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 2019 Annual FOIA Report and, when applicable, your agency's 2018 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 2019?

Yes. The average number of days to process simple requests was 18.54 days.

3. Please provide the percentage of requests processed by your agency in Fiscal Year 2019 that were placed in your simple track.

Of the 33,817 FOIA requests processed during FY 2019, 37% (or 12,520 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 2018 and Fiscal Year 2019 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 2019, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2018?

No. The Department's FOIA request backlog increased 23% (by 1460 requests) during FY 2019, from 6,304 at the end of FY 2018, to 7,764 at the end of FY 2019.

6. If not, did your agency process more requests during Fiscal Year 2019 than it did during Fiscal Year 2018?

No. HHS processed 33,817 requests in FY 2019, 59 requests less than the 33,876 processed in FY 2018.

7. If your agency's request backlog increased during Fiscal Year 2019, 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.
  • Any other reasons – please briefly describe or provide examples when possible.

Although the number of incoming requests in FY 2019 decreased by 87, HHS experienced a surge in FOIA litigations. Combined with the lingering effects of the government-wide hiring freeze in FY 2017, an increase in the complexity of the workload, and a significant number of requests received in 2019 required coordination within HHS and outside agencies, HHS was able to close simple requests on average, in less than 20-workdays.

Example: FDA received 11,578 requests in FY 2019, an increase of 12.9% over FY2018. Although FDA processed 1041 more requests (10.5%) compared to the previous year, the backlog increased. FDA was among the federal agencies that was shutdown for over 30 days during FY 2019 due to lack of funding. During the time we were shut down, we received over 800 requests, all of which had to be logged and assigned within 10 business days of our return. In addition, FDA received a significant number of complex requests for emails, and requests for records regarding high profile products such as electronic cigarettes. FDA also received an unprecedented number of requests (over 1000) from a single requester.

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 2019. 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 2019 was 22%.

BACKLOGGED APPEALS

9. If your agency had a backlog of appeals at the close of Fiscal Year 2019, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2018?

No. The Department's number of backlogged appeals increased by approximately 22% during FY 2019.

10. If not, did your agency process more appeals during Fiscal Year 2019 than it did during Fiscal Year 2018?

No. In FY 2019, the Department processed 130 FOIA appeals, 40 less than the 170 appeals processed in FY 2018.

11. If your agency's appeal backlog increased during Fiscal Year 2019, 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:

The following factors contributed to the increase in the HHS FOIA appeal backlog in FY 2019:

  • An increase in the complexity of the requests received and corresponding volume of records under review.
  • 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.
  • A loss of staff combined with the lingering effects of the government-wide hiring freeze in FY 2017.

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 2019. If your agency did not receive any appeals in Fiscal Year 2019 and/or has no appeal backlog, please answer with "N/A."

The Department's FOIA appeal backlog at the end of FY 2019 was 514. The number of appeals received during FY 2019 was 242. Therefore, the FY 2019 appeal backlog was 212% of the FOIA appeals received during that time.

C. Backlog Reduction Plans

13. In the 2019 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2018 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 2019?

Yes. HHS continued to implement its backlog reduction strategies in FY 2019, to include:

  • Employing contract support to supplement the FOIA analyst workforce;
  • Completing oldest requests;
  • Improving work processes by implementing new case management systems or improving current case management systems;
  • Assigning staff to work on the most prevalent requests category to reduce pending cases;  
  • 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;
  •  Identify requests that can be filled with previously released or proactively posted records;
  • Set monthly and quarterly backlog reduction goals;
  • Additional training;
  • Proactive posting;
  • Working with Office of Human Resources to improve hiring/backfilling for open FTEs

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 2019, what is your agency's plan to reduce this backlog during Fiscal Year 2020?

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 2020 budget parameters.  HHS FOIA Offices will focus efforts to:

  • Close the oldest pending requests;
  • Active monitoring of daily intake of requests;
  • Predict surges of incoming requests based on current events;
  • 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 2018 and Fiscal Year 2019 when completing this section of your Chief FOIA Officer Report.

OLDEST REQUESTS

15. In Fiscal Year 2019, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2018 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 2018 Annual FOIA Report. If you had fewer than ten total oldest requests to close, please indicate that.

HHS closed 8 of the 10 oldest FOIA requests reported at the end of FY 2018

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

Throughout HHS, staff-wide efforts targeting initial oldest pending requests are actively being managed towards closure. FOIA Directors and their staffs 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, and employing contract support to bolster production efforts.

TEN OLDEST APPEALS

18. In Fiscal Year 2019, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2018 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 VII.C.(5) of your Fiscal Year 2018 Annual FOIA Report. If you had fewer than ten total oldest appeals to close, please indicate that.

HHS closed 4 of the 10 oldest appeals from the FY 2018 Annual Report.

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

HHS is making a concerted effort to close the oldest appeals, including but not limited to employing contract support to supplement the FOIA analyst workforce, providing additional in-house appeal training to staff members, and focusing on monthly and quarterly production goals.

TEN OLDEST CONSULTATIONS

21. In Fiscal Year 2019, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2018 Annual FOIA Report?

No.

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 2018 Annual FOIA Report. If you had fewer than ten total oldest consultations to close, please indicate that.

Although HHS closed 100 consultations in FY 2019, 8 of the 10 oldest reported in FY 2018 remained open at the end of FY 2019.

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 2019.

Increased litigations, staff turnover and limited resources significantly limited processing efforts to those activities driven by court-imposed deadlines.

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.

In FY 2019, HHS was involved in several FOIA litigations involving requests that were being processed by the HHS FOIA offices, some of which 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 government-wide shutdown in early FY 2019, combined with an influx of extremely complex requests involving a high volume of records, and the lingering effects of the hiring freeze implemented in January 2017.

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 2020.

HHS FOIA offices will continue to use contract resources, as necessary, and hire additional career staff to assist in backlog reduction and leverage available FOIA resources to the extent feasible within established FY 2020-21 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 2019 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.

  • CMS established a business process improvement team to focus on creating a public facing portal that would allow a member of the public to submit a request for records under the FOIA to the agency's internal tracking system and a eventually a module that would be integrated with the API to the Department of Justice (DOJ) National Portal. To meet the requirements of the FOIA Improvement Act amendments of 2016, the team decided on a two phase approach.  Phase 1 is dedicated to Medicare beneficiaries and 3rd party requests (law firms or others) acting on behalf of beneficiaries and will be excluded from entering the DOJ national portal. These requests contain sensitive PII, therefore, the beneficiary or authorized representative will be directed to an on-line request submission process via the public interface on CMS' website that will populate the internal tracking system.   Phase II will focus on the requests that will enter the FOIA National Portal.  A preliminary wire diagram (prototype) was developed for phase 1 and was shared with vendors to provide an estimate to build
  • For 6 years in a row, HRSA has met the DOJ standard of reducing the FOIA backlog by 10% or more.  HRSA is the only HHS agency to do so.
  • NIH, through its participation in the HHS ReImagine Initiative, identified avenues for improving FOIA operations.  The agency continues to implement the resulting improvement initiatives.
  • SAMHSA achieved a 37% increase in the number of cases closed, from 151 in 2018 to 208 in 2019. Keeping pace with the increased number of requests received was challenging. Moving forward, SAMHSA will focus on the backlog reduction, by closing not only the 10 oldest cases but all cases from previous fiscal years, while addressing incoming cases at the same time. Of the 47 cases received thus far in fiscal 2020, 22 have been closed.
Content created by Freedom of Information Act (FOIA) Division
Content last reviewed