HHS and the Freedom of Information Act (FOIA)
The Freedom of Information Act (FOIA) gives the public the right to request records held by the federal government. Many agencies hold large backlogs of requests. The Open Government Directive recognizes this, and calls for a 10% annual reduction in “significant” backlogs. The HHS annual backlog at the end of September 2009 was over 17,000 requests.
To address this backlog and as a commitment to the Open Government Directive, HHS has initiated a strategic sixteen-week HHS Open Government FOIA Project with a dedicated project manager and team. This project is to assess the health of HHS FOIA operations, identify and prioritize improvement opportunities, and define a roadmap to implement the improvements.
The project is currently in progress. The project scope encompasses review of FOIA operations within the Office of the Secretary; the Program Support Center (PSC); and eleven HHS Operating Divisions, including the Centers for Medicare and Medicaid Services (CMS), Food and Drug Administration (FDA), National Institutes of Health (NIH), and Centers for Disease Control and Prevention (CDC). In addition, it includes collaborating with the FOIA offices of other federal agencies, to learn from successes in addressing FOIA backlogs. Some of the preliminary findings from the assessment, and the plan thereof, are presented in the subsequent sub-sections. Once the project is complete, this section of the HHS Open Government Plan will be updated with further details.
Section 3.7.2 provides a high-level FOIA assessment. Section 3.7.3 provides an analysis and preliminary plan, also at a high level.
There is no single improvement that will solve the majority of the challenges facing HHS when it comes to FOIA. In the spirit of openness, many of the ideas in this plan are being shared while still under early investigation. However, it is clear that a multi-pronged approach will be necessary for backlog reduction: enhanced FOIA program efforts, the implementation of metrics for FOIA office performance, and an increased use of supporting technologies.
3.7.2 Assessment: Current State
- FOIA Organization at HHS is Decentralized. There are thirteen HHS FOIA offices, located in various Operating Divisions and Staff Divisions (components of the Office of the Secretary). Each FOIA Office is run by a local FOIA Officer. Operating Divisions such as FDA and NIH have numerous “satellite” FOIA offices located within their institutes and centers. The entire FOIA program, though decentralized, is the responsibility of the HHS Chief FOIA Officer, the Assistant Secretary for Public Affairs.
FOIA offices and related positions (e.g., the FOIA public liaisons) are managed by the leadership of their respective Operating Divisions and Staff Divisions, including budgeting and staffing decisions
- Funding Towards FOIA is not Transparent to the FOIA Offices. Most FOIA offices do not have their own budgetary allocation. Instead, their funding comes from the offices to which they report. The reporting structure of FOIA offices within different Operating Divisions varies. For example, in the FDA, the FOIA office is part of the Office of Public Information and Library Services, whereas at CMS it is part of the Office of Strategic Operations and Regulatory Affairs.
- 88% of FOIA Requests are Concentrated in Two Agencies. The number of FOIA requests received varies greatly across the Department. For Fiscal Year 2009 (FY09), the Department as a whole reported receiving 48,564 requests. Of these, 88% were received by two FOIA offices – 67% (32,541) went to the CMS FOIA office, and 21% (10,337) went to the FDA FOIA office. The remaining 12% of requests were received by the other eleven FOIA offices. Of these, the CDC and NIH FOIA offices received 3% (1272 and 1270, respectively) each. The Administration on Aging (AOA) received the least number of requests (only ten).
93% of Backlogs are Concentrated in Two Agencies. Within HHS, 59% of backlogged requests (10,312 requests) are with CMS, and 34% (4,818) are at FDA. The next largest contributor is the Office of the Secretary (OS) FOIA Office, which holds only 4% of the backlogged requests. The Department is therefore focusing on these areas for backlog reduction.
Doing More With Less
- FOIA Requests Vary in Complexity. Not all requests are equivalent. Some requests require the careful review of thousands of pages, while other requests are easily granted with a single page record that needs no redaction. The definitions for “simple request” and “complex request” vary between FOIA offices, as do the definitions for “partially fulfilled” and “fully granted.”
- Backlog reduction efforts are decentralized. Under the Open Government Act of 2007 and Executive Order 13392 (2005), agencies were directed to develop FOIA improvement plans with backlog reduction goals. At HHS, no comprehensive or department-level activities were implemented in this regard. However, overall department backlogs were lowered as some Operating Divisions have shown progress individually in the last few years.
- FOIA Analysis Requires Specialized Knowledge. . The responsibilities of FOIA staff vary greatly, and only some perform the disclosure analysis necessary before a record can be released. FOIA disclosure analysis requires knowledge of not only the Freedom of Information Act and the amendments, executive orders, and Operating Division policies that have augmented it, but also comprehension of the 36 years of case law that have come since the Act itself and related statutes as well. In addition, some HHS Operating Divisions, such as FDA, review documents that are rich in technical and scientific content – work which requires additional educational background, knowledge and training to process and accurately redact requests.
- Operating Division FOIA Operations Vary in Scale. There are 264 full-time equivalent (FTE) FOIA personnel at HHS. Of the thirteen HHS FOIA offices, all have less than seven of these FTEs except NIH (30 FTEs), CMS (67 FTEs), and FDA (124 FTEs, up recently from 108). Almost all of the FTEs at these three Operating Divisions are satellite personnel, with different roles depending on the Operating Division.
- FOIA Requests Mostly Arrive by Mail. Most HHS FOIA offices do not offer an online FOIA request form, so requests come largely by mail, fax, email, and (for commercial requestors) courier services. The Departmental FOIA office offers a web form that generates an email to the Office of the Secretary’s FOIA office, which then manually forwards the email to the appropriate HHS FOIA office. While this adds convenience for the requester, no internal efficiencies are gained through the current system.
- Request Tracking Capabilities are Minimal. All Operating Divisions are required to provide tracking information to their requestors, but only CDC allows users to do this on the web; the rest handling status tracking more manually. Requests are processed internally at the smaller FOIA offices, but the larger operations at CMS and FDA have most of their requests fulfilled by satellite FOIA personnel.
- Annual Reporting is Manual. Although the annual report requires the collection of several numbers that might serve as good performance indicators, this is undermined by inconsistencies in the definitions for the terms in the report. A complex request in one FOIA office might require a significantly different amount of work than a complex request in another. The annual report shows nothing of whether long delays are due to fundamentally difficult redaction questions, due to slow response time of the program holding the records, or due to a backlog in disclosure analysis. Since the Department’s annual report is compiled manually, more frequent collection of metrics is not feasible without systematic changes.
- Technology is Underutilized. The challenges encountered in compiling the annual report underlie the differences in technology utilization across the HHS FOIA offices. Most of the HHS FOIA offices do not offer online submission of requests. There are little or no common standards connecting any of the systems supporting HHS’s FOIA offices.
- Technology at CMS. CMS currently uses Strategic Work Information Folder Transfer (SWIFT) to manage its correspondence and is in the process of adding more FOIA-specific functionality to this software. CMS’s backlogged requests, however, are not yet part of this new system.
- Technology at FDA. FDA as a whole is using an in-house customization of Documentum to track Operating Division tasks and dockets, including the tracking of FOIA requests. FDA’s FOIA office is beginning to use commercial software for redaction, and most component offices have used redaction software for years.
- Technology at NIH. NIH uses a custom-built tracking system, and uses physical redaction tape or commercial software for redaction depending on the NIH program office.
- Technology in OS. The Office of the Secretary’s FOIA Office uses Microsoft Access to log requests, and prepares the annual report in Microsoft Word.
3.7.3 Analysis and Preliminary High-Level Plan
The following proposals are high-level ideas, presented to receive public and employee input. Amendments will be made based on input or feedback received.
220.127.116.11 Better Use of Available Information
- Trends and Outliers in Requests. FOIA requests are one of the most reliable and quantifiable metrics for the public’s interest in government. However, throughout HHS, FOIA is very rarely part of the strategic planning process. FOIA should inform Open Government activities, the proactive publishing of datasets, and website content. Accordingly, HHS will look into integrating the FOIA offices into Operating Division and departmental processes, committees, and meetings (e.g., capital planning, the Data Council, the CIO Council, the Innovation Council, the Web Council, budget and contract planning, strategic planning, Open Government and transparency, etc.).
- Prioritizing Information for Proactive Release. The FOIA workload can be reduced, and service to the public can be improved, by the proactive publishing of frequently requested datasets. HHS will establish governance to include FOIA officers across the department in transparency and data sharing planning activities.
- Submission and Tracking of FOIA Requests. Requestors are already able to ask FOIA offices for the status of their request, but a robust tracking system would make this available online and could include the status of all requests. HHS will explore setting minimum standards for the online submission and tracking of FOIA requests across all Operating Divisions. Tracking requests is also crucial to ensuring appropriate resources are allocated for FOIA operations; this is discussed in 18.104.22.168.e, below.
- Technology Architecture. HHS is actively investigating whether the centralization or federation of technological resources used in processing FOIA would be a significant improvement over the current decentralized approach. Similarly, the HHS FOIA websites vary in features and content, and HHS is investigating whether more uniform standards or centralization of HHS FOIA web tools would bring added value to the public.
- Instituting a Performance Management Culture. Metrics showing the health of the FOIA program will be defined, and systems will be put in place to capture and report metrics to the Chief FOIA Officer on a least a monthly basis. FOIA metrics developed by HHS will be shared with other agencies.
22.214.171.124 Ideas for Improving FOIA Processes
The following list is preliminary and presented in order to receive input on ways to strengthen FOIA at HHS, address the deficiencies that have led to the significant backlog of requests, and achieve excellence in FOIA administration. This list is not a final plan; the assessment of HHS FOIA operations and planning for remediating issues is still in progress.
- Communicating FOIA Needs. The decentralized FOIA operations at HHS allow FOIA offices to be close to the programs that have the information that is being requested. It is possible to improve communication between FOIA offices and Operating Division leaders through the same strategy described in 126.96.36.199.a; that is, better integration of FOIA into existing activities.
- FOIA as a Senior Executive Priority. While FOIA needs will be better addressed through increased participation of FOIA personnel in Operating Division governance, leadership attention to FOIA performance will also make a difference. HHS will explore methods for increasing senior management attention to improving FOIA operations within its operating divisions.
- FOIA as a Program Officer Priority. Federal employees who are not FOIA staff play a crucial role in fulfilling FOIA requests. Such individuals hold the records sought through the FOIA process, and are a critical step in the process. However, communication to employees about FOIA responsibilities and statutes is lacking. In addition, few receive training in FOIA. HHS plans to consider ways in which FOIA compliance and training as can be promoted and measured as part of an HHS-wide effort.
- Matching Skills and Needs. There is no FOIA-specific job series within the federal government, which means there is no government-wide standard for the skills and knowledge necessary to perform FOIA work, no standard for evaluating performance by FOIA staff, and considerable inconsistency in how duties map to salary grades. This need can be met, at least in part, through the efforts to create HHS standards, by better capturing metrics, and through better tracking of requests.
- CMS FOIA Backlog Planning. CMS has developed a short term strategy to take necessary steps to increase case production of existing staff, align contractor resources, and focus regional resources to decrease the existing backlogs. CMS has been charged with developing a long range plan to ensure new backlogs are not created; this plan will include an analysis of resources that may be needed moving forward as well as addressing the need for all aged, pending complex cases to be converted from paper to electronic files for better case management and electronic review and redaction.
- FDA FOIA Backlog Planning. At FDA, of 4,600 backlogged requests, the Center for Drug Evaluation and Research (CDER) and Center for Devices and Radiological Health (CDRH) have approximately 2,000 each. Both offices are built around FOIA staff with not only the standard amount of FOIA knowledge, but also a familiarity with the underlying technologies/sciences specific to their program areas. FDA is committed to backlog reduction through a multi-pronged approach. The agency is currently evaluating the best alternatives to achieve this goal, and anticipates building on the significant (75%) backlog reduction that has occurred since FY2007. Much of the FDA reduction was accomplished by categorizing and resolving large sets of requests in the backlog, and with these requests now closed, the remaining backlog may require new approaches.
- Office of the Secretary FOIA Office Backlog Planning and Program Development. The Office of the Secretary is doing everything it can to reduce its backlog, and is considering additional FOIA-specific activities, including maintaining department FOIA regulations, creating a department-wide FOIA council, and providing cross-training for both FOIA and non-FOIA staff. Also being considered are mechanisms to cooperate with the new Office of Government Information Services’ FOIA mediation efforts and regular meetings between FOIA professionals and the agency Chief FOIA Officer.
188.8.131.52. Doing More With Less
- Communication for Greater Efficiency. The simplest method for reducing FOIA backlog and workload is to encourage FOIA staff to work with the requestors to make sure their requests are being interpreted as intended. This method is proven in some components of HHS but is not routine across the department. To reduce the routine waste in fulfilling too broad, obsolete, or ambiguously worded requests, HHS may institute policy regarding communication between the analyst and requestors and establish guidelines to improve direct communication between reviewers and requestors.
- Technology. As explored in earlier sections, technology solutions can improve FOIA service to the public and management oversight, as well as bring new levels of transparency to the process itself. Technology investments should also result in faster responses and more efficient disclosure analysis; HHS will include these priorities in considering new technology to support FOIA operations.
These are high-level preliminary plans, and will be updated based on public and employee feedback. Public input will help ensure that the agency meets its goal of excellence in FOIA administration.
More background on the Department’s FOIA program is available in the annual FOIA reports and the annual Chief FOIA Officer’s Reports, both of which are available on the HHS FOIA website.
How long will this take to see a 10% decrease in back logs? How else can we get the word out get more feedback on this issue?
Good stuff, looking forward to the regular updates.