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

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 FY 2019 and 2020 Annual FOIA Reports.

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.

2. If your agency uses a separate track for simple requests, according to Annual FOIA Report section VII.A, was the agency overall average number of days to process simple requests twenty working days or fewer in Fiscal Year 2020?

No

3. Please provide the percentage of requests processed by your agency in Fiscal Year 2020 that were placed in your simple track. Please use the following calculation based on the data from your Annual FOIA Report: (processed simple requests from Section VII.C.1) divided by (requests processed from Section V.A.) x 100.

33.95%

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?

N/A

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 2019 and Fiscal Year 2020 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 2020, according to Annual FOIA Report Section XII.A, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2019?

No

6. If not, according to Annual FOIA Report Section V.A, did your agency process more requests during Fiscal Year 2020 than it did during Fiscal Year 2019?

Yes, HHS processed more than 1800 additional cases compared to 2019.

7. If your agency's request backlog increased during Fiscal Year 2020, please 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.

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.

HHS received approximately 1500 more requests in the FY2020 than in FY2019. In addition, with COVID-19, HHS saw an increase of the request complexity, novel issues that required several iterations of review, and a large number of COVID-19 related FOIA litigations. Litigations cause a severe resource drain away from routine processing. Litigation, not only shifts resources from processing other requests; the time to process each request in litigation multiples because of the number of iterative reviews and meetings/communications with numerous stakeholders, e.g., subject matter experts, Office of General Counsel, and the Department of Justice.

Many HHS OpDivs reported loss of staff—some in key positions, e.g., the HHS Agency Deputy Chief FOIA Officer and other high-level FOIA management positions. HHS OpDiv/StaffDivs explained that educating new staff takes time. Compounding this issue is the challenge in filling positions—some OpDiv/StaffDivs reported that positions stayed vacant for long periods of time.

Across HHS, the trend of requests for emails between numerous individuals or a certain topic continued. This type of requests often return thousands of pages, which requires extensive sorting and line-by-line review of responsive material.

Any other reasons – please briefly describe or provide examples when possible.

8. 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 2020. Please use the following calculation based on data from your Annual FOIA Report: (backlogged requests from Section XII.A) divided by (requests received from Section V.A) x 100. If your agency has no request backlog, please answer with "N/A."

24%

BACKLOGGED APPEALS

9. If your agency had a backlog of appeals at the close of Fiscal Year 2020, according to Section XII.A of the Annual FOIA Report, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2019?

No

10. If not, according to section VI.A of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2020 than it did during Fiscal Year 2019?

Yes, HHS processed over 100 more appeals compared to FY2019

11. If your agency's appeal backlog increased during Fiscal Year 2020, please 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.

HHS had a 75% increase in the number of appeals received.

HHS had vacancies in key staff positions, along with losing staff.

An increase in litigation pulled resources from processing appeals.

12. 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 2020. Please use the following calculation based on data from your Annual FOIA Report: (backlogged appeals from Section XII.A) divided by (appeals received from Section VI.A) x 100. If your agency did not receive any appeals in Fiscal Year 2020 and/or has no appeal backlog, please answer with "N/A."

163%

C. Backlog Reduction Plans

13. In the 2020 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2019 was asked to provide a plan for achieving backlog reduction in the year ahead. Did your 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 2020?

HHS OS implemented a backlog a reduction plan, which focused on building a litigation team. This allowed some staff to return to processing initial requests and appeals. OS also purchased, and trained staff, on e-discovery redaction software to improve efficiency in processing voluminous requests.

FDA implemented a backlog reduction plan. These efforts included using technology to more efficiently process requests, training staff, working with requesters to clarify and narrow requests, and directing requesters to information that is posted online.

14. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2020, please explain your agency's plan to reduce this backlog during Fiscal Year 2021.

HHS OS intends to fill its key vacancies in FY2021. HHS OS is also in a better position to process initial requests and appeals following the creation of the litigation team in FY2020. OS FOIA is hiring two-key FOIA program managers. Their top priority is to streamline processes and provide necessary outreach and training to FOIA personnel and program offices.

In addition to the efforts described in question 13, FDA will also evaluate hiring needs to determine if additional staff (either permanent or temporary) can be directed to FOIA. FDA plans to roll out eDiscovery software more broadly in FY2021. Please note that due to the pandemic, and the enormous number of large, complex FOIA requests received by FDA regarding the pandemic (as well as litigation related to several of those requests), FDA will likely not reduce its backlog in FY2021.

D. Status of 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 2019 and Fiscal Year 2020 when completing this section of your Chief FOIA Officer Report.

OLDEST REQUESTS

15. In Fiscal Year 2020, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2019 Annual FOIA Report?

No

16. 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 2019 Annual FOIA Report. If you had fewer than ten total oldest requests to close, please indicate that.

5.

17. Beyond work on the ten oldest requests, please describe any steps your agency took to reduce the overall age of your pending requests.

HHS will use quarterly reporting to make sure all Operating Division remain on track to close their assigned agency ten oldest requests.

TEN OLDEST APPEALS

18. In Fiscal Year 2020, did your agency close the ten oldest appeals that were reported pending in Section VII.C.5. of your Fiscal Year 2019 Annual FOIA Report?

No

19. 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 2019 Annual FOIA Report. If you had fewer than ten total oldest appeals to close, please indicate that.

1

20. Beyond work on the ten oldest appeals, please describe any steps your agency took to reduce the overall age of your pending appeals.

HHS transitioned staff from litigation, which should reduce the overall age of appeals in FY2021.

TEN OLDEST CONSULTATIONS

21. In Fiscal Year 2020, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2019 Annual FOIA Report?

No

22. 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 2019 Annual FOIA Report. If you had fewer than ten total oldest consultations to close, please indicate that.

7

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

23. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2019.

HHS receives a large number of requests which need initial processing. The emergence of COVID requests in FY2020 led to a much large number of requests than usual being granted expedited processing. Litigation has a continuing impact on dedicating staff to work the oldest requests.

FDA has received hundreds of FOIA requests regarding the COVID-19 pandemic during the reporting period. Many of these requests have received expedited processing. FDA does not have the resources to process these expedited requests while simultaneously working to close all of our oldest requests that have not been expedited.

24. 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.

N/A

25. 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 2021.

HHS will ensure the 10 oldest requests are highlighted and prioritized. The ten oldest requests will also be a part of FOIA processor's performance plans. Operating Divisions will assist with closing the ten oldest:

ACF plans to close out the requests that are not extremely voluminous by making monthly interim releases on the ten oldest requests, appeals and consultations.

FDA will continue to evaluate these requests, and the complex policy and legal issues they pose, while following first-in-first-out processing rules and processing expedited requests. FDA will also have quarterly checks with the components that are processing these requests.

F. Success Stories

Out of all the activities undertaken by your agency since March 2020 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, but should not be something that you have reported in a prior year. 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.

  • HHS began posting all COVID related contracts to the website including some proactive postings.
  • CMS implemented the use of a collaboration tool, BOX, to share voluminous files online for both intra- and inter-agency as well as the public.
  • FDA notified requesters on its website in early March that all requests should be submitted through our online portal rather than by mail/fax/courier. FDA worked with requesters who had IT problems using the portal to ensure they could continue to submit requests throughout the pandemic. FDA staff has continued to visit our offices at least once a week to collect hard copy requests, and then notify the requesters about our portal. Where requesters could not be notified or did not have access to the internet, the hard copy requests were logged manually.
  • FDA used Box.com and other applications to send large files electronically to requesters.
  • FDA worked around the deployment of Public Health Service FOIA staff, as well as the family needs of staff members with young children and other dependents, to continue to process requests.
  • FDA transitioned from mailed, hard copy FOIA invoices to emailed electronic invoices, which has increased the speed with which invoices are paid.
  • FDA is now emailing all responses to requests for expedited processing and fee waivers, as well as full/partial denial letters.
  • For seven consecutive years, HRSA has met the DOJ standard of reducing the backlog by 10% or more.
  • IHS has found success through teaming with agency subject matter experts to create a workgroup to explore technological solutions and to initiate the process of conducting a comprehensive review of FOIA processes.
  • IHS has also ramped up its scoping efforts and has worked with requesters to help them understand the FOIA process, as well as the availability of IHS records.
  • IHS has championed a team approach to addressing open backlog cases; using an agile methodology and "out of the box" thinking to structure pathways to closure.
Content created by Freedom of Information Act (FOIA) Division
Content last reviewed