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HHS Fiscal Year 2004 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/04anlrpt.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/
    Office of Public Health and Science (OPHS): www.psc.gov/aos/foia/

     

    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 components 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
    Washington D.C. 20201
    Telephone: (202) 357-3540

    Agency for Healthcare Research and Quality (AHRQ)
    Freedom of Information Officer
    540 Gaither Road, Room 2222
    Rockville, MD 20850
    Telephone: (301) 427-1866

    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 (CMS)
    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 17A-46
    5600 Fishers Lane
    Rockville, MD 20857
    Telephone: (301) 443-5252

    Substance Abuse and Mental Health Services Administration (SAMHSA)
    Freedom of Information Officer
    Room 8-1042
    1 Choke Cherry Road
    Rockville, MD 20857
    Telephone: (240) 276-2130

    B. Brief description of agency's response time range(s): There is no overall time range because 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. Individual OPDIV response times 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.

    Processed Request or Appeal - A request or appeal for which an agency has taken 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 processing places 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 number, not the average. 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)

    1. Brief description of type(s) of information withheld under each statute: (See chart)

    2. Has a court upheld the use of each statute? If so, cite example: (See chart below)

  5.  

  6. 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: 20,947 (does not include 318 requests closed retroactively by NIH for FY 2003)
      2. Number of requests received during reporting fiscal year: 225,006
      3. Number of requests processed during reporting fiscal year: 222,408
      4. Number of requests pending at close of reporting fiscal year: 23,545 (This number should match Line VII.B.1.)
    2.  

    3. Disposition of Initial Requests:

       

      1. Number granted in full: 206,951
      2. Number granted in part: 753
      3. Number of full denials: 2,134
      1. Number of times each FOIA exemption was used:

      Exemption 1: 0000
      Exemption 2: 30
      Exemption 3: 27
      Exemption 4: 411
      Exemption 5: 159
      Exemption 6: 2472
      Exemption 7

          Exemption 7(A): 67
          Exemption 7(B): 1
          Exemption 7 (C): 18
          Exemption 7 (D): 6
          Exemption 7 (E): 2
          Exemption 7 (F): 0

      Exemption 8: 0000
      Exemption 9: 0000

    4. Other reasons for non-disclosure (total): 12,570

     

    1. No records: 4,126
    2. Referrals: 401
    3. Request withdrawn: 4,142
    4. Fee-related reason: 803
    5. Records not reasonably described: 1,140
    6. Not a proper FOIA request for some other reason:1,017
    7. Not an agency record: 51
    8. Duplicate request: 280
    9. Other (specify): 610 (administrative closures; and materials more readily available from other sources, e.g. internet, libraries, etc.)

     

    VI. APPEALS OF INITIAL DENIALS OF FOIA/PA REQUESTS (include all access requests whether first or third party, See chart):

      A. Numbers of Appeals:

        1. Number of appeals received during the fiscal year: 168
        2. Number of appeals processed during the fiscal year: 132

      B. Disposition of Appeals:

         1. Number completely upheld: 50
         2. Number partially reversed: 21
         3. Number completely reversed: 17
             a. Number of times each FOIA exemption used (counting each exemption used once per appeal)

            Exemption 1: 0
            Exemption 2: 3
            Exemption 3: 1
            Exemption 4: 11
            Exemption 5: 22
            Exemption 6: 19
            Exemption 7

              Exemption 7(A): 3
              Exemption 7(B): 0
              Exemption 7(C): 5
              Exemption 7(D): 2
              Exemption 7(E): 0
              Exemption 7(F): 0
            Exemption 8: 0
            Exemption 9: 0

     

          4. Other reasons for non-disclosure (total): 44

            a. No records: 15
            b. Referrals:0
            c. Request withdrawn: 19
            d. Fee-related reason : 6
            e. Records not reasonably described: 0
            f. Not a proper FOIA request for some other reason: 1
            g. Not an agency record: 1
            h. Duplicate request: 0
            i. Other (specify): 2 (administrative closures, material more readily available from other sources, e.g., internet, libraries, etc.

    VII. COMPLIANCE WITH TIME LIMITS/STATUS OF PENDING REQUESTS:(See chart)

    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):

    a. number of requests processed: 44,761 (See chart)

    b. median number of days to process: (See chart)

    2. Complex Requests (includes total of complex requests and single-track systems):

    a. number of requests processed: 177,633 (See chart)

    b. median number of days to process: (See chart)

    3. Requests Accorded Expedited Processing:

    a. number of requests processed: 14

    b. median number of days to process: (See chart)

    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): 23,545

    2. Median number of days that such requests were pending as of that date: Medians vary greatly from OPDIV to OPDIV. (See chart)

    VIII. COMPARISONS WITH PREVIOUS YEAR(S): (Optional):

    A. Comparison of numbers of requests received: Increased by 53.8%, from 146,257 to 225,006.

    B. Comparison of numbers of requests processed: Increased by 58.5%, from 144,143 to 222,408

    C. Comparison of median numbers of days requests were pending as of end of fiscal year: See chart for Section VII

    D. Other statistics significant to components: The HHS received 145 requests for expedited processing, of which 14 were granted.

    All but one of the HHS organizational components experienced increased in FOIA requests received, including significant growth in some OPDIVs. For example, the Office of the Secretary (OS) FOIA/PA office, which operationally services primarily the OS and the ACF, and provides overall HHS policy coordination, experienced a 33.7% increase in FOIA requests received. Although 26.3% more FOIA requests were processed than in FY 2003, the OS backlog increased by 44.8%.

    E. Other narrative statements describing agency efforts to improve timeliness of FOIA performance and to make records available to the public (e.g., backlog-reduction activities; public availability of new categories of records): No comments.

    IX. COSTS/FOIA STAFFING: (See chart)

    A. Staffing levels:

    1. Number of full-time FOIA personnel: 181

    2. Number of personnel with part-time or occasional FOIA duties (in total work-years): 70.43

    3. Total number of personnel (in work years): 251.43

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

    1. FOIA processing (including appeals): $17,797,355

    2. Litigation-related activities (estimated): $1,427,345

    3. Total costs: $19,224,700

    4. Comparison with previous year(s) (including percentage of change) (optional):

    X. FEES: (See chart below)

    A. Total amount of fees collected by agency for processing requests: $759,367

    B. Percentage of total costs: 4%

    XI. 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.

     

    IV. Exemption 3 Statutes

    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

    Hornbostel v. United States Dep’t of the Interior, 305 F. Suppp. 2d 21 (D.D.C. 2003)

    42 U.S.C. 242m(d) 308(d)

    National Death Index, information regarding fatalities

    No

    42 U.S.C. 11137(b)

    Adverse reports of a physician’s conduct or practice

    No

    V. Initial FOI/PA Access Requests

    V.A. Numbers of Initial Requests

    (1)

    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

    362

    1,309

    1148

    523

    AOA

    0

    13

    13

    0

    CMS

    3,073

    32,725

    31,714

    4,084

        OASPH

    228

    589

    530

    287

        AHRQ

    9

    78

    76

    11

        CDC

    172

    1,003

    979

    196

        FDA

    16,535

    18,676

    18,540

    16,671

        HRSA

    34

    428

    416

    46

        IHS

    44

    158,274

    158,277

    41

        NIH

    451 (2)

    11,764

    10,583

    1,632

        SAMHSA

    39

    147

    132

    54

        PHS Total

    17,512

    190,959

    189,533

    18,938

    HHS Total

    20,947

    225,006

    222,408

    23,545

    (1)Figures include Privacy Act records requests
    (2) Does not include 318 additional "pending" requests closed retroactively for FY 2003

     

    V.B. Disposition of Initial Requests

     

    Number of Total Grants

    Number of Partial Grants

    Number of Full Denials

    Total of Other Reasons for Nondisclosure

    OS

    251

    358

    23

    516

    AOA

    3

    5

    1

    4

    CMS

    24,572

    65

    1,956

    5,121

        OASPH

    333

    5

    23

    169

        AHRQ

    56

    0

    0

    20

        CDC

    498

    106

    10

    365

        FDA

    12,529

    47

    44

    5,920

        HRSA

    320

    42

    9

    45

        IHS

    158,174

    27

    54

    22

        NIH

    10,180

    21

    12

    370

        SAMHSA

    35

    77

    2

    18

        PHS Total

    182,125

    325

    154

    6,929

    HHS Total

    206,951

    753

    2,134

    12,570

    V.B.3. Exemptions Claimed Under the FOIA (1)

     

    (2)

    (3)

    (4)

    (5)

    (6)

    (7)
    (A)

    (7) (B)

    (7)
    (C)

    (7)
    (D)

    (7)
    (E)

    (7)
    (F)

    OS

    1

    2

    205

    42

    313

    29

    0

    5

    2

    1

    0

    AOA

    1

    0

    5

    1

    5

    0

    0

    0

    0

    0

    0

    CMS

    3

    2

    7

    29

    1996

    3

    0

    5

    0

    0

    0

        OASPH

    6

    2

    0

    11

    7

    6

    1

    1

    0

    0

    0

        AHRQ

    0

    0

    0

    0

    0

    0

    0

    0

    0

    0

    0

        CDC

    13

    3

    42

    39

    57

    2

    0

    0

    0

    0

    0

        FDA

    4

    9

    53

    3

    16

    24

    0

    3

    1

    1

    0

        HRSA

    1

    3

    21

    19

    11

    0

    0

    0

    0

    0

    0

        IHS

    0

    0

    53

    8

    19

    1

    0

    0

    0

    0

    0

        NIH

    1

    4

    7

    8

    15

    2

    0

    4

    3

    0

    0

        SAMHSA

    0

    2

    36

    2

    39

    0

    0

    0

    0

    0

    0

        PHS Total

    25

    23

    212

    90

    164

    35

    1

    8

    4

    1

    0

    HHS Total

    30

    27

    429

    162

    2478

    67

    1

    18

    6

    2

    0

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

    V.B.4. Other Reasons for Nondisclosure (Total)

     

    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

    123

    260

    80

    10

    1

    10

    3

    13

    16

    AOA

    1

    2

    1

    0

    0

    0

    0

    0

    0

    CMS

    2269

    21

    429

    450

    1119

    756

    0

    3

    74

        OASPH

    72

    12

    64

    6

    1

    2

    0

    3

    9

        AHRQ

    11

    1

    6

    0

    0

    1

    1

    0

    0

        CDC

    146

    13

    52

    31

    2

    2

    43

    3

    73

        FDA

    1237

    66

    3391

    293

    0

    244

    0

    254

    435

        HRSA

    28

    6

    4

    2

    1

    1

    1

    2

    0

        IHS

    9

    9

    0

    0

    0

    1

    0

    0

    3

        NIH

    217

    9

    114

    10

    16

    0

    3

    1

    0

        SAMHSA

    13

    2

    1

    1

    0

    0

    0

    1

    0

        PHS Total

    1733

    118

    3632

    343

    20

    251

    48

    264

    520

    HHS Total

    4126

    401

    4142

    803

    1140

    1017

    51

    280

    610

    VII. Compliance With Time Limits/Status of Pending Requests

    A. Median Processing Time for Requests Processed During the Year

     

    OS

    AOA

    CMS

    OASPH

    AHRQ

    CDC

    FDA

    HRSA

    IHS

    NIH

    SAM-HSA

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

    0

    0

    31,051

    72

    (1)

    0

    0

    13,626

    0

    0

    0

    0

    b. Median Days to Process

    0

    0

    9

    10

    0

    0

    25

    0

    0

    0

    0

    2.a. Number of Complex

    Requests (Where multiple tracks used)

    0

    0

    652

    446

    0

    0

    1,993

    0

    0

    0

    0

    b. Median Days to Process

    0

    0

    77

    60

    0

    0

    325

    0

    0

    0

    0

    3. a. Number of Expedited Requests

    1

    0

    11

    0

    0

    2

    0

    0

    0

    0

    0

    b. Median Days to Process

    2

    0

    66

    0

    0

    52

    0

    0

    0

    0

    0

    4. a. Number of Single Track Requests

    1147

    13

    0

    0

    76

    977

    2,921

    416

    158,277

    10,583

    132

    b. Median Days to Process

    55

    (2)

    5

    0

    0

    25

    36

    113

    20

    (3)

    32

    182

    38

    (1) Does not include 12 additional OAPHS requests referred to other organizations
    (2) Based on sample
    (3) Calendar days

    B. Status of Pending Requests

     

    OS

    AOA

    CMS

    OASPH

    AHRQ

    CDC

    FDA

    HRSA

    IHS

    NIH

    SAMHSA

    1. Number of Requests Pending

    523

    0

    2272

    (1)

    287

    11

    196

    16671

    46

    41

    1632

    54

    2. Number of Median Days of Pending Requests as of Septem-ber 30, 2004

    135

    (2)

    0

    11

    65

    (3)

    10

    18

    240

    (4)

    14

    32

    174

    60

       

    1812

    (5)

            
       

    (6)

            

     

    1. Simple requests
    2. Based on sample
    3. Multi-track median figures unavailable
    4. Multi-track median day figures unavailable
    5. Complex requests
    6. Median day figures unavailable for complex requests

     

    IX. Costs/FOIA Staffing, and

    X. Fees

     

    Staffing Levels

    Costs (Estimated)

    Fees

     

    Full-Time Staff

    Staff With Part-Time or Occasional FOIA Duties (In Total Work-years)

    Staff (In Work-Years)

    FOIA Processing

    Litigation-Related Activities

    Total Costs

    Total Fees Collected

    % of Costs

    OS

    5

    0.00

    5.00

    $ 458,677

    $ 119,772

    $ 578,449

    $ 9,006

    2

    AOA

    0

    0.04

    0.04

    2,576

    0

    2,576

    0

    0

    CMS

    72

    14.20

    86.20

    2,179,180

    105,000

    2,284,180

    240,279

    11

        OAPHS

    2

    1.50

    3.50

    208,343

    30,906

    239,249

    6,484

    3

        AHRQ

    1

    0.25

    1.25

    52,925

    0

    52,925

    869

    2

        CDC

    5

    0.00

    5.00

    345,348

    0

    345,348

    28,688

    8

        FDA

    74

    17.05

    91.05

    11,606,883

    1,168,966

    12,775,849

    405,140

    3

        HRSA

    2

    0.50

    2.50

    173,900

    432

    174,332

    6,962

    3

        IHS

    2

    13.00

    15.00

    443,451

    0

    443,451

    4,345

    1

        NIH

    17

    23.89

    40.89

    2,259,372

    2,269

    2,261,641

    56,494

    3

        SAMHSA

    1

    0.00

    1.00

    66,700

    0

    66,700

    1,100

    2

        PHS Total

    104

    56.19

    160.19

    $15,156,922

    $1,202,573

    $16,359,495

    $510,082

    3

    HHS Total

    181

    70.43

    251.43

    $17,797,355

    $1,427,345

    $19,224,700

    $759,367

    4


Content last reviewed on June 20, 2006