CHEYENNE – A veteran is suing the U.S. Department of Veterans Affairs to get copies of his medical records when the VA denied his Freedom of Information Act request he filed for the records.
Howard R. Whittecar filed the lawsuit in U.S. District Court on Thursday. He is being represented by the Pence and MacMillan LLC law firm.
The suit is alleging the VA wrongfully denied Whittecar’s FOIA request for his medical records. The denial cited the VA couldn’t release the records due to privacy concerns, even though they were his own medical records.
“We cannot comment on any litigation,” Samuel E. House, public affairs officer for the Cheyenne VA Medical Center, said. “Our focus is to ensure our veterans are getting the best health care in the nation.”
Calls to Pence and MacMillan LLC on Friday were not returned.
The Freedom of Information Act was established in 1967 and said the public has the right to request records from any federal agency.
The agencies are required to grant the request unless it falls under any of the nine exemptions including personal privacy, national security, law enforcement and more, according to www.foia.gov.
In order for someone to receive records on themselves, they must provide a certification of their identity in the FOIA request. The certification is required to protect the person’s privacy and to ensure the information is not disclosed inappropriately, according to www.foia.gov.
According to court documents:
The VA denied Whittecar his disability compensation for a military-related condition. To appeal this denial, Whittecar needs a copy of his medical records from the VA so he knows why it denied him.
To get these medial records, he filed a FOIA request.
Whittecar must decide whether or not to appeal his disability benefits to the Board of Veterans Appeals by April 2, 2020. Reviewing his medical records is critical to appeal his benefit denial to the VA.
He then designated his attorney to make the FOIA request on his behalf and included a form in the FOIA stating his attorney was acting on his behalf.
The VA then denied the request saying by giving Whittecar a copy of his medical records, it would invade his own privacy.
“The VA responded with a form letter which denied this request ... by taking the illogical and irrational position that it would be clearly unwarranted invasion of the plaintiff’s personal privacy if his VA records were disclosed to the very person he appointed to be his representative in a VA benefits appeal” the suit said.
The request included a form that is the only way a VA allows an attorney to represent a veteran. By ignoring these details the VA has “capriciously claimed that it ‘thoroughly considered’” the request.
Whittecar then tried to email, call and sent a letter to the VA FOIA liaison but didn’t get a response from them.
The lawsuit alleges the real reason the FOIA was denied was because “unlike FOIA, the Privacy Act does not impose a time for agency responses.” A government agency is required to respond to a FOIA request within 20 days of it being filed.
In a second denial letter, the suit claims the Office of General Counsel didn’t do anything except copy and paste its reasoning from the last exemption letter denial.
“The VA blatantly ignored the substance of the FOIA request and falsely asserted that plaintiff’s representative was not acting as the plaintiff’s representative,” the suit said. “In doing so, the VA then took the utterly illogical, indefensible and irrational position of purporting to protect that plaintiff from invading his own privacy.”
This denial raises the serious question about whether anyone at the VA read the records request, the suit said, and whether or not the VA is trying to buy itself some more time to respond to the request.
The VA’s internal document producing process and the privacy act doesn’t have a deadline, which means the VA can take as long as it wants to turn over the documents.
The case is seeking copies of the requested documents, reasonable attorneys’ fees, any other issues in which the VA was not justified and it acted in an “arbitrary and capricious manner” and any other relief the court deems appropriate.