Section 1: Steps Taken to Apply the Presumption of Openness

The guiding principle underlying the administration of the FOIA is the presumption of openness.

Please answer the following questions in order to describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. You may also include any additional information that illustrates how your agency is working to apply the presumption of openness.

FOIA Training

  1. Did your FOIA professionals or the personnel at your agency who have FOIA responsibilities attend any FOIA training or conference during the reporting period such as that provided by the Department of Justice?

Yes.

  1. If yes, please provide a brief description of the type of training attended or conducted and the topics covered.

HHS FOIA staff attended FOIA training and seminars provided by the American Society for Access Professionals (ASAP), the Department of Justice (DOJ), National Archives and Records Administration (NARA) and others. Some of the HHS OpDivs also provided ongoing in-house training.  Examples of the training, educational events and meetings attended are listed below:

External Training

  • AINS, Inc. - 2016 FOIAXpress User Conference & Technology Summit
  • American Bar Association (ABA) - FOIA procedures and Exemptions
  • ASAP - 9th National Training Conference, July 2016
  • DOJ - 2016 Annual FOIA Reports and 2016 Chief FOIA Officer Reports (refresher)
  • DOJ - Advanced Freedom of Information Act Seminar
  • DOJ - Best Practices Workshop Series \ Best Practices from the Requester's Perspective
  • DOJ - Chief FOIA Officers Council Meetings (live streaming - outreach for issues and best practices)
  • DOJ – FOIA for Attorneys and Access Professionals
  • DOJ - FOIA Improvement Act of 2016 (FOIA amendments Training)
  • DOJ - FOIA Public Liaison and FOIA Requester Service Center Training
  • DOJ - Introduction to the Freedom of Information Act
  • DOJ - Litigation Seminar (FOIA procedures and litigation strategies)
  • NARA\OGIS – Dispute Resolution Skills for FOIA Professionals
  • Sunshine Week – Meetings, trainings and activities (March 2016)

In-House FOIA Training

  • OS – The OS FOIA Office provided a FOIA refresher course for staff division FOIA coordinators and staff in the OS FOIA Office.
  • ACF – ACF provided two half-day FOIA training sessions for program office FOIA liaisons, covering FOIA procedures, legal requirements and the FOIA exemptions.
  • FDA – FDA’s FOIA office provided two trainings during 2016, which were conducted in-person for local employees, and via webinar for employees located outside the area. The webinars are saved for future viewing.  Training topics included the FOIA Improvement Act, FOIA litigation, processing first-party requests and other topics. 
  • NIH - The NIH FOIA Officer held quarterly meetings with the NIH FOIA professionals to discuss various FOIA related topics. Those meetings included discussions of recent FOIA cases, both HHS and government-wide, with a focus on lessons learned and the application of the decision to NIH records. Sessions focused on the application of FOIA to records related to the NIH Technology Transfer Program such as Cooperative Research and Development Agreements, license agreements, and patent records; a review of the FOIA Improvement Act of 2016 and the required changes to FOIA practice; and, a detailed, section-by-section review of the revised HHS FOIA Regulations.  Other topics included tips for negotiating with requesters, conducting and documenting searches (with emphasis on searches of electronic files), determining fee category, records retention schedules, and strategies for working with program officials to identify records for pro-active disclosure.
  • SAMHSA - SAMHSA provided training for its FOIA liaisons from each SAMHSA Office/Center. Training focused on the SAMHSA FOIA Office standard operating procedures (with process improvements and new requirements), as well as a basic overview of the Act, application of the law, and policy changes to DOJ-supported practices and procedures. Also addressed were search requirements, responsibilities of government employees to foster transparency in government, application of exemptions, administrative policies and procedures for responding to FOIA requests, Subject Matter Expert (SME) reviews, appeals and lawsuits.
  1. Provide an estimate of the percentage of your FOIA professionals and staff with FOIA responsibilities who attended substantive FOIA training during this reporting period.

Approximately 90% of the Department’s FOIA professionals attended FOIA training during 2016.

  1. OIP has directed agencies to “take steps to ensure that all of their FOIA professionals attend substantive FOIA training at least once throughout the year.” If your response to the previous question is that less than 80% of your FOIA professionals attended training, please explain your agency’s plan to ensure that all FOIA professionals receive or attend substantive FOIA training during the next reporting year.

Not applicable; please see our response to Question 3 above.

Outreach

  1. Did your FOIA professionals engage in any outreach or dialogue with the requester community or open government groups regarding your administration of the FOIA?

Yes.  HHS FOIA offices are decentralized.  The Department’s OpDivs employed a variety of ways to engage with the requester community, as described below:

  • The OS FOIA Office FOIA Liaison met with America Rising and did a FOIA roundtable with their organization.
  • The ACF FOIA Office reached out to two requester organizations concerning our procedures for handling requests.
  • The CDC FOIA Office welcomed a new FOIA Officer in June 2016. CDC also plans to organize a seminar to educate requesters on how to most effectively make a FOIA request to CDC.
  • CMS has major role in the healthcare industry and collects a large volume of data which are the subject of numerous FOIA requests by researchers and media outlets. As the data contain beneficiaries’ personally identifiable information (PII), the process of reviewing and producing data in response to these requests often is extremely complex and costly.  The CMS FOIA Office and agency leadership together held several conference calls with media requesters regarding various types of CMS data, both to explain the complexities and the types of data that could be released and to clarify how best to submit future FOIA requests for complex data.
  1. If you did not conduct any outreach during the reporting period, please describe why.

Not applicable; please see our response to Question 5 above.

Other Initiatives

  1. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA.

HHS continues in its efforts to educate and increase awareness by all agency employees of their responsibilities under the FOIA.  OS, ACF and FDA included introductory FOIA training as part of their new employee orientation programs.  Some other examples of actions taken by the Department’s OpDivs follow:

  • ACF recognizes Sunshine Week each year to raise employee awareness about the FOIA with blogs, training sessions, and roundtables. FOIA training is also included in their new employee orientation program. In addition, during 2016, the ACF FOIA staff wrote blogs and presented a training session for regional office staff.
  • CDC held several informational FOIA sessions with CDC staff and leadership. During these sessions, the FOIA officer emphasized the responsibilities and obligations of all employees in complying with the FOIA.
  • The CMS FOIA Office conducts monthly internal conference calls and webinars for operating divisions, regional offices, and contractors to provide guidance and refreshers on new policies and processing efficiencies and training on any new enhancements to the CMS electronic FOIA processing software. As a result of these calls, there was an increased interest from non-FOIA professionals in attending the FOIA training provided by DOJ.  The monthly sessions also provided CMS with an opportunity to educate non-FOIA professionals on changes that resulted from the FOIA Improvement Act of 2016.
  • FDA includes the DOJ-created FOIA video as part of the two-day orientation program for all new FDA employees.[1] In addition, several FOIA training opportunities targeted to program office staff rather than FOIA staff were provided throughout the year. These training sessions included the history of the FOIA, the FOIA exemptions, and FOIA policy guidance. FOIA training sessions are recorded and maintained on the FDA intranet page for future viewing.  Finally, an overview of FOIA obligations is included in the FDA mandatory records management training.
  • HRSA conducted two training sessions for their FOIA “Gatekeepers”, who are HRSA’s liaisons for search and collection of records from HRSA’s bureaus and offices.
  • IHS FOIA staff provided FOIA presentations at IHS program staff meetings and provided quarterly training for FOIA Coordinators in the field office locations.
  • The NIH FOIA website has material available to NIH staff only, including a video training presented by the NIH FOIA Officer. In addition, the NIH FOIA Officer and several of the NIH FOIA Coordinators presented training sessions to non-FOIA professionals throughout the year, which included information about everyone’s obligations under the FOIA.
  • The SAMHSA FOIA Officer conducted a presentation for SAMHSA leadership regarding FOIA responsibilities and requirements, and provided informational packets/slides to Center liaisons to share with individuals who may perform record searches in the Center offices. The FOIA Officer also participated in consultations with record custodians to educate them about FOIA rules/requirements generally, search requirements, and the types of information that may and may not be covered by exemptions.
  1. If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here.
  • HHS OpDivs, the U.S. Department of Agriculture, and a number of state and city agencies continue to provide public access to an expanding number of health related data sets at http://www.healthdata.gov .
  • The OS FOIA Office will publish to the HHS FOIA website the HHS OpDiv open/pending FOIA requests, beginning with the data reported at the end of January 2017. This additional transparency will demonstrate the commitment by the HHS OpDivs to implement the tenets of active and “intelligent case management”; i.e., 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.
  • ACF offers funding for a variety of competitive and mandatory grant programs serving families, children, individuals and communities. In ACF’s program opportunity announcements, ACF alerts prospective grantees that their grant applications, if approved, may be released to requesters under the FOIA and/or posted online.
  • The CDC FOIA Office began revamping its website in August 2016, to emphasize the office’s goals of improving customer service and enhancing operational openness and transparency. The website was updated with content that is easier to find and read and with contact information for the CDC FOIA Officer and Public Liaison. Social media also was integrated into the CDC communication strategy to reach a wider audience.
  • CMS receives many FOIA requests for the high volume of contracts awarded by CMS, in its role of administering Medicare, Medicaid, the Children’s Health Insurance Program (CHIP), and the Health Insurance Marketplace. The CMS FOIA and Contracting Offices worked together to implement a process whereby contract awardees are proactively notified of the CMS presumption of openness policy and that their contract may be released to the public pursuant to FOIA.
  • IHS FOIA staff are developing FOIA training sessions for various audiences, to provide further education and information regarding the presumption of openness.
  • NIH had detailed communications with one frequent requester to explain the types of data that are collected, maintained, and producible from existing databases. These conversations enabled the requester to draft his requests so that NIH could meet the requester’s need for specific data more quickly and efficiently. In addition, FOIA professionals routinely reach out to requesters. 

As a matter of general practice and principle, NIH has consistently upheld the presumption of openness reflected in FOIA policy guidance and, therefore, no major adjustments to its internal guidance or new initiatives have been required.  NIH Leadership is dedicated to transparency and communicates that through their actions.  FOIA professionals are reminded of the presumption of openness at every quarterly meeting and, in specific instances, when records are referred to the NIH FOIA Office for review.

[1] https://www.justice.gov/opa/video/department-justice-executive-briefing-freedom-information-act-foia

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