effect on July 5, 1967, the Freedom of Information Act provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of the three special law enforcement record exclusions. FOIA thus established a statutory right of public access to Executive Branch information in the federal government.

p. FOIA Officer. A FOIA Officer is the individual within a VA component whose responsibilities include addressing and granting or denying requests for records under

FOIA.

q. FOIA Request. A FOIA request is a written demand for records under FOIA. A FOIA request must be made in writing and in accordance with VA’s implementing regulations. The term request includes any action emanating from the initial demand for records, including an appeal to the initial demand.

r. Glomar Response. A Glomar response is a response to a FOIA request that neither admits nor denies the existence of any responsive records on a specifically identified individual other than the requester; the disclosure of which would constitute an invasion of personal privacy.

s. Health Care Facility. For the purpose of this directive, the term health care facility encompasses all offices and facilities, including but not limited to: VISNs, VA medical facilities, VA Health Care Systems, Community Based Outpatient Clinics (CBOCs) under the jurisdiction of VHA.

t. Individually-Identifiable Information. Individually-identifiable information is any information, including health information maintained by VHA, pertaining to an individual that also identifies the individual and, except for individually-identifiable health information, is retrieved by the individual’s name or other unique identifier. Individually-identifiable health information is covered regardless of whether or not the information is retrieved by name.

u. Initial Agency Decision Letter. An initial agency decision letter is the formal, written determination made by a VHA component FOIA Officer on the merits of a FOIA request.

v. Metadata. Metadata is data describing the structure, data elements, interrelationships, and other characteristics of electronic data and records.

w. Misdirected FOIA Request. A misdirected FOIA request is a FOIA request that is initially sent to a FOIA office that does not have responsibility for the requested information.

x. Official FOIA Mailbox. An official FOIA mailbox is an Email mailbox created solely for the receipt of FOIA requests.

y. Perfected FOIA Request. A perfected FOIA request is a written FOIA request that meets the requirements set forth in 38 CFR 1.554 and for which there are no remaining issues about the payment of applicable fees or any other matter that requires resolution prior to processing.

z. Personnel. For the purpose of this directive, the term VA personnel includes those officers and employees of VA; consultants and attendings; without compensation (WOC) employees; contractors; others employed on a fee basis; medical students and other trainees; and uncompensated services rendered by volunteer workers, excluding patient volunteers, providing a service at the direction of VA staff.

aa. Pre-Decisional Information. Pre-decisional information is information created before the decision maker reached a final decision.

bb. Privacy Act Request. A privacy act request is a signed, written request for records that are maintained in a Privacy Act Systems of Records.

cc. Privacy Act System of Records. The Privacy Act System of Records is any group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol or other identifying particular assigned to the individual. A record in a system of records must contain two elements: A personal identifier and at least one item of personal information.

dd. Program Office. Program office refers to an entity organizationally aligned under VHA Central Office that provides specific services or national program oversight across VHA.

ee. Reading Room. A reading room is a space made available, as needed, in VA components where records are available for review pursuant to 5 U.S.C. 552(a)(2).

Ordinarily the VA component providing public reading room space will be the component that maintains the record.

ff. Record. A record is a document, a portion of a document and information contained within a document, and can include information derived from a document or a database. Such documents may be maintained in paper, electronic, and other forms, but do not include objects such as tissue slides, blood samples, or computer hardware.

gg. Requester. A requester is, generally, any individual, partnership, corporation, association or foreign, state or local government, which has made a demand to access an agency record.

hh. Review Costs. Review costs include time spent by a VHA component FOIA Officer examining a record, to include audiovisual, Email, databases, documents and the like, in response to a commercial use request, to determine whether any portion of the record is exempt from disclosure under one or more FOIA exemptions. Review costs include time spent by the VHA component FOIA Officer contacting a submitter and considering or responding to any objections to disclosure made by a submitter, but does not include time spent resolving general legal or policy issues regarding the application of exemptions. Review costs are recoverable from commercial use requesters even if, after a review, a record is not disclosed.

ii. Search. A search includes all time spent looking, both manually and electronically, for records that are responsive to a FOIA request. Electronic searches include searching for responsive Email or electronic documents whether they are located on personal computers, network servers or easily accessible storage media.

The time taken by a programmer to create a program to run a requested report from a database is search time. The term search also includes a page-by-page or line-by-line identification (if necessary) of material in the record to determine if it, or portions of it, are responsive to the request. Time spent reviewing documents to determine whether to apply one or more of the statutory exemptions is not search time; it is review time.

The most efficient and least expensive manner to search for documents will be used to minimize costs to VA and the requester.

jj. Submitter. A submitter is any person or entity, including corporations, state, local and tribal governments and foreign governments, from whom VA obtains trade secrets or confidential commercial or financial information either directly or indirectly.

kk. Substantial Interest FOIA Request. A substantial interest FOIA request is a request for information in which there has been or is likely to generate substantial public interest. This includes, but is not limited to, the following types of requests, regardless of the requester: (1) those related to a threat to the public health; (2) high profile local or national incidents or situations involving VA beneficiaries, employees or officials; and

(3) incidents involving an alleged breach of the public trust (e.g., waste, fraud or abuse).

ll. Toll. For the purposes of this directive, a toll is to delay, suspend, or hold off the timing effects of a statute.

mm. VA Central Office (VACO). VACO is the headquarters of the Department of Veterans Affairs.

nn. VHA Component. A VHA component is any component of VHA to include, but not limited to, Program Offices, VISNs, Medical facilities and Vet Centers.

oo. Written or In Writing. Written or in writing means communication such as letters, photocopies of letters, electronic mail, and facsimiles and does not include any form of oral communication.

4. POLICY

It is VHA policy to promote Government transparency and accountability by adopting a presumption in favor of disclosure in all decisions involving FOIA while also considering Veteran privacy and responding promptly to requests in a spirit of cooperation by implementing a VHA-wide FOIA Program through the VHA FOIA Program Office in the Office of the Assistant Deputy Under Secretary for Health for Informatics and Information Governance, Health Information Governance, Information Access and Privacy Office.

5. RESPONSIBILITIES

a. Assistant Deputy Under Secretary for Health for Informatics and Information Governance. The Assistant Deputy Under Secretary for Health for Informatics and Information Governance is responsible for:

(1) Ensuring all VHA program offices with designated FOIA Officers and all Veterans Integrated Service Networks (VISNs) and VA medical centers or VA Health Care Systems publish a facility or office policy consistent with FOIA procedures and policies contained in this directive. This publication must be distributed to all employees within each respective VHA component.

(2) Ensuring that VA-wide FOIA policies and procedures are implemented through the VHA FOIA program;

(3) Ensuring the VHA FOIA program mission and vision are accomplished by supporting resources, funding, and staffing;

(4) Seeking technical guidance on all issues related to FOIA from the VHA FOIA Office; and

(5) Promoting VHA-wide collaboration with the VHA FOIA Office on record requests that are processed under FOIA.

b. Director, Health Information Governance. The Director, Health Information Governance is responsible for:

(1) Ensuring that VA-wide FOIA policies and procedures are implemented through the VHA FOIA program;

(2) Ensuring the VHA FOIA program mission and vision are accomplished by supporting resources, funding and staffing;

(3) Seeking technical guidance on all issues related to FOIA from the VHA FOIA Office; and

(4) Promoting VHA-wide collaboration with the VHA FOIA Office on record requests that are processed under FOIA.

c. VHA Director, Information Access and Privacy. The VHA Director, Information Access and Privacy (IAP), is responsible for:

(1) Coordinating the VHA FOIA and Privacy Programs;

(2) Ensuring that VA-wide FOIA policies and procedures are implemented through the VHA FOIA program;

(3) Ensuring that the VHA FOIA Program complies with Federal laws, regulations and policies, VA regulations and policies, and VHA policies relating to FOIA;

(4) Seeking technical guidance on all issues related to FOIA from the VHA FOIA Office;

(5) Promoting VHA-wide collaboration with the VHA FOIA Office on record requests that are processed under FOIA;

(6) Ensuring the monitoring of VHA FOIA Program compliance;

(7) Ensuring the VHA FOIA program mission and vision are accomplished by supporting resources, funding and staffing; and

(8) Approving and allocating budget and funding to support the VHA FOIA Program.

d. Director, VHA FOIA Office. The Director, VHA FOIA Office, is responsible for:

(1) Performing all FOIA duties and responsibilities as designated by the VA FOIA Service and the VHA Director, IAP;

(2) Complying with Federal laws, regulations and guidance, VA regulations, policies and guidance, and VHA policies relating to FOIA;

(3) Developing and implementing a VHA FOIA Program;

(4) Developing, issuing, reviewing, and coordinating FOIA policy and procedures for VHA in conjunction with policy efforts by VA;

(5) Coordinating requirements and monitoring compliance with FOIA and policy guidance issued by VA and VHA;

(6) Issuing direction to all VHA component FOIA Officers regarding all aspects of implementing the VHA FOIA Program;

(7) Consulting with the VA Office of General Counsel as needed concerning interpretation of federal laws and regulations as they relate to FOIA;

(8) Establishing requirements for the responsibilities of all VHA component FOIA Officers and providing implementation guidance, as needed;

(9) Providing VHA-specific FOIA training to VHA component FOIA Officers;

(10) Providing VHA-specific tools to assist VHA component FOIA Officers in developing a FOIA Program;

(11) Examining new or proposed legislation and VHA policy to assess the actual or potential impact on VHA FOIA policy and/or practices;

(12) Serves as VHA’s senior advisor in providing guidance to VHA leadership, program offices and component FOIA Officers regarding FOIA and other applicable Federal laws, regulations, and policies related to FOIA;

(13) Providing expert guidance to VHA component FOIA Officers regarding implementation of the VHA FOIA Program or handling of specific FOIA requests for VHA records;

(14) Ensuring the VHA submission for the annual FOIA report is accurate;

(15) Developing and approving acquisitions, budgeting and funding for the VHA FOIA Program;

(16) Ensuring that records that are submitted for posting in the VA FOIA Reading Room are timely provided to the VA FOIA Service;

(17) Processing assigned FOIA requests; and

(18) Resolving complaints and concerns on service delivery of FOIA requests as the VHA FOIA Public Liaison, including coordinating with National Archives and Records Administration (NARA), Office of Government Information Services (OGIS) on complaint resolution.

(19) Learning about the challenges about data de-identification as technology advances and more data generally becomes widely available about individuals.

e. VHA Central Office FOIA Officers. The VHA Central Office FOIA Officers, which are part of the VHA FOIA Office, are responsible for:

(1) Performing the duties and responsibilities associated with operation of the VHA-wide FOIA Program as designated by the Director, VHA FOIA Office;

(2) Complying with Federal laws, regulations and guidance, VA regulations, policies and guidance, and VHA policies relating to FOIA;

(3) Consulting with the VA Office of General Counsel as needed concerning interpretation of federal laws and regulations as they relate to FOIA;

(4) Providing training, guidance and assistance to program offices, facility and VISN-level FOIA Officers regarding implementation of the VHA FOIA Program or handling of specific FOIA requests for VHA records;

(5) Processing assigned FOIA requests;

(6) Drafting and issuing correspondence, on official VA letterhead, related to FOIA requests;

(7) Supporting the implementation of the VHA FOIA Program by advising the Director, VHA FOIA Office of identified issues and recommending corrective action;

(8) Resolving complaints and concerns on service delivery of FOIA requests as the VHA FOIA Public Liaison.

(9) Developing tools for use by field VISN and facility FOIA Officers; and

(10) Monitoring VHA FOIA program compliance.

f. VISN Directors and Chief Program Officers. With regard to their respective components, VISN Directors and Chief Program Officers are responsible for:

(1) Implementing the requirements of the VHA FOIA Program to include ensuring component policies and procedures are consistent with VHA FOIA program guidance and policies and are distributed to all component employees;

(2) Ensuring all employees are instructed annually on the requirements of FOIA, VA regulations and policies pertaining to FOIA, and VHA policy. Defined processes and procedures must be provided to all employees at the start of employment and within 6 months of any significant change in Federal law, regulation, this VHA directive, and/or facility or office procedures, and as otherwise directed in paragraph 6 of this directive;

(3) Ensuring compliance within their respective programs with Federal laws, regulations, and policies, VA regulations and policies, and VHA policies relating to

FOIA;

(4) Ensuring a thorough and timely response to action items assigned by the VHA FOIA Office;

(5) Designating through a formal, written designation, a named individual to serve as the component’s FOIA Officer. Such designation must indicate whether a FOIA Officer has signature authority for FOIA requests;

(6) Designating through a formal, written designation, a named individual to serve as the component’s alternate FOIA Officer. Such designation must indicate whether a FOIA Officer has signature authority for FOIA requests;

NOTE: The position of FOIA Officer or Alternate FOIA Officer can be served as a collateral duty. For example, an employee can encumber the position as both a Privacy Officer and a FOIA Officer.

(7) Providing appropriate resources, including human and financial resources, to implement the requirements of the VHA FOIA program;

(8) Ensuring that all FOIA requests received by the component are appropriately logged into the FOIA electronic tracking system and are appropriately counted for the annual FOIA report;

(9) Notifying the VHA FOIA Office of any changes in the component’s FOIA Officer and/or alternate FOIA Officer; and

(10) Ensuring all staff members comply with their responsibilities related to the VHA FOIA Program.

g. VISN FOIA Officers and VHA Program Offices with designated FOIA Officers. The VISN and program office FOIA Officers are responsible for:

(1) Developing VISN and program office FOIA policies consistent with the VHA FOIA Program;

(2) Processing FOIA requests addressed to, received by, or assigned to their respective entity to include processing of any requests that are seeking the same records from three or more facilities within the respective VISN;

(3) Drafting and issuing correspondence, on official VA letterhead, related to FOIA requests;

(4) Ensuring that the VISN or program office electronic mailbox for receiving FOIA requests is functional and monitored on a daily basis;

(5) Completing all training requirements associated with the performance of their FOIA duties, to include, at a minimum, mandatory training in the VA’s Talent Management System and completion of all portions of the VHA FOIA Office training program available in MyVeHU Campus or equivalent training system. All training requirements must be completed within 90 days of designation as a VHA component FOIA Officer or alternate VHA component FOIA Officer.

(6) Coordinating action items as directed by the VHA FOIA Office within their respective entity;

(7) Notifying the VHA FOIA Office when the VISN receives three or more FOIA requests for substantially the same records and when the VISN FOIA Officer determines that records have become or are likely to become the subject of subsequent FOIA requests.

(8) Assisting the VHA FOIA Office as requested in obtaining records maintained within the VISN, program office, or VISN facilities;

(9) VISN FOIA Officers are responsible for providing oversight and guidance to facility FOIA Officers within that VISN;

(10) Consulting with the VHA FOIA Office and Regional Counsel as needed concerning FOIA legal requirements and handling of specific FOIA requests;

(11) Advising VISN and/or program office officials and the VHA FOIA Office of receipt of a substantial interest FOIA request;

(12) Following the VHA FOIA Office policy on receipt of a substantial interest FOIA request, including the review of facility level substantial interest FOIA requests;

(13) Notifying the VHA FOIA Office of any changes in the primary or alternate FOIA Officer at any VISN facility;

(14) Providing annual training to staff on FOIA with respect to their responsibilities as they relate to FOIA;

(15) Ensuring that all FOIA requests received by the component are appropriately logged into the FOIA electronic tracking system and appropriately counted for the annual FOIA report;

(16) Advising component officials as needed or requested about FOIA requirements, including release of specific documents and the VHA FOIA Program;

(17) Ensuring a thorough and timely response to action items assigned by the VHA FOIA Office;

(18) Ensuring new facility FOIA Officers and alternate FOIA Officers within their respective VISN receive new employee orientation as it relates to FOIA and the VHA FOIA Program; and

(19) VISN FOIA Officers are responsible for auditing, annually, the facilities within the VISN FOIA Program for compliance with FOIA.

h. VA Medical Facility Directors. VA medical facility Directors are responsible for:

(1) Implementing the requirements of the VHA FOIA Program, to include ensuring facility policies and procedures are consistent with VHA FOIA program guidance and policies and distributed to all facility employees;

(2) Ensuring compliance within their respective programs with Federal laws, regulations, and policies, VA regulations and policies, and VHA policies relating to

FOIA;

(3) Ensuring that all FOIA requests received by the facility are appropriately logged into the FOIA electronic tracking system and appropriately counted for the annual FOIA report;

(4) Ensuring a thorough and timely response to action items assigned by the VHA FOIA Office;

(5) Ensuring policies and procedures consistent with policies contained in this directive are established within their respective facilities and programs and distributed to all personnel;

(6) Designating through a formal, written designation, a named facility FOIA Officer and alternate facility FOIA Officer, who will report directly to the VA medical facility Director or Associate Director for responsibilities and for activities of the facility FOIA program. Such designation must indicate whether a FOIA Officer has signature authority for FOIA requests;

(7) Notifying the VISN FOIA Officer of any changes in the facility’s FOIA Officer and/or alternate FOIA Officer;

(8) Ensuring that the facility complies with Federal laws, regulations, and policies, VA regulations and policies, and VHA polices relating to FOIA;

(9) Ensuring all staff receive annual training on FOIA and any additional training on FOIA as it relates to their VHA job duties;

(10) Providing the appropriate resources, including human and financial resources, to implement the requirements of the VHA FOIA Program; and

(11) Ensuring all staff comply with their responsibilities related to the VHA FOIA Program.

i. VA Medical Facility FOIA Officers. VA medical facility FOIA Officers are responsible for:

(1) Processing FOIA requests addressed to, received by or assigned to the facility in accordance with this directive;

(2) Drafting and issuing correspondence, on official VA letterhead, related to FOIA requests;

(3) Reporting directly to the VA medical facility Director or Associate Director for responsibilities and for activities of the facility FOIA program;

(4) Completing all training requirements associated with the performance of their FOIA duties, to include, at a minimum, mandatory training in the VA’s Talent Management System and completion of all portions of the VHA FOIA Office training program available in MyVeHU Campus or equivalent training system. All training requirements must be completed within 90 calendar days of designation as a VHA component FOIA Officer or alternate FOIA Officer;

(5) Consulting with Regional Counsel, VISN, and the VHA FOIA Office as needed concerning FOIA legal requirements and handling of specific FOIA requests;

(6) Assisting the VHA FOIA Office as requested in obtaining records maintained within the facility;

(7) Ensuring that all FOIA requests received by the facility are timely and appropriately logged into the FOIA electronic tracking system and appropriately counted for the annual FOIA report;

(8) Ensuring that the facility electronic mailbox for receiving FOIA requests is functional and monitored on a daily basis;

(9) Advising the appropriate facility, VISN officials, and VHA FOIA Office of receipt of a substantial interest FOIA request;

(10) Developing facility FOIA policies consistent with the VHA FOIA Program;

(11) Ensuring a thorough and timely response to action items assigned by the VHA FOIA Office;

(12) Advising facility officials as needed or requested about FOIA requirements, including release of specific documents and the VHA FOIA Program;

(13) Notifying the VHA FOIA Office when the VA medical facility receives three or more FOIA requests for substantially the same records and when the facility FOIA Officer determines that records have become or are likely to become the subject of subsequent FOIA requests;

(14) Providing annual training to staff on FOIA with respect to their responsibilities as they relate to FOIA; and

(15) Notifying the VHA FOIA Office and the VISN FOIA Office of any change in status to either the primary or alternate designated FOIA Officer at the facility.

j. VHA Personnel. All VHA personnel are responsible for:

(1) Complying with all Federal laws and regulations, VA regulations and policies, and VHA policies;

(2) Conducting themselves in accordance with the rules of conduct concerning the disclosure or misuse of information in the government, and the VA Standards of Ethical Conduct and Related Responsibilities of Employees (see 5 CFR 2635.101, 5 CFR

2635.703 and 38 CFR 0.735-10);

(3) Searching for and providing unredacted copies of records requested by a FOIA Officer or alternate FOIA Officer, within the timeframe specified by the FOIA Officer;

(4) Informing the FOIA Officer of other locations or offices that may have records responsive to a FOIA request and why they believe that the other location or program office may have responsive records;

(5) Advising the FOIA Officer of any reason why the employee or program office believes that the records should not be released in response to a FOIA request in whole or in part; and

(6) Assisting the FOIA Officer in converting records that are responsive to the subject of a FOIA request to another format where required by FOIA, or which is more convenient or cost effective for VHA; and completion of all training requirements related to FOIA, to include at minimum annual training in VA’s Talent Management System and facility sponsored FOIA training.

6. PROCEDURAL REQUIREMENTS

a. Customer Service.

(1) VHA emphasizes a citizen-centered approach to FOIA with a results-oriented focus. Because FOIA requesters are seeking a service from the Government, VHA components shall respond courteously and appropriately to FOIA requesters.

Additionally, VHA components shall provide the public with citizen-centered ways to learn about the FOIA process, provide information about agency records that are publicly available, and provide information about the status of a person’s FOIA request and any other appropriate information about the agency’s response.

(2) When requests are overly broad in scope, VHA personnel must work closely with the FOIA requester to assist the requester in narrowing the scope of his/her request.

FOIA Officers should be mindful that many FOIA requesters do not understand the types of records created and maintained by VA. It is for this reason that some FOIA requesters may need assistance in narrowing the scope of their request in a way that will be beneficial to both the agency and the requester. VHA component FOIA Officers must understand that just because a request is complex and may require a substantial amount of work is not a basis for denying a request. If a FOIA requester declines to provide clarification on the scope, the FOIA Officer must continue to process the request in accordance with this directive. VHA component FOIA Officers will not engage in particularly hostile or aggressive behavior that creates an unnecessary bureaucratic hurdle, when consulting or communicating with a FOIA requester.

(3) When a VHA FOIA Officer receives a status request from a FOIA requester, the FOIA Officer shall provide, at a minimum, the date the FOIA office originally received the request, where the request resides in the FOIA Officer’s processing queue, as well as an estimated timeframe upon which the FOIA request is expected to be completed.

b. Applicability of FOIA.

(1) As an agency within the Executive Branch of the Federal government, VA must comply with FOIA. As an administration within VA, all components of VHA must comply with FOIA.

(2) FOIA does not apply to: State governments, local governments and municipalities, foreign governments, state or federal courts, Congress, Presidential Transition Teams, or Offices within the Executive Office of the President whose functions are limited to advising and assisting the President.

c. Interaction with the Privacy Act.

(1) The Privacy Act provides for the confidentiality of individually identified and retrieved personal information about living individuals that is maintained in a Privacy Act system of records and permits disclosure of Privacy Act-protected records only when specifically authorized by the statute.

(2) When appropriate Privacy Act authority permits a full disclosure of the requested Privacy Act records, such requests will not be logged into the FOIA electronic tracking system for compilation on the annual FOIA report.

(3) When an agency promulgates rules that exempt a systems of records from first party right of access provisions of the Privacy Act (requests by an individual for his or her own records contained in a Privacy Act Systems of Records), in accordance with 5 U.S.C. 552a (k), requests for records from such exempt systems of records must be processed under FOIA. VHA component FOIA Officers will log such requests into the FOIA electronic tracking system in accordance with paragraph 6.h. of this directive. If appropriate routine use authority exists which would permit full disclosure of records from an otherwise exempt system of records, such requests are not to be entered into the FOIA electronic tracking system.

(4) Records which pertain to deceased individuals that are maintained in a Privacy Act system of records may be required to be entered into the FOIA electronic tracking system in accordance with paragraph 6.h. of this directive, as the Privacy Act does not apply to records maintained on deceased individuals. When full disclosure of the records pertaining to deceased individuals is made in accordance with an authorization of the next of kin or personal representative of the deceased Veteran, such requests are not required to be entered into the FOIA electronic tracking system. Requests for medical records on deceased Veterans, which are not accompanied by a valid authorization, must be entered into the FOIA electronic tracking system.

d. Agency Records Determination.

(1) VHA records subject to FOIA are those records that are either created or obtained by VHA and under VHA’s control at the time of the FOIA request. An agency record may be in any format, including: Paper, electronic (i.e. databases), microfiche, and other formats. VHA records do not lose their “agency record” status if they are physically maintained by a VHA contractor or another federal agency.

(2) Oral communications, tissue samples, an individual’s memory and objects, e.g., furniture and wall paintings are not considered agency records under FOIA. Personal records are also not subject to FOIA.

(3) When making a determination if records are personal records, the FOIA Officer must consider the following:

(a) The purpose for which the document was created;

(b) The degree of integration of the record into the agency’s filing system; and,

(c) The extent to which the record’s author or other employees used the record to conduct agency business.

(4) In applying the test for determining whether records are personal records, FOIA Officers must document in the FOIA administrative case file the basis for determining how records are deemed personal using the factors indicated in paragraph 6.d.(3) of this directive.

e. FOIA Request Requirements.

(1) FOIA requires disclosure of VA records, or any reasonably segregable portion of a record, to any person upon written request except to the extent that any portions of such records are protected from public disclosure under one or more of the nine exceptions. A FOIA request may be made by any person (including foreign citizens), partnerships, corporations, associations, and foreign, State, or local governments.

(2) Requests for information may also be received by VHA on referral or as a consult from another federal Agency. However, requests for records by Federal agencies and their employees acting in their official capacity are not FOIA requests. Requests for records by fugitives from justice seeking records related to their fugitive status are not FOIA requests.

(3) A requester may submit a request through any mail service, by facsimile or electronically to an official FOIA mailbox established for the purpose of receiving FOIA requests. A FOIA request sent to an individual VA employee’s mailbox or by any other means (e.g., phone, personal conversation, Twitter, Facebook), or to any other entity not designated as an official FOIA mailbox, will not be considered a perfected FOIA request. If a FOIA request is received by VHA personnel who are not designated as a VHA component FOIA Officer, the individual may, in accordance with local policy, forward the request to the appropriate, designated VHA component FOIA Officer.

Otherwise, if VHA personnel receive requests for records and local policy does not require such employees to forward to the designated VHA component FOIA Officer, the employee must advise the requester on the proper procedure for making a FOIA request.

(4) The requester must submit their request in writing and describe the records sought in enough detail to allow VHA personnel to locate them with a reasonable amount of effort.

(5) If a request, regardless of the method in which the request was received (i.e., mail, facsimile or Email), concerns documents that are protected by another confidentiality statute, as long as the documents are to be processed under FOIA any form of signature is acceptable. NOTE: If the documents are to be processed under the confidentiality statutes and not FOIA, other signature requirements may apply.

(6) Records or information customarily furnished to the public in the regular course of the performance of official duties may be furnished without a written request. If the information sought is available on a VA public Web site, a VHA employee may provide the Web site address to the requester to avoid having the requester submit a FOIA request for the information. FOIA Officers should keep in mind that all FOIA requesters do not have readily available access to the Internet. When so notified by the FOIA requester, the FOIA Officer must provide a hard copy of the requested records to the FOIA requester.

(7) FOIA requesters may request records in specific forms or formats. In these instances, VHA components shall make reasonable efforts to:

(a) Provide the record in any form or format requested if the record is readily reproducible in that form or format in the components automated system;

(b) Ensure that the copy provided is in a form or format that is reasonably usable;

(c) Maintain records in forms or formats that are reproducible; and,

(d) Use available office equipment to digitally reproduce hard copy records onto digital media if requested.

(8) In responding to requests for records, VHA components shall make reasonable efforts to search for records in electronic form or format if maintained in automated systems, except when such efforts would significantly interfere with the operation of the automated systems. Such determinations shall be made, by the VHA component FOIA Officer, on a case-by-case basis and must be fully documented in the FOIA administrative case file.

(9) A FOIA requester does not have to designate his/her written request as a FOIA request in order for the request to be processed as a FOIA request. Likewise, the requester does not have to explain why access to official records is desired. FOIA Officers may, for the purposes of seeking clarification and assisting requesters in narrowing the scope of their request, ask a requester about the purposes for which they seek the records; however, if the FOIA requester does not wish to provide a purpose for requesting the records, the FOIA request may not be denied on such basis.

(10) Requests from United States citizens and foreign nationals admitted for permanent residence in which they seek information about themselves which is retrieved by their names or other personal identifiers are to be processed under both FOIA and the Privacy Act. In reviewing such requests, the statute that provides the greatest right of access is applied. In most circumstances, when a request from these individuals is made for which the requested information is maintained in a Privacy Act system of records, the request will be processed under the Privacy Act first party right of access provisions. These requests only have to be entered in the FOIA electronic tracking system as indicated in paragraph 6.c. above.

f. Requests from Congress.

(1) Requests from Members of Congress who are not seeking records on behalf of a congressional committee or subcommittee, or on behalf of the House of Representatives or the Senate sitting as a whole, should not be processed through FOIA channels; however, any release of information will be consistent with a release to any individual pursuant to FOIA and its withholding exemptions. In these cases, the member will not be provided with FOIA appeal or Office of Government Information Services (OGIS) rights.

(2) VHA may disclose any agency records to a Committee or Subcommittee of Congress having oversight jurisdiction of VA activity to which the information pertains, including individually-identifiable information without the record subject’s prior signed, written authorization, provided that the Chair of the Oversight Committee or Subcommittee makes the request, in writing, on behalf of the Committee or Subcommittee (e.g., House and Senate Committees on Veterans Affairs, House Committee on Oversight and Government Reform, Senate or House Appropriations Committees) on Committee letterhead for Committee or Subcommittee oversight functions.

(3) When individually-identifiable information is provided to a Committee or Subcommittee, for purposes of oversight, the VHA official providing the information should advise the Committee or Subcommittee, in writing, that the information is being released for official purposes only; and that given its private, confidential nature, the information needs to be handled with appropriate sensitivity.

(4) If a Member of Congress chooses to request VHA records pursuant to FOIA, then the provisions of this directive pertaining to processing a FOIA request apply.

(5) In the instance where a constituent is seeking response to a FOIA request through their congressional Member, such requests from the constituent must be processed as a FOIA request and in accordance with the provisions of this directive. If the records are pertaining to records protected by another confidentiality statute, the congressional request must be accompanied by a signed authorization of the constituent.

g. Receiving a FOIA Request.

(1) If a VHA employee receives a written request for records, the individual may, in accordance with local facility policy, forward the request to the appropriate, designated VHA component FOIA Officer. If local policy does not require such requests be forwarded, the VHA employee receiving the written request for records must advise the requester on the proper procedure for making a FOIA request. All FOIA requests must be processed by the designated FOIA Officer or alternate FOIA Officer. In VA medical facilities, Veteran requests for medical records are routinely processed by local Health Information Management (HIM), Release of Information (ROI) departments. VA medical facility policies must address which types of requests will be processed by the ROI department. When the HIM, ROI department processes requests which must be logged into the FOIA electronic tracking system in accordance with paragraphs 6.c. and 6.h., such staff must be formally designated signature authority to sign the initial agency decision letter, by the VA medical facility Director. If the employee is unsure which office should receive a request, the employee should contact the facility’s FOIA Officer for guidance.

(2) Employees interacting with the FOIA requester pertaining to their request should inform the requester of any referrals and provide contact information of the facility’s FOIA Officer.

(3) Immediately upon receipt of a FOIA request for records, the FOIA Officer must date stamp the request. The date stamp must, at a minimum, contain the words “FOIA Office”, the received date to include month, day, and year for which the request was received by the FOIA Office, the initials of the FOIA Officer and the FOIA electronic tracking system control number for the request. The date stamp may be electronically generated, stamped with an ink stamp or handwritten. All FOIA requests must be date stamped prior to uploading into the FOIA electronic tracking system.

(4) The FOIA Officer will proceed to review the request to determine if the request is made in compliance with FOIA and the VA’s regulations implementing FOIA. A FOIA request must be in writing and reasonably describe the records sought in enough detail to allow VA personnel familiar with the requested records to locate them with a reasonable amount of effort. If the request involves records for which there is a personal privacy interest, the requester’s signature is required. The FOIA Officer will also review the request to determine if the requester is seeking a fee waiver or expedited processing. In addition, the FOIA Officer will determine if a substantial interest notification is required, in accordance with paragraph 6.i.