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

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 typical FOIA or Privacy Act 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:

  • 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 provides patients with direct access to their medical records through the IHS Personal Health Record, an online tool that makes it easier for patients to access their health records or share their health data with a designated personal representative.

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 equally accessible to those with disabilities.  To the extent possible, HHS will work with program offices and IT staff to provide records in the format sought by a FOIA requester.

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 2024, 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 2024 Annual FOIA Report.

For FY 2024, 17.52 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 2024 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 2024 was 3.36 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 2024?

No.  The average number of days to process simple requests was 24.54 days in Fiscal Year 2023.

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

No.  The average number of days to process simple requests declined from 21.13 days in Fiscal Year 2023 to 24.45 days in Fiscal Year 2024.

9. Please provide the percentage of requests processed by your agency in Fiscal Year 2024 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 2024 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 2024, 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 2023?

The overall HHS backlog increased by 12.7% last year.

12.  If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2024 than it did during Fiscal Year 2023?

Yes.  The number of requests processed increased by 4.74%.

13. If your agency’s request backlog increased during Fiscal Year 2024, 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

Despite an increase in the number of requests processed over the previous year, HHS’s backlog increased in Fiscal Year 2024, in large part, because the Department received more FOIA requests that it has received in any year since FY 2013 – 51,800.  This marked an 11% increase over the number of FOIA requests received in Fiscal Year 2023 and a 56% increase in the number of FOIA requests received just three years prior in Fiscal Year 2021. 

Almost every HHS FOIA Office saw an increase in the number of requests received compared to the previous year, including ACF, ACL, CMS, FDA, HRSA, IHS, NIH, OS, and SAMHSA.  ACF, IHS, and OS saw the largest increases percentagewise with 135%, 52%, and 97% increases respectively.  The large increases in the number of requests received by HHS FOIA Offices have been spurred by a small number of requesters seeking messages sent by government workers that contain terms related to various political issues.  The efforts of these requesters to seek government records has been chronicled in national media stories.  Requests for messages sent by government workers that contain specific terms are often complex in nature, requiring limited IT resources to conduct enterprise searches that often yield thousands of pages of records, requiring de-duplication and a line-by-line review for exempt material.  

HHS also continues to defend a significant number of FOIA lawsuits.  Litigation drains resources away from routine processing. Litigation not only shifts resources from processing other requests, but 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 U.S. 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 2024.  This included staff turnover at ACF, CMS, FDA, OIG, and OS. Notably, CMS lost its FOIA Officer in early FY ’24 and operated under a hiring freeze during the fiscal year. Because of budget constraints and the hiring freeze, CMS ultimately lost 3 FTEs.  Additionally, OS FOIA lost three of its most experienced FOIA analysts in FY ’24, all of whom left to pursue other FOIA positions in the Federal government.
  • The OS FOIA Program received 1,309 requests from a single organization in Fiscal Year 2024.  This accounted for 46% of all the requests received by the OS FOIA Office in FY ‘24.  These requests were complex in nature and sought messages sent by government workers that contain certain terms related to various political issues.  This trend continued into Fiscal Year 2025.  So far, the OS FOIA Office has received 1,043 requests from the same organization at the start of FY ’25, accounting for 63% of all the requests received in FY ’25 so far.
  • The OS FOIA Program currently has 36 active litigations and 46 other litigations pending closure in the court system.  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 56 interim responses and processed approximately 28,000 pages of responsive records with approximately 10,000 pages of records remaining for review, and, for another open litigation, the OS FOIA Office issued 23 interim responses and processed over 25,000 pages of records with approximately 3,000 pages of records remaining for review.  The OS FOIA Office has six full-time contractors who are solely dedicated to processing requests in litigation.
  • The HRSA FOIA Office received a record 533 requests and processed a record 427 requests in FY 24, a 20% increase over the number of requests processed in FY ‘23.  Additionally, HRSA received a record six FOIA litigation in FY ‘24.
  • Over the past five years, NIH experienced a sharp spike in litigations.  Prior to the pandemic, there were three open litigations at NIH.  That number has increased to 56 open litigations.
  • Several HHS FOIA Offices have experienced an increase in the number of broad requests that seek years-worth of emails sent by government employees.

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 2024.  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 24.49% of the total number of requests received by HHS in FY 2024.

Backlogged Appeals

15. If your agency had a backlog of appeals at the close of Fiscal Year 2024, 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 2023?

The overall HHS appeals backlog increased by 14.06% 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 2024 than it did during Fiscal Year 2023?

No.  HHS processed 357 appeals in FY 2024, 54 fewer than the 411 appeals processed in FY 2023.

17. If your agency’s appeal backlog increased during Fiscal Year 2024, 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 2024.  The reasons for this increase continued to be a loss of staff, an increase in the complexity of the appeals received and processed in FY 2024, and a 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.  OS FOIA and the FDA FOIA Office saw an increase in their appeals backlogs. CMS FOIA saw a 12% decline in its appeals backlog.

During Fiscal Year 2024, the OS FOIA Office lost two of its most experienced appeals analysts, both of whom left to pursue other FOIA positions in the Federal government.  The OS FOIA Office added two temporarily assigned employees with legal backgrounds on detail from the from the Office of Medicare Hearings and Appeals in December of 2024 and anticipates that these additional resources will help increase the number of FOIA appeals processed in FY 2025.

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 three appellants accounted for 43% of the appeals submitted to the office and just one appellant accounted for nearly one-third of all appeals submitted to the office.  Approximately 49% of the appeals submitted to the OS FOIA Office in FY 2024 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 60% involved either a challenge to the use of multiple exemptions or a challenge to another issue such as the adequacy of the records search. FDA FOIA also continued to receive several complex appeals including appeals that involved multiple, overlapping requests and appeals based on the denial of expedited processing, which are required to be acted upon expeditiously under HHS’s FOIA regulations. Furthermore, an increased number of FDA FOIA appeals in FY 2024 required consultation with the Office of General Counsel, in accordance with the HHS FOIA regulations, and could not be closed administratively.

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 36 open FOIA litigations and the FDA FOIA Office currently has 60 FOIA cases involved in litigation.  These litigations often require HHS FOIA Offices 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 ’24 has required the OS FOIA Office to issue over 56 interim responses and process approximately 28,000 pages of responsive records and another open litigation has required the OS FOIA Office to issue 23 interim responses and process over 25,000 pages of records.

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 FDA had resources usurped by the need to process large requests that are the subject of litigation, including an FDA request in litigation that required the production of a minimum of 180,000 pages a month over the course of Fiscal Year 2024.

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 2024.  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 435 appeals and reported 747 pending appeals at the end of FY24, 730 of which were backlogged. Appeals made up 167.81% of the total number of appeals received by HHS in FY 2024.

D. Backlog Reduction Plans

19. In the 2024 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2023 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 2024?

Yes.  HHS continued to implement backlog reduction strategies in FY 2024.  Some examples of these efforts include:

  • OS FOIA established a new blanket purchase agreement with a new vendor to enhance its FOIA operations.  The blanket purchase agreement will provide a simplified method for fulfilling FOIA resource needs and its flexibility allows other FOIA RSCs in the Department to use it to buttress their own staffing needs. OS FOIA will use the blanket purchase agreement to reduce the existing backlog of FOIA requests and appeals, process litigation, and establish a centralized FOIA organization structure. OS FOIA plans to begin issuing task orders under the blanket purchase agreement starting in 2025.  OS FOIA this past year also added one new federal employee, six new contractors, and four employees on detail from the Office of Medicare Hearings and Appeals to help offset other staffing losses.
  • CMS FOIA increased oversight and used management reporting tools to track requests and target emerging issues, recruited and onboarded five employees on detail from the Office of Medicare Hearings and Appeals, added six new FOIA analysts through recruitment actions, restructured contract support resources to target high visibility cases to mitigate litigation risks and reduce the backlog, maximized the use of technology (including the use of Smart Timers and eDiscovery platforms) to more readily identify responsive records and manage requests, and explored the use of AI in the FOIA process.
  • FDA FOIA focused on training employees and using eDiscovery to process FOIA requests more efficiently.  FDA FOIA staff engaged with its FOIA requesters improved the quality of its FOIA responses.

Despite these efforts, HHS saw a modest increase (12.7%) in backlogged requests in FY 2024.   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.

20. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2024, please explain your agency’s plan to reduce this backlog during Fiscal Year 2025.

HHS will continue to focus on the following strategies in FY 2025:

  • Where possible, 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 ongoing 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.
  • Work with program offices to develop strategies to process specific record types or records related to specific subject matters.
  • Increase engagement with requesters throughout the FOIA process and outside of the regular 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 2024, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2023 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 2023 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that.

HHS closed three 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 2024, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2023 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 2023 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that.

HHS closed nine of the ten oldest appeals listed on the Department’s FY ’23 Annual FOIA Report.

We note, however, that two appeals from an HHS OpDIV, which processes its own appeals, were inadvertently omitted from Section VII.C.(5) of the FY ’23 Annual FOIA Report.  To ensure accuracy, we are claiming credit for closing seven of the Department’s 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 2024, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2023 Annual FOIA Report?

No.

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 2023 Annual FOIA Report.  If you had less than ten total oldest consultations to close, please indicate that.

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

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 2025.

HHS received more FOIA requests in Fiscal Year 2024 than in any other fiscal year since 2013.  There has also been a continued increase 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, appeals, and consultations.  Additionally, some of the ten oldest pending requests, appeals, and consultations 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, and individual HHS FOIA Offices will hold regularly scheduled meetings with their staff to ensure progress on the ten oldest requests, appeals, and consultations.

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 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 an initial request or an administrative appeal 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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