Section I: FOIA Leadership and Applying the Presumption of Openness 

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 or above this level? 

Yes. 

2.  Please provide the name and title of your agency’s Chief FOIA Officer. 

William H. Holzerland 
Acting Agency Chief FOIA Officer 
Office of the 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 transparency by taking several steps to improve its FOIA program in 2024.  During 2024, the Secretary issued a new Delegation of Authority to operate the HHS FOIA program, which facilitated enterprise-wise program governance.  The Deputy Agency Chief FOIA Officer also issued Department-wide policy documents on several key FOIA topics including the use of FOIA Exemptions 5 and 6, the foreseeable harm standard, and the reporting of significant FOIA activities.  The Department 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 interested 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 during Fiscal Year (FY) 2024 (separate full and partial if possible);
  • the number of times a Glomar response was issued by exemption during FY 2024 (e.g., Exemption 7(C) – 20 times, Exemption 1 – 5 times).

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

  • FDA issued thirty-nine Glomar responses.  The following exemptions were cited for these responses: 
    • Exemption 1 - 1 time; Exemption 2 – 1 time; Exemption 3 – 14 times; Exemption 4 - 25 times; Exemption 5– 2 times; Exemption 6 – 5 times; Exemption 7(C) – 3 times; and Exemption 7(D) – 1 time.
  • 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 most HHS FOIA Offices rarely issue Glomar responses because of the limited number of requests received involving investigatory records.

6. 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 information 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. HHS FOIA Offices also, where appropriate, make discretionary disclosures of information.  Moreover, when the full disclosure of a record is not possible, HHS FOIA Offices consider whether partial release of information is possible and take reasonable steps to segregate and release nonexempt information.

In 2024, HHS’s Deputy Agency Chief FOIA Officer issued Department-wide policy guidance on applying the foreseeable harm standard, which outlines how the standard is applied relative to each of the FOIA exemptions.  The guidance serves to assist Departmental FOIA Professionals and programmatic experts in applying the foreseeable harm standard when processing FOIA requests as well as administrative appeals and discusses the relevant factors that should be considered when conducting the foreseeable harm analysis.  Furthermore, the guidance instructs Departmental FOIA Professionals, in a case where the Department foresees harm in release, to identify specific harms that would be caused to the interests protected by the relevant exemption(s), and to connect those harms in a direct and meaningful way to the information being withheld.  A copy of the Department-wide policy guidance on applying the foreseeable harm standard is publicly available at https://www.hhs.gov/sites/default/files/2024-april-5-aspa-foreseeable-harm-memo.pdf.

HHS FOIA Offices have further emphasized the need to ensure that the presumption of openness is applied by providing program offices and senior agency leadership with training sessions and materials on a wide range of FOIA subjects including the foreseeable harm standard, the procedural requirements for conducting an adequate search for responsive records, and an overview of the roles and responsibilities of all agency officials for implementing the FOIA.  Additionally, HHS FOIA Offices have worked closely with program offices to identify records that can be posted proactively and to ensure that proactively posted records are posted to agency websites in an efficient and user-friendly manner.

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