VAi. U.S. Department of Vet erans Affairs Office of General Counsel Management Planning & An alysis 810 Vermont Avenue NW · Washington DC 20420 www.va.gov/og!! In Reply ReferTo: 19-00008-R December 10, 2018 Mr. Austin R. Evers Executive Director American Oversight 1030 15th Street , NW Suite 8255 Washington , DC 20005 Dear Mr. Evers : This letter is in further reference ~o your Freedom of Information Act/Privacy Act request dated 03/08/2017 , and received by this office on 11/07/2018 requesting : · "Copies of Records containing or reflecting communications between OGE and individuals nominated, or anticipated to be nominated, by President Trump for Senate-confirmed positions in the federal government, including communications with attorneys or agents acting on behalf of such nominees or prospective nominees, as well as members of the Trump administration, the Trump transition team, or the Trump campaign about such nominees or prospective nominees . ... " We apologize for our delay-requests for OGC's assistance have increased dramatically , and we are doing our best to keep up with the demand for our services . Your request was assigned FOIA Tracking Number 19-00008-R. Please refer to this number in any future correspondence . · As information , it is our policy to process requests for access to Office of General Counsel Service records on a first-in/first-out basis (FIFO) ..This office assigns incoming requests to one of three tracks : simple , complex , or expedited. Each request is then handled on a first-in , firstout basis in relation to other requests in the same track. Found in the files of the Office of Government Ethics were various documents which originated with the VA Office of General Counsel. These documents were referred to this agency for a releaseability determination and direct response to you. · The Freedom of Information Act, 5 U.S.C. § 552(A)(a)(ii) , places all FOIA requesters in one of three categories for fee purposes. The three categories of FOIA requesters are commercial use; educational institutions , noncommercial scientific institutions , representatives of the news media; and all other requesters . I have determined your request to be a "news media" requester . Representatives of the news media will be charged for the cost of reproduction only, excluding charges for -the first 100 pages . AMLHICAN PVERSIGHT -2We have classified you as a representative of the news media. As such, we may charge you for · some of our duplication costs, but we will not charge you for our search or review costs; you also are entitled to up to 100 pages of photocopies (or an equivalent volume) for free. See 38 C.F.R. § 1.561(b)(7). If, after taking into consideration your fee category entitlements , ou_r processing costs are less than $50.00, we will not bill you because the cost of collection would be greater than the fee collected. See 38 C.F.R. § 1.561(b)(7). Enclosed are 28 pages of record material which can be released to you. Certain deletions have been made to this material pursuant to (title 5, United States Code 552 (b)(5) FOIA Exemption 5), which protects "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency . The three primary , most frequently invoked privileges that have been held to be incorporated into Exemption 5 are the deliberative process privilege (referred to by some courts as "executive privilege") , the attorney work-product privilege , and the attorney-client privilege . Exemption 5 encompasses documents that fall within the deliberative process privilege , which shields documents reflecting advisory opinions , recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated . The general purpose of "deliberative process privilege" is to "prevent injury to the quality of agency decisions ." Specifically , three policy purposes consistently have been held to constitute the bases for this privilege: (1) to encourage open, frank discussions on matters of policy between subordinates and superiors ; (2) to protect against premature disclosure of proposed policies before they are actually adopted ; and (3) to protect against public confusion that might result from disclosure of reasons and rationales that were not in fact ultimately the grounds for an agency's action. Logically flowing from the foregoing policy considerations is the privilege's protection of the "decision making processes of government agencies ." In concept , the privilege protects 'not merely documents , but also the integrity of the deliberative process itself where the exposure of that process would result in harm . FOIA Exemption 6 protects information about other individuals in "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy. Exemption 6 protects information about other individuals if the release would lead to a clearly unwarranted invasion of personal privacy . 5 U.S.C. §552(b)(6). As noted in United States Department of Justice v. Reporter 's Committee for Freedom of the Press, 489 U.S.§ 749 (1989), the Supreme Court provided the following step-by-step analysis to determine when the exemption applies to a case: (1) determine whether a personal privacy interest is involved; (2) determine whether disclosure would serve the public interest ; and, (3) balance the personal privacy interest against the public interest. Substantial privacy interests exist in the names , addresses, phone numbers , email addresses, and other personal identifying information since career public servants retain personal privacy AMERICAN PVERSIGHT -3interests in the discharge of their public duties. New England Apple Council. Inc. v. Donovan, 725 F.2D 139 (1st Cir. 1984). While the release of the aforementioned information may be permissible if it would serve an articulable and significant public interest , you have not identified a public interest in the identities of these individuals that would outweigh their privacy interest. Overall , the balance weighs in favor of protecting the privacy of other individuals involved, and we find that their identities and identifying details are protected under Exemption 6. VA FOIA Appeal, Public Liaison, OGIS Options Should you have any questions , comments, or concerns regarding the processing of this request , you may contact M. Renee Baxter at OGCF01Arequests@va .gov . Also, you have the right to seek assistance from the VA FOIA Public Liaison at telephone number 1(877) 750-3642 or by email at VACOFOIAService@va .gov . You may appeal the initial determination made in this response to : Department of Veterans Affairs Office of General Counsel (OGC) (Appeals) 810 Vermont Avenue, N.W. (024) Washington, DC 20420-0001 Please include your FOIA case number in any appeal. Also, include a copy of this letter with your written appeal and clearly state why you disagree with the determinations set forth in this response. You must file your appeal within 90 days from the date of this letter clearly marking both the letter and the envelope "Freedom of Information Act Appeal." Please include a copy of this letter with your appeal, and state why you disagree with this determination. Additionally , as part of the 2007 FOIA amendments , the Office of Government Information Services (OGIS) was created to offer mediation services to resolve disputes between FOIA requesters and Federal agencies . You may contact OGIS by email at ogis@nara.gov ; by tollfree telephone at 1-877-684-6448 (or 202-741-5770); by facsimile at 202-741-5769; or by writing to: Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi Road, Room 2510, College Park, MD 207 40-6001. Sincerely, M. Renee Baxter OGC FOIA Officer A 1 I PVERSIGHT To: Qebpceb J Bmtot TeresaL, Wjffjarnsoo · Heather A Jones;Sso4@ s Mabry:KeithLabedz Subject: Date: FW: Pointsof Coot.actfor NomineePakcages Tuesday, December 20, 2016 9:03:55 AM From: From: Gurland, .Jonathan I. [mailto:Jonathan.Gurlarid@va.gov] Sent: Tuesday,December 20, 2016 8:49 AM To: Deborah J. Bortot Cc:Jaynes, Mark T.; Borden, Carol L (OGC); Gutcher, Jane; Britt, Olristopher;! (b}(6) Kennedy, Tammy Subject: Pointsof Contactfor NomineePakcages Deb, Below is the contact information for the Ethics Attorneys who would be available for review of nominee packages. I will be in this week and out the following week. Mark will return on December 28 and Chris Britt will be in on the 27th. Jonathan ~ Central Office (VACQ)- Govemmen!Ethics@va goy or (202) 461-6000or (202} 461-7637 Tammy Kennedy , Chief Counsel, Southeast District , North/Designated Agency Ethics Official (DAEO), (615) 695-4622tammy kennedy@ya.gov Mark Jaynes. Deputy Chief Counsel/Alternate DAEO mark jaynes@va,goy (254} 722-3976, (202) 754-1780 (BB) Jonathan Gurland. Senior Ethics Attorney jonatbao guriand@va.gov(202) 461-7653 Jane Gutcher (virtual) janegu!cher@yagov (202) 461-7619(Berthoud, CO) Chris Britt (virtual) chrjstopher.britt@vagov (202) 302-3516 (Augusta, GA) Carol Lane Borden carol!ane@vagov (202) 461-7629 tb)f6) Paralegal lh\fh\ l@vagov (202) 461-7632 I AMERICAN ,PVERSIGHT I, I OGE-17-0005-M-000001 From: Gur1and,JonathanI. To: JeresaL. Williamson Peborab J eortot; Bordencarol L (QGQ: Guttber,Jane:Bdtt Cbcistopbec: JaynesMactJ Cc: Subject: Date: FW: PoilltS of Contactfor NomineePackages Tuesday, December 20, Z0l6 2:44:~8 PM Teresa, We have the following coverage over the holidays Carol Borden - Present today and 12/21 and then on leave unt il January 3rd Chris Britt- Present thru 12/22, 12/27 thru 12/29, and 1/3 thru 1/5, out 12/23, 12/30 and 1/6 th Jonathan Gurland - Present thru 12/23 and then on leave unt il January 4 . th Jane Gutcher - Present thru 12/21 and then on leave until January 4 · Mark Jaynes,Alternate DAEO, will return on 12/28, his cwo is 12/30 .. "'VACentralOfficeIVACOl - Gate: LomaA. syme •BeinO'Jostootu:C nomine!!report Friday, JanlJal'.(20, 2017 1;2.3:43PM I hope to send you my comments short ly. It's taking me a little bit longer than I expected to match up everyth ing. Also, c.an you remind rn~ of the . I rernember us discussing, but my notes are in the office. Maybe we can discuss by telephone at some point . We may have to tweak the language on Part 3. Lorna Syme Presidentia l Nominations Branch U.S. Office of Government Ethics 1201 New York Ave., NW, Suite 500 Washington, DC 7.0005-3917 Telephone : (207) 482-9277 Facsimile: (202) 482-9237 Visit OGE'swebsite : >>www.o~e gov<< Follow OGE on Twitter: @OfficeGovEth ics AMr-HICA\J PVERSIGHT OGE-17-0005-M-000011 From! To: LomaASy~ "Britt Christophe( S4.lbject: RE:Friday,January 20, 2017 1:42:04 PM Date: ________ _________ .. Yes- Part 2. From: Britt, Christopher[mailto:Christopher.Britt@va.go~ Sent: Friday,January 20, 2017 1:41 PM To: Lorna A. Syme Sublect: RE: (b)(6) I Yes,! -'-'- I --- -•-=== -.~. (b)(S) · -- ··· ···=· =..··=-.,,..,., ..·-=-· ··= ···..·=·· ··· =.... ="'" -· ==---__J ·-·. .-· ··=······=··· ···,····-,;;,,, ;,:, _...~ ........ From: Lorna A. Syme [mailto·lasyme@oge.gov] Sent: Friday, January 20, 2017 1:38 PM To: Britt, Christopher Subject: lEXTER.NAL) RE:.. Yes-we I - · -- ..--·- will have to clarify. I read Part 3 to mean ·-··- ·----·· --•- -.....- . I think Part 3 language will need to be revised a bit. ·--------- ····~- - ------------ From: Britt, Christopher[mailto:Chr istopherBritt@va.gov] Sent: Friday, January 20, 2017 1:35 PM To: Lorna A. Syme Subject: RE: (b)(6) I I I (b){5) From: Britt, Christopher Sent: Friday, January 20, 2017 1:31 PM To: 'Lorna A. Subject: (b ] I I s'1ffif I {b)(6):{b){5) (b)(5) Christopher A. Britt Staff Attorney and Deputy Ethics Official Ethics Specially Team, Office of General Counsel (023) Department of Veterans Affairs Phone: :202-302-3516 cbcistonher bntt@vagov Please visit our new GovernmentEthicswebs{teformore informationon ethics topics. From: Britt, Christopher __ _ Sent: Monday, October 19, 2015 12:33 PM .,__ To: 'Lorna A. Syrne' Subject: FW: I (b)(5) I ~-------Thc1nks, Lorna . Analysis is below, I (b)(5) (b)(5) AMERICAN PVERSIGHT _ OGE-17-0005-M-000012 (b)(5) i. Chr;stopher A. Britt Staff Attorney and Deputy Ethics Official Ethics Specialty Team, Office of Geoeral Coonse\ (023) Department of Veterans Affairs Phone: 202-302-3516 chnstopherbr\tt@va®" from: Loma A. Syme [mailto:!asyme@oge,goy] Sent: Tuesday, October 13, 2015 5:45 PM AMERICAN PVERSIGHT OGE-17-0005-M-000013 To: Britt, Cllristopher subject:[EXTERNAi..] RE:_ HiChris: Let me knowif youwant to discuss. Lorna From: Bmt.Christi,pher[maitto;Ct,ristQ)ber,Britt@y,a OCNl Sent: Tuesday, October13, 2015 3:20 PM To: LomaA. S.....,_.vi_me __ Sub,ied::RE:I lb)(5) _ l (b)(S) Christopher A. Britt Staff Attorney and Deputy Ethics Official EthiCSSpecialtyTeam. Office of General Counsel (023) Departmentof VeteransAffairs Phone:202-302-3516 chrfstq)her brift@Ya,ggy From:Britt,Christopher Sent: Tuesday, October 13, 2015 1:13 PM To: 'LomaA Curv1A' Subject:! (b)(S) I (b)(5) Chrlsropher A. Brin AM~ HICAN PVERSIGHT OGE-17-0005-M-000014 From: To: LomaAs\We Heather A. J9nes Subject: Date: RE:quick question Friday, January 20, 2~n '1:08:2~PM Checking Thx From:HeatherA. Jones Sent: Friday,January20, 2017 3:45 PM To: LornaA. Syme; Deborah]. Bartot Subject: Re: quick question Correct. Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTEnetwork. from: Loma A. Syme Sent: Friday,January 20, 2017 3:40 PM To: DeborahJ. Bortot; Heather A. Jones Subject: quick question Correct? Thanks! LorriJ Syme Presidential Nominations Branch U.S. Office of Government Ethics 1201 New York Ave., NW, Suite 500 Washington, DC 20005-3!:l 17 Telephof'le : (202) 482 92/ I Facsimile : (202) 482-9237 Visit OGE"swebsite: »www oge ~oy« Follow OGE on Twitter: @OfficeGov[thics AMERICAN PVERSIGHT OGE-17-0005-M-000015 From: To: Loma A. svme Subject: Date: Friday,January 20, 2017 4:41:51 PM Britt, Christopher RE: initiemail also may contain information that is privileged, confidential, or otherwise protected from disclosure under applicable law. If you are not the intended recipient or the employee or agent responsible for delivering the transmission to the intended recipient, you arc hereby notified that any dissemination, distribution, copying or use of this email or its contents is strictly prohibited. If you have received this email in en-or, please notify the sender by responding to the email and then immediately delete the email. AMr-HICA\J PVERSIGHT OGE-17-0005-M-000017 From: LornaAsvme To: "&itt Chri:;t®!)er " Subject: Pata: RE:- The- question Friday, Januarv20, 2017 10:16:09 PM really should be moved t o Part 5. Can you tell me which they cJreand I can move them. From~Britt, Christopher[mailto:Christopher.Britt@va .gov) Sent: Friday,January20, 2017 6:15 PM To: Loma,...A~·-S-Y...,,m=e~----. Subject:! (b)(5) (b)(5) (b)(5) ChristopherA. Britt Staff Attorney and Deputy Ethics Official EthicsSpecialtyTeam, Offlce.of Ge11eratCouns€1(01-lST) Dep.irtrnent of Veterans Affa irs Pt1one:202-?,02-3516 Please visit our GovernmentEthicswebsitefor more information on ethics topics. AMERICAN PVERSIGHT OGE-17-0005-M-000018 From: Loma A Svme "Britt Christopher" To: Subject; RE: Date: Friday, January 20, 2017 10:23:07 PM From: Britt, Christopher[mailto:Christopher.Britt@va.gov} Sent Friday, January 20, 2017 7:29 PM To: LomaA. s,...y __ m_e ______ __, Subject: RE:! (b)(5) (b)(5) -- - ---- ---··-·· - - -- ------- -- - ---- From: Britt, Christopher Sent: Friday, Jc1nuary20, 2017 4:39 PM To: 'Loma A. Syme' SUbject: RE:,....j -(b-)(5---)--, -- - -- - ------- Ok, thanks. From: Lorna A. Syme (majlro-laS¥cre@oge gov] Sent: Friday, January 20, 2017 4:20 PM To: Britt, Christopher Subject: (EXTERNAL]RE;- Take a look. He can retain or drop the endnote - his decision. ---- ·-------------·- ------ --······..•-· ···--·····-·····- ···. ···-·---·---·-··-··- ·- ····· ·---- ---· -·---- ..····--- ··-···· From: Britt, Christopher [mailto·OJcistopher.Brjtt@va,gov] Sent: Friday, January 20, 2017 4:13 PM AM~ HICAN ,OVERSIGHT ·-- ·-- - OGE-17-0005-M-000019 To:Loma A. Syme Subject:! lb)l5) Question about this comment: (b)(5) ChristopherA. Britt Staff Attorney and Deputy Ethics Official Ethio Speciillty Team, Office of General Counsel (02-[ST) Department of Veterans Affairs Phone: 202-302-3516 Pleasevisit our Government Ethicswebsitefor more informationon ethics topics. OGE Confidential Notice: This email, including all attachments, may constitute a Federal record or other Government property that is intended only for the use of the individual or entity to which it is addressed. This email also may contain infonnation that is privileged, confidential, or otherwise protected from disclosure under applicable law. If you are not the intended recipient or the employee or agent responsible for delivering the transmjssion to the intended recipient, you are hereby notified that any dissemination, distribution, copying or use of this email or its contents is strictly prohibited. If you have received this email in error, please notify the sender by n:sponcling to the c::mailand then immediately delete the email. AMERICAN PVERSIGHT OGE-17-0005-M-000020 From: To: Subject: Dilte: Deh 0 @b1 Bortnt LornaA.s:,me;Heathec6 1imtl:lC.eilh I atiedz Re: Si!turday,January21, 2017 4:35:05 PM ! would send them the regs. Sent from my Black8erry 10 smartphone on the Verizon Wireless 4G LTE network. From:Loma A. Syme Sent Saturday, January21, 2017 3:48 PM To: DeborahJ. Bortot· Heather A. Jones; Keith labedz Subject: FW: From: Britt, 01ristopher [mailto:Christopher.Britt@va.gov1 Sent: Saturday, January 21, 20171:41 PM To: Lorna A. syme Subject:j (b )(5) (b)(5) ChristopherA..Britt Staff Attorney and Deputy [thics Official Ethics Specialty Team, Office of Genera! Counsel (02-E:,l) AM~ HICAN PVERSIGHT OGE-17-0005-M-000021 Departmen t of Vet erans Affairs Phone: 202-302-3516 Please visit our GovernmentEthicswebsitefor more information on ethics topics. HT OGE-17-0005-M-000022 To: Heather A Jones I omaA Syme: Deborah J Bprtot KcjlhLabedz Subject: Date: R.~; Sunday,January22, 20171:34:24 PM from: OK just put something on the calendar Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network . From:Lorna A. Syme Sent; Sunday,January 22, 2017 12:27 PM To: DeborahJ. Bortot· Heather A. Jones; Keith Labedz Subject: Maybe we can talk early Monday about revisions to the language for Part 3 for reporting of these As a reminder, Dave, Walt, Lorna, Deb and Heather all met in October/November 2015 to discuss. Lorna AM~ HICAN PVERSIGHT OGE-17-0005-M-000023 From; To: Cc: Subjed: Date: Stefan, DavidShull