2024 Chief FOIA Officer Report - Section 2

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.

All HHS FOIA Offices encourage their FOIA staff to attend trainings that are provided by DOJ or other third-party organizations. Below is a summary of training activities by OpDiv:

  • OS FOIA 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 and other HHS FOIA Offices. These sessions covered a wide range of subjects including Exemption 4 and Executive Order 12600, the interrelationship between FOIA and the Privacy Act, and the processing of investigatory records.

ACF provided FOIA Overview trainings to the agency’s leadership and several program offices.

  • CDC regularly provided one-on-one trainings to different centers, institutes, and offices across CDC to provide an overview on FOIA and reinforce the principle that FOIA is everyone’s responsibility.
  • CMS provided various training opportunities to FOIA and non-FOIA professionals on a wide range of subjects including FOIA procedural requirements, the charging of fees, the foreseeable harm standard, updates to FOIA caselaw, the methods for searching for specific record sets, and an overview of how to properly use the agency’s FOIA case management system to distinguish between FOIA and Privacy Act requests and properly close requests.  CMS FOIA professionals also attended DOJ FOIA trainings and working groups and the ASAP National Training Conference.
  • FDA provided its FOIA professionals with an Advanced FOIA Training that covered topics related to Exemption 4, the foreseeable harm standard, referrals and consults, and an update on FOIA caselaw.  FDA FOIA professionals also received a training from the Office of Government Information Services (OGIS) on Negotiation Techniques.  Additionally, FDA offered an annual FOIA training to all non-FOIA professionals.  The training slides and materials associated with that training are made available to agency personnel on the FOIA Office’s SharePoint website.
  • HRSA required newly hired FOIA professionals to complete a series of internal FOIA trainings and to complete DOJ’s FOIA Training Modules.  All HRSA FOIA professionals attended internal trainings on subjects ranging from the use of Exemptions, Executive Order 12600, and the assessment of fees.  HRSA FOIA professionals also received a training from OGIS on Negotiation Techniques.  Besides the training that was provided to FOIA professionals, HRSA met with six different program offices to provide an overview on FOIA.
  • IHS conducted one-on-one training with non-FOIA professionals who assisted the FOIA Office with the search and review of records responsive to FOIA requests.  IHS also included FOIA training presentations and materials on its FOIA website to assist agency personnel with the FOIA process.
  • NIH used training videos to bring FOIA professionals up to speed on FOIA processes and how to use FOIA-related software.  In addition, NIH provided updates to FOIA professionals on the latest developments in FOIA caselaw and answered questions from FOIA professionals about FOIA policies and procedures during monthly meetings.

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.

All HHS FOIA Offices encourage FOIA staff to attend trainings that are provided by DOJ or other third-party organizations such as ASAP.  Below is a summary of training activities by OpDiv:

  • OS FOIA Office conducted several internal trainings with its FOIA professionals, including many newly hired employees, during 2023.  These trainings covered topics such as the FOIA intake process, the structure of FOIA at HHS, the FOIA appeals process, litigation, referrals and consultations, and an overview of the OS FOIA Office’s case management system.  The OS FOIA Office also provided training to its program offices, other HHS FOIA Offices.  Topics covered included Exemption 4 and Executive Order 12600, the processing of investigatory records, the interrelationship between FOIA and the Privacy Act, the identification and tracking of high-visibility requests, and the foreseeable harm standard.  Additionally, OS FOIA professionals attended the ASAP National Training Conference and the following FOIA trainings offered by DOJ: Exemption 1 and Exemption 7 Training; Exemption 4 and Exemption 5 Training; Privacy Considerations Training; Procedural Requirement and Fees Training; Best Practices Workshop – Innovative Methods for Using and Sharing Resources; Continuing FOIA Education; Administrative Appeals, FOIA Compliance, and Customer Service; Advanced FOIA Training; Annual FOIA Report Refresher and Quarterly FOIA Report Training; and Chief FOIA Officer Report Training.
  • ACF FOIA professionals attended the following DOJ FOIA trainings in 2023: Processing a Request from Start to Finish; Administrative Appeals, FOIA Compliance, and Customer Service; Exemption 4 and Exemption 5 Training; Litigation Workshop; and Continuing FOIA Education.  ACF FOIA professionals also received training on negotiating with requesters, the foreseeable harm, and recent court decisions.  
  • ACL FOIA professionals attended the following DOJ FOIA trainings in 2023: Introduction to the Freedom of Information Act; Processing a Request from Start to Finish; Procedural Requirements and Fees Training; Administrative Appeals, FOIA Compliance, and Customer Service; Exemption 4 and Exemption 5 Training; Privacy Considerations Training; and Continuing FOIA Education.
  • CDC FOIA professionals attended the ASAP National Training Conference.
  • CMS provided internal FOIA training to its FOIA professionals through all-staff meetings that were focused on the following subjects: updates to FOIA caselaw including new developments on the treatment of employer identification numbers under current FOIA caselaw, the foreseeable harm standard, tolling, procedural requirements, fees, procedures for obtaining the electronic records of senior officials, and an overview of how to use the agency’s FOIA case management system to properly close out FOIA requests and distinguish between FOIA and Privacy Act requests.  CMS also conducted trainings with its major program offices related to those offices’ FOIA roles and responsibilities, ways to achieve workflow efficiencies, and the handling of proactive disclosures.
  • FDA FOIA professionals attended internal FOIA trainings on Exemption 4, the foreseeable harm standard, referrals and consults, and an update on FOIA caselaw.  FDA FOIA professionals also attended a FOIA training conducted by OGIS on negotiation techniques.  Additionally, many FDA FOIA professionals attended FOIA trainings hosted by DOJ and ASAP.
  • HRSA required newly hired FOIA professionals related to complete trainings covering the following topics: the FOIA process, intake, receiving and analyzing requests, and HRSA’s FOIA case management system.  All HRSA FOIA professionals received internal training on topics including the processing of grants and contracts, Exemption 3, Exemption 4, the pre-disclosure notification process, Exemption 6, the interplay between FOIA and the Privacy Act, redacting records, and FOIA fees.  In addition, HRSA FOIA professionals received training from OGIS on negotiation techniques and attended the ASAP National Training Conference.
  • IHS FOIA professionals attended the following DOJ FOIA trainings in 2023: Procedural Requirements and Fees Training; Exemption 1 and Exemptions 7 Training; Exemption 4 and Exemption 5 Training; Privacy Considerations Training; Advanced FOIA Training; Processing from Start to Finish Workshop; Annual FOIA Report Refresher and Quarterly FOIA Report Training ; Chief FOIA Officer Report Training; Litigation Workshop; Continuing FOIA Education; Administrative Appeals, FOIA Compliance, and Customer Service; Introduction to the Freedom of Information Act; and Intro to FOIA, Procedural Requirements, Overview of Exemptions, Proactive Disclosures.
  • NIH FOIA professionals attended FOIA trainings hosted by ASAP.
  • OIG FOIA professionals attended FOIA trainings hosted by DOJ.

4. Please se 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 95% of the Department’s FOIA professionals attended FOIA training during 2023

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 reinforced the principle that all employees are responsible for FOIA.  Topics covered during these trainings included: FOIA Exemptions, the interrelationship between the FOIA and the Privacy Act, the foreseeable harm standard, and the processing of investigatory records.  In addition, OS FOIA provided a brief overview of FOIA during bi-weekly new employee orientation sessions.

ACF met with the Assistant Secretary of ACF to discuss the need for additional FOIA resources.  ACF FOIA also provided its Senior Leadership with a FOIA Overview training and provided its program offices with trainings that covered FOIA expectations and guidance for conducting through searches.

ACF FOIA professionals engaged with senior leaders to brief them on FOIA-related matters and non-FOIA professionals to inform them of their obligations under the FOIA. ACL’s FOIA Officer is a member of the agency’s senior leadership team and briefs members of the leadership team during weekly leadership team meetings as FOIA relevant matters emerge. ACL FOIA professionals use staff meetings at various levels to discuss FOIA obligations. ACL reviewed and updated Standard Operating Procedures which were distributed to all staff. In addition, as FOIA requests involve ACL offices and centers, FOIA professionals take the opportunity to remind non-FOIA professionals of processes, procedures, and obligations.

CDC FOIA regularly met with various centers, institutes, and offices across CDC to inform them about the requirements of FOIA and their responsibilities under the Act. Furthermore, CDC FOIA provided FOIA briefings to newly hired agency executives and a FOIA presentation at bi-weekly new employee orientations.

CMS routinely engaged with agency leadership, management, and non-FOIA staff to coordinate FOIA requests within their program components, including to communicate changes in processes and new improvements. During the relevant reporting period, CMS FOIA worked with the Office of the Administrator, the Center for Medicare, and the Office of Legislation to prepare for the implementation of price negotiations with manufactures of Part D drugs and the processing of FOIA requests related to that program. Similarly, CMS FOIA professionals worked with the newly created Drug Rebate and Negotiation Group and the Center for Medicare regarding records developed during the implementation of the Inflation Reduction Act with an emphasis of the foreseeable harm standard and Exemptions 4 and 5. CMS FOIA also met with the Center for Program Integrity to streamline the workflow for the Center’s contractors and provided guidance on the process to follow when in direct receipt of a FOIA request. Furthermore, CMS FOIA conducted significant outreach with many of its centers including the Center for Consumer Information and Insurance Oversight, the Center for Medicare and Medicaid Innovation, the Center for Medicare, and the Center for Medicaid and CHIP Services to discuss a wide range of topics including clarifying processing requirements, conducting a targeted review of program office caseloads, reinforcing program office obligations to provide the FOIA office with responsive records in unredacted form for review, highlighting the need for program offices to issue formal responses in cases where they are authorized to issue a release, and advising program offices on opportunities for proactive disclosure.

FDA offers training on a yearly basis to all non-FOIA professionals and are working towards incorporating FOIA into a mandatory training for all agency personnel in 2024. FDA FOIA also offers FOIA training upon request to any office seeking additional information on FOIA.

HRSA provided FOIA overviews to six different program offices. These overviews consisted of presentations covering the basic FOIA requirements, metrics, an overview of the FOIA process, Do’s and Don’ts, a reminder about email etiquette, and links to DOJ FOIA training modules.

IHS provided one-on-one guidance to non-FOIA professionals at its headquarters and regional offices on questions related to search requirements and the use of FOIA exemptions. Additionally, IHS FOIA included presentations and links to FOIA resources on its FOIA website to assist non-FOIA professionals with the FOIA process.

NIH provides trainings to non-FOIA professionals on FOIA-related topics on a quarterly basis.

OIG provides training to non-FOIA professionals on an ad hoc basis and provides individualized training for agency personnel who are new to the FOIA process.

B. Outreach

7. 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.

As part of the standard request process, HHS FOIA professionals reached out to requesters to provide requesters with guidance on how to submit perfected requests or to clarify 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 or summarized versions of the requested 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 ACL FOIA successfully narrowing the scope of voluminous requests from a commercial use requester for all successful grant applications for specific grant competitions.  As some of these grant competitions included awards to a significant number of applicants, the requests yielded a large volume of responsive records.  The ACL FOIA team explained to the requester that the requests yielded a large volume of records and that because the records contained commercial information, the records would be subject to the submitter notification process as part of the review.  Based on those discussions, the requester agreed to narrow the scope of the requests and in some cases agreed to accept one successful grant application as a representative sample of the information that had originally been requested.

8.  Outside of the standard request process or routine FOIA Liaison or FOIA Requester Service Center interactions, did your FOIA professionals engage in any outreach or dialogue, with the requester community or open government groups regarding your administration of the FOIA?  For example, did you proactively contact frequent requesters, host FOIA-related conference calls with open government groups, or provide FOIA training to members of the public?  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 work with requesters to explain their agency’s record sets and the process for submitting a perfected request.  FOIA Officers from NIH and OIG served as members of the Federal FOIA Advisory Committee.  As members of the Committee, the NIH and OIG FOIA Officers partnered with members of the FOIA requester community to develop consensus recommendations for improving FOIA administration across the government.  Additionally, HHS FOIA Officers provided FOIA training and interacted with members of the FOIA requester community at FOIA events, such as the ASAP National Training Conference, that are open to the public.

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 2023 (please provide a total number or an estimate of the number).

HHS FOIA requesters sought assistance from the HHS FOIA Public Liaison approximately 500 times during FY 2023 and from all other agency FOIA Public Liaisons approximately 1,119 times.

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.  Overall, HHS increased the number of full-time (or the equivalent of full-time) employees dedicated to FOIA by approximately 15% in FY 2023.

New Leadership Positions Across HHS:

OS FOIA hired a new Deputy Agency Chief FOIA Officer in 2023, responsible for providing direction and advice to the Department on efficient and effective management of FOIA operations and establishing metrics and systems for performance management.

ACF filled a vacant team lead position.  ACF FOIA anticipates that this addition will improve the efficiency and effectiveness of its FOIA program.
ACL hired a new full-time employee in 2023, who will serve as the agency’s FOIA Officer and FOIA Public Liaison.

CDC hired three new team leads in 2023.  These new team leads have helped increase the efficiency of the agency’s second-level review process and provided additional leadership.  Furthermore, CDC FOIA has provided grade increases to FOIA analysts to reward those analysts for their hard work and to improve the agency’s ability to retain experienced FOIA analysts.

CMS strengthened its organizational and management leadership by hiring a new FOIA director and creating new deputy director and technical advisor positions.  The deputy director has conducted a deeper dive on policy, developed training, and focused on litigation, while the technical advisor strategized and explored innovations in operations across the agency’s FOIA program using automation and technology.

Federal and Contract Staff Positions Across HHS

OS FOIA also hired twelve new contract resources, using two different contract vehicles, to focus specifically on backlogged requests and appeals, and the processing of litigations.  These additional resources have helped offset the loss of personnel and increase the size of support staff overall in 2023.  With these new resources in place, OS FOIA anticipates that it will be in a better position to respond to current and anticipated FOIA demands.

CMS added additional federal staff and contract resources to address the increase in the number of FOIA requests received in FY 2023 and the projected increase in FOIA requests FY 2024.    CMS FOIA also hired three additional technical advisors to perform quality reviews of contractor and FOIA professional’s work and assist directors in the management of the workflow of new requests and appeals. In addition to hiring six new staff to support an increase in the volume of FOIA requests, CMS FOIA also assigned two senior analysts and one mid-level analyst to FOIA litigation to increase subject matter expertise and mitigate risks.

FDA spent approximately $1.5 million in FY ’23 on additional contract resources to meet obligations associated with FOIA litigations. HRSA FOIA has used contract vehicles and Pathways Programs to respond to current and anticipated FOIA demands, to the extent that funding permits. NIH has approved an increase in FOIA staff and anticipates that hiring will begin in early 2024.

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 regularly tracked processing statistics related to initial requests, appeals, and litigations and presented these statistics to leadership on a regular basis and the FOIA staff during monthly meetings. FOIA processing statistics were updated on a regular basis to ensure that annual processing goals were being met and that analyst workloads were balanced. The office continued to use case management reports to track progress on the ten oldest backlogged requests and appeals and used request for document reports to track the status of FOIA requests pending with OS’s program offices. 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. In addition, OS FOIA maintained the Department’s weekly high visibility report, which kept Senior Departmental Officials informed about any significant requests received or releases issued by the Department.

CMS FOIA utilized an internal request intake and workflow tracking system that interfaces 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 semi-annually to explore opportunities for enhancements, particularly in data analysis and reporting.

HRSA FOIA prepared monthly and quarterly reports that analyzed the FOIA program, processing bottlenecks, team member processing metrics, volume of requests processed, volume of pages processed, the average number of processing days, the average number of search time, and any other relevant data points. HRSA FOIA distributed monthly reports to agency leadership and quarterly reports to the Department.

IHS FOIA produced bi-weekly leadership FOIA reports that identify staff workload. This included an analysis of open, closed, withdrawn, appealed and litigated cases. An additional report used by IHS FOIA detailed FOIA requests by case number, case notes, responsive Program Office or Area, requester status, and processing queue position.

NIH used its FOIA tracking system to generate reports on operational division performance, as well as overall performance. NIH leverages the data from these reports when preparing declarations in the context of litigation.

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

HHS FOIA Offices conducted a self-assessment of their FOIA programs using the updated FOIA self-assessment toolkit provided by DOJ.  HHS FOIA Offices used the self-assessment toolkit to evaluate their FOIA program areas.  HHS FOIA Offices intend to use the findings of this review to identify areas in the FOIA process that need improvement or the development of new practices and develop an action plan for implementing next steps.

Another example of initiatives undertaken by HHS FOIA Offices to ensure fair and effective FOIA administration includes ACL FOIA’s implementation of a web-based fillable request form that is integrated with the agency’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

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