Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reducing Backlogs

The President’s FOIA Memorandum and the Attorney General’s 2009 FOIA Guidelines have emphasized the importance of improving timeliness in responding to requests. This section of your Chief FOIA Officer Report addresses both time limits and backlog reduction. Backlog reduction is measured both in terms of numbers of backlogged requests or appeals and by looking at whether agencies closed their ten oldest requests, appeals, and consultations.

For the figures required in this Section, please use the numbers contained in the specified sections of your agency’s 2015 Annual FOIA Report and, when applicable, your agency’s 2014 Annual FOIA Report.

Simple Track: Section VII.A of your agency’s Annual FOIA Report, entitled "FOIA Requests – Response Time for All Processed Requests," includes figures that show your agency's average response times for processed requests. For agencies utilizing a multi-track system to process requests, there is a category for "simple" requests, which are those requests that are placed in the agency’s fastest (non-expedited) track, based on the low volume and/or simplicity of the records requested.

  1. Does your agency utilize a separate track for simple requests?

Yes.

  1. If so, for your agency overall in Fiscal Year 2015, was the average number of days to process simple requests twenty working days or fewer?

Yes. During FY 2015, DHHS’ agency-wide average for processing simple requests was 15.1 days.

  1. Please provide the percentage of requests processed by your agency in Fiscal Year 2015 that were placed in your simple track.

Of the 45,186 FOIA requests processed during FY 2015, 61.49% were classified as simple requests.

  1. If your agency does not track simple requests separately, was the average number of days to process all non-expedited requests twenty working days or fewer?

Not applicable; please see responses above.

Backlogs: Section XII.A of your agency’s Annual FOIA Report, entitled "Backlogs of FOIA Requests and Administrative Appeals" shows the numbers of any backlogged requests or appeals from the fiscal year. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2014 and Fiscal Year 2015 when completing this section of your Chief FOIA Officer Report.

BACKLOGGED REQUESTS

  1. If your agency had a backlog of requests at the close of Fiscal Year 2015, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2014?

Yes. Agency-wide, HHS reduced its backlog of requests from 7,195 at the end of FY 2014, to 5,745 at the end of FY 2015, a reduction of 20%.

  1. If not, explain why and describe the causes that contributed to your agency not being able reduce its backlog. When doing so, please also indicate if any of the following were contributing factors:

Not applicable; please see above.

  • An increase in the number of incoming requests.
  • A loss of staff.
  • An increase in the complexity of the requests received. If possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase.
  • Any other reasons – please briefly describe or provide examples when possible.
  1. If you had a request backlog please report the percentage of requests that make up the backlog out of the total number of requests received by your agency in Fiscal Year 2015.
  • To calculate your agency’s percentage, you must divide the number of backlogged requests reported in Section XII.A. of your Fiscal Year 2015 Annual FOIA Report by the number of requests received in Fiscal Year 2015, which can be found in Section V.A. of your Annual FOIA Report. Once divided, you can multiply that number by 100 to get the percentage.

The percentage of backlogged requests at the end of FY 2015 is 13.33% of the FOIA requests received during that time.

BACKLOGGED APPEALS

  1. If your agency had a backlog of appeals at the close of Fiscal Year 2015, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2014?

No, unfortunately the Department’s appeal backlog increased during FY 2015. The Department received 312 FOIA appeals during FY 2015. The number of backlogged appeals at the close of FY 2015 was 437, which is 29 more appeals than the 408 backlog at the end of FY 2014.

  1. If not, explain why and describe the causes that contributed to your agency not being able reduce backlog. When doing so, please also indicate if any of the following were contributing factors:
  • An increase in the number of incoming appeals.
  • A loss of staff.
  • An increase in the complexity of the requests received. If possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase.
  • Any other reasons – please briefly describe or provide examples when possible.

CMS, which received over one third of the Department’s appeals during FY 2015, experienced some staff turnover during FY 2015. In addition, CMS had to deploy considerable resources to support FOIA litigation which involved voluminous record review and release. Despite those challenges, CMS processed more FOIA appeals during FY 2015 than during the FY 2014.

PSC, which processes appeals for eight other DHHS OpDivs, experienced a staffing decrease, going from three full time FTEs and a part-time contractor, to one FTE and decreased contract support hours. These staffing decreases severely impacted PSC’s ability to process requests and appeals.

  1. If you had an appeal backlog please report the percentage of appeals that make up the backlog out of the total number of appeals received by your agency in Fiscal Year 2015. If your agency did not receive any appeals in Fiscal Year 2015 and/or has no appeal backlog, please answer with "N/A."
  • To calculate your agency’s percentage, you must divide the number of backlogged appeals reported in Section XII.A. of your Fiscal Year 2015 Annual FOIA Report by the number of appeals received in Fiscal Year 2015, which can be found in Section V.A. of your Annual FOIA Report. Once divided, you can multiply that number by 100 to get the percentage.

The Department’s FOIA appeal backlog at the end of FY 2015 was 437; the number of appeals received during FY 2015 was 312. Therefore, the FY 2015 appeal backlog was 140.06% of the FOIA appeals received during that time.

Backlog Reduction Plans:

  1. In the 2015 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1,000 requests in Fiscal Year 2014 was asked to provide a plan for achieving backlog reduction in the year ahead. Did you agency implement a backlog reduction plan last year? If so, describe your agency’s efforts in implementing this plan and note if your agency was able to achieve backlog reduction in Fiscal Year 2015?

Yes. The Department continued its backlog reduction efforts during FY 2015, and we are pleased to report that DHHS reduced our backlogged requests by 1,450 department-wide; a 20.15% reduction from the FY 2014 backlog.

  1. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2015, what is your agency’s plan to reduce this backlog during Fiscal Year 2016?

The Department will continue its efforts to maintain adequate resources to support its FOIA offices and employ FOIA technologies that will contribute to processing efficiencies. As an example, the OS, CDC and PSC FOIA offices are now using FOIAXpress, a software package that facilitates the submission, tracking, redaction, and response to FOIA requests and provides critical reporting capabilities. ACF is in the process of acquiring FOIA Xpress and setting up the system.

On an OpDiv level, although the Department’s total backlog is 5,745, nine of the reporting offices reduced their backlog during FY 2015. Specifically OS, ACF, CMS, FDA, HRSA, NIH, OIG, PSC and SAMHSA reduced their backlogs. Of particular note, ACL did not have a backlog during either FY 2014 or FY 2015 and CMS and the FDA, which customarily receive the largest number of FOIA requests and each have backlogs of over 1,000, reduced their backlogs in FY 2015 by 33.64% and 10.69%, respectively. ACF has hired two contractors to assist in working on backlogged requests and FOIA litigation. CMS will continue their efforts to optimize existing resources and processes and incorporate innovative approaches into standard operating procedures, to improve efficiencies and better manage workflow. FDA will focus on establishing monthly or quarterly backlog reduction goals.

Status of Ten Oldest Requests, Appeals, and Consultations: Section VII.E, entitled "Pending Requests – Ten Oldest Pending Requests," Section VI.C.(5), entitled "Ten Oldest Pending Administrative Appeals," and Section XII.C., entitled "Consultations on FOIA Requests – Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency," show the ten oldest pending requests, appeals, and consultations. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2014 and Fiscal Year 2015 when completing this section of your Chief FOIA Officer Report.

TEN OLDEST REQUESTS

  1. In Fiscal Year 2015, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2014 Annual FOIA Report?

Yes. The Department successfully closed its ten oldest FOIA requests during FY 2015.

  1. If no, please provide the number of these requests your agency was able to close by the end of the fiscal year, as listed in Section VII.E of your Fiscal Year 2014 Annual FOIA Report. If you had less than ten total oldest requests to close, please indicate that.
  • For example, if you only had seven requests listed as part of your "ten oldest" in Section VII.E. and you closed six of them, you should note that you closed six out of seven "oldest" requests.

Not applicable: please see our response above.

  1. Of the requests your agency was able to close from your ten oldest, please indicate how many of these were closed because the request was withdrawn by the requester. If any were closed because the request was withdrawn, did you provide any interim responses prior to the withdrawal?

One request was withdrawn. No interim responses were issued.

TEN OLDEST APPEALS

  1. In Fiscal Year 2015, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2014 Annual FOIA Report?

Yes. The Department successfully closed the ten oldest administrative appeals during FY 2015.

  1. If no, please provide the number of these appeals your agency was able to close by the end of the fiscal year, as listed in Section VII.C.(5) of your Fiscal Year 2014 Annual FOIA Report. If you had less than ten total oldest appeals to close, please indicate that.
  • For example, if you only had seven appeals listed as part of your "ten oldest" in Section VII.C.(5) and you closed six of them, you should note that you closed six out of seven "oldest" appeals.

Not applicable: please see our response above.

TEN OLDEST CONSULTATIONS

  1. In Fiscal Year 2015, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2014 Annual FOIA Report?

This is not applicable; the Department had no outstanding consultations at the end of FY 2014.

  1. If no, please provide the number of these consultations your agency was able to close by the end of the fiscal year, as listed in Section XII.C. of your Fiscal Year 2014 Annual FOIA Report. If you had less than ten total oldest consultations to close, please indicate that.
  • For example, if you only had seven consultations listed as part of your "ten oldest" in Section XII.C. and you closed six of them, you should note that you closed six out of seven "oldest" consultations.

Not applicable; please see our response above.

Additional Information on Ten Oldest Requests, Appeals, and Consultations & Plans:

  1. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2014.

The Department was able to close its ten oldest requests and appeals during FY 2015, and had no outstanding consultations from FY 2014.

  1. If your agency was unable to close any of its ten oldest requests because you were waiting to hear back from other agencies on consultations you sent, please provide the date the request was initially received by your agency, the date when your agency sent the consultation, and the date when you last contacted the agency where the consultation was pending.

Not applicable.

  1. If your agency did not close its ten oldest pending requests, appeals, or consultations, please provide a plan describing how your agency intends to close those "ten oldest" requests, appeals, and consultations during Fiscal Year 2016.

Not applicable.

Interim Responses:

  1. Does your agency have a system in place to provide interim responses to requesters when appropriate? See OIP Guidance, "The Importance of Good Communication with FOIA Requesters." (Mar. 1, 2010)

Yes. The Department uses interim responses and rolling document productions to provide better customer service to requesters.

  1. If your agency had a backlog in Fiscal Year 2015, please provide an estimate of the number or percentage of cases in the backlog where a substantive, interim response was provided during the fiscal year, even though the request was not finally closed.

The Department estimates that approximately 10% of these requests had received an interim response.

Use of the FOIA’s Law Enforcement Exclusions

  1. Did your agency invoke a statutory exclusion, 5 U.S.C. § 552(c)(1), (2), (3), during Fiscal Year 2015?

No.

  1. If so, please provide the total number of times exclusions were invoked.

Not applicable; the Department did not invoke any law enforcement exclusions.

Success Story

Out of all the activities undertaken by your agency since March 2015 to increase transparency and improve FOIA administration, please briefly describe here at least one success story that you would like to highlight as emblematic of your agency’s efforts. The success story can come from any one of the five key areas. As noted above, these agency success stories will be highlighted during Sunshine Week by OIP. To facilitate this process, all agencies should use bullets to describe their success story and limit their text to a half page. The success story is designed to be a quick summary of key achievements. A complete description of all your efforts will be contained in the body of your Chief FOIA Officer Report.

  • The HHS Office of the Secretary supports the department-wide implementation of the “intelligent case management” concept.  The OS FOIA Office developed a quarterly report, produced with data submitted by HHS Operating Divisions, that provides a glimpse of the future performance of the HHS FOIA offices, unless drastic processing actions are implemented.  This report is perhaps the most important report generated on a routine / quarterly basis by the HHS OS FOIA Office. 

Beginning with data at the end of quarter 1 of FY 2016, HHS senior leadership and the OS FOIA Office will work with HHS FOIA directors in the Operating Divisions to implement the tenets of active and “intelligent case management” to identify and accurately assess the classification and age of all open, pending requests and focus Department-wide processing efforts to significantly improve future response times.

Although the average response times for “simple,” “complex,” and “expedited” requests were 15.1, 103.24, and 315.65 workdays, respectively, in FY 2015, it’s a department-wide goal to significantly improve response times for all FOIA requests.

  • ACF is able to provide an instantaneous, full response to certain requests for grant information just by referring them to the Tracking Accountability In Government Grants System (TAGGS). This HHS website provides a wealth of information about HHS grants and is searchable by numerous criteria; including by fiscal year, state, program, name of grantee, and program.
  • FDA investigated a listeria outbreak during 2015, related to ice cream manufactured by Blue Bell Creameries. Blue Bell Creameries is a large ice cream manufacturer in the U.S., and the listeria outbreak resulted in a recall of Blue Bell products in over 20 states.  In addition to the OpDiv’s consumer page regarding the outbreak (http://www.fda.gov/food/recallsoutbreaksemergencies/outbreaks/ucm438104.htm), FDA’s Office of Regulatory Affairs posted all inspection and related records that were requested under FOIA or that FDA anticipated would be requested under FOIA (http://www.fda.gov/AboutFDA/CentersOffices/OfficeofGlobalRegulatoryOperationsandPolicy/ORA/ORAElectronicReadingRoom/ucm446102.htm). Approximately 40 separate records from various Blue Bell Creameries locations were posted to FDA’s webpage. Additional records are still being considered for posting.

FDA received approximately 30 requests for Blue Bell records between May and November of 2015, mostly from the media. All requests have been processed (mainly by referring requesters to the posted records) and are now closed. By posting the records proactively, the public and the media were able to readily obtain information about the outbreak of this disease and the contaminated products involved.

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