Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reducing Backlogs

The Department of Justice has emphasized the importance of improving timeliness in responding to requests.  This section of your Chief FOIA Officer Report addresses both time limits and backlog reduction.  Backlog reduction is measured both in terms of numbers of backlogged requests or appeals and by looking at whether agencies closed their ten oldest requests, appeals, and consultations.

For the figures required in this Section, please use the numbers contained in the specified sections of your agency’s FY 2020 and 2021 Annual FOIA Reports.

A. Simple Track

Section VII.A of your agency’s Annual FOIA Report, entitled "FOIA Requests – Response Time for All Processed Requests," includes figures that show your agency's average response times for processed requests.  For agencies utilizing a multi-track system to process requests, there is a category for "simple" requests, which are those requests that are placed in the agency’s fastest (non-expedited) track, based on the low volume and/or simplicity of the records requested.

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

Yes 

2. 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 2021?

No

3.  Please provide the percentage of requests processed by your agency in Fiscal Year 2021 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.

 33.09%

4.  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

B. Backlogs

When answering these questions, please refer to you Fiscal Year 2021 Annual FOIA Report, Sections XII.D-E, which compare the numbers of requests and appeals received, processed, and backlogged between Fiscal Years 2020 and 2021.

BACKLOGGED REQUESTS

5. If your agency had a backlog of requests at the close of Fiscal Year 2021, 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 2020? 

No

6.  If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2021 than it did during Fiscal Year 2020? 

No

7. If your agency’s request backlog increased during Fiscal Year 2021, 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.
  • Impact of COVID-19 and workplace and safety precautions
  • Any other reasons – please briefly describe or provide examples when possible. An increase in the number of incoming requests

HHS saw a continued increase of request complexity across most of its FOIA Offices, novel issues that required several iterations of review, and a large number of COVID-19 related FOIA litigations.  Litigations cause a severe resource drain away from routine processing. Litigation, not only shifts resources from processing other request, but the time to process each request in litigation expands multiple times because of the number of iterative reviews and meetings/communications with numerous stakeholders, e.g., subject matter experts, Office of General Counsel, and the Department of Justice.

  • Some Operating Divisions such as OS saw a significant increase of incoming requests even while number for the Department decreased.
  • NIH had three litigations before the pandemic and has increased to 36 open lawsuits
  • FDA’s backlog increased due to an influx of COVID-19-related FOIA requests and an unprecedented number of FOIA lawsuits. COVID-19 related FOIA requests are not only numerous, but involve enormous amounts of complex records to review and coordinate with other agencies whose equities have been located in FDA’s COVID records. In particular, FDA has received a large number of FOIA requests regarding COVID-19 vaccines during the reporting period. As additional COVID-related medical products get developed and approved, FDA expects the number of submitted requests to increase.
  • Many subject matter experts who are critical for the FOIA review process, are working on the front line of the COVID-19 pandemic reducing their availability for FOIA reviews. HHS OpDiv/StaffDivs explained that educating new staff takes time.  Compounding this issue is the challenge in filling positions—some OpDiv/StaffDivs reported that positions stayed vacant for long periods of time.
  • Across HHS, the trend of requests for emails between numerous individuals or a certain topic continued. This type of requests often returns tens of thousands of pages, which requires extensive sorting and line-by-line review of responsive material.

8. 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 2021. 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.”

30%

BACKLOGGED APPEALS

9. If your agency had a backlog of appeals at the close of Fiscal Year 2021, 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 2020?   

Yes.

10.  If not, according to section XII.E.1 of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2021 than it did during Fiscal Year 2020?

N/A

11. If your agency’s appeal backlog increased during Fiscal Year 2021, 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.
  • Impact of COVID-19 and workplace and safety precautions.
  • Any other reasons – please briefly describe or provide examples when possible.

N/A

12. 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 2021. 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 2021 and/or has no appeal backlog, please answer with "N/A."

183.5%

C. Backlog Reduction Plans

13. In the 2021 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2020 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 2021? 

HHS saw a backlog increase, however, multiple HHS FOIA Offices reduced backlogs to include ACF, CDC, IHS, OASH, and OIG.

HHS received a total of 33,158 and closed 32,952 FOIA requests in FY2021. Given the volume of requests, the 206 more received than closed only represents .6% of all requests received.

14. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2021, please explain your agency’s plan to reduce this backlog during Fiscal Year 2022.  In particular, please also detail how your agency developed and plans to execute your backlog reduction plans.

HHS backlog reduction plans in FY2022 focus on increasing personnel resources to deal with the surge in COVID-19 requests and increased litigation. HHS is continuing to explore emerging technologies such as Artificial Intelligence to identify areas where automation can assist with reviewing records.

OS FOIA implemented a litigation tracker to capture metrics regarding resources and processing times. The information captured will be used to benchmark litigation resource needs and project future workforce needs.  These projections will allow OS to better predict, request, and staff litigations—allowing the incumbent staff to continue working on requests.

D. Status of Oldest Requests, Appeals, and Consultations

Section VII.E, entitled "Pending Requests – Ten Oldest Pending Requests," Section VI.C.(5), entitled "Ten Oldest Pending Administrative Appeals," and Section XII.C., entitled "Consultations on FOIA Requests – Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency," show the ten oldest pending requests, appeals, and consultations.  You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2020 and Fiscal Year 2021 when completing this section of your Chief FOIA Officer Report.

OLDEST REQUESTS

15. In Fiscal Year 2021, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2020 Annual FOIA Report?

No

16. 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 2020 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that. 

HHS closed eight of the agency’s ten oldest requests.

17. Beyond work on the ten oldest requests, please describe any steps your agency took to reduce the overall age of your pending requests.

HHS will use quarterly reporting to make sure all Operating Division remain on track to close their assigned agency ten oldest requests.

TEN OLDEST APPEALS

18. In Fiscal Year 2021, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2020 Annual FOIA Report?

No

19. 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 VI.C.(5) of your Fiscal Year 2020 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that. 

Nine

20. Beyond work on the ten oldest appeals, please describe any steps your agency took to reduce the overall age of your pending appeals. 

OS launched an aggressive triage effort which led to a 20% backlog reduction in appeal, which reduced the overall age of pending appeals.

TEN OLDEST CONSULTATIONS

21. In Fiscal Year 2021, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2020 Annual FOIA Report?

Yes

22. 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 2020 Annual FOIA Report.  If you had less than ten total oldest consultations to close, please indicate that. 

N/A

E. Additional Information on Ten Oldest Requests, Appeals, and Consultations & Plans

23. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2020. 

HHS receives many requests which need initial processing. The emergence of COVID requests in FY2020, and continuing in FY2021, led to a much large number of requests than usual being granted expedited processing. Litigation has a continuing impact on dedicating staff to work the oldest requests.

24. If your agency was unable to close any of its ten oldest requests because you were waiting to hear back from other agencies on consultations you sent, please provide the date the request was initially received by your agency, the date when your agency sent the consultation, and the date when you last contacted the agency where the consultation was pending. 

N/A

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 2022. 

HHS OS built a timeline for tracking the oldest ten to make sure they close during the FY. HHS is also tracking the oldest ten in quarterly reports.

F. Success Stories

Out of all the activities undertaken by your agency since March 2021 to increase transparency and improve FOIA administration, please briefly describe here at least one success story that you would like to highlight as emblematic of your agency’s efforts.  The success story can come from any one of the five key areas, but should not be something that you have reported in a prior year.  As noted above, these agency success stories will be highlighted during Sunshine Week by OIP.  To facilitate this process, all agencies should use bullets to describe their success story and limit their text to a half page.  The success story is designed to be a quick summary of key achievements.  A complete description of all your efforts will be contained in the body of your Chief FOIA Officer Report.

  • HRSA’s proactive creation and release of the Countermeasures Injury Compensation Program (CICP) data page is a transparency success story.  The program recognized the public’s desire to obtain the data, compiled the data and developed the webpage and then worked with the Office of Communications to make the webpage live and accessible. 
  • HRSA’s COVID-19 Provider Relief Bureau’s proactive posting of the Provider Relief Fund (PRF) data is another transparency success story.  Since the PRF payments were distributed, the PRB has routinely made the names of the recipients (and other data) publicly available.
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