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Case TitleReclaim the Records et al v. United States Department of Veterans Affairs
DistrictSouthern District of New York
CityFoley Square
Case Number1:2018cv08449
Date Filed2018-09-17
Date ClosedOpen
JudgeJudge Paul A. Engelmayer
PlaintiffReclaim the Records
PlaintiffBrooke Schreier Ganz
Case DescriptionReclaim the Records and Brooke Schreiber Ganz submitted a FOIA request to the Department of Veterans Affairs for records concerning the BIRLS Death File, which Ganz told the agency had previously been made public to two genealogy websites. The agency acknowledged receipt of the request but told Ganz that the current database could not be disclosed because of privacy concerns under Exemption 6 (invasion of privacy). Ganz filed an administrative appeal and the agency told her the database was actually maintained by the Veterans Health Administration. VHA denied her request, telling her that the previous disclosure of the database to Ancestry.com was erroneous and had led to data breaches of veterans' private information. Ganz filed an administrative appeal of the VHA denial, but after hearing nothing further from the agency, Reclaim the Records and Ganz filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantUnited States Department of Veterans Affairs including its Components, the Office of General Counsel, the Veterans Benefits Administration, and the Veterans Health Administration
Documents
Docket
Complaint
Opinion/Order [39]
Opinion/Order [41]
FOIA Project Annotation: A federal court in New York has ruled that the Department of Veterans Affairs may not withhold a database of deceased veterans' benefit claims merely because the Veterans Health Administration inadvertently mixed in benefit claims for veterans who were still alive when it disclosed the database to Ancestry.com in 2010. In response to a request from Reclaim the Records, a group of genealogists, historians, and journalists which collects genealogical and archival data sets, for records from the same dataset disclosed to Ancestry.com, the VA withheld the database under Exemption 6 (invasion of privacy), arguing that because it could not quantify how many records in the database contained information about veterans who were still alive, disclosure of the database would constitute an unwarranted invasion of privacy. Reclaim filed an administrative appeal arguing that the disclosure of the dataset to Ancestry.com meant that the records were now in the public domain. Instead, the VA characterized the Ancestry.com disclosure as an erroneous data breach. After Reclaim filed suit, the VA indicated that it had found that 5 million records of the 14.4 million records previously released to Ancestry.com pertained to deceased veterans, but ultimately concluded that the post-2010 data on deceased veterans was so filled with errors that it could not disclose it without risking disclosure of information on veterans who were still alive. District Court Judge Paul Engelmayer sided with Reclaim's public domain argument as to a 1850-2010 dataset. He noted that "Reclaim 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." The VA argued that even though the Ancestry.com data was public, a further disclosure might still cause harm. Engelmayer rejected that argument as well, pointing out that "that concern is solely theoretical here, insofar as 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." As to the post-2010 data, the VA contended the data was so riddled with errors that it could not be disclosed. Engelmayer pointed out, however, 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. VA does not cite any case authority permitting an agency to invoke an otherwise unavailable exemption because its own carelessness has complicated the process of separating exempt from non-exempt materials." Recognizing the scope of cleaning up the database, Engelmayer give the VA two years to accomplish that goal.
Issues: Exemption 6 - Invasion of privacy, Public domain
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2018-09-171COMPLAINT against United States Department of Veterans Affairs. (Filing Fee $ 400.00, Receipt Number 0208-15579397)Document filed by Reclaim the Records, Brooke Schreier Ganz.(Rankin, David) (Entered: 09/17/2018)
2018-09-172AMENDED COMPLAINT amending 1 Complaint against United States Department of Veterans Affairs.Document filed by Reclaim the Records, Brooke Schreier Ganz. Related document: 1 Complaint. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Rankin, David) (Entered: 09/17/2018)
2018-09-173FILING ERROR - PDF ERROR - CIVIL COVER SHEET filed. (Rankin, David) Modified on 9/18/2018 (pne). (Entered: 09/17/2018)
2018-09-174REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of Veterans Affairs, re: 1 Complaint, 2 Amended Complaint,. Document filed by Reclaim the Records, Brooke Schreier Ganz. (Rankin, David) (Entered: 09/17/2018)
2018-09-18***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney David Bruce Rankin to RE-FILE Document No. 3 Civil Cover Sheet. The filing is deficient for the following reason: MULTIPLE NATURES OF SUIT SELECTED (440 & 895); PLEASE SELECT ONLY ONE. Re-file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. Use civil cover sheet issued by S.D.N.Y. dated June 2017. The S.D.N.Y. Civil Cover Sheet dated June 2017 is located at http://nysd.uscourts.gov/file/forms/civil-cover-sheet.. (pne) (Entered: 09/18/2018)
2018-09-18CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Paul A. Engelmayer. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (pne) (Entered: 09/18/2018)
2018-09-18Magistrate Judge Robert W. Lehrburger is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (pne) (Entered: 09/18/2018)
2018-09-18Case Designated ECF. (pne) (Entered: 09/18/2018)
2018-09-18***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney David Bruce Rankin. The party information for the following party/parties has been modified: United States Department of Veterans Affairs. The information for the party/parties has been modified for the following reason/reasons: party text was omitted. (pne) (Entered: 09/18/2018)
2018-09-185CIVIL COVER SHEET filed. (Rankin, David) (Entered: 09/18/2018)
2018-09-186ELECTRONIC SUMMONS ISSUED as to United States Department of Veterans Affairs. (pne) (Entered: 09/18/2018)
2018-10-017SUMMONS RETURNED EXECUTED. United States Department of Veterans Affairs served on 9/25/2018, answer due 10/16/2018. Service was accepted by Daniel Kennedy, Paralegal. Document filed by Reclaim the Records; Brooke Schreier Ganz. (Rankin, David) (Entered: 10/01/2018)
2018-11-028SUMMONS RETURNED EXECUTED. United States Department of Veterans Affairs served on 11/1/2018, answer due 11/23/2018. Service was made by MAIL. Document filed by Reclaim the Records; Brooke Schreier Ganz. (Rankin, David) (Entered: 11/02/2018)
2018-11-059NOTICE OF INITIAL PRETRIAL CONFERENCE: Initial Conference set for 12/3/2018 at 04:00 PM in Courtroom 1305, 40 Centre Street, New York, NY 10007 before Judge Paul A. Engelmayer; and as further set forth herein. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/5/2018) (anc) (Entered: 11/05/2018)
2018-11-1910NOTICE OF APPEARANCE by Sharanya Mohan on behalf of United States Department of Veterans Affairs. (Mohan, Sharanya) (Entered: 11/19/2018)
2018-11-1911CONSENT LETTER MOTION for Extension of Time to respond to the amended complaint and joint request to adjourn initial conference and pre-conference submission deadline addressed to Judge Paul A. Engelmayer from Sharanya Mohan dated November 19, 2018. Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 11/19/2018)
2018-11-2012ORDER granting 11 Letter Motion for Extension of Time: The Court grants this request. The IPTC is hereby adjourned until January 8, 2019 at 4:00 p.m. Pre-conference submission are due on January 4, 2019, including two courtesy copies of all pleadings. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/20/2018) (ks) (Entered: 11/20/2018)
2018-11-20Set/Reset Hearings: Initial Conference set for 1/8/2019 at 04:00 PM before Judge Paul A. Engelmayer. (ks) (Entered: 11/20/2018)
2018-12-1713ANSWER to 2 Amended Complaint,. Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 12/17/2018)
2018-12-2414CONSENT LETTER MOTION to Adjourn Conference addressed to Judge Paul A. Engelmayer from Sharanya Mohan dated December 24, 2018. Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 12/24/2018)
2018-12-2615MEMO ENDORSED granting 14 Letter Motion to Adjourn Conference. ENDORSEMENT: Granted. The Court hereby adjourns the initial pre-trial conference until March 18, 2019 at 2:30 p.m. Pre-trial submissions are due on March 14, 2019. SO ORDERED. Initial Conference set for 3/18/2019 at 02:30 PM before Judge Paul A. Engelmayer. (Signed by Judge Paul A. Engelmayer on 12/26/2018) (kv) (Entered: 12/26/2018)
2018-12-2716STANDING ORDER M10-468: The United States Attorney's Office shall notify the Court immediately upon the restoration of Department of Justice funding. (As further set forth in this Order.) (Signed by Judge Colleen McMahon on 12/27/2018) (mro) (Entered: 01/02/2019)
2018-12-27Case Stayed (mro) (Entered: 01/14/2019)
2019-03-1417LETTER addressed to Judge Paul A. Engelmayer from Sharanya Mohan dated March 14, 2019 re: submission in advance of initial conference and request to adjourn initial conference. Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 03/14/2019)
2019-03-1418MEMO ENDORSEMENT on re: 17 Letter, filed by United States Department of Veterans Affairs. ENDORSEMENT: Granted. The Court hereby directs the parties to file a joint letter, setting out each party's views on which issues remain and proposing, if necessary, a summary judgement briefing schedule. This latter is due by Monday, May 6, 2019. The Court also adjourns the pretrial conference currently scheduled for March 18, 2019 to Monday May 20, 2019. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 3/14/2019) (ks) (Entered: 03/14/2019)
2019-05-0619JOINT LETTER addressed to Judge Paul A. Engelmayer from Sharanya Mohan dated May 6, 2019 re: status update, proposed briefing schedule, and request to adjourn conference. Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 05/06/2019)
2019-05-0720ORDER: The Court hereby sets the following deadlines: The Government's affirmative motion for summary judgment is due Thursday, June 20, 2019; Plaintiffs' combined opposition and cross-motion for summary judgment is due Monday, August 5, 2019; The Government's combined opposition and reply brief is due Monday, August 26,2019; and Plaintiffs' reply brief is due Monday, September 16, 2019. SO ORDERED., ( Cross Motions due by 8/5/2019., Motions due by 6/20/2019., Responses due by 8/26/2019, Replies due by 9/16/2019.) (Signed by Judge Paul A. Engelmayer on 5/06/2019) (ama) Modified on 5/7/2019 (ama). (Entered: 05/07/2019)
2019-05-1421MEMO ENDORSEMENT on re: 19 Letter, filed by United States Department of Veterans Affairs. ENDORSEMENT: Granted. The Court hereby adjourns the conference set for May 20, 2019. The Court directs the parties to Dkt. 20 for the summary judgment briefing schedule. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 5/14/2019) (anc) (Entered: 05/14/2019)
2019-06-1222CONSENT LETTER MOTION for Extension of Time of summary judgment deadlines addressed to Judge Paul A. Engelmayer from Sharanya Mohan dated June 12, 2019. Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 06/12/2019)
2019-06-1223ORDER granting 22 Letter Motion for Extension of Time. Granted. SO ORDERED Cross Motions due by 8/19/2019. Motions due by 7/5/2019. (Signed by Judge Paul A. Engelmayer on 6/12/2019) (jca) (Entered: 06/12/2019)
2019-06-12Set/Reset Deadlines: Responses due by 9/9/2019, Replies due by 9/30/2019. (jca) (Entered: 06/12/2019)
2019-07-0524MOTION for Summary Judgment . Document filed by United States Department of Veterans Affairs.(Mohan, Sharanya) (Entered: 07/05/2019)
2019-07-0525MEMORANDUM OF LAW in Support re: 24 MOTION for Summary Judgment . . Document filed by United States Department of Veterans Affairs. (Mohan, Sharanya) (Entered: 07/05/2019)
2019-07-0526DECLARATION of Deana Marakowski in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Department of Veterans Affairs. (Attachments: # 1 Exhibit A - FOIA Request, # 2 Exhibit B - January 9, 2018 Letter, # 3 Exhibit C - April 6, 2018 Letter, # 4 Exhibit D - April 26, 2018 Letter, # 5 Exhibit E - July 26, 2018 Initial Agency Decision, # 6 Exhibit F - August 6, 2018 Appeal, # 7 Exhibit G - August 7, 2018 Letter)(Mohan, Sharanya) (Entered: 07/05/2019)
2019-07-0527DECLARATION of John F. Quinn III in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Department of Veterans Affairs. (Mohan, Sharanya) (Entered: 07/05/2019)
2019-07-0528DECLARATION of Derek Herbert in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Department of Veterans Affairs. (Mohan, Sharanya) (Entered: 07/05/2019)
2019-07-0529DECLARATION of Sharanya Mohan in Support re: 24 MOTION for Summary Judgment .. Document filed by United States Department of Veterans Affairs. (Attachments: # 1 Exhibit A - April 11, 2019 Cover Letter)(Mohan, Sharanya) (Entered: 07/05/2019)
2019-08-1230CONSENT LETTER MOTION for Extension of Time to File Opposition to Summary Judgement motion addressed to Judge Paul A. Engelmayer from David B. Rankin dated August 12, 2019. Document filed by Reclaim the Records, Brooke Schreier Ganz.(Rankin, David) (Entered: 08/12/2019)
2019-08-1231ORDER granting 30 Letter Motion for Extension of Time to File. Granted. The parties should expect no further extensions of this briefing schedule. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 8/12/2019) (rj) (Entered: 08/13/2019)
2019-08-12Set/Reset Deadlines: Responses due by 10/11/2019 Replies due by 11/1/2019. (rj) (Entered: 08/13/2019)
2019-08-1332NOTICE OF APPEARANCE by Charles Salim Jacob on behalf of United States Department of Veterans Affairs. (Jacob, Charles) (Entered: 08/13/2019)
2019-08-1333LETTER addressed to Judge Paul A. Engelmayer from Sharanya Mohan dated August 13, 2019 re: request to withdraw as counsel. Document filed by United States Department of Veterans Affairs. (Attachments: # 1 Declaration of Sharanya Mohan)(Mohan, Sharanya) (Entered: 08/13/2019)
2019-08-1334MEMO ENDORSEMENT on re: 33 Letter, filed by United States Department of Veterans Affairs. ENDORSEMENT: Granted. SO ORDERED. Attorney Sharanya Mohan terminated. (Signed by Judge Paul A. Engelmayer on 8/13/2019) (jca) (Entered: 08/13/2019)
2019-10-1135CROSS MOTION for Summary Judgment . Document filed by Reclaim the Records, Brooke Schreier Ganz.(Rankin, David) (Entered: 10/11/2019)
2019-10-1136DECLARATION of David B. Rankin in Support re: 35 CROSS MOTION for Summary Judgment .. Document filed by Reclaim the Records, Brooke Schreier Ganz. (Attachments: # 1 Exhibit 1 - FOIA Request, # 2 Exhibit 2 - Def's Denial of Req, # 3 Exhibit 3 - Pl's Internal Appeal, # 4 Exhibit 4 - Def's Rsp to Appeal, # 5 Exhibit 5 - Def's Denial of Appeal, # 6 Exhibit 6 - Pl's Appeal of Denial, # 7 Exhibit 7 - Def's Ack of Appeal, # 8 Exhibit 8 - VA Training Materials)(Rankin, David) (Entered: 10/11/2019)
2019-10-1137MEMORANDUM OF LAW in Support re: 35 CROSS MOTION for Summary Judgment . and in Opposition to VA's Summary Judgment Motion . Document filed by Reclaim the Records, Brooke Schreier Ganz. (Rankin, David) (Entered: 10/11/2019)
2019-11-0138MEMORANDUM OF LAW in Opposition re: 35 CROSS MOTION for Summary Judgment . and Reply Memorandum of Law in Support of Defendant's Motion for Summary Judgment . Document filed by United States Department of Veterans Affairs. (Jacob, Charles) (Entered: 11/01/2019)
2020-03-2439OPINION & ORDER re: 24 MOTION for Summary Judgment, 35 CROSS MOTION for Summary Judgment: For the foregoing reasons, the Court grants Reclaim's motion for summary judgment and denies the VA's cross-motion for summary judgment. Consistent with this Opinion, the VA is to release the remainder of the BIRLS Death File to Reclaim by April 1, 2022. The Court expects the VA to use the period between now and April 1, 2022, to remove data from the BIRLS Death File relating to living persons. As explained in the foregoing Opinion, the Court requests supplemental letter briefing, on the schedule set out above, regarding the "cause of death" data field, to enable the Court to resolve the parties' dispute as to whether that field is properly disclosed under FOIA. The Clerk of Court is respectfully directed to terminate the motions pending at dockets 24 and 35. (Signed by Judge Paul A. Engelmayer on 3/24/2020) (jwh) Transmission to Orders and Judgments Clerk for processing. (Entered: 03/24/2020)
2020-04-1440LETTER addressed to Judge Paul A. Engelmayer from Charles S. Jacob dated April 14, 2020 re: "Cause of Death" Field in the BIRLS Death File. Document filed by United States Department of Veterans Affairs..(Jacob, Charles) (Entered: 04/14/2020)
2020-04-1441MEMO ENDORSEMENT on 40 LETTER. ENDORSEMENT: The Court thanks the Government for this update and is pleased to learn that the VA has agreed to release the data in the "cause of death" field for those records already released to plaintiffs. The Government is directed to disclose the "cause of death" data for the remaining records on the same timeline as the other information that the Court ordered disclosed in its March 24, 2020 order, i.e., by April 1, 2022. The Government is further directed to update the Court as records are released to Reclaim. In the interim, this matter is hereby stayed. (Signed by Judge Paul A. Engelmayer on 4/14/2020) (jwh) (Entered: 04/14/2020)
2020-04-2442LETTER addressed to Judge Paul A. Engelmayer from Charles S. Jacob dated April 24, 2020 re: Status Letter Regarding Production and Clarification Regarding Certain Issues. Document filed by United States Department of Veterans Affairs..(Jacob, Charles) (Entered: 04/24/2020)
2020-04-2743MEMO ENDORSEMENT on re: 42 Letter, filed by United States Department of Veterans Affairs. ENDORSEMENT: The Court thanks the Government for this update. As to the potential issue with regard to the inclusion / withholding of veterans' names, the Court requests that the parties file a joint letter by May 15, 2020 indicating either that there is no disagreement on this point or, if necessary, briefly setting forth the parties' respective views. (Signed by Judge Paul A. Engelmayer on 4/27/2020) (jwh) (Entered: 04/27/2020)
2020-05-1544JOINT LETTER addressed to Judge Paul A. Engelmayer from Charles S. Jacob dated May 15, 2020 re: Joint Status Update. Document filed by United States Department of Veterans Affairs..(Jacob, Charles) (Entered: 05/15/2020)
2020-05-1845MEMO ENDORSEMENT on re: 44 Letter filed by United States Department of Veterans Affairs. ENDORSEMENT: The Court thanks the parties for their letter and their consistent collegiality in resolving issues related to this matter. This memo endorsement serves to so-order the parties' agreement, as specified on page 1 of their letter, as to the production of veterans' names as part of the FOIA request. The Court stands ready to endorse a standalone stipulation if the parties feel that is necessary. As to the specific cut-off date of the 2010-Present data to be produced by the VA, the Court adopts the parties' suggestion and requests a joint status update on this point by June 15, 2020. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 5/18/2020) (rro) (Entered: 05/18/2020)
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