VA’s Sunshine Allergy Worsens; What Breast Cancer Memo?
I really thought this close to Christmas, everyone at the VA would be happy to get a little warm sunlight. Especially for all the folks at central office over on Vermont Avenue. I always try to send a little sunshine the VA’s way by keeping a FOIA request pending. This week, I got a response to my request for the infamous breast cancer memo. Wouldn’t you know, they said no way, no how, was I getting a copy of that thing. Get out! Good thing I already have a bootlegged copy on my website.
For context, I’d encourage you to go back and read my discussion, Secretary Collins Signs Memo Ending Presumptive Service-Connection for Male Breast Cancer. Here’s a preview: it ain’t purty. FOIA is a really powerful tool if you’ve never used it. One of the key components of the law is if the government, in this case the VA, hasn’t made their mind up on something, you can’t request copies of what they consider “internal deliberation documents.” Which, hey, that is probably pretty fair. Often times, some dumb intern types up a memo, like this one, proposing something completely bass ackward, and we wouldn’t want something like that getting out, because as soon as it gets in front of a grown up’s desk, it is promptly squashed. Now here is the really good part about FOIA. Once the Grand Poobah makes up his mind and says yeah, this is what we are going to do, it is no longer “pre-decisional,” or “internal deliberation.” Instead, it is a final decision subject to the utmost sunshine and lowly citizens like you and I are entitled to check out the whole Monte Carlo. Well, at least I thought we were.
A Copy for me, Please!
As much mail as I get from the VA, I thought they’d be happy to send me a copy of Secretary Collins’ signed memo. What’s two more pages? So, back in November when I learned of this whole thing, I promptly requested “any memorandum discussing the removal of male breast cancer as a presumptive condition. I also want a copy of the memorandum dated June 15, 2025, signed by Secretary Collins.” Wouldn’t you know it, the VA told me not only no, but hell no!
Now, this is the good part. They don’t deny the existence of the memo, which is mighty noble of them. How honest. How transparent. Instead, they say yes there is a two page memo, and yes we reviewed it, but no you can’t have it. (Hint, it is already on my website.) Anyhow, according to the response, FOIA “protects from disclosure records subject to the deliberative process privilege, which shields documents consisting of advisory opinions and deliberations comprising the process by which the Government or agency formulates decisions and policies.” Well, there is just a tiny little problem there. The second Secretary Collins himself signed this memo, giving the final thumbs up, there isn’t much deliberation left to do. That is the end of the chain of command. Top of the totem pole, the captain of the ship gave the thumbs up. It is a done deal, a final agency decision. In other words, it is subject to some much needed sunshine and subject to release to the public.
No, Seriously, I Want a Copy!
I doubt you find it surprising that I just couldn’t take no for an answer. Like I say, better to keep their hands busy than to let them sit with idle hands. So, I quickly sent an appeal letter.
Now, this is the really great part about FOIA. Exemption (b)(5) of the FOIA does not permit an agency to avoid disclosure of records that may paint the agency in a bad light, records that reveal problems, or records that may contain embarrassing information as such records are designed to be disclosed under the FOIA. I would sure hope whoever came up with this memo is embarrassed. You know whoever first thought of it got a high five, probably a promotion, too.
So, here we are, standing by for a decision on the FOIA appeal. Oh, another cool thing about FOIA. If something is out there in outer space, a/k/a the “public domain,” they have to cough up a copy. So, of course, I let them know I already had a copy, albeit a bootlegged one!
I think two things will be interesting about this whole snafu when the dust finally settles. One, it will be interesting to find out the chain of events that caused the final memo, and if there is an ounce of scientific evidence truly relied upon in making the final decision. Second, it will be interesting to see if they double down, reverse course, or come back and say, sorry, your eyes must be lyin’ there isn’t any memo at all and what you have is a fake! The VA’s got deep pockets, but I have gotten a lot of emails from many heavy hitters looking to help litigate this, if needed. Around here, we’re not all hat and no cattle. Saddle up.
Gotta run—mail just came—hoping my Christmas card from the Office of General Counsel finally made it. Surely I am on the list?
Godspeed.
