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DEEOIC finds ways to circumvent FOIA statute
This may not be the most
captivating blog I’ve ever written but I thought I would share the
months-long feud I’ve been having a months-long feud with the
Department of Labor’s (DOL) Division of Energy Employees
Occupational Illness Compensation’s (DEEOIC) handling of my
Freedom of Information Act (FOIA) requests. Now, this isn’t the
most important problem with the program, but it does, in my
opinion, appears exemplifies that DEEOIC is not averse to
violating the spirit, if not the actual language of the federal
laws. Please note that this opinion applies to only DEEOIC, not
other DOL offices.
FOIA was enacted to allow the public to request documents and correspondence from federal agencies. This is important because it helps the public ensure that the agencies abide by the various laws that apply to their operations or if some of their employees act in a shady or unprofessional manner. For instance, in 2011 the Energy Employees Claimant Assistance Project (EECAP) received a copy of the manual DEEOIC used to train claims examiners. Claimants and their advocates were horrified that fictitious names like Freddie Kruger were used for the workers. The news media pick up the story and DEEOIC was forced to develop a new training manual.
I file FOIA requests fairly frequently throughout the year with agencies involved with the Energy Employees Occupational Illness Compensation Program (EEOICP).
I usually have no problems receiving responsive documents to my FOIA requests, especially when I ask that they be sent via email. The National Institute for Occupational Safety and Health (NIOSH) and the Department of Energy (DOE) always honors my request to provide the responsive documents via email. DEEOIC has so far refused to do so.
There are very good reasons I want the documents sent via email. Even before the recent problems with the U.S. Mail, living in a rural area where sometimes the roads over the mountain passes are closed due to a snowstorm, mail delivery is sometimes delayed. Receiving mail from either coast now can take a week to receive. And sometimes letters are lost in the mail. Not receiving letters or responsive documents from DEEOIC occurred at least three times since mid-December. Two were letters – one containing the password to access the encrypted disc (more on encryption later) and the other was a clarification letter that required a response by a certain date. The third piece of missing mail was the encrypted disc that contained copies of appointment calendars for Rachel Pond, DEEOIC Director, Douglas Pennington, DEEOIC Deputy Director, and John Vance, DEEOIC Chief of the Policy Unit..
Clarification letter, you ask? That’s a letter DEEOIC regularly sends out asking me to clarify something in the FOIA request. Sometimes I can see how my wording could be a bit vague or otherwise unclear. However, for one request, I asked for “Copies any written directive or guidance the “DEEOIC Solicitor” provided to the DEEOIC leadership concerning the definition of "significant factor." And what did DEEOIC want clarified? “Who do you mean by the ‘DEEOIC Solicitor?” Really? DEEOIC doesn’t know who their solicitor is? It’s right there on the Solicitor’s website.
I filed that FOIA request December 1, 2021. The clarification letter I did not receive in the mail was dated December 20, 2021. This stopped the clock for DEEOIC to provide the documents within 20 business days. It was finally emailed to me on January 20, 2022. I received the final letter, dated January 27, 2022, responding to the request on February 9, 2022 more than 2 months after I submitted the FOIA request.
I filed the FOIA request for the appointment calendars on November 18, 2021. I finally received the
responsive documents two letters and one lost disc later on February 11, 2022.
However, the issue that irritates me the most is that DEEOIC also insists on encrypting the disc they mail.
It was explained to me that the reason was to make sure that any information that would violate the
Privacy Act was properly removed. That explanation doesn’t hold water. FOIA provides eight instances
where a federal agency can redact or otherwise withhold information from the requester. FOIA
Exemption #6 has that area concerning the Privacy Act covered. There is absolutely no need to first
redact the document under Exemption #6 and then encrypt the disc.
Another reason I don’t want the disc encrypted is because I cannot always open the disc.
I never could open the discs. My friend couldn’t open the disc. My friend also receives documents on an
encrypted disc that she cannot open. Additionally, one reason a requester can file for a fee waiver is
because they can widely share the results of the request. I’m supposed to share the information I
obtain under FOIA. I can’t share if I can’t open the disc.
I contacted DOL’s FOIA Public Liaison for help. He said that I should ask the FOIA officer for the Office of
Workers’ Compensation Programs (OWCP) – DEEOIC is a division of OWCP - for the written policy on
encrypting discs for responsive documents. OWCP forwarded my email to DEEOIC with instruction to
respond. Surprise! DEEOIC has not responded.
I’m hoping that with the involvement of the DOL Public Liaison and the OWCP FOIA officer DEEOIC will
fulfill my future FOIA requests in the manner I specify and in accordance with the law. Time will tell. I
already filed requests for summaries for a couple of meetings listed on the calendars and plan to file
more. I’ll keep you posted about the responses. If anyone would like to see the calendars for Rachel
Pond and John Vance, email me at email@example.com.
NIOSH Institutes Moratorium on Dose Reconstructions
Without any notice to claimants or other stakeholders, NIOSH instituted a moratorium on reconstructing dose and activities involving SEC petitions on May 3, 2021. This includes a hold on:
1. Receiving new or rework case referrals from DOL,
2. Returning completed dose reconstructions to DOL, and
3. Receiving individual and site-specific dosimetry information from DOE.
ANWAG urges Congress to reform RECA legislation
ANWAG urges Congress to reform the RECA legislation. Legislation is being discussed to extend the coverage to workers in the uranium mining industry employed after 1971 and expand coverage for downwinders. ANWAG also asks that chronic lymphocytic leukemia be considered a radiogenic cancer.
ANWAG recieves FOIA from NIOSH
ANWAG filed a Freedom of Information Act Request for letters from NIOSH to the SEC petitioners whose petition did not qualify for review. ANWAG will provide an analysis of the petitions that NIOSH rejected after the Ten Year Review at a later date.
ANWAG reports Problems at Recent NIOSH Board Meeting
Advocates listening to the December 9, 2020 meeting of the Advisory Board on Radiation and Worker Health during the Savannah River Site's Special Exposure Cohort (SEC) Petition agenda item heard some serious procedural irregularities. These irregularities prevented the Board from voting on whether this class of workers should be included in the SEC.
Dr. Howard responded on January 8, 2021.
Dr. Howard responded on January 8, 2021.
ANWAG requests Explanation on Problems with New Bill Contractor
The Department of Labor changed the mailing address for documents sent through the U.S. Mail for claims processed by their Division of Energy Employees Occupational Illness Compensation Program (DEEOIC). This change, instead of being just a minor inconvenience, raised red flags about the capability of new medical bill payer contractor, CNSI. Read ANWAG's letter asking for an explanation.
DOL responds to ANWAG's Suggestion on Prescription Medication during the COVID-19 Outbreak
On March 17, 2020 Director Pond responded to ANWAG's suggestions on improving prescription coverage.
Court issues Amended Order on Rocky Flats Grand Jury Documents
Court orders Department of Justice (DOJ) to advise the court whether DOJ still possesses 3 million pages of documents collected during the Grand Jury investigation of Rocky Flats.
Center for Disease Control COVID-19 Advisory for People at Risk for Serious Illness
ANWAG asks DEEOIC to issue emergency policy to allow some
workers obtain more than a thirty day supply of medication.
ANWAG Suggests how ABTSWH can help DEEOIC
In light of the new responsibilities for the Advisory Board on Toxic Substances and Worker Health, ANWAG submitted written comments ahead of the 1/28/20 board meeting. We have identified areas where the Board's guidance could benefit the Division of Energy Employees Occupational Illness Compensation.
ANWAG Requests Funding for EEOICPA Ombudsman's Office and ABTSWH
ANWAG looks forward to working with Department of Labor (DOL) Secretary, Eugene Scalia, on issues with the Energy Employees Occupational Illness Compensation Program and looks forward to DOL providing the necessary resources to the Advisory Board on Toxic Substances and Worker Health and the EEOICP Ombudsman for the added responsibilities required under the FY 2020 National Defense Authorization Act.
DOL Responds to ANWAG's Request to Repeal Final Rules
Five months after ANWAG petitioned the Department of Labor to repeal the Final Rules which changed how claims under the Energy Employees Occupational Illness Compensation Program are adjudicated. Read their response here.
Our Nuclear Nightmare
Our Nuclear Nightmare is a chilling, first-hand account of the November 8, 2011 accident which left 16 workers from the Idaho National Laboratory contaminated. This account details what led up to the accident, the investigation and how it affected the life of the author, Ralph Stanton, and his family.
ANWAG requests Oversight and Hearing on EEOICPA
On March 6, 2019 ANWAG sent a letter the House Committee on Education and Labor expressing major concerns on the implementation of EEOICPA and requesting a thorough oversight review of the program.
ANWAG Questions DEEOIC on the Advisory Board on Toxic Substances and Worker Health
ANWAG questions Department of Labor's policy on accepting or rejecting recommendations made by the Advisory Board on Toxic Substances and Worker Health in letter dated January 8, 2019.
Correspondence between advocate and DOL
Update on Rocky Flats Unclassified Documents Held at Los Alamos
Last year, NIOSH revealed that they were aware that boxes of Rocky Flats documents located at Los Alamos National Lab. These boxes were not reviewed by NIOSH before the Advisory Board on Radiation and Worker Health voted to deny expanding the SEC years. The boxes were reviewed by NIOSH in January. NNSA provided a summary of the information contained in the boxes that NIOSH reviewed through a Freedom of Information Act request.
The petitioners will continue to push for access to these documents.
ANWAG Provides Needed Information to Congress on Low Dose Radiation Legislation
On February 8, 2018 ANWAG sent a letter to members of the House Committee on Science, Space and Technology on problems raised by HR 4675-Low Dose Radiation Research.
Rocky Flats SEC Petition Denial Appealed
Workers from Rocky Flats employed after January 1, 1984 with one of 22 specified cancers were denied inclusion in the Special Exposure Cohort. SEC status would have provided automatic acceptance, medical care, and acceptance under the EEOICPA. Petitioners filed an appeal.
ANWAG Calls for Hearings
In response to the DOL whistleblower's concerns with the compensation program, ANWAG called on Congress to hold hearings. This letter was sent to the Senate Committee on Health, Education, Labor and Pensions, the Committee on the Judiciary, and the Committee on Armed Services. It was also sent to the House Committee on Workforce and Education, the Committee on the Judiciary and the Committee on Armed Services.
ANWAG Press Release on DOL Whistleblower's Claims of DOL Wrongdoing
On July 24, 2017 ANWAG released a press release concerning attorney Stephen Silbiger's allegations of DEEOIC' obstruction of EEOICPA claim payments.
ANWAG sends Letter to DOL Inspector General
ANWAG has discovered DOL incorporated changes to the procedure manual which should have gone through the rule making process. Please feel free to circulate, especially to your legislators.