The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against the Department of Veteran Affairs (VA) after the VA admitted to destroying documents responding to CREW’s May 2008 Freedom of Information (FOIA) request. CREW’s FOIA request called for documents related to the VA’s policy of underdiagnosing post-traumatic stress disorder (PTSD).
CREW learned of the underdiagnosing of PTSD after learning of an email in which VA employee Norma Perez discussed the policy. According to CREW, the VA has resisted providing any documents; it stated that the VA claimed it had produced everything it had, even though it hasn’t turned over the Perez email or any other records referring to the email.
Therefore, CREW has argued that the VA’s search for documents has been inadequate, and the VA has argued that it destroyed in 2008 many emails and backup tapes, which included the Perez email. The VA has contended that it cannot produce any emails before December 9, 2008.
Anne Weismann, CREW’s chief counsel, said, “There appears to be – and I don’t know this for certain – a growing recognition on the part of the VA that there has been an under-diagnosis [of PTSD] and there seems to be a growing a recognition that they have a problem with high suicide rates. Obviously recognizing there is a problem is the first step toward curing it, but that’s why the actions of the VA here in destroying emails is so disturbing.”
What CREW hopes to achieve with the lawsuit is to get records that would confirm the extent to which there is an underdiagnosis of PTSD that’s underreported, she said.
“We don’t think we have all the records, and now we know that some of the key records were destroyed,” she said. “I can’t really speak definitively on the scope of the problem because we don’t have all the records yet. Most critically we’re missing some key documents surrounding this one email, which we have not because the VA gave it to us but because someone in the organization bravely decided to leak it.”
In addition, Weismann said, “It is incredible that with all of the public outrage and concern over this issue, the VA took no steps to preserve important records. This smacks of a cover-up to avoid liability for a disgraceful policy that deprived our nation’s veterans of appropriate health care.”
Also, Weismann said, “The VA is not above the law; like all other agencies, it cannot simply destroy documents that have been requested under the FOIA just because those documents may cast the agency in a bad light.”
In the brief, Weismann and Daniel S. Alcorn, counsel for CREW, stated that recent news reports indicate that thousands of veterans discharged from military service with PTSD between 2002 and 2008 are now eligible to have their disability status reviewed on an expedited basis.
The military has agreed to expedite these reviews in response to a class action lawsuit filed by seven combat veterans, who allege that the military illegally denied benefits to those discharged because of PTSD over a six-year period that ended October 14, 2008. “It is clear from these news reports that during the period 2002 to 2008 – a period covered by CREW’s FOIA request – there was a widespread under-diagnosis of PTSD among U.S. military service personnel affecting thousands of discharged veterans,” the brief stated.
Also, the brief stated that it is “apparent [that] the VA has not made an adequate search and release of records responsive to CREW’s request.” That’s because the VA admitted “it purposefully destroyed responsive records during the pendency of CREW’s FOIA request and this lawsuit.”
In trying to account for the VA’s failure to locate the Perez email central to the case, John Livornese, director of the FOIA Service of the Department of Veterans Affairs, said that the VA has no email history for Perez prior to December 9, 2008, because the back-up tapes for the entire system containing the Perez emails were reused and all data on those tapes was rewritten, according to the brief.
“In other words, the VA destroyed potentially responsive records after CREW made its FOIA request in this matter on May 14, 2008 – a request that expressly sought emails and other electronic records – and after CREW filed its lawsuit on August 27, 2008, in this case,” the brief stated.
The brief called for the court to direct the VA to conduct additional searches, including of the email accounts of all VA employees, to find responsive records.
In the brief, Weismann and Alcorn argued that an agency is not permitted to destroy responsive records once they have been requested under the FOIA request: “An agency’s intentional destruction of a document requested under the FOIA bears on the issue of whether the agency conducted an adequate search. That is because whatever search the agency did conduct ‘would not be reasonably calculated to uncover all relevant documents,’ as the FOIA requires.”
Weismann and Alcorn call for the VA to be required to try to reconstruct the destroyed records or information contained in the restored records. “Although the 2008 Perez email has been destroyed from the back-up tapes on which it was stored, the email and other relevant documents and information may still reside on computer hard drives at the worksite for Ms. Perez or in hard files at that site,” they stated.
In addition, the pair call for the VA to make “adequate searches for responsive records for release to CREW” because of the recent reports that thousands of veterans discharged with PTSD from 2002 to 2008 may have been denied benefits due to underscoring in a rating system used to determine benefits.
In conclusion, CREW “requests that the court order the VA to conduct renewed and broader searches and provide CREW with all responsive records not yet produced.” CREW also calls for the court to hold a hearing on the issue of document destruction and to require the VA to account for its actions.
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