2024 Chief FOIA Officer Report - Section 5

The Attorney General’s 2022 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 provides access to first-party data outside the FOIA process through the Medicare Blue Button tool available on the CMS website (https://bluebutton.cms.gov/). This secure, reliable, and easy to use tool allows access to Medicare claims data and records and makes that information easily shareable with doctors, pharmacies, and caregivers through web applications.
  • FDA provides companies with a mechanism to obtain their own Establishment Inspection Reports outside of the FOIA process using the procedures outlined in Field Management Directive – 145.
  • IHS facilities disclosed medical records to patients and their representatives outside of the FOIA process once furnished with a properly completed IHS-810 form.  IHS patients can also obtain personal health information through an online tool that provides patients with timely access to their health information.

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.

3. Please describe any other steps your agency has taken to remove barriers to accessing government information.

HHS has taken several steps to remove barriers to accessing government information.  HHS identifies records of interest to the public and systematically posts such records in an accessible manner.  This includes enforcing the requirement of Section 508 of the Rehabilitation Act of 1973 in order to ensure that records posted to agency websites are Queally accessible to those with disabilities.

HHS also provides the public with instructions on how to submit a Privacy Act, including any forms that need to be completed or any information that an individual needs to provide to verify their identity.  This ensures that first-party requesters or their authorized representatives can obtain the maximum amount of information disclosable by law under both the FOIA and the Privacy Act when requesting information maintained in a Privacy Act System of Records.

B. Timeliness

4. For Fiscal Year 2023, 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 2023 Annual FOIA Report.

For FY 2023, 12.08 was the average number of days reported for adjudicating requests for expediated processing.

5. 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 2023 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.

The median number of days to process a request for expedited processing in Fiscal Year 2023 was 4.16 days. The Department will work to bring the average number of days to adjudicate a request for expedited processing in line with the median number of days by ensuring that determinations about expedited processing are a standard part of the intake process, reviewing and updating Standard Operating Procedures, actively monitoring requests for expedited processing, and providing guidance to intake staff on how to accurately update case management systems in a timely manner to capture expedited processing determinations.

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

Yes.

7. 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 2023?

No.  The average number of days to process simple requests was 21.13 days in Fiscal Year 2023.

8. 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 29.63 days in Fiscal Year 2022 to 21.13 days in Fiscal Year 2023.

9.  Please provide the percentage of requests processed by your agency in Fiscal Year 2023 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 2023 in the simple track was 29.2%

10.  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

11. If your agency had a backlog of requests at the close of Fiscal Year 2023, 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 2022?

The overall HHS backlog decreased by just shy of 1% last year.

12.  If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2023 than it did during Fiscal Year 2022?

N/A

13. If your agency’s request backlog increased during Fiscal Year 2023, 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)
  • Litigation
  • Any other reasons – please briefly describe or provide examples when possible

N/A

14. 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 2023. 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 24.19% of the total number of requests received by HHS in FY 2023.

Backlogged Appeals

15. If your agency had a backlog of appeals at the close of Fiscal Year 2023, 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 2022?

The overall HHS appeals backlog increased by 10.15% last year.

16.  If not, according to section XII.E.1 of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2023 than it did during Fiscal Year 2022?

No. HHS processed 412 appeals in FY 2023, 66 fewer than the 478 appeals processed in FY 2022.

17. If your agency’s appeal backlog increased during Fiscal Year 2023, 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)
  • Litigation
  • Any other reasons – please briefly describe or provide examples when possible

HHS saw an increase in its appeals backlog in Fiscal Year 2023. The reasons for this increase included a loss of staff, an increase in the complexity of the appeals received and processed in FY 2023, and the continued need to divert agency resources in order to process FOIA requests that were in litigation.

Three HHS FOIA Offices process FOIA appeals: OS FOIA, the CMS FOIA Office, and the FDA FOIA Office. During Fiscal Year 2023, the OS FOIA Office temporarily reassigned a FOIA analyst responsible for processing FOIA appeals to lead its requests backlog reduction team and an OGC attorney responsible for conducting senior reviews of FOIA appeals was placed on detail. The OS FOIA Office added contract resources to its FOIA appeals team in December of 2023 and anticipates these additional resources will help increase the number of FOIA appeals processed in FY 2024. Both the CMS and FDA FOIA also experienced staffing issues, as well. Over FY 2023, CMS experienced several management transitions and staff turnover, including reassignments and transfers in FY 2023. Additionally, CMS also instituted hiring restrictions due to budgetary constraints, which added to the already lengthy time to recruit and fill vacated positions. FDA saw an increase in requests and appeals in FY 2023 with no commensurate increase in staff.

HHS FOIA Offices have also received an increased number of complex appeals that are submitted by a small number of groups or individuals that are largely focused on issues related to COVID-19.  For example, in the OS FOIA Office’s four appellants accounted for 46% of the appeals submitted to the office and just one organization accounted for nearly one-third of all appeals submitted to the office.  Approximately 40% of the appeals submitted to the OS FOIA Office in FY 2023 involved a challenge to a partial denial, which required the line-by-line review of any information redacted under a challenged Exemption.  Additionally, of the appeals received by the OS FOIA Office based on a partial denial, approximately 40% involved either a challenge to the use of multiple exemptions or a challenge to another issue such as the adequacy of the records search.  CMS and FDA FOIA Offices also continued to receive several complex appeals from public interest groups that implicated the use of FOIA exemptions.

Finally, HHS FOIA Offices continued to receive a significant number of FOIA lawsuits that diverted staff resources normally dedicated to appeals to the production of records involved in litigations.  The OS FOIA Office currently has 43 open FOIA litigations.  These litigations often require the OS FOIA Office to review a voluminous number of records and issue dozens of interim responses.  For example, one litigation that the OS FOIA Office continued to process in FY ’23 has required the OS FOIA Office to issue over 40 interim responses and involves the review of over 55,000 pages of records monthly.

OS FOIA also processes FOIA appeals on behalf of several HHS FOIA Offices and relies on these offices to provide their input and a copy of the administrative record before making a fair appeal determination.  Many of these offices have had to balance the amount of time spent processing an influx of requests and litigations with the amount of time spent responding to new appeals.

In addition, the CMS and FDA had resources usurped by the need to process large requests that are the subject of litigation, including two FDA requests in litigation that required the production of 55,000 pages a month for most of FY ’23 and upwards of 90,000 pages a month in the last quarter of the fiscal year.

18. 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 2023 and/or has no appeal backlog, please answer with "N/A."

The Department received 466 appeals and reported 671 pending appeals at the end of FY23, 640 of which were backlogged. Appeals made up 137.33% of the total number of appeals received by HHS in FY 2023.

D. Backlog Reduction Plans

19. In the 2023 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2022 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 2023?

Yes. HHS continued to implement backlog reduction strategies in FY 2023 and achieved a backlog reduction despite a 21% increase in the number of FOIA requests received. Overall, HHS increased the number of FTEs dedicated to FOIA by approximately 15% in FY 2023. Some additional examples of backlog reduction efforts include:

  • OSFOIA created a team that included newly hired contract support staff dedicated to processing backlogged requests. These efforts resulted in a 24% decrease in the OS FOIA Office’s backlog.
  • CMS executed a backlog reduction plan in FY 2023 that is still ongoing. It included increased oversight and management use of automation to track requests and target emerging issues (e.g., backlog requests with voluminous records), recruiting and hiring additional staff, dedicating contract support for reducing the backlog, and leveraging technology (e.g., Microsoft Purview Advanced Discovery and Relativity) to better and more quickly identify responsive records.
  • FDA continued to explore technology solutions, train staff, and negotiate with requesters to narrow the scope of complex and voluminous requests.

20. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2023, please explain your agency’s plan to reduce this backlog during Fiscal Year 2024.

HHS will continue to focus on the following strategies in FY 2024:

  • Increasing FOIA dedicated resources, including personnel and technological solutions.  This includes leveraging existing and exploring new technology, such as AI and other forms of automation, 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.
  • Updating and implementing new Standard Operating Procedures throughout the Department with a focus on efficiency and uniformity.
  • Implement processing improvements including putting in place procedures to identify simple requests and assign those requests to FOIA analysts for prompt processing.
  • Increase engagement with requesters throughout the FOIA process.  This engagement is likely to improve the timeliness and quality of FOIA responses.
  • Continuing to provide training to FOIA professional and agency personnel.

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

Ten Oldest Requests

21. In Fiscal Year 2023, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2022 Annual FOIA Report?

No

22. 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 2022 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.

23. 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 Officers and their teams 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, reaching out to requesters to narrow the scope of complex or voluminous requests, and employing contract support to bolster production efforts.

Ten Oldest Appeals

24. In Fiscal Year 2023, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2022 Annual FOIA Report?

No

25. 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 2022 Annual FOIA Report. If you had less than ten total oldest appeals to close, please indicate that.

HHS closed one of the Department’s ten oldest appeals. Additionally, both OS FOIA and the FDA FOIA Office closed nine out of ten of those offices’ ten oldest appeals.

26. 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, developing standardized language for final appeal response letters, creating monthly production goals, working closely with FOIA appellants to resolve appeal issues, using continued interest letters to determine whether an appellant is still interested in the continued processing of his or her appeal, consistently monitoring progress on the oldest pending appeals, and tracking common issues commonly spotted on appeal in order to reduce future appeals.

Ten Oldest Consultations

27. In Fiscal Year 2023, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2022 Annual FOIA Report?

Yes

28. 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 2022 Annual FOIA Report. If you had less than ten total oldest consultations to close, please indicate that.

N/A

Additional Information Regarding Ten Oldest

29. 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 2024. 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 2024.

HHS saw a 21% increase in the number of FOIA requests received in Fiscal Year 2023. There has also been a continued increased in the number of litigations, including certain litigations mandating the review of thousands of pages of records on a monthly. 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 and appeals. Additionally, some of the ten oldest pending requests and appeals involve complex legal or regulatory issues or a voluminous number of responsive records, requiring the implementation of review schedules and monthly interim responses.

In FY 2024, HHS will continue to 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

30. 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

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 across approximately 100 lawsuits filed during the reporting period.  Most of these lawsuits were brought by public interest organizations and are based on a failure to provide a substantive response to the initial request within the statutory time limits.  Litigation routinely involve topics related to the Department’s response to the COVID-19 pandemic and email or other records of communications involving high-ranking Departmental officials.

As a result of litigation, HHS FOIA Offices have diverted staff resources from processing initial requests or add additional contract resources to handle requests in litigation.  Litigation tends to be complex and routinely requires review of voluminous records to meet monthly production deadlines.  Additionally, litigation productions necessitate multiple layers of review, meetings with various stakeholders (e.g., program office staff, Office of General Counsel, Department of Justice), and other, related labor-intensive tasks (e.g., drafting Vaughn 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 a ripple effect, leading FOIA Offices to be less equipped to respond to initial requests and appeals, exacerbating risk of future litigation resulting from a failure to adhere to statutorily-mandated time limits.

       

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