Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PRO PUBLICA, INC. 155 Avenue of the Americas, 13th Floor New York, NY 10013 Plaintiff, Civil Action No. ________ v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS 810 Vermont Avenue NW Washington, DC 20420 Defendant. COMPLAINT 1. This is an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq., seeking the release of withheld records that generally concern communications between the United States Department of Veterans Affairs (“VA”) and its consultant Alvin L. Young, Ph.D. (“Young”) on issues related to the use of Agent Orange and other herbicides during the Vietnam War. Pro Publica, Inc.’s (“ProPublica”) senior reporter Charles Ornstein, whose investigative work was previously recognized with a Pulitzer Prize for Public Service, sought these records under FOIA, but the VA has stonewalled and failed to disclose them. ProPublica seeks declaratory, injunctive, and other appropriate relief with respect to this unlawful withholding. -1- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 2 of 15 JURISDICTION AND VENUE 2. This court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). In addition, this Court has jurisdiction pursuant to the APA, 5 U.S.C. §§ 701-706. This Court has jurisdiction to grant declaratory and further necessary or proper relief pursuant to 28 U.S.C. §§ 2201-2202 and Federal Rules of Civil Procedure 57 and 65. 3. Venue lies in this district pursuant to 5 U.S.C. § 552(a)(4)(B) and 28 U.S.C. § 1391(e) as the defendant is located in the District of Columbia and because a substantial part of the events or omissions giving rise to the claims occurred in this district. THE PARTIES 4. Plaintiff ProPublica is a Delaware corporation and a non-profit entity under Section 501(c)(3) of the Internal Revenue code. As an independent newsroom that produces investigative journalism in the public interest, ProPublica has been honored with three Pulitzer Prizes. On average, ProPublica’s web site has more than 1,000,000 unique visitors per month. Since its publishing began in 2008, ProPublica’s “publishing partners” have included more than 135 news outlets amounting to a “who’s who” of the journalism world, including: the Atlantic, BBC, Boston Globe, Los Angeles Times, Miami Herald, New York Times, NPR News, Politico, USA Today, Virginian-Pilot [Norfolk], and the Washington Post. 5. Defendant United States Department of Veterans Affairs is a federal agency headquartered at 810 Vermont Avenue NW, Washington, DC 20420. VA has possession, -2- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 3 of 15 custody, and control over the records sought by plaintiff. VA is an agency within the meaning of 5 U.S.C. § 552(f)(1). NATURE OF THE ACTION 6. “Mixtures of 2,4-dichlorophenoxyacetic acid (2,4-D), 2,4,5-trichlorophen- oxyacetic acid (2,4,5-T), picloram, and cacodylic acid made up the bulk of the herbicides sprayed” by the U.S. military from 1962 to 1971 over Vietnam. See VETERANS AND AGENT ORANGE: UPDATE 2014, National Academies of Sciences, Engineering, and Medicine (2016), at 1. “The herbicide mixtures used were named according to the colors of identification bands painted on the storage drums; the main chemical mixture sprayed was Agent Orange, a 50:50 mixture of 2,4-D and 2,4,5-T. At the time of the spraying, 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), the most toxic form of dioxin, was an unintended contaminant generated during the production of 2,4,5-T and so was present in Agent Orange as well as some other formulations sprayed in Vietnam.” Id. 7. It took an act of Congress—not the VA—to finally recognize the long-term health effects of such herbicides in Vietnam veterans. Pursuant to 38 U.S.C. § 1116(f), “a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service.” -3- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 4 of 15 8. Federal law and VA regulations provide that certain diseases are “considered to have been incurred in or aggravated by” service in Vietnam. See 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.309(e), 3.313(b). Those diseases are either specifically identified in the statute or identified by the VA, at its discretion, as “having positive association with exposure to an herbicide agent.” Id. 9. In exercising its discretionary authority to recognize certain diseases as linked to herbicides in Vietnam, the VA considers various views including those of its consultant, Young, who might be characterized as a naysayer. In 2013, for example, Young advised the VA that “[h]istorical records and environmental fate studies support the conclusion that our troops were never at a significant risk for exposure to Agent Orange.” See https://www.propublica.org/documents/item/3145886-May-15-2013email.html (email obtained through a FOIA request unrelated to the present dispute). 10. Young has a long history of working for the federal government and subsequently serving as a third-party consultant concerning Vietnam-era herbicides and exposures. 11. A wooden plaque, circa 1979, in the “Alvin L. Young Collection on Agent Orange”—part of the Special Collections of the National Agricultural Library of the United States Department of Agriculture—reads “‘Dr. Orange’ Major Alvin L. Young, The True Scientist.” See https://specialcollections.nal.usda.gov/agentorange/agent- orange-item-id-6537 (emphasis added). 12. “Young had drawn the nickname [many decades ago] as an Air Force expert on herbicides used to destroy enemy-shielding jungle in Vietnam. Since then — -4- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 5 of 15 largely behind the scenes — the scientist, more than anyone else, has guided the stance of the military and U.S. Department of Veterans Affairs on Agent Orange and whether it has harmed service members.” See Charles Ornstein & Mike Hixenbaugh, Dr. Orange: The Secret Nemesis of Sick Vets, PROPUBLICA and THE VIRGINIAN-PILOT (Oct. 26, 2016), available at https://www.propublica.org/article/alvin-young-agent-orange-va-militarybenefits. 13. But Young has his critics. “‘Most of the stuff [Young] talks about is in no way accurate,’ said Linda S. Birnbaum, director of the National Institute of Environmental Health Sciences, part of the National Institutes of Health, and a prominent expert on dioxin. ‘He’s been paid a hell of a lot of money by the VA over the years, and I think they don’t want to admit that maybe he [isn’t] the end all and be all.’” Id. 14. “Over the years, the VA has repeatedly cited Young’s work to deny disability compensation to vets, saving the government millions of dollars.” Id. 15. All the while, Young has profited handsomely from the Agent Orange controversy. “In recent years, Young, 74, has been a consultant for the Department of Defense and the VA, as well as an expert witness for the U.S. Department of Justice on matters related to dioxin exposure. By his own estimate, he’s been paid ‘a few million’ dollars over that time.” Id. 16. In 2012, the VA awarded Young “a $600,000 no-bid contract to write research reports on Agent Orange.” Id. -5- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 6 of 15 17. Despite the government’s reliance on Young, the interested public remains largely uninformed concerning his central role in (allegedly) debunking any attempt to link Agent Orange to the ailments of Vietnam-era veterans. 18. Only through transparency can the public have confidence in the VA’s commitment “[t]o care for him who shall have borne the battle.” The VA’s integrity is called into question when it refuses to divulge the extent of its reliance upon a single individual—Young—whose research and conclusions concerning the long term health effects of Agent Orange and other herbicides on Vietnam veterans seemingly have had a profound impact on VA policy and regulations. PLAINTIFF’S FOIA REQUEST AND DEFENDANT’S FAILURE TO COMPLY WITH FOIA 19. By email dated May 31, 2016, ProPublica submitted a FOIA request to the VA (“FOIA Request”)—sent to the Veterans Health Administration (“VHA”)—in which it sought disclosure of correspondence, both electronic and written, between January 1, 2012 and present, between Young and the following VA officials (regardless of whether the correspondence involved the official directly or as a carbon copy (“cc”) recipient):  Thomas Murphy (Senior Executive Service (“SES”)), director of compensation and pension;  Allison Hickey;  James Sampsel;  Brad Flohr (SES EQV), VBAVACO;  John Spinelli (SES);  Lisa Thomas, Ph.D. (SES), VHACO; -6- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 7 of 15  Janice Jacobs (SES), VBAVACO;  Eric Shinseki, former Secretary;  Robert McDonald, current Secretary;  Dr. Terry Walters (SES), now retired;  Dr. Ralph (“Loren”) Erickson;  Dr. David J. Shulkin, Under Secretary of Health;  Carolyn M. Clancy, VA’s former Interim Under Secretary for Health; and  Dr. Robert Petzel, former Under Secretary of Health. The FOIA Request also sought disclosure of the correspondence, including internal approval justifications, with respect to any contracts awarded to Young or his consulting firm A. L. Young Consulting, Inc., since January 1, 2010. See Exhibit 1. 20. ProPublica requested “expedited consideration” because the FOIA Request “relates to a matter of urgency.” Id. The FOIA Request explained that “[t]he Institute of Medicine recently released its 2014 Agent Orange update related to possible presumptive conditions connected to herbicide exposure” and “Dr. Young has been an active advisor to the VA on matters relating to herbicide exposure.” Id. In addition, the FOIA Request sought a waiver of FOIA processing fees. Id. 21. The VA’s own FOIA regulation provides that a FOIA request “will be processed out of the order in which [it was] received . . . and given expedited treatment when VA determines that . . . [t]here is an urgency to inform the public concerning actual or alleged Federal government activity, if the request is made by a person primarily -7- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 8 of 15 engaged in disseminating information.” 38 C.F.R. § 1.556(d)(1)(ii). This provision is specifically meant to assist journalists who seek prompt disclosure of information for imminent publication. 22. By email and letter dated June 2, 2016, the VHA acknowledged receipt of the FOIA Request, assigned it tracking number 16-08181-F, and transferred portions of the request from VHA to the Office of the Secretary of Veterans Affairs (“OSVA”) (under separate tracking number 16-08182-FF) and the Veterans Benefits Administration (“VBA”) (under separate tracking number 16-08183-F). See Exhibit 2. ProPublica’s requests for expedited processing and a fee waiver also were granted by VHA. Id. 23. By email dated August 4, 2016, VBA informed ProPublica that “the request will take over 20 days to process” and that VBA “process[es] requests in the order that they are received.” See Exhibit 3. VBA did not acknowledge ProPublica’s request for expedited processing let alone grant or deny that request. Id. 24. On August 4, 2016, ProPublica sent an email to VBA inquiring about the expected timing with respect to processing the FOIA Request. Id. A first response email from VBA that same day indicated “there may be a delay ranging from 90 to 120 days.” Id. A second response email from VBA a short time later that day indicated that VBA’s IT Office “estimate[ed] that it will take up to 18 months to retrieve the data [ProPublica] requested.” Id. 25. On August 5, 2016, ProPublica sent another email to VBA expressing concern about the VBA’s processing time for the FOIA Request. Id. In response, on August 7, 2016, VBA informed ProPublica by email that the FOIA Request was placed in -8- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 9 of 15 the “Exceptional/Voluminous track” and that VBA “process[es] requests in the order that they are received.” Id. 26. On October 20, 2016—nearly five months after ProPublica’s FOIA Request was submitted—VBA yet again informed ProPublica by email that “the request will take over 20 days to process” and that VBA “process[es] requests in the order that they are received, and, accordingly, must first complete work on requests that preceded [ProPublica’s FOIA Request].” See Exhibit 4. ProPublica inquired by email that day whether VBA had “any sense of timing” as to when VBA’s processing would occur, and VBA responded by email that day that “the time may expand longer than the projected 180 days.” Id. 27. To date, no records have been produced by VBA in response to the FOIA Request. 28. By email dated September 15, 2016, VHA informed ProPublica that there would be a further “delay in processing” the FOIA Request due to problems experienced by VA’s Office of Information and Technology (“OI&T” or “IT”). See Exhibit 5. VHA stated that “[d]ue to the date range of the requested records . . . it will take anywhere from 2-4 months for [] data migration to be completed and allow for the record search to begin.” Id. 29. On September 15, 2016, ProPublica inquired by email with VHA about first reviewing a subset of the requested records, particularly those from “more recent time periods,” so that at least some progress could be made with respect to processing the FOIA Request. Id. On September 16, 2016, VHA replied “[y]es” by email. Id. -9- Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 10 of 15 ProPublica inquired with VHA by email again on October 11, 2016, and on October 12, 2016, VHA replied by email that it did not have “an estimated time” when it could review more recent records. Id. Again on October 25, 2016, ProPublica inquired by email to VHA about the status of processing the FOIA Request. Id. That same day, VHA responded by email that VHA still awaited “assistance of [VA’s Office of General Counsel] and IT.” Id. 30. To date, no records have been produced by VHA in response to the FOIA Request. 31. By letter and email dated July 15, 2016, OSVA provided a response to FOIA tracking number OSVA 16-08182-F. See Exhibit 6. With respect to Messrs. John Spinelli, Eric Shinseki, and Robert McDonald, OSVA “concluded that [it] is not in possession of records responsive to this portion of [ProPublica’s] request.” Id. 32. Despite the grant of ProPublica’s request for expedited processing by VHA, and the passage of over six months since the FOIA Request was filed, ProPublica has not received any response determination in connection with the FOIA Request from VHA or VBA. FAILURE TO TIMELY MAKE RESPONSE DETERMINATIONS UNDER CREW 33. “[I]n order to make a ‘determination’ and thereby trigger the administrative exhaustion requirement, the agency must at least: (i) gather and review the documents; (ii) determine and communicate the scope of the documents it intends to produce and withhold, and the reasons for withholding any documents; and (iii) inform the requester - 10 - Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 11 of 15 that it can appeal whatever portion of the ‘determination’ is adverse.” Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180, 188 (D.C. Cir. 2013). 34. “If the agency does not make a ‘determination’ within the relevant statutory time period, the requester may file suit without exhausting administrative appeal remedies.” Id. at 185. 35. The FOIA statute, 5 U.S.C. § 552(a)(6)(C)(i), also provides that “[a]ny person making a request to any agency for records . . . shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of § 552(a)(6).” 36. VA has not sent ProPublica any response “determination” in connection with the FOIA Request within the relevant statutory time period. FIRST CAUSE OF ACTION: Violation of the Freedom of Information Act for Failure to Disclose Agency Records With Respect to the FOIA Request 37. ProPublica repeats and re-alleges paragraphs 1-36 above. 38. ProPublica has a legal right under FOIA to obtain the agency records requested from defendant VA in the FOIA Request, and no legal basis exists for defendant’s failure to make available the requested records. 39. With respect to the FOIA Request, defendant VA’s wrongful withholding of agency records violates FOIA, 5 U.S.C. § 552(a)(3), as well as VA’s regulations promulgated under FOIA. 40. ProPublica is entitled to declaratory and injunctive relief with respect to the release and disclosure of the requested records. - 11 - Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 12 of 15 SECOND CAUSE OF ACTION: Violations of the Freedom of Information Act and VA’s FOIA Regulation for Failure to Grant Expedited Processing With Respect to the FOIA Request 41. ProPublica repeats and re-alleges paragraphs 1-40 above. 42. The FOIA statute requires that each agency shall “provid[e] for expedited processing of requests for records,” inter alia, “in cases in which the person requesting the records demonstrates a compelling need.” 5 U.S.C. § 552(a)(6)(E)(i)(I). 43. The FOIA statute defines a “compelling need” as meaning, inter alia, “with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity.” 5 U.S.C. § 552(a)(6)(E)(v)(II). 44. The VA’s FOIA regulation provides that “[r]equests will be processed out of the order in which they were received by the component responsible for processing the FOIA request and given expedited treatment when VA determines that . . . [t]here is an urgency to inform the public concerning actual or alleged Federal government activity, if the request is made by a person primarily engaged in disseminating information.” 38 C.F.R. § 1.556(d)(1)(ii). 45. The VA’s FOIA regulation also provides that “[r]equests will be processed out of the order in which they were received by the component responsible for processing the FOIA request and given expedited treatment when VA determines that . . . [t]here is widespread and exceptional interest in which possible questions exist about the government’s integrity which affect public confidence.” 38 C.F.R. § 1.556(d)(1)(iv). - 12 - Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 13 of 15 46. The FOIA statute further provides “that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request.” 5 U.S.C. § 552(a)(6)(E)(ii)(I). 47. The VA’s FOIA regulation further provides that “[w]ithin ten (10) calendar days of its receipt of a request for expedited processing, the FOIA Officer shall determine whether to grant the request and will provide the requester written notice of the decision.” 38 C.F.R. § 1.556(d)(3). 48. There is urgency to inform the public concerning actual or alleged Federal government activity and ProPublica is a person primarily engaged in disseminating information entitled to expedited treatment, pursuant to 38 C.F.R. § 1.556(d)(1)(ii). 49. There is widespread and exceptional interest in the subject matter of the FOIA Request in which possible questions exist about the government’s integrity which affect public confidence, pursuant to 38 C.F.R. § 1.556(d)(1)(iv). 50. Despite VHA’s grant of expedited processing for the FOIA Request, VBA did not even acknowledge ProPublica’s request for expedited processing let alone grant or deny that request. 51. VBA’s failure to determine whether to grant ProPublica’s request for expedited processing in the FOIA Request, and its failure to grant that request for expedited processing, violate FOIA as well as VA’s regulations promulgated under FOIA. - 13 - Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 14 of 15 52. ProPublica is entitled to declaratory and injunctive relief with respect to VBA’s failure to act upon, and grant, the request for expedited processing in the FOIA Request. THIRD CAUSE OF ACTION: Violation of the Administrative Procedure Act for Failure to Timely Respond to Request for Agency Records With Respect to the FOIA Request 53. ProPublica repeats and re-alleges paragraphs 1-52 above. 54. The failures of defendant VA to timely respond and actually provide expedited processing with respect to ProPublica’s FOIA Request for agency records, and defendant VA’s withholding of agency records, each constitute agency action unlawfully withheld and unreasonably delayed, in violation of the APA, 5 U.S.C. §§ 701-06. The failures of defendant VA to timely respond and actually provide expedited processing, and its withholdings, each are arbitrary, capricious, an abuse of discretion, not in accordance with law and without observance of procedure required by law, all in violation of the APA. 55. ProPublica is entitled to declaratory and injunctive relief with respect to the release and disclosure of the requested records in connection with the FOIA Request. REQUESTS FOR RELIEF WHEREFORE, ProPublica requests that judgment be entered in its favor and against defendant, and that: a) defendant and any of defendant’s agents or other persons, departments, or components acting for, with, by, through or under them be ordered to conduct - 14 - Case 1:16-cv-02462 Document 1 Filed 12/16/16 Page 15 of 15 an expedited and reasonable search for records responsive to ProPublica’s request under FOIA; b) defendant and any of defendant’s agents or other persons, departments, or components acting for, with, by, through or under them be enjoined and restrained from continuing to withhold records relevant to ProPublica’s request under FOIA and in violation of the APA; c) the Court declare that the requested records are not exempt from disclosure under FOIA and order defendant to disclose the requested records in their entireties and make copies available to ProPublica; d) the Court enter a judgment awarding ProPublica reasonable attorneys’ fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E) and 28 U.S.C. § 2412; and e) the Court award all other such relief to ProPublica as this Court deems just, proper and equitable. Dated: December 16, 2016 Respectfully submitted, /s/ Seth A. Watkins Seth A. Watkins (D.C. Bar # 467470) Email: watkins@adduci.com ADDUCI, MASTRIANI & SCHAUMBERG LLP 1133 Connecticut Avenue, NW Washington, DC 20036 Telephone: (202) 407-8647 Facsimile: (202) 466-2006 Attorneys for Plaintiff Pro Publica, Inc. - 15 - Case 1:16-cv-02462 Document 1-1 Filed 12/16/16 Page 1 of 3 EXHIBIT 1 Case 1:16-cv-02462 Document 1-1 Filed 12/16/16 Page 2 of 3 Graham, Timothy Subject: Charles Ornstein Tuesday, May 31, 2016 4:25 PM VHA FOIA; Swailes, Barbara K. MHixenbaugh PilotOnline; Charles Ornstein [EXTERNAL] New VA FOIA request Follow Up Flag: Flag Status: Follow up Flagged From: Sent: To: Cc: RECEIVED DATE o<;{3t/llt CONTROL ti llf-Dg\ Sunday, August 07, 2016 11:58 PM Charles Ornstein VAVBAWAS/C0/212/Teaml FOIA RE: [EXTERNAL] RE: FOIA 16-08181-F_Charles Ornstein 16-08181-F Incoming Request.pdf Good morning Mr. Ornstein, As provided in the email dated August 4, 2016, the VBA Office of Information and Technology (Ol&T) indicated that they have projected 18 months to gather the electronic correspondence you requested related to your FOIA request (PDF attached). The data you are requesting requires that VBA Ol&T recreate email accounts beginning January 2012 until present day for several VBA current and former employees. We use Multitrack Processing to process FOIA requests. The Simple track is for requests that can be processed in one to five workdays. The Normal track is for requests that can be processed in six to twenty workdays. The Complex track is for requests that can be processed in twenty-one to sixty workdays. The ExceptionalNoluminous track is for requests requiring more than sixty workdays for processing. Your FOIA request falls under the ExceptionalNoluminous track. Under the Open Government Act of 2007, an agency is allowed to exceed the normal processing time of 20 business days for two reasons: 1. There is a need to search for, collect, and review a voluminous amount of records. 2. There is a need to consult with two or more components within the Department of Veterans Affairs (VA). In regard to your request, we will need to do both. Please be assured your request is being given appropriate attention, but bear in mind that we process requests in the order that they are received, and, accordingly, must first complete work on requests that preceded yours. We will grant you access to the requested records providing the records are not exempted from disclosure by law. You may narrow the scope of your request to obtain quicker processing in your currently-assigned track or move the request into a faster track. If you have any questions about this, please contact us. I have requested that Ol&T provide me with a monthly release of the emails as they are retrieved. will review for compliance within the scope of your FOIA request. If they are not exempt from disclosure, I will release to you as I review. Customer service is very important to us. If you have questions regarding this request, please feel free to contact me at 202-461-8306 and refer to the case number above. Warmest regards, Paulette D. Maten, MPA 1 Case 1:16-cv-02462 Document 1-3 Filed 12/16/16 Page 3 of 5 Department of Veterans Affairs Veterans Benefits Administration Compensation Service, FOIA Officer 202-461-8306 From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Friday, August 05, 2016 11:18 AM To: VAVBAWAS/C0/212/Teaml FOIA Subject: [EXTERNAL] RE: FOIA 16-08181-F_Charles Ornstein Hello, I wanted to follow up on my note from yesterday that expressed concern about the time you said it would take to process my request. Can you please advise. Thanks, Charlie Ornstein Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: {917) 512-0222 Fax: (212) 785-2634 Cell: (818} 679-9363 Twitter: @charlesornstein My articles: http://www.propublica.org/site/author/charles ornstein From: VAVBAWAS/C0/212/Teaml FOIA [mailto:212TeamlFOIA.VBAVACO@va.gov] Sent: Thursday, August 04, 2016 10:53 AM To: Charles Ornstein Subject: FW: FOIA 16-08181-F_Charles Ornstein Importance: High Good morning Mr. Ornstein, I just received notification from our IT Office and based upon your inquiry, they are estimating that it will take up to 18 months to retrieve the data you requested. Warmest regards, Paulette D. Maten, MPA 2 Case 1:16-cv-02462 Document 1-3 Filed 12/16/16 Page 4 of 5 Department of Veterans Affairs Veterans Benefits Administration Compensation Service, FOIA Officer 202-461-8306 From: Maten, Paulette, VBAVACO Sent: Thursday, August 04, 2016 10:39 AM To: Charles Ornstein Subject: RE: FOIA 16-08181-F_Charles Ornstein Good morning Mr. Ornstein, Based upon extensive searching, reviewing, redacting and copying there may be a delay ranging from 90 to 120 days. Warmest regards, Paulette D. Maten, MPA Department of Veterans Affairs Veterans Benefits Administration Compensation Service, FOIA Officer 202-461-8306 From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Thursday, August 04, 2016 10:23 AM To: Maten, Paulette, VBAVACO Subject: [EXTERNAL] RE: FOIA 16-08181-F_Charles Ornstein 3 Case 1:16-cv-02462 Document 1-3 Filed 12/16/16 Page 5 of 5 Do you have any sense of timing on this? This request was submitted some time ago. Charlie Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas, 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: (917) 512-0222 Fax: (212) 785-2634 Cell: (818) 679-9363 From: Maten, Paulette, VBAVACO [Paulette.Matenl@va.gov] Sent: Thursday, August 04, 2016 10:14 AM To: Charles Ornstein Cc: VAVBAWAS/C0/212/Teaml FOIA; Maten, Paulette, VBAVACO Subject: FOIA 16-08181-F_Charles Ornstein Good morning Mr. Ornstein, We have begun the search for records responsive to your request. Please be advised the request will take over 20 days to process due to the need for extensive searching, reviewing, redacting and copying. Under the Open Government Act of 2007, an agency is allowed to exceed the normal processing time of 20 business days for two reasons: 1. There is a need to search for, collect, and review a voluminous amount of records. 2. There is a need to consult with two or more components within the Department of Veterans Affairs (VA). In regard to your request, we will need to do both. Please be assured your request is being given appropriate attention, but bear in mind that we process requests in the order that they are received, and, accordingly, must first complete work on requests that preceded yours. We will grant you access to the requested records providing the records are not exempted from disclosure by law. Thank you for your interest in the Department of Veterans Affairs. Customer service is very important to us. If you have questions regarding this request, please feel free to contact me at 202-461-8306 and refer to the case number noted in the subject line of this email. Warmest regards, Paulette D. Maten, MPA Department of Veterans Affairs Veterans Benefits Administration Compensation Service, FOIA Officer 202-461-8306 4 Case 1:16-cv-02462 Document 1-4 Filed 12/16/16 Page 1 of 3 EXHIBIT 4 Case 1:16-cv-02462 Document 1-4 Filed 12/16/16 Page 2 of 3 From: Maten, Paulette, VBAVACO [Paulette.Maten1@va.gov] Sent: Thursday, October 20, 2016 9:54 AM To: Charles Ornstein Subject: RE: FOIA 16-08183-F_C. Ornstein Good morning Mr. Ornstein, I am waiting on the emails. Once I began to receive them, I will review and provide you the information incrementally. Otherwise, the time may expand longer than the projected 180 days. Hope this information helps. Paulette From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Thursday, October 20, 2016 9:47 AM To: Maten, Paulette, VBAVACO Subject: [EXTERNAL] RE: FOIA 16-08183-F_C. Ornstein HI Paulette, do you have any sense of timing on your end? Thanks. --Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: (917) 512-0222 Fax: (212) 785-2634 Cell: (818) 679-9363 Twitter: @charlesornstein My articles: http://www.propublica.org/site/author/charles_ornstein From: Maten, Paulette, VBAVACO [mailto:Paulette.Maten1@va.gov] Sent: Thursday, October 20, 2016 9:46 AM To: Charles Ornstein Subject: FOIA 16-08183-F_C. Ornstein Importance: High Good morning Mr. Ornstein, This email is just a status update regarding your FOIA request. We are still collecting the data for your inquiry. We apologize for the extraordinary delay. Case 1:16-cv-02462 Document 1-4 Filed 12/16/16 Page 3 of 3 Please be advised the request will take over 20 days to process due to the need for extensive searching, reviewing, redacting and copying. Under the Open Government Act of 2007, an agency is allowed to exceed the normal processing time of 20 business days for two reasons: 1. There is a need to search for, collect, and review a voluminous amount of records. 2. There is a need to consult with two or more components within the Department of Veterans Affairs (VA). In regard to your request, we will need to do both. Please be assured your request is being given appropriate attention, but bear in mind that we process requests in the order that they are received, and, accordingly, must first complete work on requests that preceded yours. We will grant you access to the requested records providing the records are not exempted from disclosure by law. Thank you for your interest in the Department of Veterans Affairs. Customer service is very important to us. If you have questions regarding this request, please feel free to contact me at 202-461-8306 and refer to the case number noted in the subject line of this email. Warmest regards, Paulette D. Maten, MPA Department of Veterans Affairs Veterans Benefits Administration Compensation Service 202-461-8306 Case 1:16-cv-02462 Document 1-5 Filed 12/16/16 Page 1 of 6 EXHIBIT 5 Case 1:16-cv-02462 Document 1-5 Filed 12/16/16 Page 2 of 6 Charles Ornstein From: Sent: To: Cc: Subject: Pluff, Angela Tuesday, October 25, 2016 10:50 AM Charles Ornstein Pluff, Angela RE: VHA FOIA Office Update on FOIA Request 16-08181-F Hi Charlie, This is still pending assistance of OGC and IT to upload the emails from the server into the Clearwell system so I can begin my review. Timothy Graham, our Program Director, continues to pursue their assistance but to no avail yet. I apologize for the inconvenience with the delay in processing your request. We continue to pursue assistance in the interim. Thank you. Pluff, RHIA VHA FOIA Officer I Information Access and Privacy Office Health Information Governance I Office of Informatics and Information Governance 810 Vermont Avenue, N.W. I Washington, D.C. 20420 Tel. (315) 263-3653 I Fax (202) 273-9387 From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Tuesday, October 25, 2016 10:30 AM To: Pluff, Angela Subject: [EXTERNAL] RE: VHA FOIA Office Update on FOIA Request 16-08181-F Hi there. Checking in with you on this. Thanks. Charlie Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: (917) 512-0222 Fax: (212) 785-2634 Cell: (818) 679-9363 Twitter: @charlesornstein My articles: http://www.propublica.org/site/author/charles ornstein From: Pluff, Angela [mailto:Angela.Pluff@va.gov] Sent: Wednesday, October 12, 2016 11 :42 AM To: Charles Ornstein 1 Case 1:16-cv-02462 Document 1-5 Filed 12/16/16 Page 3 of 6 Cc: Pluff, Angela Subject: RE: VHA FOIA Office Update on FOIA Request 16-08181-F Hi Charlie, I've been able to get the necessary software installed on my computer and am waiting for assistance from another program office to get the emails currently available uploaded to the Clearwell system so I can begin the review of that portion of the responsive records. Unfortunately I don't have an estimated time on when the emails will be uploaded into Clearwell, but do know it is something we are pushing the program office for regularly. Sincerely, Angela RHIA VHA FOIA Officer I Information Access and Privacy Office Health Information Governance I Office of Informatics and Information Governance 810 Vermont Avenue, N.W. I Washington, D.C. 20420 Tel. (315) 263-36531 Fax (202) 273-9387 From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Tuesday, October 11, 2016 10:11 AM To: Pluff, Angela Subject: [EXTERNAL] RE: VHA FOIA Office Update on FOIA Request 16-08181-F Hi Angela, I wanted to follow up on this. Thanks, Charlie Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas, 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: (917) 512-0222 Fax: (212) 785-2634 Cell: (818) 679-9363 From: Pluff, Angela [Angela.Pluff@va.gov] Sent: Friday, September 16, 2016 11:03 AM To: Charles Ornstein Cc: Pluff, Angela Subject: RE: VHA FOIA Office Update on FOIA Request 16-08181-F Yes. There are some on-line emails retrieved that 01&T should be able to download to our Clearwell system so I may begin the review for that portion of records. I have requested this of them today. Thank you. Angela RHIA VHA FOIA Officer I Information Access and Privacy Office Health Information Governance I Office of Informatics and Information Governance 810 Vermont Avenue, N.W. I Washington, D.C. 20420 2 Case 1:16-cv-02462 Document 1-5 Filed 12/16/16 Page 4 of 6 Tel. (315) 263-3653 I Fax (202) 273-9387 From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Thursday, September 15, 2016 4:32 PM To: Pluff, Angela Subject: [EXTERNAL] RE: VHA FOIA Office Update on FOIA Request 16-08181-F Hi Angela. Is there anything we can do, such as looking first at more recent time periods? Please let me know. Thanks, Charlie Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas, 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: (917) 512-0222 Fax: (212) 785-2634 Cell: (818) 679-9363 From: Pluff, Angela [Angela.Pluff@va.gov] Sent: Thursday, September 15, 2016 4:23 PM To: Charles Ornstein Cc: Pluff, Angela Subject: VHA FOIA Office Update on FOIA Request 16-08181-F Mr. Ornstein: The purpose of this email is to communicate a status update of your FOIA request received by the VHA FOIA Office on May 31, 2016. The search for records responsive to your request has been delayed due to the inability of the VA's Office of Information and Technology (01& T) department to search and retrieve any emails responsive to your request from the archive email server. Due to the date range of the requested records, the search must be conducted on a storage device that has experience several system failures. As a result, 01& Tis working to have the data on the storage device migrated to another server. It is estimated at this time that it will take anywhere from 2-4 months for the data migration to be completed and allow for the record search to begin. I apologize for the delay in processing your request. If you have any questions regarding this update or your request, you may contact me at (315) 263-3653. Thank you. Angela Pluff, RHIA VHA FOIA Officer I Information Access and Privacy Office Health Information Governance I Office of Informatics and Information Governance 810 Vermont Avenue, N.W. I Washington, D.C. 20420 Tel. (315) 263-3653 I Fax (202) 273-9387 From: Graham, Timothy Sent: Thursday, June 02, 2016 11 :04 AM 3 Case 1:16-cv-02462 Document 1-5 Filed 12/16/16 Page 5 of 6 To: 'Charles Ornstein'; VHA FOIA Cc: MHixenbaugh PilotOnline Subject: RE: New VA FOIA request Mr. Ornstein: Attached is VHA's acknowledgement of your request, as well as the notification that we have transferred portions of your request to the Office of the Secretary of Veterans Affairs and the Veterans Benefits Administration. Ms. Angela Pluff will be handling your request in the VHA FOIA Office. Thank you, Ti H. Gra J. lLM CI U CIP I Director, VHA FOIA Office (10P2C1) I Information Access and Privacy Office Health Information Governance I Office of Informatics and Information Governance N,W. From: Charles Ornstein [mailto:Charles.Ornstein@propublica.org] Sent: Tuesday, May 31, 2016 4:25 PM To: VHA FOIA; Swailes, Barbara K. Cc: MHixenbaugh PilotOnline; Charles Ornstein Subject: [EXTERNAL] New VA FOIA request Dear FOIA officer: Pursuant to the Freedom of Information Act, I would like to request correspondence (electronic and written) between Jan. 1, 2012 to present to and from Alvin Young (email addresses: youngrisk@aol.com and youngespr@bresnan.net) and the following VA officials: Thomas Murphy (SES), director of compensation and pension Allison Hickey James Sampsel Brad Flohr (SES EQV), VBAVACO John Spinelli (SES} Lisa Thomas PHO (SES), VHACO Janice Jacobs (SES), VBAVACO Eric Shinseki, former Secretary Robert McDonald, current Secretary Dr. Terry Walters, SES now retired Dr. Ralph ("Loren") Erickson Dr. David J. Shulkin, Under Secretary of Health Carolyn M. Clancy, VA's former interim undersecretary for health Dr. Robert Petzel, former Under Secretary of Health My request includes emails for which the officials listed above are cc'd. In addition, I would like to request correspondence, including the internal approval justifications, for any contracts awarded to Dr. Young or his consulting firm, A. L. Young Consulting, Inc., 1810 Tranquility Road, Cheyenne, WY 820092903, since Jan. 1, 2010. I would like to request expedited consideration for this request as it relates to a matter of urgency. The Institute of Medicine recently released its 2014 Agent Orange update related to possible presumptive conditions connected to herbicide exposure. Dr. Young has been an active advisor to the VA on matters relating to herbicide exposure. 4 Case 1:16-cv-02462 Document 1-5 Filed 12/16/16 Page 6 of 6 For the same reasons noted above, I would like to request a waiver of fees associated with filling this request. If you have questions, please let me know. Many thanks. Charlie Ornstein Charles Ornstein Senior Reporter, ProPublica 155 Avenue of the Americas, 13th Floor New York, NY 10013 E-mail: charles.ornstein@propublica.org Office: (917) 512-0222 Fax: (212) 785-2634 Cell: (818) 679-9363 5 Case 1:16-cv-02462 Document 1-6 Filed 12/16/16 Page 1 of 4 EXHIBIT 6 Case 1:16-cv-02462 Document 1-6 Filed 12/16/16 Page 2 of 4 From: VACO 001B FOIA Inbox [OSVAFOIA@va.gov] Sent: Friday, July 15, 2016 11:27 AM To: Charles Ornstein Subject: OSVA response to FOIA request 16-08182-F Dear Mr. Ornstein, in response to your recent FOIA request, attached is the initial agency decision letter from the Office of the Executive Secretary, Veterans Affairs (OSVA). Should you need to contact our office, our FOIA mailbox address is OSVAFOIA@va.gov. Sincerely, OSVA FOIA Office Case 1:16-cv-02462 Document 1-6 Filed 12/16/16 Page 3 of 4 DEPARTMENT OF VETERANS AFFAIRS Washington DC 20420 July 15, 2016 In Reply Refer To: 001 B FOIA Request: OSV A 16-08182-F Mr. Charles Ornstein ProPub/ica 155 Avenue of the Americas, 13th Floor New York, NY 10013 Dear Mr. Ornstein: This is in response to your May 31, 2016 Freedom of Information Act (FOIA) request referred to the Office of the Executive Secretary, Veterans Affairs (OSVA) on June 2, 2016 and assigned tracking number 16-08182-F. Please refer to this number when making inquiries to OSVA about your request. You seek correspondence (electronic and written) between January 1, 2012 to the present to and from Alvin Young (email addresses: youngrisk@aol.com and youngespr@bresnan.net) and the following VA officials: 1. Thomas Murphy 2. Allison Hickey 3. James Sampsel 4. Brad Flohr 5. Janice Jacobs 6. John Spinelli 7. Eric Shinseki 8. Hon. Robert McDonald 9. Lisa Thomas 10. Dr.Terry Walters 11. Dr. Ralph "Loren" Erickson 12. Dr. David J. Shulkin 13. Dr. Carolyn Clancy 14. Dr. Robert Petzel In your request, you specify that the information you seek includes emails for which the officials listed above are cc'ed. In addition, you request correspondence, including the internal approval justifications, for any contracts awarded to Dr. Young or his consulting firm, A.L. Young Consulting, Inc. since January 1, 2010. Please note that OSVA does not maintain records related to the internal justifications for or contracts awarded to A.L. Young Consulting, Inc. The portion of your request referred to OSVA for a search and response are items 6-8 in the above enumerated listing of VA officials. After conducting a diligent search of archived emails and OSVA's correspondence database, we have concluded that our office is not in possession of records responsive to this portion of your request. Please note that the VA has a decentralized process for handling FOIA requests and that you can expect to receive direct responses from all VA offices to which your request has been referred. Case 1:16-cv-02462 Document 1-6 Filed 12/16/16 Page 4 of 4 Mr. Ornstein Page2 of2 This concludes OSVA's response to your request. Please be advised that you may appeal OSVA's determination made in this response to: Office of General Counsel (024) Department of Veterans Affairs 810 Vermont Avenue, NW Washington, DC 20420 If you should choose to file an appeal, please include a copy of this letter with your written appeal and clearly indicate the basis for your disagreement with the determination set forth in this response. Please be advised that in accordance with VA's implementing FOIA regulations at 38 C.F.R. § 1.559, your appeal must be postmarked no later than sixty (60) days of the date of this letter. Sincerely, 'i6~Yno:r(k,~L Lis; MatJszczaK' v OSVA FOIA Officer