BLOG: My experience investigating discipline at the VA

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JOHNSON CITY, TN (WJHL) – It started with a simple request on December 10, 2015. Little did we know the next 11 months would bring us an $1,100 bill for public records, more than 100 emails to and from Mountain Home VA Medical Center officials and a reluctance to talk on-camera about what those records revealed.

We wanted to know how many employees Mountain Home disciplined during the national wait time scandal. Initially, we wanted to look at the files, but Mountain Home told us that wasn’t allowed, so after we received a list of employee discipline from the VA (free-of-charge), we still needed to know more. The original list identified dozens of unnamed employees who the VA fired, along with dozens of employees who received suspensions, reprimands and admonishments.

Although a good start, it wasn’t enough to tell a fair and accurate story. After all, we didn’t have the answer to the most important question, “Why?” Why were all of those VA employees disciplined? That question led to a second request in February. We wanted to inspect documents related to several dozen of the cases that led to removals.

A month later, the VA sent us an email, again telling us we could not have access to the VA’s systems, but could provide us with 4,700 documents on one condition. We would have to pay $1,153, including a $463 fee for the employee time spent searching for the documents. You can imagine our reaction.

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I immediately started calling open records’ experts locally and nationally. On March 31, I interviewed Reporters Committee for Freedom of the Press Legal Fellow Adam Marshall via Skype. The non-profit is based in Washington, DC and provides free legal resources, support and advocacy to “protect the First Amendment and freedom of information rights of journalists.”

I told Marshall about our situation and asked him specifically if the VA could charge us for employee time spent searching for documents.

“I think they just don’t understand the law, which is very clear that if you are a representative of the media you cannot be charged for search fees,” Marshall said. “You can be charged for duplication fees, but that’s it. It’s kind of frustrating that the VA would not only misapply the law, but also its own internal regulations that make this clear.”

We also asked Marshall if the remaining $690 duplication fee bill seemed reasonable to him.

“Duplication fees now should be the cost of a CD or a DVD or a thumb drive to put the documents on,” he said. “We shouldn’t have to be printing out thousands and thousands of pages of records on paper and mailing them. That just seems kind of ridiculous in the 21st Century.”

The VA wouldn’t budge on the cost even after I shared the law, but did show a continued willingness to help if we narrowed down our request. In the interest of time and money, we narrowed down our request. On April 1, I amended my request and asked only for final conclusion/summary documents related to all of the disciplinary cases that were prompted by or resulted in investigations by the VA’s Administrative Investigative Board. I also asked for summary documents linked to any cases related to the business office, chief of staff’s office and police if they did not involve the AIB.

On April 27, I received reports from 12 cases. The reports had some valuable information, but still did not provide enough insights. On May 5, I made another FOIA request. After some research, I discovered the VA has to consider what are called Douglas Factors when making decisions about a case involving non-probationary permanent employees who are suspended or removed, so I requested the Douglas Factors for all of the disciplinary cases. I knew those documents would provide more information.

On June 22, I received seven attachments of Douglas Factors linked to 25 cases. One case had so much information redacted I couldn’t tell the specifics of the allegations. All I knew was that it was likely linked to patient abuse and that “The lack of dignity and respect shown to these (blank) was intentional or at a minimum negligent and was repeated.” The document also mentioned “this is the worst thing that has ever happened here and no (blank) should be treated this way or be afraid of the people that are supposed to be (blank).” There was also another line: “(Blank) am feeble and cannot care for myself and I am afraid of what they may or may not do to (blank).”

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The VA FOIA officer told us she specifically redacted people’s names, because some of the information in the documents “contained information that falls within the disclosure protections of FOIA Exemption 6, 5 U.S.C. § 552(b)(6)…The individuals associated with this information have a personal privacy interest in information that outweighs any public interest served by disclosure of their identities under FOIA.”

On July 21, I requested a breakdown of the findings from what appeared to be three abuse cases. On August 22, I received an email with the information. In the meantime, on that same day, the VA denied our request for an on-camera interview linked to an unrelated VA Office of Inspector General investigation. Instead, the agency provided a written statement.

On August 25, I requested an on-camera interview with Mountain Home VA’s then acting director to discuss generally “the kinds of discipline handed out, the reasons for the discipline, the VA’s protocol for handling discipline and how the situations impacted patient care.”

Dan Snyder, through a spokesperson, told us he would only answer our questions through email and “does not plan to do an on camera interview.” That’s when we asked the spokesperson to do an on-camera interview with us explaining the director’s reasons for declining our interview request. She declined.

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We then emailed four questions to the director. Our first asked for his specific reason for declining an on-camera interview to which he responded, “In an effort to provide the most succinct response to your questions, I have opted to reply in writing. Doing so also allows me time to focus my attention on the primary mission of caring for veterans.”

By September 13, we knew this was an important story that required answers and accountability, so we sent this email:

“As you can understand, it is our jobs to hold the government accountable, especially when an agency fails to provide the best possible care and service. That being said, we want to make every effort to be fair in our reporting. We feel that talking to a VA representative is essential to both the accountability aspect and the fairness aspect of our story. We will disclose that the director declined an interview and we want to make every effort to make sure he, like anyone we interview, has the opportunity to be represented in the best possible light, considering the circumstances.

If it is his intention to decline our request for an on-camera interview, I ask that you please provide us with his public schedule for the next month so we can find a time and place to talk with him.”

Three days later, we received an email from the VA spokesperson: “Mr. Snyder is back in office today. He advised me he would meet with you at his office at a time that we can work out.”

We interviewed Snyder the next week and both of us were respectful and cordial to each other throughout our time together.

For the next month, we continued our news gathering. We interviewed Rep. Phil Roe, a member of the House Veterans Affairs Committee, and told him about our experience.

“Welcome to what we deal with all the time,” Congressman Roe said. “Accountability and transparency, the VA is lacking.”

The legal fellow for the Reporters Committee for Freedom of the Press told us we’re not the first journalists to experience issues.

“I do know that reporters across the country have had a lot of problems getting access to records from the VA,” Marshall said. “It’s safe to say that there’s a history of difficulty of getting information from the VA.”

Despite that difficulty, we ultimately were able to get enough information to provide a snapshot of the discipline during the wait time scandal and it didn’t cost us a dime.

More importantly, the public records exposed an issue that Rep. Roe called “unacceptable.” We discovered some VA employees weren’t punished enough in Rep. Roe’s eyes for some of the things they put veteran patients through.

“They should work for somebody else,” he said. “They don’t need to be serving veterans.”

You can see the results of our almost yearlong investigation Monday at 6 pm on News Channel 11.

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Copyright WJHL 2016. All rights reserved.

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