38 CFR § 1.559 - Appeals.

§ 1.559 Appeals.

(a)Informal resolution prior to appeal. Before filing an appeal, the requester may wish to communicate with the contact person listed in the FOIA response or the component's FOIA Officer to see if the issue can be resolved informally. Informal resolution of the requester's concerns may be appropriate, for example, where additional details may be required for a search for responsive records. Communication with VA at this level does not toll the time limit for filing an administrative appeal.

(b)How to file and address a written appeal. The requester may appeal an adverse determination denying the request, in any respect, except for those concerning Office of Inspector Generalrecords, to the VA Office of the General Counsel (024), 810 Vermont Avenue NW, Washington, DC 20420. Any appeals concerning Office of Inspector Generalrecords must be sent to the VA Office of Inspector General, Office of Counselor (50), 810 Vermont Avenue NW, Washington, DC 20420. The FOIA appeal must be in writing and may be by letter or facsimile (fax); whichever method is used, the appeal must comply with all requirements of this paragraph and paragraph (d). Information regarding where to fax the FOIA appeal is available on VA's FOIA homepage on the internet. See § 1.552(a) of this part for the pertinent internet address.

(c)How to file an email appeal. VA accepts email appeals; the appeal must comply with all requirements of this paragraph and paragraph (d) of this section. In order to assure initial processing of an appeal filed by email, the email must be sent to one of the official VA FOIA mailboxes established for the purpose of receiving FOIA appeals; an email FOIA appeal that is sent to an individual VA employee's mailbox, or to any other entity, will not be considered a perfected FOIA appeal. Mailbox addresses designated to receive email FOIA appeals are available on VA's FOIA homepage. See § 1.552(a) of this part for the pertinent internet address.

(d)Time limits and content of appeal. The appeal to the VA OGC (024) or VA Office of Inspector General (50) must be received or postmarked no later than 90 calendar days after the date of the adverse determination and must contain the following: A legible return address; clear identification of the determination being appealed, including any assigned request number (if no request number was assigned, other information must be provided such as the name of the FOIA officer, the address of the component, the date of the component's determination, if any, and the precise subject matter of the appeal); and identification of the part of the determination that is being appealed (if appealing only a portion of the determination). If the appeal involves records about the requester himself or herself or records to which a confidentiality statute applies, the requester must comply with the verification of identity requirements set forth in § 1.577 of this part, which applies to requests for records maintained under the Privacy Act. If the appeal involves records not covered by the Privacy Act, but which the requester believes may pertain to him or her, the requester may obtain greater access to the records by complying with the verification of identity requirements set forth in § 1.577 of this part, providing the image of the requester's signature (such as an attachment that shows the requester's handwritten signature), or submitting a notarized, signed statement affirming his or her identity or a declaration made in compliance with 28 U.S.C. 1746. The suggested language for a statement under 28 U.S.C. 1746 is included on VA's FOIA homepage. See § 1.552(a) of this part for the pertinent internet address. If the appeal involves records pertaining to another individual (i.e., the requester is not the record subject), the requester may obtain greater access to the records if he or she provides satisfactory authorization to act on behalf of the record subject to receive the records or by submitting proof that the record subject is deceased (e.g., a copy of a death certificate or an obituary). Each component has discretion to require that a requester supply additional information to verify that a record subject has consented to disclosure. Appeals should be marked “Freedom of Information Act Appeal.” The requester may include other information as well, such as a telephone number and email address and a copy of the initial agency determination. An appeal is not perfected until VA either receives the required information identified above or the appeal is otherwise easily and sufficiently defined. The designated official within the Office of the General Counsel (024) will act on behalf of the Secretary on all appeals under this section, except those pertaining to the Office of Inspector General. The designated official in the Office of Inspector General will act on all appeals pertaining to Office of Inspector Generalrecords. A determination by the Office of General Counsel, or designated official within the Office of Inspector General, will be the final VA action.

(e)Responses to appeals. The Office of the General Counsel or the Office of Inspector General, as applicable, will provide the requester a decision on the appeal in writing. The decision will include a brief statement of the reasons for the decision, including, if applicable, any FOIA exemptions applied and notice of the right to judicial review of the decision.

(f)Court review. Unless the requester has been deemed to have exhausted all administrative remedies, he or she must first appeal the adverse determination in accordance with this section before seeking review by a court.

[76 FR 51895, Aug. 19, 2011, as amended at 84 FR 12127, Apr. 1, 2019]