ࡱ> 3 bjbjOO !--<]xxx( 8 DP, $|====@=<=y bW$|`/C6|{VDepartment of Memorandum Veterans Affairs Date: August 31,2001 VAOPGCPREC 13-2001 From: General Counsel (022) Subj: Withholding of Identity of Informers and Investigators Involved in Field Examinations XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX To: Chairman, Board of Veterans Appeals (01) QUESTIONS PRESENTED: 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 claimants 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, 5Vet. 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 claimants 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 claimants 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. COMMENTS: 1. This issue arises in the context of a remand order issued by the United States Court of Appeals for Veterans Claims (CAVC). In a May 1994 decision, a VA regional office (RO) proposed to terminate the claimants death benefits because the evidence, including a field examination report, demonstrated that the claimant had been living in a marital relationship for a number of years subsequent to the veterans death. Two additional field reports were issued as a result of additional field examinations. The claimants requests for copies of the field examination reports were refused by the RO. The claimant appealed to the VA General Counsel. The VA General Counsel informed the claimant that the three field examinations had been conducted for use in determining the claimants continued entitlement to VA benefits and that the reports regarding those examinations constituted records compiled for law enforcement purposes under the FOIA, 5U.S.C. 552(b)(7). The VA General Counsel also determined that information in the records that would disclose the identity of VA investigators or persons interviewed was protected under 5 U.S.C. 552(b)(7)(C) and (D). The VA General Counsel provided copies of the reports to the claimant with identifying information deleted, except for information which had already been disclosed in previous Statements of the Case. It appears that, in addition to the identities of informers and investigators, evidentiary statements that could be used to identify informers or investigators were deleted. The claimant did not appeal this decision. 2. In a decision regarding the claimants appeal of the ROs action on the death-benefit claim, the Board found that the claimant was not the spouse of the deceased veteran for purposes of receiving death benefits because of the relationship entered into after the veterans death. See 38 U.S.C. 101(3), 103. The claimant appealed to the CAVC. A Joint Motion for Remand filed with the CAVC stated that the Board had failed to address the issue of whether, in the Statement of the Case, the Supplemental Statement of the Case, or the redacted copies of the field examination reports, the claimant was provided reasonable notice of the evidence obtained by VA and whether the claimant was provided with a reasonable opportunity to respond. The CAVC vacated the Boards decision and remanded the case to the Board. 3. The first inquiry in the opinion request concerns whether VAs decision to withhold the identity of informers and field investigators and complete copies of relevant documents violates a nonresident aliens rights under the Due Process Clause of the Fifth Amendment to the United States Constitution. The CAVC has stated that termination of veterans benefits involves deprivation of a property interest entitled to due process protection under the Constitution. Thurber, 5 Vet. App. at122-23. The court suggested in that decision that an applicant for benefits may also have a property interest entitled to protection under the Constitution. Id. at 123. However, there is some question as to the extent to which the due process guarantees of the Fifth Amendment extend to aliens such as the claimant, who are not present in the United States. See VADIGOP, 5-19-81 (1-13 Policy and Procedures); 3BAm. Jur. 2d Aliens and Citizens 2287, 2296, 2298 (1998). 4. We have found no court decision specifically addressing the issue of whether due process guarantees must be extended to nonresident aliens who are claimants for gratuitous benefits from the Federal Government. The Supreme Court has stated that certain constitutional protections available to persons inside the United States are not available to aliens located outside United States borders. Zadvydas v. Davis, Nos. 99-7791 & 00-38, 2001 U.S. LEXIS 4912 , at*28 (S. Ct. June 28, 2001). The Supreme Court has rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing Johnson v. Eisentrager, 339 U.S. 763 (1950) (enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in United States Federal courts on ground that their convictions for war crimes violated Fifth Amendment)); see also Cuban Am. Bar Assn, Inc. v. Christopher, 43F.3d 1412, 1428 (11th Cir.) (reviewing cases rejecting constitutional claims of aliens not admitted to the United States), cert. denied, 515 U.S. 1142 & 516 U.S. 913 (1995). However, in Quiban v. Veterans Admin., 928F.2d 1154 (D.C. Cir. 1991), cert. denied, 513U.S. 918 (1994), the United States Court of Appeals for the District of Columbia Circuit assumed without specifically stating that a nonresident alien could raise an equal protection challenge to a veterans benefit law. Also, an argument may be made that non-resident aliens are entitled to due process protection under the Fifth Amendment where property located in the United States is at issue. See Sardino v. Federal Reserve Bank, 361 F.2d 106, 111 (2d Cir.), cert. denied, 385U.S. 898 (1966) (Due Process Clause of Fifth Amendment applied where bank account of Cuban national frozen); cf. Russian Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931) (Just Compensation Clause applied to requisition of contracts owned by foreign firm). In Miller v. Albright, 523 U.S. 420, 451 (1998), Justice OConnor, in a concurring opinion, stated, it is unclear whether an alien may assert constitutional objections when he or she is outside the territory of the United States. 5. In any event, we need not decide whether, or the extent to which, due process rights under the Fifth Amendment must be provided to a nonresident alien in receipt of veterans benefits because, even if constitutional rights are not at stake, comparable concepts of procedural fairness govern your inquiry.  Generally, due process guarantees that an individual will be accorded fundamental fairness essential to the concept of justice. See United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 161 (1951) (Frankfurter, J., concurring) (fairness of procedure is due process in the primary sense). In Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976), the Supreme Court stated that the extent to which procedural due process must be afforded requires consideration of: (1) the private interest that will be affected by the official action; (2)the risk of an erroneous deprivation of such interest through the procedures used; (3) the probable value, if any of additional or substitute procedural safeguards; and (4) the Governments interest, including the function involved and fiscal and administrative burdens that the additional procedures would entail. 6. These constitutional requirements of fairness that guide courts in deciding what process is due pursuant to the Fifth and Fourteenth Amendments to the Constitution have also guided courts in determining what procedures are required in order to provide fairness in an administrative proceeding. Arnett v. Kennedy, 416U.S. 134, 183 (1974) (White, J., concurring in part and dissenting in part). The courts have held that procedural fairness in an administrative proceeding generally requires an adequate opportunity to know the evidence to be relied upon and to rebut it. See Wirtz v. Baldor Elec. Co., 337 F.2d 518, 528 (D.C. Cir. 1963) (citing cases). In Greene v. McElroy, 360U.S. 474, 508 (1959), the Court held that, in the absence of explicit authorization from the President or Congress, an employee of a Federal Government contractor could not be deprived of a security clearance in a proceeding that did not provide the opportunity to confront and cross-examine confidential informers who provided information to Department of Defense investigators. The Court did not decide whether the procedures employed were unconstitutional, but, in finding an absence of adequate authorization for such procedures, stated that the case involved substantial restraints on employment opportunities . . . imposed in a manner which is in conflict with our long-accepted notions of fair procedures. Id. at506-07. The Court explained: Certain principles have remained immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Governments case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. . . . This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative and regulatory actions were under scrutiny. Id. at 496-97 (citations omitted).  The Court further pointed out that, under the security clearance procedures at issue, not only was the testimony of absent witnesses allowed to stand without challenge from the person under attack, but also the members of the clearance board did not see the informers or know their identities, relying instead upon an investigators summary report. Id. at 497-99; see also Gonzales v. United States, 348 U.S. 407, 412 (1955) (underlying concepts of procedural regularity and basic fair play required that a Department of Justice recommendation be furnished to a selective service registrant claiming conscientious objector status and that the registrant be afforded an opportunity to reply). 7. The United States circuit courts of appeals have also concluded that principles of fairness require that a party in an administrative proceeding be provided with the evidence upon which a decisionmaker may rely. In Quong v. White, 249F. 869, 870 (9th Cir. 1918), the Ninth Circuit held that a hearing on whether an alien should be admitted to the United States was unfair because immigration authorities relied on a confidential communication. The Ninth Circuit stated: However far the hearing on the application of an alien for admission into the United States may depart from what in judicial proceedings is deemed necessary to constitute due process of law, there clearly is no warrant for basing decision, in whole or in part, on confidential communications, the source, motive, or contents of which are not disclosed to the applicant or her counsel, and where no opportunity is afforded them to cross-examine, or to offer testimony in rebuttal thereof, or even to know that such communication has been received. Id. In Billington v. Underwood, 613 F.2d 91, 94 (5th Cir. 1980), the Fifth Circuit interpreted the phrase informal hearing in a regulation governing a determination as to whether an applicant is ineligible for public housing to require at least advance notice of the basis for the contemplated action that is sufficiently specific to enable the affected party to prepare rebuttal evidence. In Robbins v. United States R.R. Retirement Bd., 594 F.2d 448, 451 (5th Cir. 1979), the same court held that administrative procedures which did not give a claimant the opportunity to know what evidence was to be used against him and to rebut it did not provide the fair hearing guaranteed by the Railroad Unemployment Insurance Act. See Powhatan Mining Co. v. Ickes, 118 F.2d 105, 108 (6th Cir. 1941) (in all fairness, data underlying tabulations introduced into evidence should have been disclosed to companies prior to issuance of administrative order denying changes in minimum prices of coal). See also Brown v. Gamage, 377 F.2d 154, 158 (D.C. Cir. 1967) (fairness entails full disclosure of charges and adverse statements with identification of the sources so that the accused can effectively prepare a de- fense). 8. Both the United States Court of Appeals for the Federal Circuit and the CAVC have recognized fair process concerns regarding VAs adjudication of claims for veterans benefits. The CAVC held in Thurber, 5Vet. App. at126, that, before the Board relies, in rendering a decision, on any evidence (in that case a medical treatise) obtained after the issuance of the most recent Statement of the Case or Supplemental Statement of the Case with respect to the claim at issue, the Board is required to provide the appellant with reasonable notice of the evidence and of the reliance proposed to be placed on it, as well as a reasonable opportunity to respond. The CAVC premised its holding in part upon considerations of fair process inherent in VAs adjudication procedures. Id. at123. In Austin, 6Vet. App. at 551, the CAVC, citing the fair process principle underlying Thurber, held that a claimant is entitled to submit evidence as well as present argument or comment in response to additional evidence, in that case a medical-adviser opinion, obtained by the Board. In Winters v. Gober, 219 F.3d 1375, 1379-80 (Fed. Cir. 2000), the Federal Circuit stated that consideration by the CAVC of whether an appellants claim was well grounded, without notice to the appellant of that consideration, deprived the appellant of an explanation as to what evidence was missing and the opportunity to present evidence on the issue. The court found that this action is inconsistent with general principles of fairness, and . . . particularly unwarranted in view of the fact that the character of the veterans benefits statutes is strongly and uniquely pro-claimant. Id. at 1380; see also Nolen v. Gober, 222F.3d 1356, 1360-61 (Fed. Cir. 2000) (CAVC implicate[d] fundamental principles of fairness by considering in the first instance whether a veterans claim was well grounded, an issue which neither party raised and about which neither party had warning); Hayre v. West, 188F.3d 1327, 1333 (Fed. Cir. 1999) (lack of notice by VA regarding its inability to locate service medical records specifically requested by a veteran undermines operation of the veterans benefits system by jeopardizing the veterans ability to appeal in what may appear to be a fundamentally unfair manner). 9. In order to assess whether fairness principles would be violated by a VA decision not to provide a benefit claimant with the names of informers and field investigators and complete copies of relevant documents upon which the Board intends to rely in rendering a decision, the Board must consider whether a claimants ability to rebut negative evidence or challenge the credibility of an informers 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 the claim. 10. In addition to fairness principles, administrative agencies are required to adhere to rules that confer important procedural benefits on individuals. See United States v. Caceres, 440U.S. 741, 752 (1979); Bates v. Sponberg, 547 F.2d 325, 330 (6th Cir. 1976). This is so even where the internal procedures are possibly more rigorous than otherwise would be required. Morton v. Ruiz, 415 U.S. 199, 235 (1974); see Vitarelli v. Seaton, 359U.S. 535 (1959) (Department of Interior required to comply with procedural standards in internal order before dismissing employee, even though in absence of such standards employee could have been dismissed summarily). The Supreme Court has indicated that an agencys failure to comply with its own procedures is not a basis for overturning agency action unless the aggrieved party shows that the failure affected his or her rights. Morton v. Ruiz, 415 U.S. at 235; see Caceres, 440U.S. at 752. Thus, a party must show prejudice to his or her interests before relief may be granted. Montilla v. Immigration & Naturalization Serv., 926 F.2d 162, 168 (2d Cir. 1991); Pacific Molasses Co. v. Federal Trade Commn, 356 F.2d 386, 390 (5thCir. 1966). 11. The Secretary of Veterans Affairs is authorized pursuant to 38 U.S.C. 501(a)(1) to prescribe regulations regarding the method of taking and furnishing proof and evidence in order to establish entitlement to veterans benefits. Section3.103(c)(1) of title 38, Code of Federal Regulations, provides that a claimant is entitled to a hearing at any time on any issue involved in a claim. Section3.103(c)(2) states that a claimant is entitled to produce witnesses at a hearing and to introduce into the record . . . any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. In addition, 38C.F.R. 3.103(d) provides a claimant with the right to submit evidence in support of a claim for inclusion in the record. These provisions apply to all benefit claims within the purview of part 3, title 38, Code of Federal Regulations, 38C.F.R. 3.103(a), including pension, compensation, and dependency and indemnity compensation, and provide important procedural protections to claimants. 12. Apart from consideration of general fairness principles, the Board must consider whether VA violated its regulations in the instant case, and if so, whether violation of a regulation harmed the interests of the party intended to be protected by the regulation in such a way as to potentially affect the outcome of the proceedings. United States v. Calderon-Medina, 591F.2d 529, 531-32 (9thCir. 1979); see also Connor v. United States Civil Serv. Commn, 721 F.2d 1054, 1056 (6th Cir. 1983) (agency violation of procedural rules is reversible error only if claimant was prejudiced on merits or deprived of substantial rights as a result). By virtue of receipt of benefits under part 3 of the regulations, the claimant in the instant case is a party intended to be protected by 38 C.F.R. 3.103(c) and (d). Accordingly, the Board must consider whether VA violated these regulations in this case, and thereby adversely affected the claimants interest in continued receipt of death benefits, by failing to furnish adequate notice of the basis for its decision in order to provide a meaningful opportunity for a hearing and to submit evidence. 13. If the Board believes that the withholding of the names of informers and investigators and complete copies of relevant documents may have called into question the fairness of the proceeding or violated VA regulations, the Board must consider that concern in light of competing considerations of privilege. A litigants right to information does not override and abolish evidentiary exemptions and privileges recognized by common law or statute. 8 J. H. Wigmore, Evidence 2191 (1961). Evidentiary privileges are intended to protect interests and relationships which . . . are regarded as of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice. Herbert v. Lando, 441 U.S. 153, 183 (1979) (Brennan, J., dissenting in part) (quoting E. Cleary, McCormick on Evidence 152 (2d ed. 1972)). In response to a request for production of documents, an agency may raise any recognized exemption or claim of privilege. 4 Jacob A. Stein Administrative Law 23.01[5] (2000). The Secretary of Veterans Affairs is responsible for the proper execution and administration of all laws administered by [VA], 38 U.S.C. 303, and, pursuant to 38U.S.C. 5711(a), the Secretary has investigatory powers related to administration of such laws. We are aware that fraud in the Philippines in connection with VA benefit claims has been recognized as a serious problem, VADIGOP, 5-19-81; Veterans Compensation: Premature Closing of VA Office in the Philippines Could Be Costly, GAO/HRD-93-96 at10-12 (July15, 1993), and a July 26, 1994, memorandum from the Under Secretary for Benefits stated that it was the policy of the Veterans Benefits Administration to withhold the names of informers who gave testimony during field investigations in the Philippines in order to protect them from reprisals by Filipino claimants and their relatives. Pursuant to 38U.S.C. 6102, any person who fraudulently accepts payments of veterans benefits may be subject to a fine or imprisonment. Given the Secretarys investigatory authority and penalties for fraud authorized by title38, United States Code, there are two privileges under which VA could seek to withhold from disclosure the names of informers and field examiners based upon the Departments need to stem fraud, i.e., the informers privilege and the law enforcement privilege. 14. The informers privilege is a qualified Government privilege to withhold from disclosure the identity of persons who furnish information regarding violations of law to law enforcement officials. Roviaro v. United States, 353U.S. 53, 59 (1957); McCray v. Illinois, 386 U.S. 300, 308-09 (1967). The purpose of the privilege is the furtherance and protection of the publics interest in effective law enforcement. Roviaro, 353 U.S. at 59. All other relevant information contained in a communication identifying an informer is discoverable unless privileged on some other ground or necessary to preserve the informers anonymity. See id. at60. The informers privilege may be asserted when it appears that the informer may be the target of retaliatory actions as a result of the disclosure. In re United States, 565 F.2d 19, 22 (2d Cir. 1977), cert. denied, 436U.S. 962 (1978). The threat of physical reprisal is not required. Retaliation may include economic duress, blacklisting, or social ostracism. Id. 15. The other privilege that is potentially applicable to the instant case, the law enforcement privilege, pertains to information within the custody or control of a governmental department or agency compiled for law enforcement purposes, disclosure of which would be contrary to the public interest. 3 J. Weinstein & M. Berger, Weinsteins Federal Evidence 509.22[2] (2d ed. 2001). The privilege protects civil as well as criminal law enforcement investigatory files from discovery. United States v. Lang, 766 F. Supp. 389, 404 (D. Md. 1991); see also Allnutt v. United States Dept of Justice, 99 F. Supp. 2d 673, 679 (D. Md. 2000) (FOIA case involving law enforcement exemption at 5 U.S.C. 552(b)(7)(E)). The purpose of the privilege is to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to safeguard the privacy of individuals involved in an investigation, and otherwise to prevent interference with an investigation. In re Dept of Investigation, 856 F.2d 481, 484 (2d Cir. 1988). Although consideration may be given to whether a continuing need for confidentiality exists upon completion of an investigation, Cumis Ins. Socy, Inc. v. South-Coast Bank, 610 F. Supp. 193, 197 (N.D. Ind. 1985), an investigation does not have to be ongoing in order for the law enforcement privilege to apply because the ability of law enforcement to conduct future investigations may be impaired if certain information is revealed. Morrissey v. City of New York, 171F.R.D. 85, 90 (S.D.N.Y. 1997); see also Aspin v. Department of Defense, 491 F.2d 24, 30 (D.C. Cir. 1973) (FOIA case involving 5 U.S.C. 557(b)(7)). We believe that the names of field examiners and informers who provide information to field examiners regarding potential fraud by a VA claimant or beneficiary and information identifying them contained in VA documents would be the type of information covered by the informers and law enforcement privileges. 16. When the Government claims a privilege, it has the burden of establishing the existence of the privilege. 6 James Wm. Moore et al., Moores Federal Practice 26.52[1] (3d ed. 2001). The United States Court of Appeals for the District of Columbia Circuit has stated that the Governments assertion of a qualified privilege requires: (1) a formal claim of privilege by the head of the department having control over the requested information; (2) assertion of the privilege based on actual personal consideration by that official; and (3)a detailed specification of the information for which the privilege is claimed, with an explanation why it properly falls within the scope of the privilege. Landry v. Federal Deposit Ins. Corp., 204 F.3d 1125, 1135 (D.C. Cir.), cert. denied, 121 S. Ct. 298 (2000). These requirements are usually satisfied by an affidavit provided by an official who has actually considered assertion of the privilege. See Spirko v. United States Postal Serv., 147 F.3d 992, 996 (D.C. Cir. 1998). The official must provide precise and certain reasons for preserving the confidential nature of the information that is subject to the claim of privilege. Black v. Sheraton Corp. of America, 371 F. Supp. 97, 101 (D.D.C. 1974), affd, 564 F.2d 550 (D.C. Cir. 1977); Kerr v. United States Dist. Court, 511 F.2d 192, 198 (9th Cir. 1975), affd, 426 U.S. 394 (1976) (government official claiming privilege must state with specificity rationale of claimed privilege). Thus, a determination by the Board regarding the informers privilege should be based on documented concerns regarding danger to a VA informer or an investigator or VA operations, rather than a generalized claim of privilege. See Wahad v. Federal Bureau of Investigation, 131 F.R.D. 60, 61 (S.D.N.Y.) (magistrates order), affd, 132 F.R.D. 17 (S.D.N.Y. 1990) (wholly conclusory and generalized claim of fear of retaliatory violence insufficient to support claim of informers privilege). 17. Considerations of fairness dictate that a Government privilege must give way [w]here the disclosure of an informers identity, or the contents of his communication, . . . is essential to a fair determination of a cause. Roviaro, 353 U.S. at60-61. The public interest in protecting the flow of information regarding violations of law to officers charged with law enforcement must be balanced against the individuals need for the information in order to determine whether the Government must disclose the identities of informers and investigators in order to ensure fair process. 353 U.S. at 62; Dole v. Local 1942, Intl Bhd. of Elec. Workers, 870 F.2d 368, 372-73 (7th Cir. 1989) (decision must be made whether the party opposing the privilege has credible need for the information in order to defend itself in the action a need greater than the important policy consideration underlying the privilege); see Han v. Food & Nutrition Serv., 580 F. Supp. 1564, 1567, 1568 (D.N.J. 1984) (in order to allow plaintiff to prepare case appealing administrative decision withdrawing authorization to participate in Federal Food Stamp Program, identity of private-citizen purchasers must be disclosed). Among the factors for consideration in deciding whether a Government privilege precludes disclosure of an informers or examiners identity are: (1)the extent to which disclosure will thwart Government processes by discouraging persons from giving the Government information; (2) the impact on persons who have given information of having their identities disclosed; (3)whether the investigation has been completed; (4) whether the information sought is available from other sources; and (5) the importance of the information to the requesters case. Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1342-43 (D.C. Cir. 1984); Frankenhauser v. Rizzo, 59F.R.D. 339, 344 (E.D. Pa. 1973). Any Board determination concerning disclosure of the names of informers and VA investigators should take into consideration these factors. 18. We cannot determine with certainty from case law how courts would view the assertion of a governmental privilege in the context of a claim for veterans benefits. Certainly, the pro-claimant nature of the system and the claimants need for the benefits would be asserted in favor of disclosure. Further, courts have shown substantial concern for the rights of individuals facing denial of government benefits or loss of means of subsistence as a result of impairment of their ability to effectively challenge damaging evidence used against them in administrative proceedings. See, e.g., Escalera v. New York City Housing Auth., 425 F.2d 853, 862 (2dCir.) (due process is violated when tenancies in public housing projects are terminated on the basis of non-desirability without providing tenants access to material in their folders, when entire folder is considered by board determining eligibility, and tenants are denied opportunity to confront and cross-examine persons who supplied information in their folders), cert. denied, 400 U.S. 853 (1970); McNeill v. Butz, 480 F.2d 314, 322-23 (4th Cir. 1973) (discharged employees are entitled to notice and hearing at which they can confront and cross-examine Governments informers because Governments substantial interest in efficient and orderly discharge of unsatisfactory employees does not outweigh employees interest in having effective opportunity to challenge damaging evidence and in preserving job and reputation). Consequently, should the Board determine to observe a claim of privilege in a particular case, it should ensure that the claim is well documented and is supported by more than a speculative assertion of potential harm to informers or investigators. Further, it may be advisable for the Board to consider whether alternative sources of evidence may be available that could obviate the need for reliance on confidential sources. 19. In sum, we believe that VA may assert a privilege against disclosure of the identity of informers and field investigators and identifying information contained in VA documents based upon the informers and law enforcement privileges. However, failure to provide a claimant with the names of informers and field examiners and complete copies of relevant documents upon which the Board intends to rely in rendering a decision may impair a claimants entitlement to fair process and compliance with established procedures in the adjudication of a veterans benefit claim by limiting the claimants ability to rebut negative evidence and challenge the credibility of an informers or investigators statement. The Board must weigh the claimants need for the information against the publics interest in protecting the flow of information regarding potential fraud in the receipt of veterans benefits. If the Board finds that the claimants need for the name of an informer or field investigator outweighs the publics 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 publics interest in protecting the name of an informer or investigator outweighs the claimants 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 claimants need and the publics interest are of equal weight, it should decide the claim without considering information derived from sources not disclosed to the claimant. 20. We recommend the following analysis when a nonresident alien claimant requests the name of an informer or field investigator who provided or gathered information regarding his or her entitlement to benefits or complete copies of relevant documents revealing the identity of a confidential source upon which documents the Board intends to rely in making a decision on the claim. A. First, the Board should assess whether fairness principles would be violated by withholding of the requested information. In so doing, it should consider: i. whether the claimants ability to rebut negative evidence or challenge the credibility of an informers or field investigators statement would be impaired if the claimant does not receive the requested information; and ii. whether failure to turn over the information to the claimant would violate 38C.F.R. 3.103(c) or (d) by failing to provide adequate notice of the basis for VAs action in order to provide a meaningful opportunity for a hearing and to submit evidence, and if so, whether the interests of the claimant would be harmed so as to affect the outcome of the proceedings. B. Second, if a privilege is asserted, the Board must consider whether the requested information would be protected by a Government privilege. C. If the Board finds that a Government privilege would be applicable, the Board must weigh the claimants need for the name of the informer or field investigator against the publics interest in protecting the name from disclosure. i. If the Board finds that the claimants need for the name of an informer or field investigator outweighs the publics interest in protecting the name, 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. ii. If the Board finds that the publics interest in protecting the name of an informer or field investigator outweighs the claimants 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. iii. If the Board finds that the claimants need and the publics interest are of equal weight, it should decide the claim without considering the documents containing information derived from sources not disclosed to the claimant. 21. The third question presented is whether the claimants failure to appeal the VA General Counsels decision to deny release of certain information under the FOIA has any legal effect on the matters discussed above. The courts have held that FOIA and discovery procedures available in civil or criminal proceedings provide two independent schemes for obtaining information. United States v. Murdock, 548F.2d 599, 602 (5th Cir. 1977); see Columbia Packing Co. v. United States Dept of Agriculture, 563 F.2d 495 (1st Cir. 1977); see also 4 Administrative Law 23.01[4] (in theory, FOIA and agency statutory and regulatory discovery provisions are independent systems for gathering information). Each method of discovering information is available according to its own terms. RSR Corp. v. Brock, 764F.2d 355, 368 (5thCir. 1985). Unlike in the FOIA context, when the Government asserts a claim of privilege in response to a private litigants request for records, the litigants need for the material must be considered. McClelland v. Andrus, 606 F.2d 1278, 1287 n.54 (D.C. Cir. 1979). 22. Although discovery is not conducted under VAs non-adversarial claim process, we believe that fair process principles relating to claim development create an analogous situation under which a party may assert a need for evidence independent of the FOIA process. Thus, the fact that information may be exempt from disclosure to the public under FOIA does not necessarily mean that it need not be disclosed to a party involved in an administrative proceeding, where the partys need for the information is demonstrated. J.P. Stevens & Co. v. Perry, 710 F.2d 136, 139-40 (4th Cir. 1983). We therefore believe that a claimants decision not to appeal VAs FOIA decision is not controlling in deciding whether VA must reveal the names of informers and field investigators and provide complete copies of relevant documents to the claimant in adjudicating a claim for benefits. 23. Nonetheless, the FOIA exemptions are analogous to governmental privileges and lend support to any claim of privilege by the Government. American Civil Liberties Union v. Brown, 609 F.2d 277, 283-84 (7th Cir. 1979) (referencing FOIA exemption for investigatory records in denying discovery request); Doe v. Hudgins, 175 F.R.D. 511, 514 (N.D. Ill. 1997) (FOIA exemptions used as guidelines in balancing public policy concerns against litigants discovery needs). The VA General Counsel stated with regard to the instant claimants FOIA request that the names of the informers and field investigators and information in the reports of field examinations that would disclose the identity of informers or investigators are exempt from disclosure under 5 U.S.C. 552(b)(7)(C) and (D). Section552(b)(7)(C) protects from disclosure records or information compiled for law enforcement purposes to the extent that the production of such records could reasonably be expected to constitute an unwarranted invasion of personal privacy. Section552(b)(7)(D) permits the Government to withhold records or information compiled for law enforcement purposes that could reasonably be expected to disclose the identity of a confidential source. There is a strong correlation between these FOIA exemptions and the law-enforcement investigative evidentiary privilege. Black v. Sheraton Corp. of America, 564 F.2d 531, 545-46 (D.C. Cir. 1977); Doe v. Hudgins, 175F.R.D. at 514. Thus, the General Counsels decision regarding the applicability of FOIA exemptions with regard to the claimants FOIA claim may lend support to VAs claim that the identity of informers and field investigators and complete reports are privileged. 24. The final question posed is whether the Board may conduct a private inspection of unredacted evidence and release exculpatory information to the claimant. The Supreme Court has stated in the judicial context that, in camera review is a highly appropriate and useful means of dealing with claims of governmental privilege. Kerr v. United States Dist. Court, 426 U.S. 394, 405-06 (1976). We believe the same holds true for administrative proceedings. We are aware of nothing in the Boards governing statutes and regulations that would prevent such in camera review. However, in light of the fact that in camera review may impair a claimants opportunity to argue in favor of disclosure, we believe that considerations of fair process require at minimum that the appellant be informed as fully as possible of the Boards action and be given an opportunity to address the issue of the need for full disclosure. HELD: 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 (38C.F.R. 3.103(c) and (d)), the Board of Veterans Appeals (Board) must consider whether a claimants ability to rebut negative evidence or challenge the credibility of an informers or investigators 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 informers 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 claimants right to rebut or challenge the credibility of an informers 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 claimants need for the name of an informer or field investigator outweighs the publics 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 publics interest in protecting the name of an informer or field investigator outweighs the claimants 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 claimants need and the publics 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 claimants 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 VAs 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 Boards action and be given an opportunity to address the issue of the need for full disclosure. Tim S. McClain  A fundamental rule of judicial restraint is that a case should be decided on nonconstitutional grounds if possible. Jean v. Nelson, 472 U.S. 846, 854 (1985); Greene v. McElroy, 360 U.S. 474, 509 (1959) (Harlan, J., concurring).  The Seventh Circuit has recognized that there is risk of an erroneous decision in an administrative proceeding when a party is denied the names of informers. Larry v. Lawler, 605 F.2d 954, 960 (7th Cir. 1978).  The Supreme Court included this quotation from Greene v. McElroy in Goldberg v. Kelly, 397 U.S. 254, 270 (1970), in which the Court held that due process requires that a recipient of welfare benefits be provided an opportunity to confront and cross-examine adverse witnesses in an evidentiary hearing.  A related privilege protects information given to the Government on a pledge of confidentiality. Machin v. Zuckert, 316 F.2d 336, 339 (D.C. Cir.), cert. denied, 375 U.S. 896 (1963).  The courts have interpreted this exemption to apply to the identities of Government investigators. New England Apple Council v. Donovan, 725 F.2d 139, 142-44 (1st Cir. 1984) (identity of investigators for the Department of Labor Office of Inspector General).  The law enforcement FOIA exemption applies to material compiled for civil and regulatory proceedings as well as to criminal matters. Pope v. United States, 599 F.2d 1383, 1386 (5th Cir. 1979); ABC Home Health Servs., Inc. v. United States Dept of Health & Human Servs., 548 F. Supp. 555 (N.D. Ga. 1982).  PAGE 16. 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