Section I: Steps Taken to Apply the Presumption of Openness

The guiding principle underlying DOJ’s FOIA Guidelines is the presumption of openness.

Please answer the following questions in order to describe the steps your OpDiv 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 OpDiv is working to apply the presumption of openness.

A. FOIA Leadership

1. The FOIA requires each agency to designate a Chief FOIA Officer who is a senior official at least at the Assistant Secretary or equivalent level.  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. 

Ryan Murphy
Acting Agency Chief FOIA Officer
Acting Assistant Secretary for Public Affairs
U.S. Department of Health and Human Services

B. FOIA Training

3. Did your FOIA professionals or the personnel at your agency who have FOIA responsibilities attend any substantive FOIA training or conference during the reporting period such as that provided by the Department of Justice?

Yes.

4. If yes, please provide a brief description of the type of training attended or conducted and the topics covered.

HHS FOIA staff attended FOIA training and seminars provided by the American Society for Access Professionals (ASAP), the Department of Justice (DOJ), National Archives and Records Administration (NARA) and others. Some of the HHS OpDivs also provided ongoing in-house training.  Examples of the training, educational events and meetings attended are listed below:

External Training

  • ASAP – 12th National Training Conference, July 2019
  • ASAP Privacy Act Workshop, September 2019
  • ASAP – Food for Thought Seminars
  • CDC/ATSDR FOIA Training Forum
  • CMS Regional Office FOIA Review – Denver, CO
  • Department of Justice (DOJ) – Sunshine Week kick-off meeting
  • DOJ – Advanced Freedom of Information Seminar
  • DOJ – Best Practices Workshop – Reducing Backlogs and Improving Timeliness
  • DOJ – Introduction to the Freedom of Information Act
  • DOJ – FOIA Litigation Seminar
  • DOJ -   FOIA for Attorneys and Access Professionals
  • DOJ – Continuing Freedom of Information Act Education
  • DOJ – Refresher Trainings for the Annual and Chief FOIA Officer Reports
  • National Archives and Records Administration, Office of Government Information Services (NARA/OGIS) – Sunshine Week 2019
  • Sunshine Week – Meetings, trainings and activities (March 2019)

In-House FOIA Training

  •  Office of the Secretary (OS) – The OS FOIA Office provided biweekly FOIA training during New Employee Orientation sessions
  •  OS – Provided approximately 4 FOIA refresher courses for staff division FOIA coordinators and staff
  • CDC – The CDC FOIA Office held an in-house FOIA Forum in Atlanta, Georgia
  • CMS – Regional Offices FOIA Review in Denver, Colorado
  • FDA – All FOIA personnel were provided with Advanced FOIA Training in October 2019. The topics presented were FOIA litigation, the recent Supreme Court case regarding Exemption 4 (Argus Leader), Import Records, and Perfected FOIA requests. This training was provided to an in-person audience with Webex participation for those not available in person.  In addition, the various components of FDA provided their own training for staff.  FDA also rolled out an upgraded FOIA tracking system, and provided training to all FOIA personnel on the use of the new system in November 2019.
  • NIH – The NIH FOIA Officer holds monthly meetings with all NIH FOIA professionals to discuss various FOIA related topics.  Included in those meetings were: 1) discussions of recent FOIA case law, both HHS and government-wide, with a focus on lessons learned and the application of the decision to NIH records; 2) policy discussions on, e.g., the applicability of fee categories, required content in final letters, strategies for the search of responsive records, negotiating with requesters, etc.

5. 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 90-95% of the Department’s FOIA professionals attended FOIA training during 2020 reporting period.

6. 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 to Question 3 above.

C. Outreach

7. Did your FOIA professionals engage in any outreach or dialogue with the requester community or open government groups regarding your administration of the FOIA?  Please describe any such outreach or dialogue, and, if applicable, any specific examples of how this dialogue has led to improvements in your agency’s FOIA administration.

Yes.  As stated previously, HHS FOIA offices are decentralized.  The Department’s OpDivs employed a variety of ways to engage with the requester community, as described below:

  • The OS FOIA Office Director and Supervisory Government Information Specialist / HHS FOIA Liaison routinely engaged with requesters, including open government groups, regarding “intelligent case management” and the efficiencies inherent in Departmental management of requests and appeals.
  • The ACF FOIA Office routinely interacts with the requester community to discuss the scope of records requested.
  • The ACL FOIA Office engages with the requestor community and stakeholders, as requested.
  • The CDC hosted the 3rd Annual CDC FOIA Training Forum, where members of the FOIA community attended and even participated in the panel portion of the training forum to discuss leveraging technology in the administration of FOIA.
  • The CMS conducted the NY Regional Office Kaizen event outreach with representatives of the requester community to solicit feedback in the FOIA process.  The outreach focused on ensuring the appropriate data, documents and information was available before controlling in the tracking system, what constitutes a reasonably described request, how to educate requestors on what to submit to reduce imperfect requests, and how to assess the amount of fees the requester is willing to pay.
  • FDA routinely speaks with requesters, including open government groups, regarding their specific FOIA requests and FDA’s general FOIA processing procedures.  In addition, FDA’s FOIA Officer serves on the FOIA Advisory Committee.
  • HRSA FOIA staff frequently talk to requesters about their requests and educates them about the FOIA process.  For large or otherwise challenging requests, HRSA has found communicating early on with the requester along with HRSA program staff who are knowledgeable in the topic area can significantly reduce and/or clarify the request.  At the very least, this proactive approach clearly indicates to the requester their request is being processed.
  • NIH engaged in outreach with 4 advocacy groups that are frequent requesters with the agency to streamline NIH’s processing of over 1,100 requests, ensuring that the organizations did not have to wait additional time for information they did not seek.  

Example: The agency routinely receives broad requests for communications relating to numerous broad topics.  Often, responsive records include, e.g., meeting minutes that cover a wide array of topics, and the disclosure review of this spectrum of unrelated issues extends review times and research.  Instead of engaging in unnecessary research, NIH FOIA staff have engaged requesters to determine whether they are interested in portions of responsive records that do not relate to the topic identified in the requests.  Most requesters contacted for this reason quickly agree to forgo non-responsive information embedded in responsive records, decreasing review time and delays in the agency’s response.

D. Other Initiatives

8. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA.  In 2016, the Department publicized FOIA-related performance standards for employees that have any role in administering the FOIA, including non-FOIA professionals.  Please also indicate whether your agency has considered including FOIA-related performance standards in employee work plans for employees who have any role in administering the FOIA.

HHS continues in its efforts to educate and increase awareness by all agency employees of their responsibilities under the FOIA.  OS, ACF and FDA include introductory FOIA training as part of their new employee orientation programs.  Some examples of actions taken by the Department’s OpDivs include:

  • ACL engages with non-FOIA professionals to inform them of their obligations under the FOIA.  FOIA staff use staff meetings at various levels to discuss FOIA obligations. In addition, as FOIA requests involve ACL offices and centers, FOIA staff take the opportunity to remind non-FOIA professionals of processes, procedures and obligations.
  • The CDC FOIA Office presents at New Employee Orientation to give a basic introduction to the Act, what it does, and what each employee’s responsibilities are.  The FOIA Office routinely provides FOIA specific training tailored to the different subject matter addressed by the various Centers, Institutes and Offices within the CDC.
  • CMS conducted a Regional review of the FOIA to determine the consistency in FOIA processing, entering the incoming requests into the tracking system when received, and providing the responsive records in an electronic format from the system.
  • As part of the two-day new employee orientation program, the FDA shows the DOJ-created FOIA video[1]. In addition, several FOIA training opportunities have been provided throughout the year for non-FOIA professionals. These trainings cover the history of the FOIA, the FOIA exemptions, and a discussion of how the FDA’s FOIA process is structured.  Finally, there is an overview of FOIA obligations in the Operating Divisions mandatory Records Management Training.
  • HRSA held FOIA training sessions for the Office of Human Resources, the Office of Federal Assistance Management (including the Division of Grant Management Operations).  There was also a training session specifically for the FOIA Gatekeepers (liaisons) who collect the responsive documents assembled by their bureau or office in response to FOIA requests.  All of these sessions consisted of a general introduction to the FOIA with a particular emphasis given to the legal obligation to respond rapidly, accurately, and completely to requests for records under the FOIA.
  • The NIH FOIA Officer led 2 trainings with non-FOIA agency professionals about their obligations under the FOIA.  For example, the NIH FOIA Officer presented to the Office of Animal Care and Use staff and one of the divisions at the National Institute of Mental Health, to explore the various FOIA exemptions and their applicability in their respective offices.  In addition, where appropriate, the NIH FOIA Office reaches out to custodians to facilitate the search and production of records in a timely fashion.
  • The SAMHSA FOIA Officer met informally with SAMHSA personnel to explain the FOIA process and discuss the types of requests their office is likely to receive. One of SAMHSA’s goals is to provide this type of briefing to each of its eight centers and offices.

9. 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 continues to provide public access to an expanding number of health related data sets at http://www.healthdata.gov.
  • HRSA continues to update the Universal Data Set (UDS) data and expand the number of associated links available in the FOIA Electronic Reading Room.  For a fuller explanation, please see the first response in Section III.
  • The IHS FOIA staff have developed FOIA training modules for various audiences.
  • The NIH Leadership is dedicated to transparency and communicates that through their actions.  NIH FOIA professionals are reminded of the presumption of openness at every monthly meeting and in specific instances when records are referred to the NIH FOIA Office for review.

[1] https://www.youtube.com/watch?v=lL2rsznuH_Y

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