Section II: Ensuring Fair and Effective FOIA Administration

The Attorney General’s FOIA Guidelines provide that “[e]nsuring fair and effective FOIA administration requires . . . proper training, and a full understanding of FOIA obligations by the entire agency workforce.”  The Guidelines reinforce longstanding guidance to “work with FOIA requesters in a spirit of cooperation.”  The Attorney General also “urge[s] agency Chief FOIA Officers to undertake comprehensive review of all aspects of their agency’s FOIA administration” as part of ensuring fair and effective FOIA administration.  

A. FOIA Training

1. 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.

OS FOIA Office advised HHS FOIA Offices of DOJ FOIA classes and third-party FOIA training opportunities such as the classes offered by the American Society of Access Professionals (ASAP). OS FOIA also provided internal trainings on a regular basis to FOIA and non-FOIA staff. FOIA Training is also available to all employees through the HHS learning portal and required for all staff in OS’s Public Affairs Divisions.

OS FOIA provided a live FOIA overview as part of the bi-weekly New Employee Orientation, for all new employees. Additionally, OS FOIA provided numerous trainings to OS Program Offices. These sessions covered the proper procedures for searching for responsive records, FOIA exemptions, and the foreseeable harm standard.

CDC offered several trainings throughout the year to FOIA and non-FOIA staff including the Annual CDC/ATSDR FOIA Training Forum, New Employee Orientation, and one-on-one trainings with different centers, institutes, and offices across CDC.

FDA continued to provide basic FOIA training annually to any interested staff and advanced FOIA training to full time FOIA personnel.

HRSA provided several FOIA trainings throughout the year to its FOIA and non-FOIA staff.  HRSA also required their FOIA staff to complete the new DOJ FOIA Training Modules. 

NIH used training videos to bring FOIA staff up to speed on FOIA processes.  In addition, NIH provided updates to staff on the latest developments in FOIA caselaw and answered questions from FOIA staff about FOIA policies and procedures during monthly meetings.

OIG provided FOIA-related training to all new OIG employees and to program offices as needed.

All HHS FOIA Offices encourage their FOIA staff to attend trainings that are provided by DOJ or other third-party organizations such as ASAP.

2. 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.

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

OS FOIA provided several internal trainings for FOIA staff in 2022.  These trainings covered a variety of topics including the FOIA intake process, the FOIA appeals process, litigation, the relationship between FOIA and the Privacy Act, pre-disclosure notifications, and White House consultations.  OS FOIA also provided trainings to its program offices.  Topics covered during these trainings included a general overview of FOIA, FOIA search requirements, FOIA exemptions, and the 2022 Attorney General Memo on FOIA. Additionally, OS FOIA staff attended outside trainings including DOJ’s Privacy Considerations training.

ACF FOIA staff attended the following trainings: FOIA Court Case Update, Exemption 4 and 5, Negotiating with the Requester, and Privacy Skill Up Training.

ACL FOIA staff attended the NextGen FOIA Tech Follow Up Workshop.  This workshop provided an opportunity for agencies to share their experiences using specific FOIA technology products.  ACL FOIA staff also attended DOJ’s Annual FOIA Report Refresher and Quarterly Report Training.

CDC held its second annual FOIA Office Training Forum, which was open to all HHS OPDIVS.  During the 3-hour training, CDC provided training sessions that covered pre-decisional and deliberative exemptions, the foreseeable harm standard, and FOIA litigation from the plaintiff and agency perspectives.

HRSA FOIA staff provided or received in-house training on several topics including, among others, the interplay between FOIA and the Privacy Act; triaging requests; providing updates to requesters; the foreseeable harm standard; FOIA processing fees; and the 2022 Attorney General Memo on FOIA.  HRSA FOIA staff also attended the 2022 ASAP Training Conference and the 2022 DOJ FOIA Summit.

FDA FOIA staff attended trainings offered by the Department of Justice as well as in-house trainings that included topics such as Exemption 5, negotiating with requesters, and reviewing text messages for public release.

CMS FOIA staff attended DOJ FOIA trainings including the Annual FOIA Report Refresher and Quarterly Report Training. Procedural Requirements and Fees Training, CMS FOIA staff also participated in workgroups on FOIA procedures and fees.

NIH staff attended the ASAP semiannual FOIA training on the fundamentals of FOIA.

IHS staff attended several virtual DOJ FOIA trainings including the following: Procedural Requirements and Fees, Exemptions 1 and 7, Exemptions 4 and 5, Privacy Considerations, Advanced Freedom of Information Act, Processing form Start to Finish Workshop, Chief FOIA Officer Report, Annual FOIA Report Refresher and Quarterly Report Training, and Litigation Training.

OIG staff attended DOJ FOIA trainings including trainings on FOIA exemptions and advanced FOIA training.

4. 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.

Approximately 90-95% of the Department’s FOIA professionals attended FOIA training during 2022.

5.  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

6. 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; and if senior leaders at your agency received a briefing on your agency’s FOIA resources, obligations and expectations during the FOIA process?

OS FOIA regularly provided trainings to Departmental Leadership and program offices and highlighted employees’ responsibilities under the FOIAs.  Topics covered during these trainings included: records subject to FOIA, the HHS FOIA structure, FOIA liaison responsibilities, agency staff obligations under FOIA, FOIA search requirements, FOIA exemptions, and the 2022 Attorney General Memo on FOIA.  OS FOIA also provided a brief overview of FOIA during new employee orientation.  In addition, OS FOIA published a “FOIA Tip of the Month,” which provided non-FOIA professionals guidance on a range of FOIA topics including FOIA search requirements and the foreseeable harm standard.

ACF FOIA conducted FOIA overview trainings with ACF Senior Leadership and various ACF program offices.  Specific topics discussed included an Overview of the FOIA, ACF FOIA Expectations and guidance on conducting thorough searches.

ACL FOIA staff briefed non-FOIA professionals during staff meetings and meetings with individual offices and centers.  ACL has also reviewed and updated its Standard Operating Procedures related to FOIA and distributed them to all staff.

CDC FOIA hosted its second annual FOIA Office Training Forum and invited all HHS FOIA professionals and CDC non-FOIA staff to attend.  CDC FOIA also provided briefings to various centers, institutes, and offices across CDC about the importance of FOIA and the expectations for the administration of FOIA for all agency employees.  Furthermore, CDC FOIA provided a FOIA presentation at each new employee orientation.

CMS FOIA regularly engages with FOIA coordinators in each component and provides them with updates on FOIA processes and improvements.  During 2022, CMS also provided brown bag sessions and trainings to various components.

FDA FOIA provided FOIA-related resources and training materials to non-FOIA professionals, through its intranet and new Sharepoint site.

HRSA FOIA provided FOIA overviews to several of HRSA’s bureaus and offices.  Additionally, HRSA FOIA ran a series of FOIA Tips that were published in The HRSA Weekly, an email publication sent to all HRSA employees.

IHS FOIA created a FOIA Overview presentation that was provided to IHS Leadership and Headquarters staff.  IHS FOIA also provided one-on-one training to Area FOIA coordinators and division staff.

NIH FOIA provided quarterly FOIA training for program offices and division staff.

OIG FOIA provided FOIA-related training to all new OIG employees and to program office staff.

SAMHSA FOIA trained liaisons from each center/office to ensure that non-FOIA professionals are properly administering FOIA.

B. Outreach

7. Did your FOIA professionals engage in any outreach or dialogue, outside of the standard request process, 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.

All HHS FOIA Offices encouraged their FOIA staff to work with requestors to explain timelines, backlogs, and to better scope requests. FOIA Officers from CDC and NIH served as members of on the FOIA Advisory Committee.  As members of the Committee, the CDC and NIH FOIA Officers met with members of the FOIA requester community on a regular basis to discuss FOIA-related issues and to improve the administration of FOIA across the government. 

Some other examples of outreach across HHS include:

CMS FOIA engaged in outreach with third-party requesters that submit a large volume of requests for Medicare beneficiary claim records.  Through this outreach, CMS informed this group of requesters of a new online portal that makes it easier to submit requests for Medicare beneficiary claim records.  CMS utilized Zoom to provide an overview of the beneficiary claims request portal with various law firms and record retrieval companies that submit a high volume of requests to CMS each year.  As part of the overview, CMS provided an online training demo to walk through the process for submitting requests.  CMS also developed communication tools to explain how to access and submit requests through the National FOIA.gov portal, which interfaces with CMS’ internal request management system.  These outreach efforts have improved FOIA administration at CMS and have been well received by the requester community.

FDA FOIA collaborated with its requesters to make improvements to the functionality of its online request submission portal, including, for example, making it easier for overseas requesters to provide their contact information.

OIG FOIA conducted surveys with its most frequent requesters to obtain feedback on its performance.

8.  As part of the standard request process, do your FOIA professionals proactively contact requesters concerning complex or voluminous requests in an effort to clarify or narrow the scope of the request so requesters can receive responses more quickly?  Please describe any such outreach or dialogue, and, if applicable, any specific examples.

HHS FOIA professionals routinely reached out to requesters to clarify or narrow the scope of complex or voluminous requests.  HHS FOIA professionals worked with requesters to better understand their requests and locate the responsive documents.  FOIA Offices offered requesters previously released records to satisfy a request either in whole or part.  Successful efforts to narrow the scope of a requests often allow an agency to place requests in the “simple” request track for faster processing.  Overall, these efforts reduced response times and the administrative burden on FOIA offices.

An example of successful efforts to narrow the scope of complex or voluminous requests includes HRSA FOIA successfully narrowing the scope of two voluminous requests from two large media organizations.  For the first request, HRSA was able to work with the requester to significantly narrow the scope of the request from a request that yielded 15,000 pages of responsive records to a request that yielded fewer than 1,000 pages of responsive records, reducing the number of pages that needed to be reviewed by over 90%.  On the second request, HRSA worked with the requester on a significant data request.  HRSA provided the requester samples of redacted records.  As a result, the requester was able to clarify the data the scope from over 130,000 records. 

9.  The FOIA Improvement Act of 2016 requires additional notification to requesters about the services provided by the agency’s FOIA Public Liaison.  Please provide an estimate of the number of times requesters sought assistance from your agency’s FOIA Public Liaison during Fiscal Year 2022 (please provide a total number or an estimate of the number).

HHS FOIA requesters sought assistance from the FOIA Public Liaison approximately 500 times during FY 2022.

C. Other Initiatives

10. Has your agency evaluated the allocation of agency personnel resources needed to respond to current and anticipated FOIA demands?  If so, please describe what changes your agency has or will implement.

All HHS FOIA RSCs have evaluated the allocation of agency personnel and resources needed to respond to current and anticipated demands. 

OS FOIA backfilled two FOIA positions and hired additional resources to focus specifically on backlogged requests.  The backlog reduction team includes eight contract FOIA analysts and IT resources.  These additional resources are focused solely on processing old cases and electronic email searches/review.  OS FOIA also anticipates hiring a new Deputy Agency Chief FOIA Officer in 2023, who will provide leadership to the Department on all FOIA-related matters.  With these additional resources in place, OS FOIA anticipates that it will be in a better position to respond to current and anticipated FOIA demands.

CDC FOIA has added new FOIA analyst and team lead positions to bolster its processing capabilities.  CMS FOIA has and will continue to add additional federal and contract support to address the increase in new requests and anticipated new requests in FY 2023 due to legislative improvements on drug pricing and negotiation. 

HRSA FOIA has continued to add additional resources, hiring its most recent FTE in November of 2022.  HRSA has also hired two students through intern programs.  IHS FOIA hired an additional specialist to process FOIA requests as needed.

NIH FOIA hired five full-time equivalents (FTE) in response to the surge of pandemic related requests.  In addition, NIH FOIA plans to hire approximately four FTEs in FY 2023.  SAMHSA FOIA hired a new FOIA Officer in 2022. ACF and ACL FOIA plan to backfill key FOIA positions in FY 2023.

11. How does your agency use data or processing metrics to ensure efficient management of your FOIA workload?  For example, case management reports, staff processing statistics, etc. In addition, please specifically highlight any data analysis methods or technologies used.

HHS FOIA Offices use various data/processing metrics to ensure efficient management of FOIA workload.  Each office uses cases management and staff processing statistics to track performance and align resources.

Some examples include:

OS FOIA included processing metrics in staff performance plans.  Additionally, OS FOIA used weekly, monthly, quarterly, and reports to track closures and balance analyst workloads.  The office developed standard operating procedures for triaging requests to identify simple requests and ensure progress on complex requests.  The office continued to track the ten oldest requests and appeals to ensure closure by the end of the FY.  OS FOIA also used a litigation tracker to track the status of the office’s litigations and litigation consults.  This tracker included detailed information on production schedules and page counts for each litigation. 

CDC FOIA used case management reports to identify quick closures and to ensure progress on voluminous cases.  CDC used case management reports to balance analyst’s workloads to maximize efficiency.

CMS FOIA utilized an internal request intake and tracking system that interfaced with the public online FOIA request submission portals to efficiently manage and monitor workload. Weekly, monthly, and annual reports were created, shared, and reviewed among FOIA managers, staff, and contract personnel to measure productivity, monitor backlog, and assess needs for strategic changes. Internal systems were reviewed at least semi-annually to explore opportunities for enhancements, particular in data analysis and reporting.

HRSA FOIA included processing metrics staff performance plans.  These metrics included the number of actions processed, the number of pages processed, percentage processed within FOIA’s timelines (20 or 0 workdays).  HRSA FOIA also prepares various reports (weekly, monthly, quarterly) that are automatically emailed to HRSA FOIA’s supervisory officials.  The monthly report captures the number of requests and pages processed each month.  Finally, HRSA FOIA routinely monitors the timeliness of bureau and office responses to FOIA requests to include the number of timely responses, late responses, and the average days to complete the search.

IHS FOIA included a help button in its FOIA database to flag voluminous requests or requests that required the Privacy Officer’s review.  This assisted management with determining logjams in processing complex requests.

NIH FOIA has invested in a workflow management system that tracks the work performed by staff, pending cases, and cases with records ready to review.  The system also generates weekly and monthly reports to facilitate management’s analysis of productivity. 

12. Optional -- If there are any other initiatives undertaken by your agency to ensure fair and effective FOIA administration, please describe them here.

  • ACL FOIA implemented a web-based fillable request form that is integrated with ACL’s FOIA management system.  The web-based form automatically fills-in key fields in ACL’s FOIA management system, reducing staff time required to input the required fields and spam from entering the system.
  • FDA FOIA plans to move towards a new FOIA tracking system that will provide additional tools for efficient management of FOIA.
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