PREC 13-01    Withholding of Identity of Informers and Investigators involved in Field Examinations           Citation: Vet. Aff. Op. Gen. Couns. Prec. 13-01,  VAOPGCPREC 13-01, 2001

A. Whether the Due Process Clause of the Fifth Amendment to the United States Constitution prohibits the Department of Veterans Affairs (VA) from relying on field investigation reports in determining a nonresident alien claimant’s entitlement to benefits without providing the claimant with the names of informers and field investigators and complete copies of relevant documents.

B. Whether, consistent with fair process principles stated in Thurber v. Brown, 5 Vet. App. 119, 122-26 (1993), and Austin v. Brown, 6 Vet. App. 547, 550-55 (1994), the Board of Veterans’ Appeals (Board), in rendering a decision regarding entitlement to veterans benefits, may rely upon information provided by informers during the course of field examinations that is not available to a claimant.

C. Whether a claimant’s failure to appeal a VA decision regarding disclosure of information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, is of legal significance with regard to due process and fair process concerns in the claimant’s benefit claim.

D. Whether the Board may conduct a private inspection of evidence and release to a claimant exculpatory information that was redacted by VA in response to a request for release of information pursuant to the FOIA.

A. In order to decide whether disclosure of the names of informers and field investigators and complete copies of relevant documents is required to ensure fair process and compliance with established adjudication procedures (38 C.F.R. § 3.103(c) and (d)), the Board of Veterans’ Appeals (Board) must consider whether a claimant’s ability to rebut negative evidence or challenge the credibility of an informer’s or investigator’s statement would be impaired where a claimant has not had an opportunity to view the evidence or learn the name of an informer or investigator who has provided information that will be used in the adjudication of a benefit claim.

B. The Department of Veterans Affairs (VA) may assert the informer’s privilege and/or the law enforcement information privilege against disclosure to a claimant of the names of informers and field investigators and complete copies of relevant documents upon which the Board intends to rely in making its decision. Where such a privilege is asserted and the Board finds that the privilege would be applicable to the information that VA seeks to withhold, the Board must balance the public interest in protecting the flow of information for purposes of preventing fraud in the payment of veterans benefits against the claimant’s right to rebut or challenge the credibility of an informer’s statements or information provided in an investigative report in order to decide whether disclosure to a claimant of the name of an informer or field investigator and complete copies of relevant documents upon which the Board intends to rely in making its decision is necessary in a particular case. If the Board finds that the claimant’s need for the name of an informer or field investigator outweighs the public’s interest in protecting the name from disclosure, the Board should disclose the name to the claimant and may consider the information provided by the informer or field investigator in deciding the claim. If the Board finds that the public’s interest in protecting the name of an informer or field investigator outweighs the claimant’s need for the information, the Board should not disclose the name and may consider the information provided by the informer or field investigator in deciding the claim. If the Board finds that the claimant’s need and the public’s interest are of equal weight, it should decide the claim without considering information derived from sources not disclosed to the claimant. Under those circumstances, the Board would have to rely upon other evidence of record in deciding the claim.

C. A claimant’s failure to appeal a decision by VA regarding disclosure of public information pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, is not controlling in assessing the adequacy of the procedures employed in VA’s adjudication of a claim for benefits. However, there is a strong correlation between FOIA privileges relating to law enforcement and common law evidentiary privileges, and applicability of the FOIA exemptions may lend support to a claim of privilege by the Government.

D. The Board may review, in private, evidence upon which it intends to rely in order to determine whether particular information should be redacted as privileged. However, at a minimum, the claimant should be informed as fully as possible concerning the Board’s action and be given an opportunity to address the issue of the need for full disclosure.