Reclaim the Records v. United States Department of Veterans Affairs

Background

Reclaim the Records and its president, Brooke Schreier Ganz, requested a copy of the Department of Veterans Affairs’ Beneficiary Identification Records Locator Subsystem Death File under the Freedom of Information Act (FOIA). The file is a subset of a VA database containing information about people who had received VA benefits and were recorded as deceased. The requested information included names, Social Security numbers, birth and death dates, gender, military-service information, and a cause-of-death field.

The VA had previously released a version of the file to Ancestry.com in 2011. Afterward, the VA identified 5,223 people who were still living even though their records had been included in the file, and it worked with Ancestry.com to remove those records. The remainder of the dataset remained available to Ancestry.com users.

After Reclaim’s request, the VA first denied it under FOIA Exemption 6, which protects certain personal information when disclosure would be a clearly unwarranted invasion of personal privacy. During the lawsuit, the VA reviewed the older records and released about 5 million that it considered valid. It did not release the remaining older records or any post-2010 records because it lacked confidence that all listed individuals were deceased. The VA also withheld the cause-of-death field from the records it released.

Rulings on the 1850–2010 records

The court held that the public-domain doctrine applied to the information previously released to Ancestry.com, except for approximately 5,000 records later removed from that website. Under that doctrine, information that was officially disclosed and remains publicly available generally cannot be withheld under a FOIA exemption merely because the agency later regards the disclosure as erroneous.

The court separately held that Exemption 6 did not justify withholding the remaining records. The court explained that the VA had not claimed that records concerning deceased veterans were protected by that exemption. The VA’s concern was instead that its records were inaccurate and might include information about living veterans. The court held that FOIA did not permit the VA to withhold all of the records because it had mixed potentially exempt information with information that had to be disclosed. The VA could remove or redact information about living people, but it could not broadly withhold otherwise nonexempt records because separating the records was burdensome.

The court also noted that Reclaim’s request covered the complete and current BIRLS Death File, including post-2010 data. The court rejected the VA’s argument that the request was limited to the older data previously released to Ancestry.com.

Cause-of-death field

The court did not finally decide whether the cause-of-death field had to be disclosed. It requested a letter from the VA explaining what information the field contains, how it is filled, and whether it contains anything beyond the categories described on Ancestry.com. Reclaim could file a response one week later if necessary.

Disposition

The court granted Reclaim’s motion for summary judgment and denied the VA’s cross-motion for summary judgment. It directed the VA to release the remainder of the BIRLS Death File, or its functional equivalent, by April 1, 2022, after removing or redacting data concerning living people. The court left the cause-of-death issue pending supplemental briefing. Judge Paul A. Engelmayer signed the opinion and order.