Section I: Steps Taken to Apply the Presumption of Openness

The guiding principle underlying DOJ's FOIA Guidelines 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.

A. FOIA Leadership

1. The FOIA requires each agency to designate a Chief FOIA Officer who is a senior official at the Assistant Secretary or equivalent level. See 5 U.S.C. § 552(j)(1) (2018). Is your agency's Chief FOIA Officer at this level?

Yes

2. Please provide the name and title of your agency's Chief FOIA Officer.

Mark Weber (Acting) Assistant Secretary for Public Affairs (ASPA)

B. FOIA Training

3. The FOIA directs agency Chief FOIA Officers to ensure that FOIA training is offered to agency personnel. See 5 U.S.C. § 552(a)(j)(2)(F). Please describe the efforts your agency has undertaken to ensure proper FOIA training is made available and used by agency personnel.

HHS FOIA advised staff of DOJ FOIA classes and third party FOIA training opportunities such as the classes offered by the American Society of Access Professionals (ASAP). HHS also offered internal training to both FOIA and non-FOIA staff. FOIA Training is available to all employees through the HHS learning portal.

The Office of the Secretary (OS) FOIA Office, provided numerous trainings to OS Program Offices. These sessions covered the public's right to access information, proper procedures for processing requests, and FOIA exemptions.

The Indian Health Services (IHS) FOIA team provided FOIA training to IHS Area FOIA Coordinators. Training included a brief overview of their responsibilities for conducting searches and response times when in receipt of new FOIA requests. The 2021 training plan includes virtual training to the FOIA Area Coordinators (quarterly) to review various FOIA topics and issues that have arisen.

Additionally, on numerous occasions, the IHS FOIA team has emailed the requirements for applying exemptions to responsive information to Area FOIA Coordinators and Program offices.

HRSA's FOIA office has posted training materials on their internal SharePoint site for the agency to access and/or request further training. HRSA's FOIA Office also provides specific training on an individual program level when necessary or as requested.

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

Yes.

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

HHS FOIA professionals attended virtual trainings presented by the Department of Justice on Exemption 1, Exemption 4, Exemption 5, Exemption 7, FOIA Fees, Privacy Act considerations, FOIA litigation, Virtual Chief FOIA Officer Report Training, FOIA Annual Report Training, Best Practices Series Workshop focused on Technology in FOIA, FOIA AI 101, Foreseeable Harm, DOJ Procedural Requirements.

6. Please provide an estimate of the percentage of your FOIA professionals and staff with FOIA responsibilities who attended substantive FOIA training during this reporting period.

85%

7. 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.

N/A

C. Outreach

8. Did your FOIA professionals engage in any outreach or dialogue with the requester community or open government groups regarding your administration of the FOIA? Please describe any such outreach or dialogue, and, if applicable, any specific examples of how this dialogue has led to improvements in your agency's FOIA administration.

HHS FOIA encourages FOIA staff and Operating Divisions to work with requestors to explain timelines, backlogs, and to better scope requests. The outreach can be both routine or in a special session. Some examples:

FDA FOIA staff routinely speak with requesters, including open government groups, regarding their specific FOIA requests and FDA's general processing procedures. In addition, FDA's FOIA Officer has served on the FOIA Advisory Committee for the last two terms.

OGIS hosted a webinar with CDC FOIA leadership in May 2020 to discuss how the agency is responding to COVID-19 requests and provide tips for successful FOIA requests, especially for pandemic-related records. The webinar was targeted to media requesters.

IHS FOIA staff routinely meet with requesters to discuss their specific requests and educate them on what agency records are available, as well as to address possibly withholdings under the applicable exemption(s). This helps to clarify and scope what information the requester is actually interested in receiving.

CMS in following up from a Kaizen event, took suggestions from participants for electronic Medicare Authorizations and utilized them in exploring online submissions tools which are currently under development.

D. Other Initiatives

9. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA. In particular, please describe how often and in what formats your agency provides FOIA training or briefings to non-FOIA staff.

HHS provides a brief overview of the FOIA to all incoming HHS employees regardless of whether or not they have FOIA duties. The overview covers responsibilities under the FOIA and the employees' role as records creators. This brief also links to additional DOJ FOIA trainings and the FOIA training available in the HHS internal learning portal.

FDA offers Introduction to FOIA training for all employees, which is a 1.5 hour session geared toward non-FOIA professionals. This training covers the history of the FOIA, the FOIA exemptions, and FDA's internal FOIA processes and procedures. This training is offered at least once per year. In addition, as part of the two-day orientation program, all new FDA employees are shown the DOJ-created FOIA video. Finally, all FDA employees are required to take yearly Records Management Training, which includes an overview of FOIA obligations.

CMS hosts regional monthly conference calls to coordinate with participants on FOIA administration and compliance. Trainings may include Webinars on the use of the tracking tool, SWIFT, to agenda items for best practices or discussions on Q&A.

OIG provided three virtual training sessions to regional and field office personnel.

On numerous occasions, the IHS FOIA team has held conference calls and emailed the requirements for applying exemptions to responsive information to Area FOIA Coordinators and Program offices. Also, the FOIA Team has explained specific search requirements.

HRSA holds training session on an ad hoc or requested basis for bureau/office FOIA "Gatekeepers" (liaisons) and associated program staff. Because there is significant turnover in Gatekeepers, these sessions are particularly useful in emphasizing the need for the rapid turnaround of FOIA requests.

In 2020, the NIH FOIA Officer led:

  • Two 2 ASAP trainings open to the public regarding developments in Exemption 4
  • One public webinar on the information grantees should and should not include in NIH filings
  • One presentation available to the public on the progress of the NARA FOIAXpress subcommittee

10. Optional -- If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here.

HRSA FOIA professionals work very closely to keep the program offices' FOIA Gatekeepers (liaisons) current with FOIA issues and best practices. HRSA FOIA professionals have a strong partnership with the FOIA Gatekeepers. For example, during this reporting period, HRSA FOIA worked continuously with the newly created CARES Act Provider Relief Fund (PRF) to educate the PRF Team about the FOIA process, and worked with the PRF Team to streamline the disclosure process.

The NIH never retreated from the presumption of openness reflected in the Reno FOIA Memorandum and, therefore, has not needed to implement any major adjustments to its internal guidance or launch any major new initiatives. NIH Leadership is dedicated to transparency and communicates that through their actions. NIH FOIA professionals are reminded of the presumption of openness at every monthly meeting and in specific instances when records are referred to the NIH FOIA Office for review.

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