Section I: Steps Taken to Apply the Presumption of Openness

The guiding principle underlying the President's FOIA Memorandum and the Attorney General’s 2009 FOIA Guidelines is the presumption of openness.

Please answer the following questions in order to describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. You may also include any additional information that illustrates how your agency is working to apply the presumption of openness.

FOIA Training:

  1. Did your agency conduct FOIA training during the reporting period for FOIA professionals?

Yes.

    • Training can include holding an agency-wide FOIA conference, holding a seminar on a particular FOIA topic, or providing training to FOIA or agency staff during a staff meeting, among other types of training. 
    • The training provided here should be substantive and should cover the application of the law and policy. Conversely, your agency's efforts to provide training on the use of technology or IT tools (such as case management systems) that assist in the processing of requests should be addressed below in response to Question 4 of Section IV of your Chief FOIA Officer Report.
    1. If yes, please provide a brief description of the type of training conducted and the topics covered.

    The Department conducted a variety of FOIA–related training sessions during 2015. OS, ACF, CDC, CMS, FDA, IHS, and NIH all provided in house training for FOIA staff. In addition, ACF, CDC, CMS, and SAMHSA provided guidance and training to non-FOIA staff. Specific examples of training provided during 2015 are provided below.

    OS:  In lieu of an HHS-wide FOIA conference, the OS FOIA Officer scheduled and conducted biweekly meetings during the reporting period with departmental FOIA Directors to continuously engage the directors as a community of practice to discuss and address common operational challenges, share best practices relating to intelligent case management and intradepartmental collaboration, solicit opinions and encourage  discussion in support of drafting updated departmental FOIA regulations, and foster proactive disclosure.  Also, the OS FOIA Officer and the OS FOIA Liaison worked collaboratively with the CDC FOIA Office to assess CDC FOIA operations and identify opportunities for operational enhancements.

    ACF:  During Sunshine Week, ACF provided daily blogs on FOIA topics including the definition of agency records and the definition of a proper and complete FOIA request.  In addition, the ACF FOIA Office provided the following targeted training sessions:

    • General FOIA practice (for a newly-appointed program office director) which encompassed the President Obama’s FOIA memorandum and General Holder’s March 2009 FOIA Guidelines, the presumption of openness, the definition of agency records, the program office obligation to turn over all responsive records, adequacy of a records search, the burden on the agency to defend its search and its use of exemptions, FOIA procedure, fees and deadlines, the FOIA exemptions and recent court interpretations, the use of the foreseeable harm standards, and litigation concerns.
    • FOIA training for Regional Administrators, which included a brief update on recent changes in FOIA administration and procedures, as well as recent federal court decisions and policy changes.
    • Proactive disclosures for all senior staff which consisted of a presentation to all senior staff on recent transparency initiatives and proposed legislation.

    CDC: The FOIA Officer trains and advises FOIA Staff both individually and, regularly, as a group.  Ongoing staff training is conducted as the FOIA Office’s standard operating procedures are updated with process improvements and new requirements.  FOIA staff also contribute best practices and lessons learned that are shared among all staff.  In addition, the FOIA Officer has provided FOIA and Subject Matter Expert training to program staff and program management officials during the course of the past year, both in person and through web conferencing. Training topics include a basic overview of the Act, application of the law and policy changes to DOJ-supported practices and procedures, search requirements, responsibilities of government employees to foster transparency in government, application of exemptions, administrative policies and procedures for responding to FOIA requests, Subject Matter Expert (SME) reviews, and appeals/lawsuits.

    CMS:  CMS conducted a two day FOIA training in Dallas during April 2015 for regional FOIA personnel and management, and also conducted a three day FOIA training for the Chicago FOIA/Privacy staff during September 2015. CMS also provided training to agency components on the following:  (1) FOIA process and procedures, (2) elements of an adequate search, and (3) analysis of exemption 4; specifically how to determine what qualifies as confidential business information.  Additionally, CMS conducted cross-discipline training in conjunction with the CMS Office of Communications.  This exercise brought together respective staff to discuss better processes and procedures on how to communicate the FOIA process to reporters.  The exercise further provided a forum to discuss and educate staff on the fee provisions of the Uniform Fee Schedule as it pertains to reporters and freelance journalists.  Due to the success of this training and positive feedback received, a subsequent session has been scheduled for 2016, which will follow up on the initial training and expand to address other issues concerning communications with the public regarding the FOIA.

    FDA: The FDA provided a four-hour training session open to all agency FOIA professionals during October 2015. The training was provided in-person for local employees and via webinar for employees located outside the area. The training topics included the appeals process, redaction of records, and backlog reduction.  In addition, each agency component provided training to its own FOIA staffs throughout the year.

    IHS: The Indian Health Service FOIA staff provided training to those program employees who work closely with FOIA staff, in order to ensure responsive materials are provided in a timely manner. IHS agency FOIA staff also conducted training about the IHS FOIA process for general program office staff to ensure that the records IHS FOIA staff receive are complete, accurate, and that searches are both reasonable and adequate.

    NIH: The NIH FOIA Officer held quarterly meetings with the NIH FOIA professionals to discuss various FOIA related topics.  Included in those meetings were discussions of recent FOIA cases, both DHHS and government-wide, with a focus on lessons learned and the application of the decision to NIH records review and disclosure.  One session focused on funded grant applications and the FOIA Officer reviewed how Exemptions 4, 5 and 6 apply to various sections of grant documents.  Another session demonstrated best practices for electronic preparation of records for review by the NIH FOIA Office. Other topics included negotiating with requesters, conducting and documenting searches (with emphasis on searches of electronic files), determining fee category, records retention schedules, and strategies for working with program officials to identify records for pro-active disclosure.

    1. If no, please explain why your agency did not hold training during the reporting period, such as if training offered by other agencies was sufficient for your agency’s training needs.

    Four OpDivs and one office did not hold training for FOIA staff during the reporting period: ACL, HRSA, OIG, PSC and SAMHSA. These are all small FOIA offices, ranging from a high of five FTEs to a low of less than one full-time equivalent FTE staff member (ACL). ACL receives a very small number of FOIA requests (a total of 11 during FY 2015) and the FOIA staff consists of two individuals, who have other primary responsibilities. HRSA elected to take advantage of training offered by other entities, particularly the Department of Justice. OIG experienced a 50% increase in FOIA requests during FY 2015 and focused their resources on processing those requests. The PSC had several FOIA professionals transfer to other positions during the year, which necessitated a focus by the remaining staff on processing requests and appeals.

    SAMHSA’s FOIA Office is small and currently has only one FTE, who is the FOIA Officer for the agency.  However, SAMHSA provided FOIA training on an ongoing basis to other staff within the agency; specifically points of contact (POCs) in SAMHSA’s Centers and Offices, who work with the FOIA Officer to provide responsive records.

    1. Did your FOIA professionals attend any FOIA training or conference during the reporting period such as that provided by the Department of Justice, NARA, the Association of Access Professionals (ASAP), or other organizations?
    • Such training or events can include offerings from OIP, your own agency or another agency or organization.

    Yes. During 2015, Departmental FOIA staff attended FOIA training and seminars provided by the DOJ, ASAP, and other organizations. Examples of some of the training, educational events and meetings attended are listed below:

    • ASAP – 8th Annual Conference - July 2015

    • ASAP – Records Management: Capture and Contain – February 2015

    • DOJ – FOIA Best Practices Workshop – Customer Service and Dispute Resolution – February 2015

    • DOJ – FOIA for Attorneys and Access Professionals

    • DOJ - Common FOIA Regulations Meetings - April 2015 and May 14, 2015

    • DOJ - Sunshine Week 2015

    • HHS-Department of Transportation (DOT) – Conflict Management Skills for FOIA Professionals – March 2015

    • Newseum - 2015 National Freedom of Information Day Conference at the Newsuem

    • OMB\DOT – Privacy Summit – December 2015

    1. 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 86% of the Department’s FOIA professionals attended FOIA training during 2015.

    1. 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.

    Not applicable: please see our response above.

    Outreach:

    1. Did your FOIA professionals engage in any outreach or dialogue with the requester community or open government groups regarding your administration of the FOIA?
    • This question addresses outreach that is conducted outside of the individual request or appeal process. Outreach activities can include engaging with frequent requesters by holding meetings or events which include them, conducting surveys or otherwise soliciting requester feedback, or participating in any other requester initiative coordinated by your agency or by others, such as OIP.
    • Example: An agency receives numerous requests from one organization seeking similar types of records. The organization does not know how the agency organizes its records or how its FOIA professionals must conduct searches. When submitting FOIA requests, the organization often submits broad requests that take a long time to process and that result in the review of a lot of records that are ultimately of no interest to the requester. The agency holds a meeting with the organization to discuss its record keeping system, search capabilities, and overall FOIA process to assist the organization in the formulation of future FOIA requests. Because of the meeting, the organization now submits more targeted requests that result in the agency being able to provide the requester the records it is interested in more quickly.

    Yes. DHHS FOIA Offices are decentralized, and the DHHS OpDivs utilized a variety of ways to engage with the FOIA requester community during 2015. Some examples of outreach activities are described below:

    The OS FOIA office reached out to a frequent media requester to assist her with understanding the status of her multiple requests, and to facilitate the OpDiv’s response to those requests.

    ACF’s FOIA office held two requester roundtables during March 2015, providing advice on how to submit a well-crafted FOIA request, to assist requesters in getting useful information within a short time, and discussing the disclosure of information contained in grant applications.

    CMS identified a number of requests coming from large document retrieval companies that were filed erroneously with significant elements missing which were necessary to process the requests. To alleviate this problem and help the requester community  properly file their FOIA requests, CMS reached out to these companies, providing training and guidance that ultimately helped decrease the number of imperfect requests and incomplete Medicare authorizations being submitted by these requesters.

    CMS also reached out to frequent data requesters to discuss the types of data that can be released under FOIA, without compromising personally identifiable information or personal health information. The FOIA office assembled agency experts and staff and scheduled several discussions to help requesters understand the types of data maintained by the agency and the scope and complexities of large data sets.  These meetings required collaboration and coordination among key components and stakeholders in CMS and efforts resulted in more refined and easily understandable requests, as well as educating requesters about other avenues within the agency available to them to request data.

    NIH engaged in outreach with two advocacy organizations which have historically submitted numerous requests for similar types of records.  Both organizations agreed to standard amendments to their requests to exclude specific material.  Those agreements have streamlined processing requests from those two organizations.

    OIG requests input from frequent requesters on ways to improve the agency’s processes or make it easier and faster to process requests, at the end of each year.

    1. If you did not conduct any outreach during the reporting period, please explain why.

    HRSA, IHS and SAMHSA do not receive large numbers of FOIA requests from individuals or organizations seeking the same or similar information. Staff limitations during 2015 in the PSC and SAMHSA FOIA organizations required FOIA staff to focus on request and appeal processing.

    Discretionary Releases:

    1. Does your agency have a distinct process or system in place to review records for discretionary release?
    • If so, please briefly describe this process.
    • If your agency is decentralized, please specify whether all components of your agency have such a process or system in place?

    DHHS’ FOIA operations are decentralized. The FOIA offices within the Department are responsible for performing a foreseeable harm analysis on a case-by-case basis when the records being reviewed may fall within a discretionary exemption. Out of the Department’s FOIA offices, all but two have such a process; OS, ACF, CDC, CMS, FDA, IHS, NIH, OIG, and PSC follow a process where records are analyzed for the possibility of a discretionary release and, as stated in the response to Question 10 below, these FOIA organizations made discretionary releases of information during 2015. The exemptions most frequently requiring this analysis are exemption 5; to a much lesser degree, exemption 2; and, occasionally, exemption 7(E). In determining whether a discretionary release should be made, FOIA staff solicit input from the program offices who are the custodians of the records and subject matter experts (SME). When these entities recommend withholding records, we ask that the program area or SME clearly articulate a foreseeable harm from disclosure, to support nondisclosure. The Department has adopted the Attorney General’s guidelines regarding discretionary releases, as evidenced by the relatively small percentage of times the Department has invoked exemption 5, the exemption which lends itself most frequently to a discretionary release. In relation to the total volume of 45,186 FOIA requests processed during FY 2015, the Department cited exemption 5 in 704 responses, which is approximately 1.5% of the total requests processed.

    1. During the reporting period, did your agency make any discretionary releases of information?

    Yes. OS, ACF, CDC, CMS, FDA, IHS, NIH, OIG, and PSC made discretionary releases of information.

    1. What exemption(s) would have covered the material released as a matter of discretion? For a discussion of the exemptions that allow for discretionary releases, please see OIP’s guidance on implementing the President’s and Attorney General’s 2009 FOIA Memoranda.

    Most discretionary releases made by the Department involve exemption 5. However, some discretionary releases were made during the reporting period that involved exemption 2..

    1. Provide a narrative description, as well as some specific examples, of the types of information that your agency released as a matter of discretion during the reporting year.

    The Department is committed to employing the foreseeable harm standard when reviewing records for a discretionary release; examples of such releases are below.

    OS frequently releases draft documents, when there is no foreseeable harm.

    ACF released draft memoranda and policy documents and internal emails.

    CDC made discretionary releases of email deliberations, draft documents, opinions, and agency discussions.

    CMS received an unusually large volume of requests for records pertaining to the Affordable Care Act.  Many of these records consisted of deliberative and pre-decisional information.  CMS reviewed this information, as did the Office of the General Counsel (OGC), to determine whether any foreseeable harm would result from the discretionary disclosure of these records.  Given the high level of public interest and consistent with the President’s transparency directive, CMS released certain records pertaining to the development, maintenance and management of the healthcare.gov portal.

    FDA released internal recommendations and discussions in product approval records that formerly may have been withheld pursuant to FOIA exemption 5, as deliberative and pre-decisional information; drafts and internal emails that previously might have been withheld pursuant to exemptions 2 and/or 5, and; internal memoranda that previously may have been withheld in full pursuant to exemption 5.

    IHS made a discretionary release of information that formerly may have been withheld pursuant to exemption 5, regarding a nitrate contamination study by the Indian Health Service that involves the Tribe of Yakama Nation.

    NIH made discretionary releases of deliberative email discussions of program issues as well as draft documents. Specifically, NIH released email discussions related to the NIH response to the Ebola outbreak and plans for a new research initiative.

    OIG released some internal emails which could have been protected as pre-decisional, as well as auditor’s notes.

    PSC made discretionary releases of certain email communications which discussed the reasons why a particular decision was made and other decisions were not.

    1. If your agency was not able to make any discretionary releases of information, please explain why. For example, you should note here if your agency did not have an opportunity to make discretionary disclosures because you provided full releases in response to all requests or the only exemptions that were applied were those that do not lend themselves to discretionary release (i.e. Exemptions 1, 3, 4, 6, 7A, 7B, 7C, 7F).

    The majority of the DHHS OpDivs were able to make discretionary releases of information. For a few OpDivs, the categories of records being frequently requested involved information that was clearly exempt under FOIA exemptions 3, 4, or 6.

    Other Initiatives:

    1. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA?
    • Efforts can include training for non-FOIA professionals, distributing memoranda on the FOIA, announcements on FOIA matters, making available OIP’s FOIA for Senior Executive’s briefing video, distributing the FOIA infographic developed by OIP, having your agency staff take OIP’s FOIA for all Federal Employees eLearning module, etc.

    As referenced in the Department’s response to Question 2 in this section, several of the DHHS OpDivs provided guidance and training to non-FOIA staff, as described below.

    The OS FOIA Officer now addresses HHS/OS new employee orientation to emphasize the importance of FOIA and outline each employee’s responsibilities under the Act.

    ACF provided education on FOIA principles and procedures and transparency initiatives to top leadership and published blogs and ACF newsletter articles on key FOIA topics, and invited staff to requester roundtables.  ACF also sent emails to all program office heads with specific examples of FOIA requests answered with proactively-posted documents; congratulating those program offices that had posted the information.

    CDC provided many training sessions to program staff and briefings for senior executives and management officers in order to inform them of the importance of FOIA to CDC’s public and scientific reputation and of their obligations to provide records in response to a FOIA request.  In addition, CDC issued an agency-wide message to all staff (employees and service contractors) emphasizing the agency’s direction for openness and transparency and the FOIA responsibilities of CDC employees.  Slides also were added to CDC’s mandatory records management training course which describe the FOIA responsibilities of individual CDC staff.

    The CMS FOIA Office, in conjunction with the leadership of the Office of Strategic Operations and Regulatory Affairs (OSORA), arranged and provided training to key staff and leadership in the Office of the Administrator, Office of Communications, and various data components; including the Office of External Data Analysis.  These training sessions were designed to help remind and educate leadership on their respective responsibilities under the FOIA.

    FDA held 4 Introduction to FOIA training sessions for non-FOIA professionals.  In addition, FOIA information is presented at the agency’s New Employee Orientation.  Finally, there is an overview of FOIA obligations in the OpDiv’s mandatory records management training.

    HRSA conducted two training session for the FOIA “Gatekeepers”, who are the primary liaisons for the collection of responsive records from the 16 HRSA bureaus and offices.  Because there can be significant turnover in gatekeepers, these sessions always include a “FOIA Gatekeeper101” briefing that covers their responsibilities under the FOIA.

    IHS FOIA staff attended IHS Program staff meetings and gave a presentation on the FOIA.

    The NIH FOIA Office held numerous small training sessions with program officials throughout NIH, with a focus on funded grant applications and awarded contract documents.  These sessions included a segment on their responsibilities and obligations under the FOIA.  The NIH FOIA Officer also participated in a series of training sessions, directed to NIH staff involved with the peer review process, which focused on records retention, the Privacy Act, and FOIA.  In addition, NIH FOIA Officer presented several talks to NIH staff on the topic of FOIA, how the FOIA applies to NIH records, and the responsibility of each staff member under the FOIA.  For those unable to attend one of these sessions, one of the NIH FOIA Officer’s standard training sessions is available as an archived video presentation on the NIH intranet. Several Institute and Center (IC) FOIA Coordinators also held IC specific training sessions with contracts staff.

    SAMHSA updated its FOIA Policy, disseminated it throughout the agency, and met regularly with staff in the Centers/Offices that receive FOIA requests on a frequent basis.

    1. If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here.

    If any of these initiatives are online, please provide links in your description.

    The Department, along with other organizations, provides public access to health related data sets at http://www.healthdata.gov .

    The Office of Head Start in ACF regularly publishes monitoring reports of Head Start grantees on its website, http://eclkc.ohs.acf.hhs.gov/hslc/grants/monitoring.  The public can search for a particular program and find the federal evaluation and monitoring reports online.  These reports have been the subject of 40 FOIA requests in the past.

    In addition, ACF’s Office of Refugee Resettlement posted Refugee Arrival Data for current and previous years on its website at http://www.acf.hhs.gov/programs/orr/resource/refugee-arrival-data; and forms and
    policies regarding unaccompanied children, including its Policy and Procedures Manual
    for Unaccompanied Children residential care, at
    http://www.acf.hhs.gov/programs/orr/resource/unaccompanied-childrens-services.

    CMS posts high visibility Medicare Administrative and Zone Program Integrity Contractor (ZPIC) contracts and discloses releasable information, at the following link:
    https://www.cms.gov/About-CMS/Contracting-With-CMS/ContractingGeneralInformation/Open-Government-Initiative-Freedom-of-Information-Act-FOIA-Proactive-Pre-disclosure-Redacted-Contracts.html

    FDA has a Transparency Task Force, which was created in 2009 to develop recommendations for making useful and understandable information about FDA activities and decision making more readily available to the public in a timely manner and in a user-friendly format.  Information about the Task Force is available at the agency’s transparency website, at
    http://www.fda.gov/aboutfda/transparency/transparencyinitiative/default.htm.

    FDA also has the FDA Track Program, FDA's agency-wide performance management system that monitors FDA programs through key performance measures and projects. These measures and projects are developed by the program offices across the FDA and reported on a monthly basis. http://www.fda.gov/aboutfda/transparency/track/default.htm

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