A Freedom of Information lawsuit for these records is in progress

We filed a Freedom of Information Act (FOIA) lawsuit against the U.S. Department of Veterans Affairs in US District Court, Southern District of New York (SDNY), on September 17, 2018. The case is still pending.

Three weeks later, on October 10, 2018, the VA responded to our attorney, not in a lawsuit response but in a letter, saying that the agency had suddenly remanded our request to their FOIA Officer for “further consideration, appropriate processing, and the issuance of a subsequent IAD”. This letter was conveniently dated September 13, 2018, four days before our lawsuit had been filed. No explanation was given by the VA as to why they had not produced this letter nor their plans for “reconsideration” prior to our suing them. 🤔

What We Did and How We Did It

In September 2017, Reclaim The Records made a Freedom of Information Act (FOIA) request for a copy of what is colloquially called the BIRLS File from the United States Department of Veterans Affairs. This is a Veterans Benefits Administration database that provides information on deceased individuals including name, birth and death dates, branch of service, and enlistment and release dates. This request was one of the first two FOIA requests our organization had ever made for a nationwide database under the federal FOIA, rather than a state-level law such as a state Sunshine Law.

Our original request was filed through the MuckRock website:

To Whom It May Concern:

This is a request under the Freedom of Information Act.

I represent a 501(c)(3) non-profit organization called Reclaim The Records. We are an activist group of genealogists, historians, journalists, and open government advocates who acquire genealogical and archival data sets and images from government sources, often through the use of Freedom of Information laws. We then upload those records to the Internet, making them freely available to the public and returning them to the public domain.

We request a copy of the Beneficiary Identification Records Locator Subsystem (BIRLS) Death File, a very large database maintained by your agency. This data has already been made available to the public before, and it is currently online at at least two major commercial genealogy websites, Ancestry.com and Fold3.com. We are now requesting a copy for our organization, so that we may post it online for free public use.

We would also like to recommend that your agency upload a copy of the file to the federal government’s open data portal, data.gov.

Based on this scanned “Request for Records Disposition Authority” document, located at archives.gov…

https://www.archives.gov/files/records-mgmt/rcs/schedules/departments/department-of-veterans-affairs/rg-0015/n1-015-11-002_sf115.pdf

…it seems that the BIRLS Death File has the VA Item Number 08-065 000, and a copy may have already been turned over to the National Archives and Records Administration (NARA).

We request that this file be turned over to us in database format, as it already exists in a database. We would like to receive it on a portable USB drive, and we are willing to pay the costs for purchasing that drive and for its insured and trackable domestic shipping, as well as any fees associated with fulfilling this request. Please inform us of all fees in advance of fulfilling our order.

Thank you for your consideration, and we look forward to your timely response within twenty business days, as the statute requires.

The request was originally rejected by the VA for privacy reasons on April 6, 2018 (PDF). But after our attorney contacted the agency, they wrote us a new letter on April 26, 2018 (PDF) where they said they would be referring the issue on for further study in a different department, rather than closing the request.

On July 26, 2018, the VA wrote again, denying the records for the second time (PDF). This time, they claimed to us that the BIRLS database had been “erroneously” been released to Ancestry.com on March 18, 2011 pursuant to FOIA request number 10-02722-F, and that they didn’t want to release the data to us, too. They also claimed that this BIRLS database release amounted to “a data breach of Veteran’s personal information” — which seems rather unlikely given that everyone in the database is, by definition, dead.

Reclaim The Records vs Veterans Affairs

And so, on August 6, 2018 we appealed the second denial (PDF), for much the same reasons as we had the first denial. We did not get a response.

On September 17, 2018, Reclaim The Records sued the US Department of Veterans Affairs in US District Court (SDNY) for the BIRLS Database. The case is still pending.

Then three weeks later, on October 10, 2018, the VA suddenly reached out to our attorney by e-mail with a new response letter. The letter said that the VA had suddenly “remanded back” the case to their FOIA officer for “further consideration, appropriate processing, and the issuance of a subsequent IAD” — and this “oops, our bad!” letter was very conveniently dated September 13, four days before the FOIA lawsuit was filed. 🙄

Our lawsuit continues, and we look forward to winning the first free public release of this important database about veterans.

Paperwork and Court Filings
Reclaim The Records vs Veterans Affairs - FOIA Appeal (April 6, 2018)
Reclaim The Records vs Veterans Affairs - FOIA Appeal (April 6, 2018)

We appealed the VA's denial for the first time on April 6, 2018.

Letter from the VA (April 26, 2018)
Letter from the VA (April 26, 2018)

After receiving our FOIA Appeal, the VA suddenly decided that they had sent the FOIA to the wrong agency, and redirected it to a different group.

Initial Agency Decision / Denial #2 from the VA (July 26, 2018)
Initial Agency Decision / Denial #2 from the VA (July 26, 2018)

After finally shuffling the FOIA request to the right sub-group, the VA denied our FOIA, saying that the earlier BIRLS database had been released to Ancestry.com in error

FOIA Appeal #2 (August 6, 2018)
FOIA Appeal #2 (August 6, 2018)

We appealed the second denial, too.

Reclaim The Records vs. US Veterans Affairs
Reclaim The Records vs. US Veterans Affairs

And here's the FOIA lawsuit, filed in US District Court (SDNY) on September 17, 2018.

Response to FOIA lawsuit from the VA
Response to FOIA lawsuit from the VA

On October 10, 2018 -- three weeks after the FOIA lawsuit was filed in court -- the VA suddenly responded to our attorney with a letter dated (backdated?) to September 13, saying they would reconsider their previous denial and remand the case to their FOIA officer for more discussion

State or Vital Records Jurisdiction: Nationwide

Government Agency: United States Department of Veterans Affairs

Law: Freedom of Information Act (FOIA)

Record Type: Death Records

Record Years: 1850-present (approximately) -- the data for the years 1850-2010 has been released before, but we're asking for 1850-2017 or as recently as is available

Record Format: Actual records

Record Physical Format: Database

Number of Records (Estimated): 13,537,417 records were in the 1850-2010 data release, but we're asking for 1850-2017 so we estimate there may be about 14,000,000 records

New Jersey Death Index