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Section I: Steps Taken to Apply the Presumption of Openness

The guiding principle underlying the President's FOIA Memorandum and the Attorney General's FOIA Guidelines is the presumption of openness.

Describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. To do so, you should answer the questions listed below and then include any additional information you would like to describe how your agency is working to apply the presumption of openness.

  1. Did your agency hold an agency FOIA conference, or otherwise conduct training during this reporting period?
    Yes; HHS held a Department-wide FOIA Conference in October 2012.  The Conference focused on application of Exemption 4 to contract, grant, and database records and the requirements of the submitter notice process, but also included sessions on plain writing and the application of Exemption 6 to human resources records.  The conference was organized under the direction of the HHS Chief FOIA Officer, Dori Salcido, by the Freedom of Information/Privacy Acts Division with assistance from senior FOIA staff at major HHS operating divisions (OPDIVS) and senior Grants and Acquisitions officials.  Conference speakers included FOIA experts from other executive branch agencies (Office of Information Policy (OIP), Department of Justice (DOJ); the Office of Government Information Services (OGIS), National Archives and Records Administration (NARA); and, the Department of the Navy, Department of Defense (DOD)).  

    The HHS OPDIVS conducted formal FOIA training sessions and less formal FOIA briefings, geared to audiences that included FOIA staff, FOIA coordinators, consumer complaint coordinators, program offices, management officials, contracting officials, contractors, and privacy contacts.  The FDA conducted some of its training sessions as Webinars; and recorded some sessions and posted them on the Intranet.  The IHS posted a FOIA presentation on its intranet pages for its employees to refer to for guidance.

    Training and briefing sessions for all audiences covered the transparency and openness requirements and the presumption of disclosure.  The fundamentals of FOIA administration were presented to general audiences (HHS program staff) less familiar with FOIA.  Specialized topics that were presented to particular audiences included procedures for conducting thorough and timely searches, FOIA-Privacy Act interface, and the intersection between FOIA and information releases to foreign governments.  The FOIA offices’ professionals met with representatives of the program offices whose records they process to explain FOIA exemptions, procedures and deadlines, and to become better educated about the programs’ records and potential harm that could result from releasing certain information. 

    Did your FOIA professionals attend any FOIA training, such as that provided by the Department of Justice?
    Yes; most FOIA professionals, including FOIA coordinators, attended some type of training.  The FOIA staff from OS, OIG, AHRQ, CMS, FDA, HRSA, IHS, NIH and SAMHSA attended training provided by DOJ, including the OIP Director’s Lecture Series.  The training covered a variety of topics, such as dispute resolution, FOIA administration, and preparation of the Annual Report and Chief FOIA Officer Report.  Some OS, FDA and SAMHSA FOIA staff members also attended training provided by the American Society of Access Professionals (ASAP); and, Office of Medicare Hearings and Appeals FOIA Coordinators attended FOIA training provided by the USDA Graduate School. 

    Due to travel budget constraints, all CDC FOIA staff in Atlanta, Georgia attended a one-day, in-house training session in Atlanta, conducted by two Program Support Center FOIA staff members from the Washington, D.C. area.

    In his 2009 FOIA Guidelines, the Attorney General strongly encouraged agencies to make discretionary releases of information even when the information might be technically exempt from disclosure under the FOIA. OIP encourages agencies to make such discretionary releases whenever there is no foreseeable harm from release.
  2. Did your agency make any discretionary releases of otherwise exempt information? 
    Yes; the OS, OIG, CDC, CMS, FDA, IHS and NIH FOIA offices reported making discretionary releases.
  3. What exemptions would have covered the information that was released as a matter of discretion?
    The exemptions (b)(4) and (b)(5).
  4. Provide a narrative description, or some examples, of the types of information that your agency released as a matter of discretion.
    Exemption (b)(4):  As a result of continued training, consultations with other agencies, and experience handling appeals, more information relating to contracts, grants and solicitations was determined not to involve confidential business information, and was released.  Examples included:  certain insurance information; certain budget and financial breakdowns; and line item costs.

    Exemption (b)(5): Information that technically qualified for application of the deliberative process, attorney work product and attorney-client privileges, but for which foreseeable harm could not be articulated, was released.  Examples included: internal recommendations and discussions in approval records; pre-decisional discussions of agency policy issues, primarily in e-mail exchanges; and certain draft versions of correspondence and documents.
  5. Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied.
    The OS FOIA office released records with redactions instead of withholding documents in full whenever possible. The OGA completed the redesign of its website, www.globalhealth.gov, and made more information available through that website. The OGA also overhauled its records management function, which aids OGA’s ability to identify and locate FOIA-responsive records in a timely manner.  The OMHA made limited information concerning appeals and claims received (based on January 2010 data) available on its public website; OMHA worked to increase its capabilities to provide more raw data via www.data.gov in compliance with HHS’ Health Data Initiative, and made plans to release focused reports in the future.   

    The CDC FOIA office provided training to CDC management and staff on the principles of openness and transparency, and encouraged program offices to consult FOIA staff for guidance when needed.  The CDC’s FOIA staff and OGC advisors applied the presumption of disclosure in all document reviews and redaction decisions.

    The CMS continued efforts to engage all CMS personnel, not just FOIA Office personnel, in contributing to openness and transparency initiatives.  For example, the CMS Acting Administrator continued to require all Center and Office Directors to identify three categories of frequently requested records for posting to the CMS Web site, and now has 162 high value datasets on the HealthData.gov website (http://healthdata.gov).  The CMS Web sites provided access to tens of thousands of documents (over six million pages); they include the Medicare 1-800 number, the Medicare & You publication, and the Medicare Compare Web site at http://www.medicare.gov which provided information used by about 50 million Medicare beneficiaries or their representatives during the year.  The CMS made information about its regulations easier to find on the CMS Web site, which generated tens of thousands of searches.  Hundreds of thousands of providers, and tens of thousands of researchers, used information resources and systems provided through http://www.cms.hhs.gov.

    The FDA continued implementing the Transparency Initiative it launched in June 2009, which is fully described on FDA’s transparency website, http://www.fda.gov/AboutFDA/Transparency/TransparencyInitiative/default.htm .   

    FDA’s Transparency Initiative activities included:
    • Maintaining and updating FDA Basics, a web based resource launched in 2010 that provides the public and industry with basic information about FDA;
    • Continued efforts to post six proposed datasets: 1) ORA Work plans, 2) Import Filer Evaluation Outcomes, 3) the Inspections Database, 4) most common inspection observations, 5) additional product recall information, and 6) untitled letters; and,
    • Continued implementation of these proposals: 1) having each Center provide a link for general regulatory questions on FDA Basic page; 2) setting strategic priorities; 3) committing to post presentations delivered by FDA employees to external audiences at events sponsored by or co-sponsored by HHS;  4) compiling all FDA Center guidance and SOPPs regarding FDA employees’ meeting with sponsors about product applications on FDA Basics; 5) posting information regarding notifications that FDA provided to industry during the product application review process; 6) forming a cross-FDA working group to identify best practices for improving the guidance development [process?] and providing ways for the public to have input regarding same; 7) publishing information about each import program manager and updating the list annually; and 8) providing notification to interested members of the public when an Import Alert is posted on the Website or an existing Alert is updated. 

      The FDA also conducted several FOIA training sessions during the year, at which the presumption of openness featured prominently.  The FDA component offices continued to review internal disclosure guidelines to determine whether additional categories of information could be released given the presumption of openness, and trained staff on any changes. _________________________________________________________

The NIH never retreated from the presumption of openness reflected in the Reno FOIA Memorandum, so has continued to not need to institute major changes to its internal FOIA guidance or launch new initiatives.  The NIH FOIA office continued to remind NIH FOIA Coordinators of the presumption of openness in quarterly meetings and in specific instances when records were referred to the NIH FOIA Office for review.  Throughout the year, the NIH FOIA Officer gave numerous formal and informal presentations, talks, and training sessions, all of which included a review of the President’s memorandum and the Attorney General’s FOIA Guidelines, including the presumption of openness.  All FOIA requests were processed with the goal of releasing as much information as possible.