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.
1. 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.
a. Describe how the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines have been publicized throughout your agency.
The President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines were initially distributed by e-mail message to all major organizational components including those of the Office of the Secretary and the various major operating divisions (OPDIVS) of the Department of Health and Human Services. The content of the issuances has since been communicated and reiterated in a variety of ways including at HHS FOIA Officer training and Office of the Secretary (OS) and Departmental component training classes, including at a Departmentwide FOIA Conference, the first of its type in HHS.
A variety of steps have been taken by each of the individual OPDIVS to communicate the issuances. Some examples include the following.
The National Institutes of Health (NIH) FOIA Officer took several actions to inform the NIH Community. First, the NIH FOIA Officer asked her supervisor to notify the NIH Director as well as the small group of NIH Senior Staff who advise the NIH Director. The NIH FOIA Officer also sent an e-mail message to the NIH FOIA Coordinators summarizing both President Obama’s FOIA Memorandum as well as the President’s Memorandum on Transparency. Both memos were attached to the email. The NIH FOIA Officer also informed each of the IC FOIA Public Liaisons of both memos by copy of her email to the FOIA Coordinators. The content of the President’s FOIA Memorandum was initially discussed in detail at the regularly scheduled NIH FOIA Officer’s quarterly meeting with NIH FOIA Coordinators on February 10, 2009 and has been revisited periodically since.
Similarly, upon receipt of the Attorney General’s FOIA Guidelines, the NIH FOIA Officer sent an email, with the new FOIA Guidelines attached, to the FOIA Coordinators with a copy to the NIH FOIA Public Liaisons. The NIH FOIA Officer attended the Chief FOIA Officer’s meeting hosted by DOJ, Office of Information and Policy (OIP) on June 30, 2010, and shared the information presented with the FOIA Coordinators at the next scheduled NIH FOIA Coordinators Meeting.
The Food and Drug Administration’s (FDA’s) FOIA Council has discussed the memorandum at various teleconferences. Copies of the memorandum are posted on the FOIA page of FDA’s internet website (see http://www.fda.gov/RegulatoryInformation/FOI/ReferenceMaterials/default.htm). Copies of the memorandum are posted on the FOIA page of FDA’s intranet for internal use by FDA employees In the Administration on Aging (AoA) the Assistant Secretary and Principal Deputy Assistant Secretary for Aging received the White House Open Government Directive that was also provided to AoA Deputy Assistant Secretaries Walker and Wren.
The Agency for Healthcare Research and Quality (AHRQ) posted the March 19, 2009, Attorney General’s FOIA Guidelines on the presumption of openness on its Web site at http://www.ahrq.gov/news/foia.htm. A training video was developed posted on the AHRQ intranet and shared with new and existing project and contracting officers to explain their role in FOIA.
In the Substance Abuse and Mental Health Services Administration (SAMHSA) the President’s Memorandum and the AG’s FOIA Guidelines have been shared with SAMHSA Staff by web link. The CDC’s former Acting Director sent out a CDC-wide memorandum in which he expressed management’s support of those principles. Attached to that memo were copies of the President’s Memorandum and the Attorney General’s Guidelines. In the Office of the Inspector General (OIG), the President’s and Attorney General’s memos were widely circulated and discussed during FOIA liaison training and conferences. In the Office of the Assistant Secretary for Health, the Memorandum and Guidelines are provided to program staff in the course of processing appeals, and when records searches are conducted.
In the Health Resources and Services Administration (HRSA) senior and mid-level management staff has been provided copies of both the President’s Memorandum and the Attorney General’s Guidelines.
b. What training has been attended and/or conducted on the new FOIA Guidelines?
A variety of training has been attended and conducted on the new FOIA Guidelines. For example, HHS FOIA Officers and other staff members have attended Department of Justice (DOJ) training on the new Guidelines. In the Office of the Secretary various training presentations have been provided to both new staff and to various organizational components. A new Departmentwide FOIA Conference, the first of its type in HHS, was held in November 2010. Each of these included presentations on the President’s Memorandum and on the Attorney General’s Guidelines.
In NIH, since the issuance of the new FOIA Guidelines, the NIH FOIA Officer has given numerous formal and informal presentations, talks and training sessions. At each, the FOIA Officer reviews recent developments in FOIA, including the President’s memorandum and the new FOIA Guidelines. In addition, many NIH employees attended the DHHS FOIA Conference in November 2010 where several of the sessions addressed the new FOIA Guidelines.
The FDA conducted FDA-wide FOIA training sessions in FY2010, with over 100 attendees in total. The memoranda and presumption of openness were featured prominently in the training presentations, and were featured in additional training sessions provided throughout the year to individual components within FDA, such as the Center for Veterinary Medicine, the Commissioner’s Fellowship Program, Office of Chief Counsel, Center for Tobacco Products, Office of Policy, and Center for Food Safety and Applied Nutrition (approximately 150 additional employees combined).
The Center for Disease Control’s former Acting Director sent out a CDC-wide memorandum in which he expressed management’s support of those principles. Attached to that memo were copies of the President’s Memorandum and the Attorney General’s Guidelines. Additionally, the Director instructed subject matter experts to review all FOIA response documents in the spirit of openness and transparency. In the SAMHSA the FOIA Officer and SAMHSA staff have attended DOJ training and HHS meetings and training concerning these documents.
The OIG conducted periodic training reiterating the openness policy including providing specific component training. The Program Support Center’s (PSC) PSC, and HRSA FOIA staff attended training, in addition to that given by the DOJ, of other entities, such as the American Society of Access Professionals (ASAP).
c. How has your agency created or modified your internal guidance to reflect the presumption of openness?
In HHS internal guidance has been reviewed, and has been created or modified in various ways to reflect the presumption of openness. This may have taken the form of standard operating procedures, as well as written guidance. One step FOIA Officers were asked to establish was to routinely, in the course of reviewing records responsive to FOIA requests, reviewing materials for that which may be released on a discretionary basis, including an assessment of the harm that may occur by release of the records.
The NIH reports that it never retreated from the presumption of openness reflected in the Reno FOIA Memorandum and, therefore, did not need to implement any major adjustments to its internal guidance. However, since the issuance of the President’s Memorandum and the Attorney General’s Guidelines, the NIH has referred to those documents in support of its ongoing practice.
The FDA notes that its training sessions include treatment of the Guidelines. The FDA is currently updating its FOIA Staff Manual Guides to include the presumption of openness, the memoranda, and the OPEN Government Act. The FDA expects to finalize and post to the internet the updated Guides in FY 2011. The memoranda and OPEN Government Act information are available on FDA’s FOIA intranet and internet pages. The FDA’s component offices have reviewed internal disclosure guidance to determine whether additional categories of information can be released given the presumption of openness and have trained staff accordingly on any respective changes.
The AoA reports that it works under the presumption of openness and releases information in conformance with the President’s Memorandum and Attorney General’s Guidelines. In the instances where AoA was unable to provide information requested it was because there either were no records responsive to the request or else the request was referred to another component.
The CDC Director instructed subject matter experts to review all records responsive to FOIA requests in the spirit of openness and transparency. For each request, a Subject Matter Expert (SME) review must be undertaken and a statement of foreseeable harm to the agency of release must be provided in order for the FOIA Officer to consider exempting material under Exemption (b)(5). The FOIA Officer makes the final determination after careful consideration.
The HRSA FOIA Officer reports that while HRSA has not yet developed formal written guidance, he uses individual requests as “teaching moments” to explain to program staff how the presumption of openness applies in particular cases.
d. To what extent has your agency made discretionary releases of otherwise exempt information?
The HHS has made discretionary disclosures of otherwise exempt information, but the material varies by organization and program. In the Office of the Secretary the primary material released that would otherwise be exempt is covered by FOIA exemption (b)(5), which covers records that document the deliberative process.
At NIH, requests from program office for the denial of responsive records are reviewed with the goal of releasing as much information as possible. However, NIH reports that as it continued to apply the Reno standard during the Bush administration, few additional discretionary releases have been made.
The FDA routinely reviews records for discretionary releases. For example, the two centers responsible for implementation of the FDAAA (Food and Drug Administration Amendments Act of 2007), post new approval packages on the internet, and that now includes some internal recommendations/discussions which would formerly have been withheld under FOI Exemption (b)(5), as deliberative and predecisional information.
The SAMHSA has taken a proactive approach in releasing all reasonable portions of records that can be released; the OIG routinely releases information which would otherwise be protected under (b)(5).
The PHS/PSC FOIA office closely examines any initial FOIA request and FOIA appeal that has information which could be withheld pursuant to Exemption (b)(5) of the FOIA and re-reviews it with an eye toward partial or full release.
All of the over 1,200 HRSA-funded community health centers (CHCs) are required to submit annual “Universal Data System” (UDS) Reports consisting of eleven tables with data regarding the numbers and types of patients, health outcomes and quality measures, operating costs, etc. The updated aggregated data from the CHCs is posted annually for each state, territory and possession on the HRSA website. The FOIA Officer, working with HRSA and OGC staff, has over the past two years determined that all but three of the UDS tables from the individual CHCs can be released under the FOIA. The HRSA FOIA office regularly received requests from the various state and territorial primary care organizations and associations (PCOs and PCAs) for updated lists of all the National Health Service Corps (NHSC) currently serving in their state. Over 4,000 NHSC clinicians – who are serving for three to six years in return for NHSC scholarships that supported their medical education – are posted at various community health centers, Indian Health Service clinics, and Federal detention facilities in each state and territory. It is the responsibility of the PCOs and PCAs to monitor their activities and report any problems under a cooperative agreement with HRSA. Working with the NHSC program staff, a SORN was developed and posted in the Federal Register that made it possible for primary care organizations and associations to obtain this information directly from the NHSC program staff rather than having to make repetitious FOIA requests.
e. What exemptions would have covered the information that was released as a matter of discretion?
The HHS primarily releases information which would be otherwise be withheld under FOIA exemption (b)(5).
f. How does your agency review records to determine whether discretionary releases are possible?
The HHS, including the Office of the Secretary FOIA Requester Service Center, typically asks program offices to initially review records responsive to FOIA requests for material which may otherwise be released without harm. A secondary review is also performed by FOIA office staff, and discussion may take place if there are concerns regarding harm, if any, that may occur by release of the otherwise exempt information. Some FOIA offices ask that program officials complete a form to document the assertion of harm that may occur by the release of exempt information.
In the NIH every request for denial is reviewed by one of three staff members in the NIH FOIA Office and then by the NIH FOIA Officer. Each of these reviews is conducted with the presumption that the information suggested for denial should be released. In addition, no information is withheld without a written statement from an appropriate NIH Program Official explaining in detail the harm that will result if the information is released.
The FDA’s FOIA program is decentralized and FOIA staff members in each component review records to determine whether discretionary release is possible. When necessary, the component FOIA staffs consult with the agency’s Denials and Appeals Officer and/or the FDA’s FOIA Officer. In addition, each denial recommendation (partial and full) are reviewed by the Denials and Appeals Officer, who works with the components to make discretionary releases rather than denials, where appropriate.
The AoA reports that it works under the presumption of openness, and releases information in conformity with the President’s Memorandum and the Attorney General’s Guidelines. It should be noted that HHS FOIA offices generally work in consonance with its program offices to release as much information as possible, and consultation advice is typically available from its headquarters and Office of General Counsel offices in making determinations as to what may safely be released.
As mentioned previously, the CDC Director instructed subject matter experts to review all FOIA response documents in the spirit of openness and transparency, and that a Subject Matter Expert (SME) undertake a review and complete a statement of foreseeable harm in order for the FOIA Officer to consider exempting material under Exemption (b)(5).
g. Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied.
The FDA has a Transparency Task Force, which was created in response to the Obama and Holder memoranda. The purpose of the Task Force is to develop recommendations for making useful and understandable information about FDA activities and decision making more readily available to the public in a timely manner and in a user-friendly format. The Task Force has conducted two public meetings, one in FY2009 and one in FY2010. Additional information about the Task Force is available at the agency’s transparency website, at http://www.fda.gov/AboutFDA/Transparency/TransparencyInitiative/default.htm.
2. Report the extent to which the numbers of requests where records have been released in full and the numbers of requests where records have been released in part has changed from those numbers as reported in your previous year's Annual FOIA Report.
The overall HHS number of full grants decreased somewhat from 36,879 to 35,063, while the number of requests where records were released in part increased significantly from 1159 to 1953.