2018 Chief FOIA Officer Report - Section 5

The Department of Justice has 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 2017 Annual FOIA Report and, when applicable, your agency’s 2016 Annual FOIA Report.

A. 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. With the exception of ACL, the Department’s OpDivs use a separate track for simple requests. ACL received only 28 FOIA requests and processed 30 FOIA requests, respectively, during FY 2017, 0.0008% of the total HHS FOIA request volume.

2. If so, for your agency overall in Fiscal Year 2017, was the average number of days to process simple requests twenty working days or fewer?

Yes. The average number of days to process simple requests was 18.95 days.

3. Please provide the percentage of requests processed by your agency in Fiscal Year 2017 that were placed in your simple track.

Of the 34,547 FOIA requests processed during FY 2017, 39.6% (or 13,693 requests) were classified as simple requests.

4. 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 our response above to Questions 1 and 2. While ACL was able to process all non-expedited requests in twenty working days or fewer.

B. 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 2016 and Fiscal Year 2017 when completing this section of your Chief FOIA Officer Report.

BACKLOGGED REQUESTS

5. If your agency had a backlog of requests at the close of Fiscal Year 2017, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2016?

No. The Department’s FOIA request backlog increased 0.005% (by 26 requests) during FY 2017, from 4,519 at the end of FY 2016, to 4,545 at the end of FY 2017.

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

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.

FY 2017 was a year both of anticipated (transition) and unexpected (increase in the complexity of workload and loss of staff / government-wide hiring freeze) challenges. Despite the unexpected difficulties, HHS FOIA Officers exercised thoughtful creativity throughout the year in order to maintain momentum for future progress of the HHS FOIA community.

At the beginning of 2017, HHS shifted the processing strategy to address an influx of requests for records of the new administration by consolidating these requests in the (OS) ASPA FOIA office; thereby ensuring a coordinated/centralized Departmental response and freeing the other HHS OpDivs to focus on more routine requests. This strategy resulted in maintaining a very low request backlog for the second year in a row, while addressing simple requests, on average, in less than 20-workdays.

7. 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 2017.

The percentage of the HHS FOIA request backlog, in relation to the total number of requests received during FY 2017 was 13%.

BACKLOGGED APPEALS

8. If your agency had a backlog of appeals at the close of Fiscal Year 2017, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2016?

Yes. The Department’s number of backlogged appeals decreased by approximately 6.4% during FY 2017.

9. If not, explain why and describe the causes that contributed to your agency not being able to reduce its 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.

Not applicable; please see our response to Question 8 above.

10. 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 2017. If your agency did not receive any appeals in Fiscal Year 2017 and/or has no appeal backlog, please answer with "N/A."

The Department’s FOIA appeal backlog at the end of FY 2017 was 351; the number of appeals received during FY 2017 was 216. Therefore, the FY 2017 appeal backlog was 162.5% of the FOIA appeals received during that time.

C. Backlog Reduction Plans

11. In the 2017 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2016 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 2017?

Yes. HHS continued to implement its backlog reduction strategies, and as a result, the HHS FOIA request backlog increased by 0.005%. A number of different strategies were employed by the OpDivs to achieve this: employing contract support to supplement the FOIA analyst workforce; improving work processes by implementing new case management systems or improving current case management systems; and evaluating individual steps in the work process for potential improvement and greater efficiency, such as identifying unclear or overly broad FOIA requests at the intake stage, which allows requests to be clarified prior to conducting records searches.

At the beginning of 2017, HHS shifted the processing strategy for requests for records of the new administration by consolidating these requests in the (OS) ASPA FOIA office; thereby ensuring a coordinated/centralized Departmental response and freeing the other HHS OpDivs to focus on more routine requests. This strategy resulted in maintaining a very low request backlog for the second year in a row, while addressing simple requests, on average, in less than 20-workdays.

12. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2017, what is your agency’s plan to reduce this backlog during Fiscal Year 2018?

HHS has been steadily reducing its backlog, as evidenced by its backlog reduction from over 19,351 requests at the end of FY 2008 to the current level of 4,545 backlogged requests at the end of FY 2017. HHS will continue its efforts to maintain adequate resources to support its FOIA offices and employ FOIA technologies that will increase processing efficiency. HHS will continue to exercise the 2017 processing strategy shift for requests for records of the new administration by consolidating these requests in the (OS) ASPA FOIA office; thereby ensuring a coordinated/centralized Departmental response and freeing the other HHS OpDivs to focus on more routine requests. This strategy proved effective in 2017 and resulted in maintaining a very low request backlog for the second year in a row, while addressing simple requests, on average, in less than 20-workdays.

HHS FOIA offices will continue to use contract resources, as necessary, to assist in backlog reduction and leverage available FOIA resources to the extent feasible within established FY 2018 budget parameters.

D. 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 2016 and Fiscal Year 2017 when completing this section of your Chief FOIA Officer Report.

TEN OLDEST REQUESTS

13. In Fiscal Year 2017, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2016 Annual FOIA Report?

Yes, HHS was successful in closing the ten oldest FOIA requests reported at the end of FY 2016.

14. 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 2016 Annual FOIA Report. If you had less than ten total oldest requests to close, please indicate that.

Not applicable; please see our response to Question 13 above.

15. 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?

In 3 requests of the 10 oldest requests that were closed, the requesters no longer needed further processing of their requests. In 1 of the 3, multiple interim responses had been made prior to withdrawal of the request.

TEN OLDEST APPEALS

16. In Fiscal Year 2017, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2016 Annual FOIA Report?

No. Although HHS was able to make a 6% reduction in the total number of backlogged appeals, the Department was unable to close all of the ten oldest FOIA appeals.

17. 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 2016 Annual FOIA Report. If you had less than ten total oldest appeals to close, please indicate that.

HHS closed 5 of the ten oldest appeals by the end of FY 2017. The Department’s appeal processing responsibilities are divided: CMS is responsible for processing its own appeals and the OS FOIA Office processes FOIA appeals for the remaining HHS Operating Divisions. At the end of FY 2017, the OS FOIA Office closed 4 of the ten oldest appeals, and CMS closed 1.

TEN OLDEST CONSULTATIONS

18. In Fiscal Year 2017, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2016 Annual FOIA Report?

No. Please see our explanation below in our response to Question 19.

19. 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 2016 Annual FOIA Report. If you had less than ten total oldest consultations to close, please indicate that.

HHS closed 6 of the ten oldest consultation requests reported at the end of FY 2016.

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

20. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2017.

In FY 2017, HHS was involved in several FOIA litigations involving requests that were being processed by the (OS) ASPA FOIA office that required a coordinated /centralized Departmental response. As a result, impacted FOIA offices were required shift dedicated staff resources to address pressing document production and litigation deadlines. For example, staff members who customarily focus on FOIA appeals were actively involved in the FOIA litigation process over a period of several months, which reduced the staff hours available for appeal processing. Additionally, HHS faced challenges due to the hiring freeze implemented in January 2017 combined with and an influx of extremely complex requests involving a high volume of records.

21. 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. Outstanding consultations did not play a role in addressing the ten oldest, pending HHS requests.

22. 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 2017.

F. Success Stories

Out of all the activities undertaken by your agency since March 2017 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, OIP will highlight these agency success stories during Sunshine Week. 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 OS FOIA Office began publishing to the HHS FOIA website the open/pending FOIA requests from all of HHS at the end of January 2017. This additional transparency has demonstrated the commitment by the HHS OpDivs 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.

ACF continues to utilize the Tracking Accountability in Government Grants System (TAGGS), which provides an exhaustive annotated list of HHS grants, and often provides the information that fully addresses FOIA requests. ACF posted a YouTube video on its website to help requesters use TAGGS, but recent improvements to the database have made it easy to use without instruction.

CDC has reduced its backlog by 87% in 18 months by implementing best practices and emphasizing customer service with internal (CDC program offices) and external (general public) customers. Best practices included revamping office workflow to improve efficiency, working with requesters to keep their requests specific and precise, providing requesters with estimated response delivery dates, setting performance goals for processing staff and maintaining accountability, providing agency leadership with monthly metrics on late requests, and obtaining CDC leadership support for FOIA. To improve internal customer service, CDC instituted quarterly calls and regularly scheduled webinars/trainings for the CDC program FOIA coordinators and a yearly FOIA training forum for all agency staff. Additionally, CDC has simplified the program FOIA search form, encouraged program offices to establish their own tracking systems, and established a shared platform for all offices to upload responsive records. CDC has revamped its FOIA website to be more efficient and user‐friendly, and has expanded the use of its established electronic reading room.

CMS continues to reduce its backlog consistent with internal and DOJ goals for this fiscal year resulting in a 15% backlog reduction. CMS backlog percentage dropped to 5% this fiscal year compared to cases pending from prior year and received cases in 2017. CMS has implemented process changes and technological improvements to both the FOIA and correspondence tracking software systems. This year, CMS began a process for correspondence requests whereby staff first runs a report/log of the records that may fall within the scope of the request, then contacts requester to select the specific records requested, before finally processing the records. CMS worked with the FOIA and Correspondence software tracking contractor to enhance the systems so that staff can now pull a large group of correspondence records (both incoming and the reply letters) into a single zip file. Previously CMS staff had to open every correspondence file manually to download both the incoming and the reply, and then bundle all the records together. Due to the process changes and utilization of the new technology enhancements, CMS is able to conserve agency resources and process requests faster and more efficiently to benefit the requester.

In June 2017, FDA reached a milestone of five years since it launched its online FOIA request submission portal, which allows requesters to make FOIA requests to FDA through the OpDiv’s mobile friendly website (requesters can still opt to submit by fax or mail). The portion of requests received via the portal has grown in each of the fiscal years since the portal was launched: FY 2013 48% of requests received via portal; FY 2014 56% of requests received via portal; FY 2015 67% of requests received via portal; FY 2016 71% of requests received via portal; FY 2017 76% of requests received via portal. The electronic portal helps requesters by providing online access, immediate confirmation of submission, and an electronic record of the acknowledgement letter, which would otherwise have been provided via US Mail. Frequent requesters can create a “frequent user” account, which makes submission of multiple requests faster and easier. The portal also reduces the costs of paper, envelopes, and postage used to mail acknowledgement letters. This successful use of technology over the last five years has made it is easier for the public to make requests and receive records, while making certain parts of the FOIA process more efficient.

HRSA simplified the request form to a single page form that captured the same information. HRSA began holding response planning meetings with program office liaisons whenever a particularly complex or voluminous request was received, which help to highlight the crucial role played by the FOIA liaison, giving them much-deserved recognition. HRSA has invited senior staff to help develop a strategy for handling the difficult requests that include demanding and time-consuming search processes. HRSA made changes to the SWIFT document management system, including adding a drop-down menu that appears whenever the Exemption 3 box is checked as a cited exemption. That menu lists the four statutes that apply to certain types of HRSA records, eliminating the need to type in the relevant stature, and simplifying the process of listing the Exemption 3 statute information for the annual report. HRSA also added an automatic fill-in for the “To” box in Date Entry form. Collectively these and several other minor adjustments resulted in an unexpectedly major improvement in our case turnaround time. In FY 2017 the average processing time for FOIA requests dropped 40%, from 112 days in FY 2016 to 67 days, and the case backlog decreased 14%, exceeding the DOJ’s 10% standard.

Introduction
Section I: Steps Taken to Apply the Presumption of Openness
Section II: Steps Taken to Ensure that Your Agency Has an Effective System in Place for Responding to Requests
Section III: Steps Taken to Increase Proactive Disclosures
Section IV: Steps Taken to Greater Utilize Technology
Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reduce Backlogs
Spotlight on Success

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