2024 Chief FOIA Officer Report - Section 1

The guiding principle underlying the Attorney General’s FOIA Guidelines is the presumption of openness.  The Guidelines also highlight the importance of agency leadership in ensuring effective FOIA administration.  Please answer the following questions about FOIA leadership at your agency and describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA.

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. 

Jeffrey A. Nesbit
Agency Chief FOIA Officer
Assistant Secretary for Public Affairs
U.S. Department of Health and Human Services

3.  What steps has your agency taken to incorporate FOIA into its core mission? For example, has your agency incorporated FOIA milestones into its strategic plan?

The Department underscored its commitment to FOIA by filling a Senior Executive Service position with the sole function of serving as Deputy Agency Chief FOIA Officer during 2023, as HHS is committed to transparency and the fair and effective administration of FOIA. It  incorporated FOIA into its strategic activities through continued investments in staffing, contract support, training, and technology resources, and close monitoring of FOIA process data.  HHS has invested significant resources and prioritized efforts to reduce the Department’s FOIA backlog, to address the continued increase in FOIA litigation, to improve customer service for our requesters, and to standardize FOIA practices and procedures throughout the Department.

B.  Presumption of Openness

4.  The Attorney General’s 2022 FOIA Guidelines provides that “agencies should confirm in response letters to FOIA requesters that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.” Does your agency provide such confirmation in its response letters?

All HHS FOIA Offices have updated their response letters to indicate that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.

5.  In some circumstances, agencies may respond to a requester that it can neither confirm nor deny the existence of requested records if acknowledging the existence of records would harm an interest protected by a FOIA exemption.  This is commonly referred to as a Glomar response.  If your agency tracks Glomar responses, please provide:

  • the number of times your agency issued a full or partial Glomar response (separate full and partial if possible);
  • the number of times a Glomar response was issued by exemption (e.g., Exemption 7(C) – 20 times, Exemption 1 – 5 times).

For the relevant reporting period, HHS FOIA Offices issued the following Glomar responses:

  • CMS issued two Glomar responses.  For these responses, Exemption 7(C) was cited twice.
  • FDA issued eighteen Glomar responses.  The following exemptions were cited for these responses:
    • Exemption 3 - 7 times; Exemption 4 -15 times; Exemption 5– 1 time;
      Exemption 6 – 1 time; and Exemption 7(A) – 2 times.
  • HRSA issued one Glomar response.  For this response, Exemptions 3 and 6 were cited.
  • OS issued two Glomar responses.  For these responses, Exemptions 6 and 7(C) were cited twice.

The remaining HHS FOIA Offices either did not report issuing Glomar responses or do not track this information. It should be noted that several HHS FOIA Offices rarely issue Glomar responses because of the limited number of requests that they receive for investigatory records.

6. If your agency does not track the use of Glomar responses, are you planning to track this information in the future?

Currently, six out of eleven HHS FOIA Offices (ACF, ACL, CDC, IHS, and OIG) lack the capability to track Glomar responses.  To address this, those FOIA Offices would need to work with their tracking system providers to determine whether they can enhance their tracking systems by adding a Glomar-related field.  When considering this option, HHS FOIA Offices would need to weigh the benefits associated with tracking this information against any potential costs incurred from updating their tracking system.  HHS FOIA Offices may also consider how often they receive requests for investigatory records and issue Glomar responses.

7. 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.

HHS FOIA Offices apply the foreseeable harm standard and only withhold exempt portions of records when they reasonably foresee that disclosure would harm an interest protected by an exemption or if disclosure is prohibited by law.  When there is doubt, HHS FOIA Offices err on the side of openness, and where appropriate, make discretionary disclosures.  Furthermore, when the full disclosure of a record is not possible, HHS FOIA Offices consider whether partial release is possible and take reasonable steps to segregate and release nonexempt information.

HHS FOIA Offices have taken several steps to ensure that the presumption of openness is applied including providing program offices with guidance on the foreseeable harm standard, encouraging FOIA professionals to attend trainings centered on the foreseeable harm standard such as DOJ FOIA trainings a national training conference provided by a private entity, and reinforcing the presumption of openness during HHS FOIA Officer meetings. Additionally, HHS FOIA Offices have worked closely with program offices to identify records that can be posted proactively and have worked to modernize electronic FOIA libraries in order to improve the public’s ability to obtain and understand agency records.

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