Reclaim the Records v. VA, No. 18-8449, 2020 WL 1435220 (S.D.N.Y. Mar. 24, 2020) (Engelmayer, J.)

Reclaim the Records v. VA, No. 18-8449, 2020 WL 1435220 (S.D.N.Y. Mar. 24, 2020) (Engelmayer, J.)

Re:  Request for portion of Beneficiary Identification Records Locator Subsystem ("BIRLS"), "'BIRLS Death File,'" which contains information about VA benefits recipients who are now deceased

Disposition:  Granting plaintiff's motion for summary judgment; denying defendant's cross-motion for summary judgment; requesting supplemental briefing

• Waiver:  The court finds that "the public-domain exception applies to the data released to Ancestry.com, save for the approximately 5,000 records which were subsequently taken down and therefore are no longer in the public domain."  "[T]he Court finds that [plaintiff] has met its burden of production as to the 1850–2010 dataset."  "[Plaintiff] is requesting the same information, at the same level of specificity, as was disclosed to Ancestry.com through its 2011 FOIA request, and that information remains accessible to the public via the Ancestry.com website."  "The VA does not seriously claim otherwise."  "Instead, it argues that the disclosure of this data was 'erroneous' and 'inadvertent,' and therefore should be treated differently."  However, "the Court has found that [plaintiff] has met its burden of production with regard to the public-domain doctrine."  "The records at issue have been in the public domain since late 2011."  Additionally, the court finds that "the data sought by [plaintiff] is no more aggregated than – and in fact tracks exactly – the information that was previously released to Ancestry.com."  Therefore, the court finds that "the same information is available – and has been for nine years, pursuant to an agency FOIA disclosure – on a readily accessible public website that the VA is making no attempt to strip of such information."
   
• Procedural Requirements, Exemption 6:  "[T]he Court separately holds that Exemption 6 does not apply to the data here."  "Not only do the parties agree that the records in dispute exist and are within the VA's control, they also appear to agree that the BIRLS Death File, to the extent it is accurate, is not subject to Exemption 6 – or any other FOIA exemption – and can be released pursuant to a public records request."  "Indeed, as discussed above, the VA has already released approximately one-third of the records in the BIRLS Death File to [plaintiff]."  "Both parties also appear to agree that to the extent any of the records in the BIRLS Death File pertain to a living veteran, they are properly withheld under Exemption 6 . . . ."  "The dispute here, then, turns on the VA's position that, because it lacks confidence in the accuracy of the remaining 9.4 million records, it should not be compelled to release any of them to [plaintiff]."  "The VA argues that it has taken sufficient steps to determine the accuracy of the records, specifically the death-date of the veterans therein, and should not be forced to undertake further time- and labor-intensive efforts that may ultimately not yield more accurate results."  "The VA therefore argues that it may properly withhold the remaining records under Exemption 6, because among them may be records relating to living veterans."  In other words, "[defendant] . . . seeks leave not to produce the balance of the database at all, including the considerable portion thereof that all concede is properly producible under FOIA."  "Neither FOIA nor the assembled case law provides any charter for this bold bid."  "To be sure, the VA is at liberty to use its best efforts to redact or otherwise siphon out the portions of that database that it determines relate to living persons and hence are exempt under Exemption 6."  The court finds that "the FOIA statute does not give an agency license to broadly withhold non-exempt records because the agency has errantly commingled them with exempt records."  "The Court will . . . give the VA two years, until April 1, 2022, to complete the process of producing the BIRLS Death File, or its functional equivalent, to [plaintiff], with data relating to living persons redacted or otherwise removed."  "This lengthy period will ensure that the records produced are coterminous with the VA's FOIA obligations."  "The Court . . . concludes that the post-2010 data [which defendant attempted to distinguish from the bulk of the data] must similarly be released to [plaintiff]."
  
  "The Court requires [certain] additional information . . . ."  "The parties' briefing has left unclear . . . how detailed the data in the 'cause of death' field is, and the extent to which the formulations there are standardized or customized."  "[G]iven the potential sensitivity of such data, the Court wishes to confirm, before ruling, its understanding as to how this data field comes to be filled and whether it is ever filled with any information."  "The VA is therefore directed, within three weeks of the issuance of this Opinion, to file a letter on ECF explaining the nature of the data in the 'cause of death' field."