TAMPA, Fla. (WFLA) – The Department of Veterans Affairs lacks transparency and may be manipulating data, according to a lawsuit pushing for the release of appointment wait time information.

The federal lawsuit asked the court to order the VA to process several records requests submitted in late May to facilities in four states, including Florida. James Haley and Bay Pines were among the VA facilities that received records requests from the plaintiff, according to the filing.

The plaintiff is Americans for Prosperity Foundation, a non-profit advocacy group funded by Charles Koch.

Jimmie Smith, the director of Florida’s chapter of Concerned Veterans for America, whose sister organization Concerned Veterans for America Foundation is financially backed by AFPF, said a major concern is wait times are longer than what the VA is claiming.

“We get a lot of complaints. We need the data,” Smith said. “We do not know the numbers. Subsequently, are there veterans dying for lack of care right now, like what happened in Phoenix in 2014?”

The 2013 Phoenix VA scandal involved secret wait lists that included veterans who died before their appointments were fulfilled.

According to the lawsuit, delays and a lack of data and transparency suggests, “another scandal is brewing, with the VA covering up wait time data.”

The Phoenix tragedy prompted the 2014 Choice Act that forced the VA to pay for Community Care with private physicians when wait times were longer than 30 days. The 2018 Mission Act reduced the window of time to 20 days for primary, mental and extended care, and 28 days for specialty care. 

The complaint also criticizes how the VA records request process changes if anything a determined to involve “substantial interest.”

An 8 On Your Side request sent to Haley and Bay Pines earlier this year was among the “flagged” queries, according to the lawsuit.

“For years, the VA has maintained a special, politicized FOIA review process for those requests that implicate potentially embarrassing or politically sensitive records,” the complaint states.

The VA also confuses terms that are supposed to determine when the wait time clock starts, according to the lawsuit.

The Choice Act used the “patient preferred date,” defined in one document as the date preferred by the VA. The Mission Act changed that start time indicator to “date of request.”

Records released by Haley “suggest that the VA has improperly adopted 2 measures for wait times,” according to the filing that also states, “the VA’s suspected malfeasance in calculating and recording wait times,” is based in part on “its conflation of patient indicated day, preferred date, or clinically indicated date.”

8 On Your Side saw a potential example of that in an emailed response to a records clarification question earlier this year when a VA spokesperson said, “Patient Preferred Date is the same as date of request.”

Not according to Concerned Veterans For America’s Darin Selnick, who helped write the law.

“They are either not telling the truth or they simply do not understand what they are talking about. Either way is bad,” Selnick said.

When asked for comment on the lawsuit, VA Public Affairs Officer Randy Noler said the agency “does not generally comment on pending litigation.”

According to data received earlier this year in a records request, less than eight percent of Bay Area VA network patients were offered Community Care last year.

Read the lawsuit: