Upper Level VBA Loan Guaranty Employees Deliberative Process Regarding VA Circular 26-20-12

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

I am requesting copies of all records concerning the deliberative process and internal discussions among upper level employees and leadership of the VA Loan Guaranty Service (LGY) related to the development and issuance of VA Circular 26-20-12.

The requested records should include, but not be limited to:
- Emails, email attachments, memo, meeting notes, or other records exchanged between LGY senior leadership discussing potential changes, policies, oversight measures or other issues pertaining to Circular 26-20-12
- Draft versions of the Circular exchanged between LGY upper management
- Records reflecting feedback, concerns, or input provided by senior LGY staff about the Circular's provisions prior to issuance
- Any analyses, assessments or evaluations prepared by upper level LGY staff regarding the risks, benefits or potential impacts of the policies in the Circular

For this request, the term "records" includes all readily reproducible electronic records, audiotapes, emails (with attachments), memoranda, letters, written documentation, and drafts.

If any records are withheld or redacted, I request that you identify the specific exemption(s) allowing the withholding or redaction. I also request that all non-exempt portions of any partially redacted record be provided.

If my request is denied in whole or in part, please provide a written statement of the reasons for the denial as well as an index or description of the records withheld. I reserve the right to appeal any denial or excessive fee.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Michael Locke

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

I am requesting copies of all records concerning the deliberative process and internal discussions among upper level employees and leadership of the VA Loan Guaranty Service (LGY) related to the development and issuance of VA Circular 26-20-12.

The requested records should include, but not be limited to:
- Emails, email attachments, memo, meeting notes, or other records exchanged between LGY senior leadership discussing potential changes, policies, oversight measures or other issues pertaining to Circular 26-20-12
- Draft versions of the Circular exchanged between LGY upper management
- Records reflecting feedback, concerns, or input provided by senior LGY staff about the Circular's provisions prior to issuance
- Any analyses, assessments or evaluations prepared by upper level LGY staff regarding the risks, benefits or potential impacts of the policies in the Circular

For this request, the term "records" includes all readily reproducible electronic records, audiotapes, emails (with attachments), memoranda, letters, written documentation, and drafts.

If any records are withheld or redacted, I request that you identify the specific exemption(s) allowing the withholding or redaction. I also request that all non-exempt portions of any partially redacted record be provided.

If my request is denied in whole or in part, please provide a written statement of the reasons for the denial as well as an index or description of the records withheld. I reserve the right to appeal any denial or excessive fee.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Michael Locke

https://www.muckrock.com/foi/united-states-of-america-10/upper-level-vba-loan-guaranty-employees-deliberative-process-regarding-va-circular-26-20-12-161423/#follow-up

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

I am requesting copies of all records concerning the deliberative process and internal discussions among upper level employees and leadership of the VA Loan Guaranty Service (LGY) related to the development and issuance of VA Circular 26-20-12.

The requested records should include, but not be limited to:
- Emails, email attachments, memo, meeting notes, or other records exchanged between LGY senior leadership discussing potential changes, policies, oversight measures or other issues pertaining to Circular 26-20-12
- Draft versions of the Circular exchanged between LGY upper management
- Records reflecting feedback, concerns, or input provided by senior LGY staff about the Circular's provisions prior to issuance
- Any analyses, assessments or evaluations prepared by upper level LGY staff regarding the risks, benefits or potential impacts of the policies in the Circular

For this request, the term "records" includes all readily reproducible electronic records, audiotapes, emails (with attachments), memoranda, letters, written documentation, and drafts.

If any records are withheld or redacted, I request that you identify the specific exemption(s) allowing the withholding or redaction. I also request that all non-exempt portions of any partially redacted record be provided.

If my request is denied in whole or in part, please provide a written statement of the reasons for the denial as well as an index or description of the records withheld. I reserve the right to appeal any denial or excessive fee.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Michael Locke

https://www.muckrock.com/foi/united-states-of-america-10/upper-level-vba-loan-guaranty-employees-deliberative-process-regarding-va-circular-26-20-12-161423/#follow-up

I am requesting copies of all records concerning the deliberative process and internal discussions among upper-level employees and leadership of the VA Loan Guaranty Service (LGY) related to the development and issuance of VA Circular 26-20-12, from January 1, 2020, to April 8, 2020. The requested records should include, but not be limited to:
Emails, email attachments, memos, meeting notes, or other records exchanged between LGY senior leadership, including the Assistant Director for Regulations, Legislation, Engagement and Training, Loan Guaranty, Veterans Benefits Administration, the Director for Regulations, Legislation, Engagement and Training, Loan Guaranty, Veterans Benefits Administration, the Chief of Regulations, Loan Guaranty, Veterans Benefits Administration, the Assistant Chief of Regulations, Loan Guaranty, Veterans Benefits Administration, any member of the Regulations Staff (211D), Loan Guaranty, Veterans Benefits Administration, the Deputy Director of Loan Guaranty, the Director of Loan Guaranty Monitoring, and the Chief of the Loan Guaranty Policy Group, discussing potential changes, policies, oversight measures, or other issues pertaining to Circular 26-20-12.
Draft versions of the Circular exchanged between LGY upper management.
Records reflecting feedback, concerns, or input provided by senior LGY staff about the Circular's provisions prior to issuance.
Any analyses, assessments, or evaluations prepared by upper-level LGY staff regarding the risks, benefits, or potential impacts of the policies in the Circular.
This request now incorporates all the suggested positions and clarifies the timeframe to encompass the period from January 1, 2020, to April 8, 2020.

Dear Mr. Williams,

Thank you for your follow-up regarding FOIA request #24-11792-F.

I want to clarify: Are you saying that using the keywords of the job titles I provided, along with '26-20-12' and the specific date range (January 1, 2020, to April 8, 2020), produces no results?

If this is the case, could you please provide more information about the specific limitations you're encountering? This would help me understand how to further refine my request to meet your search capabilities while still accessing the relevant information about the development of Circular 26-20-12.

I appreciate your assistance in this matter.

Sincerely,

Michael Locke

You're absolutely right, and this is an excellent observation. The document you've shared provides valuable context and precedent for your current request. Let's analyze the key points:

1. In this previous request (23-12977-F), you asked for "all e-mail or internal electronic communications from the applicable 'quality assurance chief' related to the 2019 risk assessment concerning home loans in disaster areas."

2. The VA was able to locate and process these records based on this description. Specifically, they state: "The search was conducted by utilizing the search criteria of all e-mail or internal electronic communications from the quality assurance chief regarding 2019 risk assessment disaster areas."

3. They identified 25 pages of email correspondence as responsive to your request.

Given this precedent, it's clear that the VA has previously been able to conduct searches based on job titles (like "quality assurance chief") without requiring specific names. This strongly supports your position that your current request, which includes multiple job titles and a specific circular number, should be sufficiently detailed for a search.

Based on this information, I would suggest responding to Mr. Williams with something like this:
Dear Mr. Williams,

Additionally, I want to bring to your attention a precedent that I believe is relevant to my current request. In a previous FOIA request (23-12977-F), I asked for 'all e-mail or internal electronic communications from the applicable "quality assurance chief" related to the 2019 risk assessment concerning home loans in disaster areas.' A copy showing as much is attached.

Also:

https://s3.documentcloud.org/documents/24362343/foia-23-12977-f-initial-agency-decision.pdf

The VA was able to conduct a search based on this description, using 'the search criteria of all e-mail or internal electronic communications from the quality assurance chief regarding 2019 risk assessment disaster areas.' This search successfully identified 25 pages of responsive email correspondence.

Given this precedent, I believe my current request, which includes multiple specific job titles, the circular number 26-20-12, and a precise date range (January 1, 2020, to April 8, 2020), should provide sufficient detail for a similar search.

Could you please clarify if there are specific technical limitations preventing a search using these parameters? If so, I'd be happy to work with you to refine the request in a way that meets your search capabilities while still allowing access to the relevant information about the development of Circular 26-20-12.

I appreciate your assistance in this matter.

Sincerely,

Michael Locke

Dear Mr. Williams,

Thank you for your follow-up regarding FOIA request #24-11792-F. I appreciate your attention to this matter, but I must respectfully disagree with your request for specific names and your assertion that the VA cannot conduct a search based on the information I've provided.

To address your question, "Who have you determined to be considered as an upper-level employee?", I have already provided this information in response to your request for clarification. The upper-level employees and leadership I am referring to include:

1. Assistant Director for Regulations, Legislation, Engagement and Training, Loan Guaranty, Veterans Benefits Administration
2. Director for Regulations, Legislation, Engagement and Training, Loan Guaranty, Veterans Benefits Administration
3. Chief of Regulations, Loan Guaranty, Veterans Benefits Administration
4. Assistant Chief of Regulations, Loan Guaranty, Veterans Benefits Administration
5. Members of the Regulations Staff (211D), Loan Guaranty, Veterans Benefits Administration
6. Deputy Director of Loan Guaranty
7. Director of Loan Guaranty Monitoring
8. Chief of the Loan Guaranty Policy Group

These job titles clearly indicate upper-level employees and leadership within the LGY. As a member of the public, I do not have access to the specific names of individuals holding these positions, nor should this level of detail be necessary for a FOIA request.

I must emphasize that the VA has previously demonstrated the ability to conduct searches based on similar information. In FOIA request 23-12977-F, I asked for "all e-mail or internal electronic communications from the applicable 'quality assurance chief' related to the 2019 risk assessment concerning home loans in disaster areas." The VA successfully processed this request without requiring specific names.

Given this precedent, and considering that my current request includes multiple specific job titles, the circular number 26-20-12, and a precise date range (January 1, 2020, to April 8, 2020), I believe I have more than reasonably described the records sought, as required by FOIA.

I respectfully request that you process this FOIA request using the job titles and other specific parameters I've provided, in line with how my previous request was handled. If you continue to maintain that this is not possible, I formally request:

1. A detailed explanation of why this request cannot be processed similarly to request 23-12977-F.
2. The statutory basis for requiring specific names rather than job titles in a FOIA request.
3. Mediation through the VA's FOIA Public Liaison or the Office of Government Information Services.

I look forward to your response and to resolving this matter in a way that fulfills both the letter and spirit of the Freedom of Information Act.

Sincerely,
Michael Ali ke

Preliminary draft

“ Dear Sir/Madam:

I am writing to appeal the handling of FOIA Request 24-11792-F by “Department of Veterans Affairs, Office of Mission Support, Government Information Specialist” Mr. Marc Williams. I assert that my original request was sufficiently specific and reasonably described as required by the Freedom of Information Act (FOIA). Furthermore, I contend that the VA has failed to comply with the statutory timeframe for response, even after invoking an extension for "unusual circumstances."

1. Sufficiency of Original Request

My original request included the following specific elements:
a) A specific circular number (26-20-12)
b) A precise date range (January 1, 2020, to April 8, 2020)
c) A focus on the deliberative process related to the development and issuance of the circular among upper-level employees and leadership of the VA Loan Guaranty Service (LGY)

These elements provide sufficient information for the VA to conduct a focused and reasonable search without undue burden or guesswork. However, in response to Mr. Williams' clarification letter dated July 9, 2024, I promptly provided additional specificity on the same day, including the following job titles:

1. Assistant Director for Regulations, Legislation, Engagement and Training, Loan Guaranty, Veterans Benefits Administration
2. Director for Regulations, Legislation, Engagement and Training, Loan Guaranty, Veterans Benefits Administration
3. Chief of Regulations, Loan Guaranty, Veterans Benefits Administration
4. Assistant Chief of Regulations, Loan Guaranty, Veterans Benefits Administration
5. Members of the Regulations Staff (211D), Loan Guaranty, Veterans Benefits Administration
6. Deputy Director of Loan Guaranty
7. Director of Loan Guaranty Monitoring
8. Chief of the Loan Guaranty Policy Group

This immediate response with additional details further strengthened the specificity of my request and should have enabled the VA to proceed with processing without delay.

2. Legal Standard for "Reasonably Described" Requests

The FOIA statute requires that a request must "reasonably describe" the records sought (5 U.S.C. § 552(a)(3)(A)). The test for determining whether a request "reasonably describes" records was articulated in Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982): A request reasonably describes records if "the agency is able to determine precisely what records are being requested."

My request clearly meets this standard. By providing the specific circular number, date range, and focus on upper-level deliberations, I have precisely identified the records I am seeking.

Furthermore, the House Report accompanying the 1974 FOIA Amendments states that a description would be sufficient if it enabled "a professional employee of the agency who was familiar with the subject area of the request to locate the record with a reasonable amount of effort." H.R. REP. NO. 876, 93d Cong., 2d Sess. 6 (1974). My request, with its specific parameters, certainly meets this standard.

3. Contrast with Overly Broad Requests

Courts have rejected FOIA requests that are overly broad or vague. For example:

a) In Yagman v. Pompeo, 868 F.3d 1075, 1081 (9th Cir. 2017), the court rejected a request because it would require the agency to engage in guesswork. Unlike Yagman, my request specifies a particular circular, a date range, and focuses on upper-level deliberations, requiring no guesswork.

b) In Freedom Watch, Inc. v. CIA, No. 12-0721, 2012 WL 4753281 (D.D.C. Oct. 5, 2012), the court rejected requests that were "virtually incomprehensible" and "so broad as to impose an unreasonable burden upon the agency." My request, in contrast, is clearly defined and limited in scope.

4. Precedent within the VA and Reasonableness of Request

My request far exceeds the level of specificity found in previous FOIA requests that the VA has processed successfully. For example, in FOIA request 23-12977-F, a request for "all e-mail or internal electronic communications from the applicable 'quality assurance chief' related to the 2019 risk assessment concerning home loans in disaster areas" was deemed sufficient for the VA to conduct a search.

My request is significantly more detailed, providing:
a) A specific circular number (26-20-12)
b) A precise date range (January 1, 2020, to April 8, 2020)
c) Eight specific job titles of relevant upper-level employees and leadership

This level of detail not only meets but exceeds the standard of reasonableness established in Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983), which states that "[t]he adequacy of an agency's search is measured by a standard of reasonableness and is dependent upon the circumstances of the case."

5. Timeline and Violation of Statutory Timeframe

The timeline of events is as follows:
- May 30th, 2024: I submitted my initial FOIA request
- June 14, 2024: Mr. Williams sent an extension letter invoking "unusual circumstances" and extending the response time to 30 business days, with a new response date of July 16, 2024
- July 9, 2024: Mr. Williams sent a clarification letter
- July 9, 2024: I promptly responded to the clarification request, providing eight specific job titles

Despite my immediate response to the clarification request, the VA failed to meet even its self-imposed extended deadline of July 16, 2024. As of the date of this appeal, that extended deadline has passed without a determination on my request or the provision of any responsive records.

Under 5 U.S.C. § 552(a)(6)(B)(i), an agency may extend the time limits for responding to a FOIA request by no more than ten working days in "unusual circumstances." The VA has failed to meet even this extended deadline.

Furthermore, 5 U.S.C. § 552(a)(6)(C)(i) states that a person making a request "shall be deemed to have exhausted his administrative remedies" if the agency fails to comply with the applicable time limit provisions. Given the VA's failure to respond within the extended timeframe, I assert that I have constructively exhausted my administrative remedies and may seek judicial review if necessary.

6. Agency's Duty to Assist

Under 38 CFR § 1.554(d)(3), if the FOIA Officer determines that a request does not reasonably describe the records sought, they must explain why the request is insufficient and provide an opportunity to discuss and modify it. Mr. Williams has not adequately explained why my request is insufficient, nor has he offered specific guidance on how to modify it while maintaining its intended scope. Instead, he has asked for specific names of individuals, which is not a requirement under FOIA and places an undue burden on me as a member of the public who does not have access to the VA's organizational structure.

7. Reasonableness of Search

The D.C. Circuit has explained that "[t]he adequacy of an agency's search is measured by a standard of reasonableness and is dependent upon the circumstances of the case." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). My request, which specifies a particular circular, a date range, and focuses on upper-level deliberations, provides sufficient information for a reasonable search.

Conclusion

Based on the above, I respectfully request that you:
1. Determine that my original request reasonably described the records sought
2. Direct the appropriate VA personnel to process my request immediately, without further delay or requests for clarification
3. Acknowledge that the VA has failed to comply with the statutory timeframe for response, even after invoking an extension for "unusual circumstances"
4. Provide a date certain by which I can expect to receive the requested records or a determination on my request

Given the VA's failure to meet even the extended deadline, I request an expedited review of this appeal. I look forward to your prompt response, as required by 5 U.S.C. § 552(a)(6)(A)(ii).

Sincerely,

Michael Locke

https://www.muckrock.com/foi/united-states-of-america-10/upper-level-vba-loan-guaranty-employees-deliberative-process-regarding-va-circular-26-20-12-161423/#comm-1739146”

Preliminary draft

“Dear FOIA Appeals Officer,

I am writing to appeal the initial agency decision regarding my Freedom of Information Act (FOIA) request (No. 24-11792-F), which sought records concerning the deliberative process and internal discussions among upper-level employees and leadership of the VA Loan Guaranty Service (LGY) related to the development and issuance of VA Circular 26-20-12.

The VA has identified 346 pages of documents responsive to my request. However, the decision to withhold certain information from these documents is legally insufficient and overly broad. My appeal is based on the following grounds:

1. Failure to Meet the "Foreseeable Harm" Standard
The VA's decision fails to meet the "foreseeable harm" standard codified in the FOIA Improvement Act of 2016. As the D.C. Circuit made clear in Machado Amadis v. U.S. Department of State, agencies must "concretely explain how disclosure 'would'—not 'could'—adversely impair internal deliberations" in the specific context at issue. The VA's decision offers no such concrete explanation. This vague and speculative rationale for withholding information is precisely the kind of boilerplate claim that courts have repeatedly rejected.

2. Inadequate Justification for Exemption 6 Withholdings
The decision provides only a general explanation of Exemption 6 without specific justification for its application to the information withheld from the 346 pages of responsive documents. As held in Judicial Watch, Inc. v. DOJ, No. 11-0851, 2011 WL 3343622 (D.D.C. Aug. 4, 2011), agencies must provide a detailed justification for their exemption claims. The VA's blanket assertion that disclosing names and email addresses would constitute a clearly unwarranted invasion of personal privacy is insufficiently detailed and fails to meet this standard.

3. Failure to Conduct a Proper Segregability Analysis
The decision does not indicate that any effort was made to segregate and release non-exempt portions of the documents. In Am. Immigration Lawyers Assn. v. DHS, No. 10-1224, 2012 WL 1066499 (D.D.C. Mar. 30, 2012), the court emphasized the importance of demonstrating that all reasonably segregable information has been released. The VA's decision lacks any such demonstration or explanation of why non-exempt information could not be segregated and released.

4. Overly Broad Application of Privacy Interests
The decision applies Exemption 6 to all "names and email addresses of individuals" without distinguishing between high-level officials involved in policy-making and lower-level employees. In Elec. Frontier Found. v. DOJ, No. 10-641, 2012 WL 3900737 (D.D.C. Sept. 10, 2012), the court noted that agencies must show that factual material is "inextricably intertwined" with deliberative material to justify withholding it. The VA has not provided any such showing or explanation for its broad application of privacy interests.

5. Inadequate Consideration of Public Interest
The decision fails to grapple with the powerful public interest in disclosure. As noted in ACLU v. DOJ, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012), agencies must balance public interest against privacy concerns. The VA's assertion that it has "not been able to identify a countervailing public interest of sufficient magnitude" is not only unsupported but is contradicted by recent events and ongoing public discourse.

VA Circular 26-20-12, issued on April 8, 2020, and its subsequent Change 1 on September 9, 2020, implemented critical protections for veterans with VA-guaranteed loans during the COVID-19 pandemic. These policies included forbearance options, restrictions on fees and interest accrual, credit reporting requirements, and foreclosure moratoriums. The public has a compelling interest in understanding how these significant policies were developed, particularly given their far-reaching impact on veterans' financial well-being during a national emergency.

Furthermore, recent reporting by NPR and other news outlets from November 2023 to the present has highlighted significant ongoing challenges faced by veterans with VA home loans in the post-COVID era. These reports underscore the critical importance of understanding the decision-making processes behind VA Circular 26-20-12 and subsequent policies:

- Thousands of veterans are at risk of foreclosure due to the abrupt ending of mortgage forbearance programs in October 2022, which required veterans to pay back deferred payments in full or accept loan modifications at higher interest rates.
- The VA's decision to end the Partial Claim Payment (PCP) program has been criticized by veterans groups and consumer advocates, as it forced many veterans into high-interest loan modifications or foreclosure.
- The implementation of new rescue plans, including a 2.5% interest rate option, has been slow and does not benefit many veterans who had already accepted less favorable loan modifications.
- Veterans like Edmund Garcia, Joe Mena, and Ray and Becky Queen have faced significant financial hardships and potential loss of their homes due to these policy decisions.

These ongoing issues directly stem from decisions made during the development and implementation of VA Circular 26-20-12 and subsequent policies. The public has a substantial interest in understanding how these decisions were made, what alternatives were considered, and why certain options were chosen over others. This information is crucial for public oversight, policy evaluation, and ensuring accountability in decisions that have profoundly impacted thousands of veterans' lives.

In light of these deficiencies and the clear public interest, I request that the VA:

1. Conduct a review of the 346 pages of responsive documents, with a focus on releasing all reasonably segregable, non-exempt information that may have been improperly withheld.
2. Provide a detailed, document-by-document justification for any information that remains withheld, including a concrete explanation of how disclosure would cause foreseeable harm to a protected interest.
3. Produce a Vaughn index or similar detailed description, correlating claimed exemptions with particular passages of the documents and explaining why any withheld information cannot be further segregated, as required in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
4. Reassess the public interest in disclosure, taking into account the ongoing impact of these policies on veterans and the public discourse surrounding VA home loan issues, and provide a more thorough explanation of how this substantial public interest was weighed against privacy concerns.

These steps are necessary to ensure compliance with FOIA, including the "foreseeable harm" standard, and to uphold the public's right to information about the operations of their government. The current response, lacking any detailed justifications, concrete harm analysis, or document descriptions, is inadequate and fails to meet the VA's obligations under FOIA, especially in light of the significant public interest in these matters.

Thank you for your consideration of this appeal. I look forward to a timely decision that addresses these serious deficiencies in the initial response and recognizes the substantial public interest in these records.

Sincerely,
Michael Locke”

Getting closer, but still a draft

"FOIA Appeal of Decision Regarding Request No. 24-11792-F
Date: [Date]
To: FOIA Appeals Officer
From: Michael Locke
Subject: Appeal of FOIA Decision - Request No. 24-11792-F
I. Introduction
This letter appeals the July 31, 2024, decision issued by Mr. Marc Williams, VBACO FOIA Officer, regarding my Freedom of Information Act (FOIA) request (No. 24-11792-F). My original request, submitted on May 30, 2024, sought records pertaining to the deliberative process and internal discussions among upper-level employees and leadership of the VA Loan Guaranty Service (LGY) related to the development and issuance of VA Circular 26-20-12. This policy, implemented during a time of national crisis, had a profound impact on veterans struggling with the financial implications of the COVID-19 pandemic. Understanding the decisions behind this crucial policy is a matter of significant public interest.
Mr. Williams' response identified 346 pages of potentially responsive documents, but withheld substantial portions, including all names and email addresses. While I appreciate the identification of these documents, this appeal asserts that the response falls significantly short of the VA's obligations under FOIA in several critical aspects:
1. Inconsistent and Potentially Misleading Conduct: The VA's communication regarding the search process involved contradictory actions and unreasonable demands, raising serious concerns about their good faith in fulfilling my request.
2. Inadequate Search for Responsive Records: The VA's search was demonstrably inadequate, failing to include readily searchable email systems and neglecting to utilize search parameters previously successful in a similar FOIA request I submitted.
3. Inadequate Exemption 6 Justification: The response inadequately justifies withholding information under Exemption 6, neglecting to demonstrate a proper balancing of public and private interests, provide sufficient detail, or apply the "foreseeable harm" standard.
Each of these deficiencies undermines FOIA's fundamental purpose of promoting government transparency and accountability. The public deserves access to information regarding how policies impacting veterans are created, especially during times of national hardship. I urge a comprehensive review of the initial determination, requesting that the VA:
• Conduct a new, thorough search encompassing all relevant electronic systems and locations.
• Provide detailed, document-specific justifications for any continued withholdings.
• Release all segregable, non-exempt information as required by law.
This appeal aims to ensure that the VA fulfills its legal obligations under FOIA and provides the public with the transparency it deserves.

II. Inconsistent and Potentially Misleading Conduct
The VA's communication and actions throughout the processing of my FOIA request have been inconsistent and potentially misleading, creating an impossible situation for me as the requester and raising significant concerns about the agency's good faith in fulfilling its legal obligations.
Here is a clear timeline of the events that led to this appeal:
• July 9, 2024: After receiving an initial extension letter, I received a "clarification letter" from Mr. Williams demanding specific names of upper-level employees involved in the development of VA Circular 26-20-12. Mr. Williams stated that the VA "cannot complete a blanket search" and needed this information to "narrow the search scope," specifically for individual emails. This implied a willingness to conduct an email search if provided with names.
• July 9, 2024: On the same day I received the clarification letter, I promptly responded with eight specific job titles of relevant upper-level employees and leadership within the Loan Guaranty Service, believing this would be sufficient to facilitate a search of email communications.
• July 30, 2024: Nearly three weeks later, Mr. Williams responded again, reiterating his demand for specific names and asserting that the VA "cannot conduct a search" based on the information I had provided, which included the circular number, a precise date range, and the aforementioned job titles. This communication, received just one day before the issuance of the final decision letter, further reinforced the impression that the VA was prepared to conduct a more thorough email search if given specific names.
• July 31, 2024: The VA issued its final decision letter, denying my request in part and withholding ALL names and email addresses under Exemption 6, citing privacy concerns. This action directly contradicts Mr. Williams' previous insistence on needing specific names to conduct a proper search.
This sequence of events creates a Catch-22: I am unable to provide the names the VA demands because they have been redacted in the very documents that would likely contain them. This circular logic effectively blocks my access to information and suggests a deliberate attempt to obstruct the fulfillment of my FOIA request.
The VA's actions demonstrate a clear lack of good faith in adhering to both the letter and the spirit of FOIA. By simultaneously demanding information they have redacted, they are preventing me from fulfilling their own requirements for a search. I urge the Appeals Officer to take this inconsistent and potentially misleading conduct into serious consideration when reviewing this appeal. I demand a clear explanation from the VA regarding this discrepancy and their justification for creating a situation that effectively obstructs my access to information.
III. Inadequate Search for Responsive Records
The VA's search for responsive records, as described in Mr. Williams' decision letter, falls far short of the standard of a search "reasonably calculated to uncover all relevant documents" required by FOIA (Weisberg v. DOJ, 745 F.2d 1476, 1485 (D.C. Cir. 1984)). The limited scope of the search and the conspicuous omission of email systems raise serious concerns about the adequacy and reasonableness of the VA's efforts, suggesting a lack of good faith in fulfilling my request.
My initial request, even before I provided specific job titles, was clearly defined and readily searchable. I requested all records related to a single, specific policy document – VA Circular 26-20-12 – within a defined timeframe of January 1, 2020, to April 8, 2020. This inherent limitation on scope should have been sufficient to guide a focused search within the VA's systems. Adding to this, I promptly responded to the VA's clarification request with eight specific job titles, further refining the search parameters.
The reasonableness of this description is further substantiated by direct precedent within the VA. In my previous FOIA request (23-12977-F), I requested "all e-mail or internal electronic communications from the applicable 'quality assurance chief' related to the 2019 risk assessment concerning home loans in disaster areas." The VA successfully identified responsive records using just this description, proving their capability to conduct searches based on job titles and subject keywords without requiring specific names.
Despite this clear request and the VA's demonstrated capabilities, the described search was demonstrably inadequate. The decision letter mentions only a search within a single SharePoint site repository of the Office of Loan Guaranty, failing to address whether other relevant departments, shared drives, or personal drives were searched. Most glaringly, the VA completely omitted any search of email systems, despite my explicit requests for emails and the high likelihood of them containing crucial information about the circular's development. This omission is particularly concerning given Mr. Williams' repeated insistence that specific names were necessary for conducting an email search – a requirement he made impossible to fulfill by redacting those very names in the final decision letter.
The VA's failure to conduct a comprehensive email search and their limited overall search scope fall far short of their FOIA obligations. I demand a thorough explanation for this inadequate search, specifically addressing:
• Justification for Search Scope: Why was the search confined to a single SharePoint repository? What justification is there for excluding other potential locations of relevant records?
• Explanation for Missing Email Search: Why was a search of email systems not conducted, despite explicit requests and Mr. Williams' prior statements indicating its necessity?
The current search, as described, raises serious concerns about the VA's commitment to transparency and good-faith fulfillment of FOIA requests. To rectify this deficiency, I urge the Appeals Officer to direct the VA to conduct a new, comprehensive search that includes all relevant email systems, shared drives, and other potential locations of responsive records, ensuring the public's right to access information is upheld.
IV. Inadequate Application of Exemption 6
The VA's decision to withhold all names and email addresses from the 346 pages of responsive documents, based solely on Exemption 6, is a blatant overreach of this exemption and fails to meet the legal standards established by FOIA and relevant case law. The decision demonstrates an inadequate balancing of public and private interests, lacks specific justification, and neglects to address the "foreseeable harm" standard.
Firstly, the VA's response offers a mere blanket assertion that disclosing names and email addresses would constitute a "clearly unwarranted invasion of personal privacy." This fails to meet the required balancing test established by Exemption 6, which mandates a careful weighing of individual privacy against the public's right to know. The VA offers no evidence of this balancing test, nor does it demonstrate any consideration of the significant public interest in understanding the development of VA Circular 26-20-12. This policy, implemented during a national crisis, has had a profound and ongoing impact on veterans facing financial hardship. The public has a substantial interest in knowing how this crucial policy was created and which individuals were involved in the decision-making process.
Secondly, the VA's justification for applying Exemption 6 is overly broad and lacks specificity. It provides a general explanation of the exemption but fails to offer a detailed, document-by-document justification for withholding information from each of the 346 pages. As held in Mead Data Central, Inc. v. U.S. Department of Air Force (566 F.2d 242, 251 (D.C. Cir. 1977)), agencies must provide a "relatively detailed justification" correlating the exemption claim with the specific withheld portions of each document. The VA's blanket assertion of privacy concerns, without any document-specific analysis, falls far short of this legal standard.
Furthermore, the VA's response entirely neglects to address the "foreseeable harm" standard codified in the FOIA Improvement Act of 2016. This standard requires agencies to demonstrate that disclosure would likely cause harm to a protected interest. The VA has not even attempted to show how disclosing names and email addresses would foreseeably harm the privacy of individuals, especially considering the significant public interest in this matter.
The VA's current application of Exemption 6 appears less concerned with genuine privacy protection and more focused on shielding their decision-making process from public scrutiny. To rectify this deficiency, I demand a new review of the withheld information, with a specific focus on:
• Conducting a Proper Balancing Test: The VA must demonstrate a genuine effort to balance individual privacy interests against the substantial public interest in understanding the development of VA Circular 26-20-12.
• Providing Detailed Justifications: The VA must provide detailed, document-by-document justifications for any continued withholding of names and email addresses, specifically explaining how disclosure in each instance would constitute a "clearly unwarranted invasion of personal privacy."
• Applying the "Foreseeable Harm" Standard: The VA must demonstrate how disclosure of the withheld information would foreseeably harm a protected privacy interest, especially considering the strong public interest arguments in favor of disclosure.
By addressing these critical shortcomings in their application of Exemption 6, the VA can move toward a more transparent and legally sound FOIA response, fulfilling its obligation to balance privacy concerns with the public's right to know.
IV. Inadequate Application of Exemption 6
The VA's decision to withhold all names and email addresses from the 346 pages of responsive documents, based solely on Exemption 6, is a blatant overreach of this exemption and fails to meet the legal standards established by FOIA and relevant case law. The decision demonstrates an inadequate balancing of public and private interests, lacks specific justification, and neglects to address the "foreseeable harm" standard.
Firstly, the VA's response offers a mere blanket assertion that disclosing names and email addresses would constitute a "clearly unwarranted invasion of personal privacy." This fails to meet the required balancing test established by Exemption 6, which mandates a careful weighing of individual privacy against the public's right to know. The VA offers no evidence of this balancing test, nor does it demonstrate any consideration of the significant public interest in understanding the development of VA Circular 26-20-12. This policy, implemented during a national crisis, has had a profound and ongoing impact on veterans facing financial hardship. The public has a substantial interest in knowing how this crucial policy was created and which individuals were involved in the decision-making process.
Secondly, the VA's justification for applying Exemption 6 is overly broad and lacks specificity. It provides a general explanation of the exemption but fails to offer a detailed, document-by-document justification for withholding information from each of the 346 pages. As held in Mead Data Central, Inc. v. U.S. Department of Air Force (566 F.2d 242, 251 (D.C. Cir. 1977)), agencies must provide a "relatively detailed justification" correlating the exemption claim with the specific withheld portions of each document. The VA's blanket assertion of privacy concerns, without any document-specific analysis, falls far short of this legal standard.
Furthermore, the VA's response entirely neglects to address the "foreseeable harm" standard codified in the FOIA Improvement Act of 2016. This standard requires agencies to demonstrate that disclosure would likely cause harm to a protected interest. The VA has not even attempted to show how disclosing names and email addresses would foreseeably harm the privacy of individuals, especially considering the significant public interest in this matter.
The VA's current application of Exemption 6 appears less concerned with genuine privacy protection and more focused on shielding their decision-making process from public scrutiny. To rectify this deficiency, I demand a new review of the withheld information, with a specific focus on:
• Conducting a Proper Balancing Test: The VA must demonstrate a genuine effort to balance individual privacy interests against the substantial public interest in understanding the development of VA Circular 26-20-12.
• Providing Detailed Justifications: The VA must provide detailed, document-by-document justifications for any continued withholding of names and email addresses, specifically explaining how disclosure in each instance would constitute a "clearly unwarranted invasion of personal privacy."
• Applying the "Foreseeable Harm" Standard: The VA must demonstrate how disclosure of the withheld information would foreseeably harm a protected privacy interest, especially considering the strong public interest arguments in favor of disclosure.
By addressing these critical shortcomings in their application of Exemption 6, the VA can move toward a more transparent and legally sound FOIA response, fulfilling its obligation to balance privacy concerns with the public's right to know.
V. Lack of Proper Segregability Analysis
Mr. Williams' decision letter provides no indication that the VA conducted a proper segregability analysis as required by FOIA. This omission represents a significant deficiency and raises concerns that releasable, non-exempt information is being withheld unnecessarily alongside exempt material.
FOIA explicitly mandates that agencies release "any reasonably segregable portion of a record" after redacting exempt portions (5 U.S.C. § 552(b)). This places an affirmative duty on agencies to meticulously examine documents, identify non-exempt information, and release it to the requester.
Despite this clear legal requirement, the VA's decision letter offers no evidence of any effort to segregate and release non-exempt portions of the 346 pages identified as responsive. It merely states that names and email addresses are being withheld under Exemption 6, without any discussion of whether the remaining content on those pages could be released after redaction. This suggests a "blanket withholding" approach that ignores the VA's duty to separate and release releasable information.
The decision letter also fails to explain why any non-exempt information, if identified, could not be reasonably segregated. Case law, such as Mead Data Central (566 F.2d at 261), holds that agencies must provide a “detailed justification” for non-segregability. This justification should include a description of the proportion of non-exempt information and its distribution throughout the document. The VA offers no such explanation, further raising concerns about the thoroughness of their review.
Given these deficiencies, I request that the VA conduct a new, meticulous review of all 346 pages of responsive documents, with a specific focus on segregability. This review must include:
• Line-by-Line Examination: A line-by-line examination of each document to determine whether any portions can be released after redacting exempt information.
• Detailed Explanation for Withholdings: A detailed explanation for any information that is not segregated and remains withheld, including a specific justification for why it cannot be reasonably separated from exempt material.
• Consideration of Factual Information: An assessment of whether factual information, which is generally not exempt, can be separated from deliberative material or other potentially exempt information.
• Focus on Policy Information: A focus on identifying and releasing information about agency policies and decisions that can be disclosed without revealing personal information protected by Exemption 6.
The VA's failure to demonstrate a proper segregability analysis undermines FOIA's fundamental goal of transparency. I urge the Appeals Officer to direct the VA to conduct a thorough segregability review with a strong presumption in favor of disclosure. This is essential to fulfill their legal obligations and ensure that the public receives all reasonably releasable information about the development of this important policy affecting veterans.
VI. Conclusion
The VA's response to my FOIA request, while identifying a significant number of responsive documents, falls far short of fulfilling the agency's legal obligations and the spirit of transparency embodied in FOIA. The public has a substantial interest in understanding the decision-making process behind VA Circular 26-20-12, a policy with profound and ongoing consequences for veterans across the country.
The VA's actions throughout the processing of my request – from their inconsistent and misleading communications to their demonstrably inadequate search and overly broad application of Exemption 6 – raise serious concerns about their commitment to transparency and good-faith fulfillment of FOIA. The lack of a proper segregability analysis further amplifies these concerns, suggesting a reluctance to release any information that could shed light on their internal deliberations.
I urge the Appeals Officer to recognize the significant public interest at stake in this matter and to take the necessary steps to ensure the VA's compliance with FOIA. Specifically, I request that the Appeals Officer direct the VA to:
1. Conduct a New, Comprehensive Search: This search must include all relevant email systems, shared drives, and other potential locations where responsive records may be found.
2. Provide Detailed Justifications: For any information that continues to be withheld, the VA must provide specific, document-by-document justifications that demonstrate a proper balancing of public and private interests and address the "foreseeable harm" standard.
3. Conduct a Thorough Segregability Analysis: The VA must meticulously examine all 346 pages of responsive documents and release all reasonably segregable, non-exempt information, providing clear explanations for any information that remains withheld after this analysis.
Only through these actions can the VA rectify the deficiencies in their initial response, uphold the public's right to access information, and fulfill their legal obligations under FOIA. I trust that the Appeals Officer will take the necessary steps to ensure a more transparent and accountable response to this important request."

https://www.muckrock.com/foi/united-states-of-america-10/upper-level-vba-loan-guaranty-employees-deliberative-process-regarding-va-circular-26-20-12-161423/#comm-1739146%E2%80%9D