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HHS Fiscal Year 2002 Freedom of Information Annual Report

  1. AGENCY: U.S. Department of Health and Human Services

    REPORT PREPARED BY: Rosario Cirrincione

    TITLE: Director, Freedom of Information and Privacy Acts Division, Office of the Assistant Secretary for Public Affairs, HHS.

    ADDRESS: Room 645F, 200 Independence Avenue, S.W., Washington, D.C. 20201

    PHONE NUMBER: (202) 690-7453

    ELECTRONIC ADDRESS FOR THIS REPORT ON THE WORLD WIDE WEB:www.hhs.gov/foia/02anlrpt.html

    **Copies of the annual reports of a number of individual HHS Operating Divisions can be found by contacting the responsible component shown in Section II below, or by locating a FOIA link at the following websites:

    Administration on Aging (AOA): http://www.aoa.gov/
    Agency for Healthcare Research and Quality (AHRQ): http://www.ahrq.gov
    Centers for Disease Control and Prevention (CDC): http://www.cdc.gov
    Centers for Medicare & Medicaid Services (CMS): http://www.cms.gov
    Food and Drug Administration (FDA): http://www.fda.gov
    Health Resources and Services Administration (HRSA): http://www.hrsa.gov
    Indian Health Service: http://www.ihs.gov
    National Institute of Health (NIH): http://www.nih.gov/

    ADDRESS FOR PAPER COPIES OF THIS REPORT:

    Freedom of Information/Privacy Acts Division
    U.S. Department of Health and Human Services
    Hubert H. Humphrey Building/Room 645-F
    200 Independence Avenue, S.W.
    Washington, DC 20201

  2. HOW TO MAKE A FOIA REQUEST: Please see HHS Guide to Information

    Resources at www.hhs.gov/about/infoguid.html#foia

    A. Names, addresses, and telephone numbers of all individual agency componenets and offices that process FOIA requests:

    HHS Freedom of Information Officer
    Room 645-F, Hubert H. Humphrey Building
    200 Independence Avenue S.W.
    Washington, D.C. 20201
    Telephone: (202) 690-7453

    Administration for Children and Families (ACF)
    Freedom of Information Officer
    Room 645-F, Hubert H. Humphrey Building
    200 Independence Avenue, S.W.
    Washington, D.C. 20201
    Telephone: (202) 690-7453

    Administration on Aging (AoA)
    Freedom of Information Officer
    Executive Secretariat
    330 Independence Avenue, S.W.
    Washington D.C. 20201
    Telephone: (202) 357-3540

    Agency for Healthcare Research and Quality (AHRQ)
    Freedom of Information Officer
    Suite 501
    2101 East Jefferson Street
    Rockville, MD 20852
    Telephone: (301) 594-6391

    Centers for Disease Control and Prevention (CDC) and/or
    Agency for Toxic Substances and Disease Registry (ATSDR)

    Freedom of Information Officer
    1600 Clifton Rd, N.E., MSD 54
    Atlanta, Georgia 30333
    Telephone: (404) 639-7270

    Centers for Medicare & Medicaid Services
    Freedom of Information Officer
    7500 Security Boulevard
    Room N2-20-16, North Building
    Baltimore, Maryland 21244
    Telephone (410) 786-5352

    Food and Drug Administration (FDA)
    Freedom of Information Officer
    5600 Fishers Lane (HFI-35), Room 12A-16
    Rockville, MD 20857
    Telephone: (301) 827-6500

    Health Resources and Services Administration (HRSA)
    Freedom of Information Officer
    Office of Communications, Room 14-15
    5600 Fishers Lane
    Rockville, MD 20857
    Telephone: (301) 443-2865

    Indian Health Service (IHS)
    Freedom of Information Officer
    Suite 450
    12300 Twinbrook Parkway,
    Rockville, MD 20852
    Telephone: (301) 443-1116

    National Institutes of Health (NIH)
    Freedom of Information Officer
    Room 5B35, Building 31
    9000 Rockville Pike
    Bethesda, MD 20892
    Telephone: (301) 496-5633

    Office of Public Health and Science (OPHS)
    Freedom of Information Officer, Room 17-A-46
    5600 Fishers Lane
    Rockville, MD 20857
    Telephone: (301) 443-5252

    Substance Abuse and Mental Health Services Administration (SAMHSA)
    Freedom of Information Officer
    Room 13-C-05
    5600 Fishers Lane
    Rockville, MD 20857
    Telephone: (301) 443-8956

    B. Brief description of agency's response time range(s): Becasue individual operating divisions (OPDIVS) have authority to release or deny their own records, and vary greatly in terms of the size and volume of FOIA requests processed.

    There is no overall HHS time range. Individual OPDIV response time can range from same day response to over a year, depending on the complexity of the request.

    C. Brief description of why some requests are not granted: Documents requested were protected by an exemption and release would have caused harm to the interest protected by the exemption.

  3. DEFINITIONS OF TERMS AND ACRONYMS USED IN REPORT:

    A. Agency-specific acronyms or other terms:

    HHS - U.S. Department of Health and Human Services
    OPDIVs - Operating Divisions of HHS
    OS - Office of the Secretary, HHS
    OASPA - Office of the Assistant Secretary for Public Affairs, HHS
    AoA - Administration on Aging
    ACF - Administration for Children and Families
    AHRQ - Agency for Healthcare Research and Quality
    ATSDR - Agency for Toxic Substances and Disease Registry
    CDC - Centers for Disease Control and Prevention
    FDA - Food and Drug Administration
    HRSA - Health Resources and Services Administration
    IHS - Indian Health Services
    NIH - National Institutes of Health
    OPHS - Office of Public Health and Science
    PHS - Public Health Service
    PRO - Professional Review Organization
    PSC - Program Support Center
    SAMHSA - Substance Abuse and Mental Health Services Administration

    B. Basic terms (from FOIA UPDATE, Summer 1997):

    FOIA/PA request - Freedom of Information/Privacy Act request. A FOIA request is generally a request for access to records concerning a third party, an organization, or a particular topic of interest. A Privacy Act request is a request for records concerning oneself; such requests are also treated as FOIA requests. (All requests for access to records, regardless of which law is cited by the requester, are included in this report).

    Initial Request - a request to a federal agency for access to records under the Freedom of Information Act.

    Appeal - a request to a federal agency asking that it review at a higher administrative level a full denial or partial denial of access to records under the Freedom of Information Act, or any other FOIA determination such as a matter pertaining to fees.

    Proceed Request or Appeal - a request or appeal for which an agency has taken a final action on the request or appeal in all respects.

    Multi-track processing - a system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests in each track are processed on a first-in/first-out basis. A requester who has an urgent need for records may request expedited processing (see below).

    Expedited processing - an agency will process a FOIA request on an expedited basis when a requester has shown an exceptional need or urgency for the records which warrants prioritization of his or her request over other requests that were made earlier.

    Simple request - a FOIA request that an agency using multi-track processing places in its fastest (non-expedited) track based on the volume and/or simplicity of the records requested.

    Complex request - a FOIA request that an agency using multi-track processingplaces in a slower track based on the volume and/or complexity of records requested.

    Grant - an agency decision to disclose all records in full response to a FOIA request

    Partial grant - an agency decision to disclose a record in part in response to a FOIA request, deleting information determined to be exempt under one or more of the FOIA exemptions; or a decision to disclose some records in their entireties, but to withhold others in whole or in part.

    Denial - an agency decision not to release any part of a record or records in response to a FOIA request because all the information in the requested records is determined by the agency to be exempt under one or more of FOIA exemptions or for some procedural reason (such as because no record is located in response to a FOIA request).

    Time Limits - the time period in the Freedom of Information Act for an agency to respond to a FOIA request (ordinarily 20 working days from proper receipt of a perfected FOIA request).

    Perfected request - a FOIA request for records which adequately describes the records sought, which has been received by the FOIA office of the agency component in possession of the records, and for which there is no remaining question about the payment of applicable fees.

    Exemption 3 statute - a separate federal statute prohibiting the disclosure of a certain type of information and authorizing its withholding under FOIA subsection (b)(3).

    Median number - the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.

    Average number - the number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is eight.

  4. EXEMPTION 3 STATUTES

    A. List of Exemption 3 statutes relied on by the agency during report year: (See chart below)

    1. Brief description of type(s) of information withheld under each statute: (See chart below)
    2. Has a court upheld the use of each statute? If so, cite example: (See chart below)

    Statute/Rule

    Type of Information Withheld

    Case Citation

    5 U.S.C. 107(a)(2) Appendix 4

    Confidential financial disclosure reports

    Meyerhoff v. EPA, 958 F.2nd (9th Cir 1992)

    41 U.S.C. 253b (m)

    Contractor proposals not incorporated into agency contracts

    No

    35 U.S.C. 122

    Information in a pending or non-issued patent application

    No

    35 U.S.C. 205

    Document as part of a patent application

    No

    42 U.S.C. 1396r-8(b)(3)(D)

    Information disclosed by manufacturers and wholesalers¼in a form which discloses¼prices charged for drugs by such manufacturer or wholesaler

    No

    42 U.S.C. 300hh-12(c), Section 121 (c)

    Bioterrorism related information

    No

    42 U.S.C. 11137(b)

    Adverse reports of a physicians's conduct or practice

    No

  5. INITIAL FOIA/PA ACCESS REQUESTS (Include all requests, 3rd or 1st party): (See chart below)
    1. Numbers of initial requests (line 1 + line 2 - line 3 = line 4):
      1. Number of requests pending at close of preceding fiscal year: 17,403 (does not include 114 requests closed retroactively by NIH for FY 2001)
      2. Number of requests received during reporting fiscal year: 105,068
      3. Number of requests processed during reporting fiscal year: 103,163
      4. Number of requests pending at close of reporting fiscal year: 19,308 (This number should match Line VII.B.1.)
    2. (1)Agency

      Number of Requests Pending as of End of Preceding Year

      Number of Requests Received in Current Year

      Number of Requests Processed in Current Year

      Number of Requests Pending as of End of Current Year

      OS (2)

      315

      945

      968

      292

      AoA

      0

      8

      8

      0

      CMS

      2,746

      29,341

      28,275

      3,812

      PSC (3)

      14

      172

      186

      0

      OASPH

      273

      461

      465

      269

      AHRQ

      8

      85

      87

      6

      CDC

      61

      1,013

      938

      136

      FDA

      13,153

      19,791

      18,847

      14,097

      HRSA

      33

      311

      307

      37

      IHS

      74

      45,403

      45,457

      20

      NIH

      631 (4)

      7,394

      7,465

      560

      SAMHSA

      95

      144

      160

      79

      PHS Total

      14,328

      74,602

      73,726

      15,204

      HHS Total

      17,403

      105,068

      103,163

      19,308

      1. Figures include Privacy Act records access requests not previously included in FOIA reports
      2. Some OS figures partially based on estimates due to software/system failure
      3. PSC FOIA operations redelegated to OASPH during FY 2002
      4. Does not include 114 additional "pending" requests closed retroactively for FY 2001
    3. Disposition of Initial Requests:

       Agency

      Number of Total Grants

      Number of Partial Grants

      Number of Full Denials

      Total of Other Reasons of Nondisclosure

      OS

      234

      164

      21

      549

      AoA

      8

      0

      0

      0

      CMS

      23,266

      155

      1,233

      3,621

      PSC

      84

      36

      6

      60

      OASPH

      277

      27

      14

      147

      AHRQ

      46

      2

      1

      38

      CDC

      401

      166

      30

      341

      FDA

      13,958

      72

      87

      4,730

      HRSA

      269

      20

      9

      9

      IHS

      45,415

      37

      0

      5

      NIH

      7119

      22

      10

      314

      SAMHSA

      36

      45

      60

      19

      PHS Total

      67,521

      391

      211

      5,603

      HHS Total

      91,113

      746

      1471

      9,833

      1. Number granted in full: 91,113
      2. Number granted in part: 746
      3. Number of full denials: 1471

         Agency

        (2)

        (3)

        (4)

        (5)

        (6)

        (7A)

        (7B)

        (7C)

        (7D)

        (7E)

        (7F)

        OS

        1

        0

        69

        45

        87

        21

        1

        17

        0

        0

        0

        AoA

        0

        0

        0

        0

        0

        0

        0

        0

        0

        0

        0

        CMS

        21

        3

        54

        72

        1284

        4

        0

        10

        3

        0

        0

        PSC

        0

        3

        30

        1

        8

        0

        0

        0

        0

        0

        0

        OASPH

        1

        2

        8

        15

        20

        12

        0

        10

        9

        0

        0

        AHRQ

        0

        1

        1

        1

        1

        0

        0

        0

        0

        0

        0

        CDC

        39

        13

        74

        31

        106

        19

        0

        0

        0

        0

        0

        FDA

        3

        1

        95

        9

        16

        45

        0

        16

        3

        1

        0

        HRSA

        1

        1

        4

        11

        6

        1

        0

        0

        0

        0

        0

        IHS

        0

        0

        11

        2

        19

        0

        0

        0

        0

        0

        0

        NIH

        0

        3

        13

        18

        25

        2

        0

        2

        0

        0

        0

        SAMHSA

        0

        0

        38

        10

        58

        0

        0

        0

        0

        0

        0

        PHS Total

        44

        21

        244

        97

        251

        79

        1

        28

        12

        1

        0

        HHS Total

        66

        27

        397

        215

        1630

        104

        1

        55

        15

        1

        0

        (1) No claims for exemption (1), (8), or (9).

        1. Number of times each FOIA exemption was used:
          Exemption 1 0000
          Exemption 2     66
          Exemption 3     27
          Exemption 4   397
          Exemption 5   215
          Exemption 6 1630
          Exemption 7
          Exemption 7(A)   104
          Exemption 7(B)       1
          Exemption 7(C)     55
          Exemption 7(D)     15
          Exemption 7(E)       1
          Exemption 7(F)       0
          Exemption 8 0000
          Exemption 9 0000
      4. Other reasons for non-disclosure (total): 9833

         Agency

        No Records

        Referrals

        Request Withdrawn

        Fee-Related Reason

        Records Not Reasonably Described

        Not a Proper FOIA Request for Some Other Reason

        Not an Agency Record

        Duplicate Request

        Other

        OS

        126

        290

        82

        2

        1

        13

        3

        16

        16

        AoA

        0

        0

        0

        0

        0

        0

        0

        0

        0

        CMS

        946

        22

        465

        1277

        55

        724

        3

        1

        128

        PSC

        41

        2

        15

        0

        0

        0

        0

        2

        0

        OASPH

        64

        33

        35

        8

        0

        0

        0

        2

        5

        AHRQ

        19

        2

        6

        0

        0

        3

        8

        0

        0

        CDC

        182

        16

        36

        24

        0

        15

        12

        0

        56

        FDA

        1635

        34

        2086

        27

        0

        226

        1

        123

        598

        HRSA

        6

        2

        0

        0

        0

        0

        1

        0

        0

        IHS

        0

        0

        0

        0

        0

        0

        0

        0

        5

        NIH

        145

        8

        132

        11

        7

        0

        6

        5

        0

        SAMHSA

        19

        0

        0

        0

        0

        0

        0

        0

        0

        PHS Total

        1113

        95

        2295

        70

        7

        244

        28

        130

        664

        HHS Total

        3183

        409

        2857

        1349

        63

        981

        34

        149

        808

        1. no records: 3183
        2. referrals: 409
        3. request withdrawn: 2857
        4. fee-related reason: 1349
        5. records not reasonable described: 63
        6. not a proper FOIA request for some other reason: 981
        7. not an agency record: 34
        8. duplicate request: 149
        9. other (specify): 808 (Glomar; litigation; administrative closures; materials more readily available from other sources, e.g. internet, libraries, etc.)
  6. APPEALS OF INITIAL DENIALS OF FOIA/PA REQUESTS (include all access requests whether first or third party):
    1. Numbers of Appeals:
      1. Number of appeals received during the fiscal year 159
      2. Number of appeals processed during the fiscal year 161
    2. Disposition of Appeals:
      1. Number completely upheld 28
      2. Number partially reversed 15
      3. Number completely reversed 23
        1. Number of times each FOIA exemption used (counting each exemption used once per appeal)
          Exemption 1       0
          Exemption 2       0
          Exemption 3       2
          Exemption 4       4
          Exemption 5     11
          Exemption 6     19
          Exemption 7
          Exemption 7(A) 1
          Exemption 7(B) 0
          Exemption 7(C) 1
          Exemption 7(D) 0
          Exemption 7(E) 0
          Exemption 7(F) 0
          Exemption 8     0
          Exemption 9     0
      4. Other reasons for non-disclosure (total) 95
        1. no records: 16
        2. referrals: 1
        3. request withdrawn: 32
        4. fee-related reason: 6
        5. records not reasonable described: 0
        6. not a proper FOIA request for some other reason: 1
        7. not an agency record: 0
        8. duplicate request: 5
        9. other (specify): 34 (litigation; administrative closures; materials more readily available from other sources, e.g. internet, libraries, etc.)
  7. COMPLIANCE WITH TIME LIMITS/STATUS OF PENDING REQUESTS: (See chart below)

    A. Median Processing Time for Requests Processed During the Year: (Some OPDIVs do not use multiple tracks - see attached)

    1. Simple Requests (if multiple tracks used):
      1. number of requests processed: 36,024 (See chart below)
      2. median number of days to process: (See chart below)
    2. Complex Requests (includes total of complex requests and single-track systems):
      1. number of requests processed: 67,100 (See chart below)
      2. median number of days to process: (See chart below)
    3. Requests Accorded Expedited Processing:
      1. number of requests processed: 39 (See chart below)
      2. median number of days to process: (See chart below)

    AHRQ

    AoA

    CDC (1)

    CMS

    FDA

    HRSA

    IHS

    NIH

    OS

    PHS

    PSC

    SAMHSA

    1. a. Number of Simple Requests (Where multiple tracks used)

    0

    0

    0

    26868

    8896

    0

    0

    0

    0

    91 (2)

    136

    0

    b. Median Days to Process

    0

    0

    0

    10

    20

    0

    0

    0

    0

    10

    35

    0

    2. a. Number of ComplexRequests (Where multiple tracks used)

    0

    0

    0

    1374

    965

    0

    0

    0

    0

    341

    50

    0

    b. Median Days to Process

    0

    0

    0

    168

    272

    0

    0

    0

    0

    60

    60

    0

    3. a. Number of Expedited Requests

    0

    0

    2

    33

    4

    0

    0

    0

    0

    0

    0

    0

    b. Median Days to Process

    0

    0

    27

    21

    15.5

    0

    0

    0

    0

    0

    0

    0

    4. a. Number of Single Track Requests

    87

    8

    850

    0

    8982

    307

    45457

    7465

    968

    0

    0

    160

    b. Median Days to Process

    25

    10

    34

    0

    27

    31

    32

    177

    45 (3)

    0

    0

    9

    1. Does not include 86 access requests logged on manual systems
    2. Does not include 33 additional OAPHS requests referred to other organizations
    3. Based on sample

    B. Status of Pending Requests (if multiple tracks are being used, report for each track as well as totals).

    1. Number of requests pending as of the end of the fiscal year covered in this report (from Line V.A.4): 19,308
    2. Median number of days that such requests were pending as of that date: Medians vary greatly from OPDIV to OPDIV. (See chart below)

     

    AHRQ

    AOA

    CDC

    CMS

    FDA

    HRSA

    IHS

    NIH

    OS

    PHS

    PSC

    SAMHSA

    1. Number of Requests Pending

    6

    00

    136

    2960 (1)

    14097

    37

    20

    560

    292

    269

    0

    79

    2. Number of Median Days of PendingRequests as of September 30, 2002

    100

    0

    86

    7

    206 (2)

    14

    32

    204

    115 (3)

    180 (4)

    0

    9

     

     

     

     

    852 (5)

     

     

     

     

     

     

     

     

     

     

     

     

    (6)

     

     

     

     

     

     

     

     

    1. Simple requests only.
    2. Multi-track median day figures unavailable.
    3. Based on sample.
    4. Multi-track median day figures unavailable.
    5. Complex requests.
    6. Median day figures unavailable for complex requests.
  8. COMPARISONS WITH PREVIOUS YEARS(S) (Optional):

    A. Other statistics significant to components: The HHS plans to collect information on requests for expedited processing during FY 2003.

  9. COSTS/FOIA STAFFING: (See chart below)

    A. Staffing levels:

    1. Number of full-time FOIA personnel: 184
    2. Number of personnel with part-time or occasional FOIA duties (in total work-years): 57.387
    3. Total number of personnel (in work years): 241.387

    B. Total costs (including staff and all resources):

    1. FOIA processing (including appeals) $14,606,788
    2. Litigation-related activities (estimated) $206,677
    3. Total costs $14,813,365
    4. Comparison with previous year(s) (including percentage of change)(optinal)
  10. FEES: (See chart below)

    A. Total amount of fees collected by agency for processing requests: $711,259

    B. Percentage of total costs: 5%


     

    Staffing Levels

    Costs (Estimated)

    Fees

     

    Number of Full-Time Personnel

    Number Staff With Part-Time or Occasional FOIA Duties (In Total Workyears)

    Total Number of Personnel (In Work-Years)

    FOIA Processing

    Litigation-Related Activities

    Total Costs

    Total Fees Collected

    % of Costs

    OS

    6

    0

    6

    $483,530

    $90,118

    $573,648

    $7,979

    1

    AoA

    0

    0.04

    0.04

    2,576

    0

    2,576

    35

    1

    CMS

    73

    13.6

    86.6

    2,064,384

    12,853

    2,077,237

    103,591

    5

    PSC

    0

    1

    1

    55,215

    0

    55,215

    155

    0

    OASPH

    3

    0.75

    3.75

    197,950

    11,327

    209,277

    2,323

    1

    AHRQ

    1

    0.25

    1.25

    44,875

    0

    44,875

    113

    0

    CDC

    4

    0

    4

    273,940

    0

    273,940

    48,978

    18

    FDA

    72

    18.697

    90.697

    9,092,456

    84,044

    9,176,500

    508,852

    6

    HRSA

    2

    0.5

    2.5

    158,025

    0

    158,025

    4,181

    3

    IHS

    14

    1

    3

    167,953

    0

    167,953

    1,200

    1

    NIH

    20

    21.05

    41.05

    2,023,384

    8,335

    2,031,719

    31,825

    2

    SAMHSA

    0

    .5

    .5

    42,500

    0

    42,500

    2,027

    5

    PHS total

    117

    42.747

    147.747

    $12,001,083

    $103,706

    $12,104,789

    %599,499

    5

    HHS Total

    196

    57.387

    241.387

    $14,606,788

    $206,677

    $14,813,465

    $711,259

    5

  11. FOIA REGULATIONS (including fee schedule):

    The FOIA regulation implementing the 1996 amendments to the Freedom of Information Act has been published as a Notice of Proposed Rule Making and public comments have been received. The passage of PL 105-277 requiring OMB to revise circular A-110 will require further revisions to the HHS FOIA Regulation and public comments on those new sections. That effort is currently underway. Until such time as the revised regulation is published as a new final rule, however the current HHS FOIA regulation can be found at 45 CFR Part 5, and at: www.hhs.gov/foia/45cfr5.html.


Content last reviewed on June 20, 2006