Section V: Steps Taken to Remove Barriers to Access, Improve Timeliness in Responding to Requests, and Reduce Backlogs

The Attorney General’s FOIA Guidelines instruct agencies “to remove barriers to requesting and accessing government records and to reduce FOIA processing backlogs.”  Please answer the following questions to describe how your agency is removing barriers to access, improving timeliness in responding to requests, and reducing FOIA backlogs. 

A. Remove Barriers to Access

1. Has your agency established alternative means of access to first-party requested records outside of the FOIA process?

Yes.

2. If yes, please provide examples. If no, please indicate why not. Please also indicate if you do not know.

HHS has provided first-party requesters seeking several types of records with alternative means of obtaining first-party records outside of the FOIA process.  This includes the option for first-party requesters to submit their requests to the system manager of the applicable system of records, if known, at the address listed in the System of Records Notice.   Other, more specific examples include:

  • ACF’s Office of Refugee Resettlement provided instructions on its website and a method for requesting parties to seek copies of Unaccompanied Children (UAC) case files outside of FOIA.
  • CMS provided access to first-party data through the Medicare Blue Button tool, which is available on the CMS website (https://bluebutton.cms.gov/).
  • IHS facilities disclosed medical records to patients and their representatives outside of the FOIA process once furnished with a properly completed IHS-810 form.

Additionally, some HHS agencies have separate Privacy Act Offices that take the lead on first-party requests and process those requests to the extent that those requests can be fully granted under the Privacy Act.

B. Timeliness

3. For Fiscal Year 2022, what was the average number of days your agency reported for adjudicating requests for expedited processing?  Please see Section VIII.A. of your agency's Fiscal Year 2022 Annual FOIA Report.

The average number of days for adjudicating requests for expedited processing was 7.99 days.

4. If your agency's average number of days to adjudicate requests for expedited processing was above ten calendar days, according to Section VIII.A. of your agency's Fiscal Year 2022 Annual FOIA Report, please describe the steps your agency will take to ensure that requests for expedited processing are adjudicated within ten calendar days or less.

N/A

5. Does your agency utilize a separate track for simple requests?

Yes.

6. 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 2022?

No.  The average number of days to process simple requests was 29.63 days in Fiscal Year 2022. 

7. If not, did the simple track average processing time decrease compared to the previous Fiscal Year?

Yes.  The average number of days to process simple requests declined from 37.36 days in Fiscal Year 2021 to 29.63 days in Fiscal Year 2022.

8. Please provide the percentage of requests processed by your agency in Fiscal Year 2022 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.

The percentage of requests processed in FY 2022 in the simple track was 30.96%. 

9.  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

C. Backlogs

Backlogged Requests

10. If your agency had a backlog of requests at the close of Fiscal Year 2022, according to Annual FOIA Report Section XII.D.2, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2021?

The overall HHS backlog increased by 13.71% last year.

11.  If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2022 than it did during Fiscal Year 2021?

Yes.  The number of requests processed increased by 13%.

12. If your agency’s request backlog increased during Fiscal Year 2022, 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
  • 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)
  • Impact of COVID-19 and workplace and safety precautions
  • Any other reasons – please briefly describe or provide examples when possible

Despite a 13% increase in the number of requests processed over the previous year, HHS’s backlog increased in Fiscal Year 2022, in part, because of an increase in the number of incoming requests.  ACF, ACL, CMS, FDA, HRSA, IHS, NIH, OIG, and SAMHSA all saw an increase in the number of requests received compared to the previous year.  Particularly with the strong public interest in records related to COVID-19, HHS FOIA Offices continue to receive a significant number of complex and voluminous requests.  HHS also continues to receive a significant number of 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.  The issues causing an increase in the backlog are further highlighted with the following examples:

  • Some Operating Divisions experienced a loss of key staff in Fiscal Year 2022.  This included the departure of the OS Freedom of Information/Privacy Act Director and key staff at ACF, CMS, and HRSA.  Additionally, SAMHSA’s FOIA Officer position was vacant for a significant portion of Fiscal Year 2022.
  • Over the past three years, NIH experienced a sharp spike in litigations.  Prior to the pandemic, there were three open litigations at NIH.  That number has increased to 53 open litigations.
  • The OS FOIA Office currently has 48 active litigations.  These litigations involve some of the office’s most complex and voluminous requests.  As an example, for one open litigation, the OS FOIA Office issued 52 interim responses and processed approximately 43,000 pages of responsive records.  The OS FOIA Office has five full-time contractors who are solely dedicated to processing requests in litigation.
  • FDA has had an increase in its backlog that has been exacerbated by an influx in complex requests and litigations.  In one litigation, a federal court ordered FDA to produce over 80,000 pages per month.  FDA also receives a significant number of requests and litigations from a small number of recurrent requesters who seek records related to the same subject areas.  This puts a significant strain on the FOIA staff and makes it more difficult to respond to incoming requests.

13. 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 2022.  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.  This number can be greater than 100%.  If your agency has no request backlog, please answer with “N/A.”

Backlogged requests made up 29.43% of the total number of requests received by HHS in FY 2022.

Backlogged Appeals

14. If your agency had a backlog of appeals at the close of Fiscal Year 2022, according to Section XII.E.2 of the Annual FOIA Report, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2021?

Yes.

15.  If not, according to section XII.E.1 of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2022 than it did during Fiscal Year 2021?

N/A

16. If your agency’s appeal backlog increased during Fiscal Year 2022, 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)
  • Impact of COVID-19 and workplace and safety precautions
  • Any other reasons – please briefly describe or provide examples when possible

N/A

16. 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 2022.  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.  This number can be greater than 100%.  If your agency did not receive any appeals in Fiscal Year 2022 and/or has no appeal backlog, please answer with "N/A."

Backlogged appeals made up 132.04% of the total number of appeals received by HHS in FY 2022.

D. Backlog Reduction Plans

18. In the 2022 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2021 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 2022?

Yes.  HHS continued to implement backlog reduction strategies in FY 2022.  Some examples of these efforts include:

  • OS FOIA streamlined business processes to improve response times.  Additionally, OS FOIA procured funding for additional contract support staff to process backlogged requests. OS FOIA also added additional IT resources to handle electronic email searches, which has sped up the search process for email records and reduced administrative burdens related to the review of email records.
  • CMS FOIA developed a strategic approach to focus on backlogged requests with voluminous records.  CMS also worked to obtain additional staff, contract support, and funding; worked to identify workflow efficiencies; and continued to seek out technological enhancements to gain efficiency in FOIA processing.
  • FDA FOIA focused on training employees and explored technological solutions to streamline the FOIA process.  FDA FOIA staff engaged with its FOIA requesters improved the quality of its FOIA responses.
  • NIH FOIA proactively disclosed pandemic-related materials, which were of significant public interest.  NIH also hired additional staff and evaluated technological solutions to facilitate the review of records.

Despite these efforts, HHS saw a modest increase (13.71%) in backlogged requests in FY 2022.   This increase is due to the increase in both the number and the complexity of the requests received.  Further, many offices had to shift resources to handle FOIA litigations.

19. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2022, please explain your agency’s plan to reduce this backlog during Fiscal Year 2023.

HHS will continue to focus on the following strategies in FY 2023:

  • Increasing FOIA dedicated resources, including personnel and technological solutions.  This includes leveraging existing and exploring new technology to streamline the FOIA process.
  • Working with human resources to improve process to backfill/hire FOIA personnel.

    Proactively disclose records that are of significant public interest, especially related to COVID-19 or other public health emergencies.
  • Increase engagement with requesters throughout the FOIA process.  This engagement is likely to improve the timeliness and quality of FOIA responses.
  • Continuing providing training to FOIA professional and agency personnel.

E. Reducing the Age of Requests, Appeals, and Consultations

Ten Oldest Requests

20. In Fiscal Year 2022, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2021 Annual FOIA Report?

No

21. 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 2021 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that.

HHS closed six of the agency’s ten oldest requests.

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

HHS FOIA Directors and their staffs are monitoring the daily intake of requests, identifying requests that can be filled with previously released or proactively posted records, setting monthly and quarterly backlog reduction goals, and employing contract support to bolster production efforts.

Ten Oldest Appeals

23. In Fiscal Year 2022, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2021 Annual FOIA Report?

No

24. 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 2021 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that.

HHS closed three of the Department’s ten oldest appeals.

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

HHS has taken steps to reduce the overall age of our pending appeals.  This includes triaging appeals based on their complexity, creating monthly production goals, working closely with FOIA appellants to resolve appeal issues, and consistently monitoring progress on the oldest pending appeals.

Ten Oldest Consultations

26. In Fiscal Year 2022, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2021 Annual FOIA Report?

No

27. 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 2021 Annual FOIA Report.  If you had less than ten total oldest consultations to close, please indicate that. 

HHS closed nine of the Department’s ten oldest consultations.

Additional Information Regarding Ten Oldest

28. If your agency did not close its ten oldest pending requests, appeals, or consultations, please explain why and provide a plan describing how your agency intends to close those “ten oldest” requests, appeals, and consultations during Fiscal Year 2023. 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 2022. 

The number of incoming requests continues to increase because of the public’s interest in the work of HHS on key issues such as combating COVID-19.  There has also been a significant spike in the number of litigations since the start of the pandemic.  As a result, FOIA offices have shifted resources to address pressing document productions and litigation deadlines, which reduced the number of hours available to close the ten oldest pending requests, appeals, and consultations.

In FY 2023, HHS will track the oldest ten requests, appeals, and consultations through quarterly reports, and create timelines for each request, appeal, and consultation closure.  HHS will also include the oldest ten requests, appeals, and consultations as an agenda item during FOIA Officer meetings.    

F. Additional Information about FOIA Processing

29. Were any requests at your agency the subject of FOIA litigation during the reporting period?  If so, please describe the impact on your agency’s overall FOIA request processing and backlog.  If possible, please indicate the number and nature of requests subject to litigation, common causes leading to litigation, and any other information to illustrate the impact of litigation on your overall FOIA administration.

Approximately 200 HHS FOIA requests were the subject of FOIA litigation during the reporting period.  The majority of these litigations were based on a failure to provide a substantive response to the initial request within the statutory time limits.  As a result of litigation, HHS FOIA Offices have diverted staff resources from processing initial requests to handling requests in litigation.  Litigations are complex and require review of voluminous records to meet monthly production deadlines.  Additionally, litigations require multiple reviews and meetings with various stakeholders (e.g., program office staff, Office of General Counsel, Department of Justice), and other tasks (e.g., drafting Vaugh indexes and declarations, negotiating with plaintiffs).  These additional tasks lead to longer processing times. 

The diversion of staff resources for the purpose of producing records for requests in litigation has had a ripple effect, leading FOIA Offices to be less equipped to respond to initial requests, causing initial request backlogs to grow and creating a greater risk of future litigation resulting from a failure to respond to initial requests within the statutorily mandated time limits.         

30. How many requests during Fiscal Year 2022 involved unusual circumstances as defined by the FOIA?  (This information is available in your agency’s FY22 raw data).

HHS can report the number of requests that involved unusual circumstances for the following agencies:

  • ACL – 25 requests
  • CMS – 648 requests
  • HRSA – 344 requests
  • IHS – 9 requests

Currently, the remaining HHS FOIA Offices either do not have the capability to track the number of requests that involve unusual circumstances or cannot provide an accurate number based on the information contained in their databases.  Going forward, HHS FOIA Offices that lack this tracking ability will need with their IT staff to implement a solution.

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