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 2018 Annual FOIA Report and, when applicable, your agency's 2017 Annual FOIA Report.

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? If your agency uses a multi-track system beyond simple, complex, and expedited to process requests, please describe the tracks you use and how they promote efficiency.

Yes.

2. If your agency uses a separate track for simple requests, was the agency overall average number of days to process simple requests twenty working days or fewer in Fiscal Year 2018?

Yes. The average number of days to process simple requests was 16.85 days.

3. Please provide the percentage of requests processed by your agency in Fiscal Year 2018 that were placed in your simple track.

Of the 33,876 FOIA requests processed during FY 2018, 36.4% (or 12,333 requests) were classified as simple requests.

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?

Not applicable; please see our response above to Questions 1 and 2.

B. Backlogs

Section XII.A of your agency's Annual FOIA Report, entitled "Backlogs of FOIA Requests and Administrative Appeals" shows the numbers of any backlogged requests or appeals from the fiscal year. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2017 and Fiscal Year 2018 when completing this section of your Chief FOIA Officer Report.

BACKLOGGED REQUESTS

5. If your agency had a backlog of requests at the close of Fiscal Year 2018, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2017?

No. The Department's FOIA request backlog increased 39% (by 1,772 requests) during FY 2018, from 4,534 at the end of FY 2017, to 6,306 at the end of FY 2018.

6. If not, did your agency process more requests during Fiscal Year 2018 than it did during Fiscal Year 2017?

Due to the lingering effects of the government-wide hiring freeze in FY 2017 and an increase in the complexity of the workload, HHS processed 33, 876 requests in FY 2018, 673 requests less than the 34,549 processed in FY 2017, while addressing simple requests, on average, in less than 20-workdays.

7. If your agency's request backlog increased during Fiscal Year 2018, 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. For example, FDA's backlog can be mostly attributed to an increase in high volume requests from a small number of requesters who have submitted large number of complex FOIA requests since October 1, 2017:
  • Two commercial requesters who sell FDA inspection records they receive under FOIA have each submitted over 350 requests;
  • Another commercial requester has submitted 650 requests;
  • A documentary film maker has submitted 100 requests;
  • An independent blogger has submitted 73 requests;
  • A loss of staff combined with the lingering effects of the government-wide hiring freeze in FY 2017.
  • An increase in the complexity of the requests received.
  • A significant increase in the number of FOIA litigations from advocacy organizations.
  • Diversion of staff resources normally dedicated to request fulfillment to the production of records involved in multiple litigation cases.

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 2018. If your agency has no request backlog, please answer with "N/A."

The percentage of the HHS FOIA request backlog, in relation to the total number of requests received during FY 2018 was 17.8%.

BACKLOGGED APPEALS

9. If your agency had a backlog of appeals at the close of Fiscal Year 2018, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2017?

No. The Department's number of backlogged appeals increased by approximately 19.9% during FY 2018.

10. If not, did your agency process more appeals during Fiscal Year 2018 than it did during Fiscal Year 2017?

No. In FY 2018, the Department processed 170 FOIA appeals, 71 less than the 241 appeals processed in FY 2017.

11. If your agency's appeal backlog increased during Fiscal Year 2018, 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: 226 received in FY 2018 as compared to 216 received in FY 2017.
  • A loss of staff combined with the lingering effects of the government-wide hiring freeze in FY 2017.
  • An increase in the complexity of the requests received.
  • A significant increase in the number of FOIA litigations from advocacy organizations.
  • Diversion of staff resources normally dedicated to appeal fulfillment to the production of records involved in multiple litigation cases.

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 2018. If your agency did not receive any appeals in Fiscal Year 2018 and/or has no appeal backlog, please answer with "N/A."

The Department's FOIA appeal backlog at the end of FY 2018 was 421. The number of appeals received during FY 2018 was 226. Therefore, the FY 2018 appeal backlog was 186.3% of the FOIA appeals received during that time.

C. Backlog Reduction Plans

13. In the 2018 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2017 was asked to provide a plan for achieving backlog reduction in the year ahead. Did you 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 2018?

Yes. HHS continued to implement its backlog reduction strategies in FY 2018, to include:

  • employing contract support to supplement the FOIA analyst workforce;
  • improving work processes by implementing new case management systems or improving current case management systems; and,
  • evaluating individual steps in the work process for potential improvement and greater efficiency, such as identifying unclear or overly broad FOIA requests at the intake stage, which allows requests to be clarified prior to conducting records searches.

However, due an increase in the complexity of the requests received, as well as a significant increase in the number of FOIA litigations from advocacy organizations, HHS FOIA Officers had to divert staff resources normally dedicated to initial request and appeal fulfillment to the production of records involved in multiple litigation cases. Due to the lack of increase in resources and the disruptive nature of the multiple on-going litigations, previously successful strategies have been severely challenged.

14. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2018, what is your agency's plan to reduce this backlog during Fiscal Year 2019?

HHS FOIA offices will continue to use contract resources, as necessary, to assist in backlog reduction and leverage available FOIA resources to the extent feasible within established FY 2019 budget parameters. HHS FOIA Offices will focus efforts to:

  • Close the oldest pending requests;
  • Identify requests that can be filled with previously released or proactively posted records; Set monthly and quarterly backlog reduction goals;
  • OGIS Training to assist with better negotiating with requesters;
  • Proactive posting; and,
  • Working with Human Resources and Budget Staffs to improve hiring/backfilling for open FTEs.

D. Status of Ten 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 2016 and Fiscal Year 2017 when completing this section of your Chief FOIA Officer Report.

OLDEST REQUESTS

15. In Fiscal Year 2018, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2017 Annual FOIA Report?

Yes, HHS was successful in closing the ten oldest FOIA requests reported at the end of FY 2017.

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 2016 Annual FOIA Report. If you had fewer than ten total oldest requests to close, please indicate that.

Not applicable; please see our response to Question 15 above.

17. Of the requests your agency was able to close from your ten oldest, please indicate how many of these were closed because the request was withdrawn by the requester. If any were closed because the request was withdrawn, did you provide any interim responses prior to the withdrawal?

In 3 requests of the 10 oldest requests that were closed, one was withdrawn and two were closed after the requester received multiple interim responses and no longer needed further processing of their requests.

18. 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 Offices continue to have made concerted efforts to focus on fulfilling the oldest requests by maintaining the first-in, first-out while concurrently, identifying requests that can be filled with previously released or proactively posted records. FOIA Officers set monthly and quarterly backlog reduction goals and encourage attendance at both Department of Justice and Office of Government Information Services training and best practice sessions, especially those focused on communicating / negotiating with requesters.

TEN OLDEST APPEALS

19. In Fiscal Year 2018, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2017 Annual FOIA Report?

No.

20. 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 2017 Annual FOIA Report. If you had fewer than ten total oldest appeals to close, please indicate that.

HHS was able to close seven of the ten oldest appeals reported in the FY 2017 annual report.

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

Although HHS closed 170 appeals during FY 2018, FOIA staff members continuously conduct outreach efforts with requesters to address requester concerns and potentially refine records searches based on those communications.

TEN OLDEST CONSULTATIONS

22. In Fiscal Year 2018, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2017 Annual FOIA Report?

No.

23. 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 2017 Annual FOIA Report. If you had fewer than ten total oldest consultations to close, please indicate that.

HHS had 30 consultations pending at the start of FY 2018. During FY 2018, HHS received 91 consultation requests from other agencies. 56 of the consultation requests were processed. At the end of FY 2018, 65 requests for consultations were pending at HHS.

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

24. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2018.

In FY 2018, HHS was involved in several FOIA litigations involving requests that were being processed by the (OS) ASPA FOIA office that required a coordinated /centralized Departmental response. As a result, impacted FOIA offices were required shift dedicated staff resources to address pressing document production and litigation deadlines. For example, staff members who customarily focus on FOIA initial requests, consultations, and appeals, were actively involved in the FOIA litigation process over the entire annual reporting period, which reduced the staff hours available for initial request, consultation, and appeal processing. Additionally, HHS faced challenges due to the hiring freeze implemented in January 2017 combined with and an influx of extremely complex requests involving a high volume of records.

25. 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.

Not applicable. Outstanding consultations did not play a role in addressing the ten oldest, pending HHS requests.

26. 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 2019.

HHS FOIA offices will continue to use contract resources, as necessary, to assist in backlog reduction and leverage available FOIA resources to the extent feasible within established FY 2019 budget parameters. HHS FOIA Offices will focus efforts to close the "ten oldest" requests, appeals, and consultations by:

  • Identifying requests and appeals that can be filled with previously released or proactively posted records; Set monthly and quarterly backlog reduction goals;
  • OGIS Training to assist with better negotiating with requesters;
  • Proactive posting; and,
  • Working with Human Resources and Budget Staffs to improve hiring/backfilling for open FTEs.

F. Success Stories

Out of all the activities undertaken by your agency since March 2018 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. As noted above, OIP will highlight these agency success stories during Sunshine Week. 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.

  • For the third year in a row, the CDC FOIA Office has reduced the backlog by at least 60%. The 70% reduction this fiscal year brought our backlog to 24, the lowest CDC backlog since the 1990s. CDC has achieved its success by implementing best practices and emphasizing customer service with internal (CDC program offices) and external (general public) customers. Best practices included revamping office workflow to improve efficiency, working with requesters to keep their requests specific and precise, providing requesters with estimated response delivery dates, setting performance goals for processing staff and maintaining accountability, providing agency leadership with monthly metrics on late requests, and obtaining CDC leadership support for FOIA. To improve internal customer service, CDC instituted quarterly calls and regularly scheduled webinars/trainings for the CDC program FOIA coordinators and a yearly FOIA training forum for all agency staff. Additionally, CDC has simplified the program FOIA search form, encouraged program offices to establish their own tracking systems, and established a shared platform for all offices to upload responsive records. CDC has revamped its FOIA website to be more efficient and user‐friendly, and has expanded the use of its established electronic reading room.
  • CMS purchased SysTools software for its FOIA analysts that allows for much faster and easier conversion of .pst files (email records) to PDF files in order to complete the FOIA review, analysis and exemption redaction process. This has resulted in CMS' ability to process and release complex email records in a shorter timeframe, as well as the records being released in a more user-friendly format for the requester.
  • HRSA uses the weekly and quarterly FOIA reports as part of the ongoing assessment of our FOIA program. This includes comparing the number of requests received in a particular quarter with the number received in the same quarter of the previous fiscal year. In FY 18 that comparison provided an early warning of a marked increase in the number of incoming requests. This advance warning prompted the HRSA FOIA Office to begin planning on how to cope with that upsurge. Ultimately, incoming requests increased 12% in FY 18. Using the quarterly report "early warning system" enabled the HRSA FOIA Office to detect and deal with the increased workload so effectively that overall performance actually improved in comparison with the previous fiscal year.
  • IHS developed an Access FOIA database and continues to enhance its functions, which has resulted in time-saving efficiency in managing FOIA requests and for developing administrative and managerial reports. The FOIA database report feature provides a snapshot of FOIA requests for the FOIA Specialist to more efficiently manage FOIA requests through the regulatory reporting requirements. The FOIA database report features provides Management with reports in multiple formats as needed or requested. The IHS Privacy Officer triages all incoming requests sent to the IHS FOIA Mailbox to determine which requests are FOIA and assigns them to the FOIA Specialist through the database. The triage has allowed the IHS to identify Privacy Act requests and general information request to process separately from FOIA requests thus eliminating them as FOIA requests.
  • NIH, through its participation in the HHS ReImagine Initiative, identified avenues for improving FOIA operations. These ideas were consolidated into a draft plan. Agency leadership set aside resources to implement and guide implementation of improvement initiatives. The NIH FOIA community collaborates to plan and execute the implementation of these improvements.
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