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3.7 Freedom of Information Act (FOIA) Requests

CDC and the Agency for Toxic Substances and Disease Registry (ATSDR) transparency initiatives

CDC and the Agency for Toxic Substances and Disease Registry (ATSDR) takes its transparency responsibility to the public seriously and is committed to providing as much information as possible as quickly as possible.  Specifically, the CDC Freedom of Information Act (FOIA) Office has recently improved the FOIA public website to encourage interested parties to search CDC’s website containing vast amounts of information and data resources.  In conjunction, CDC programs are being actively encouraged to increase their posting of content earlier and more comprehensively.  The CDC FOIA Office is also more actively posting information, links to hot topics, and frequently requested information on the FOIA website. 

The CDC (including ATSDR) FOIA Office is centralized with a staffing full-time equivalent ceiling of 15 and is currently staffed at 12 which includes two recently hired new employees with FOIA experience.  CDC as an agency also has 41 FOIA Coordinators in the program offices that facilitate FOIA routing requests to responsible program staff that may have records, tracking responses, and providing responsive materials to the central FOIA Office. 

The CDC/ATSDR FOIA Office is operating under a significant backlog consisting of approximately 580 cases involving approximately one million pages.  CDC has established goals to reduce the backlog and median response time by 10% per year, and increase the proportion of responses completed within 20 days through the following initiatives: 

  • A review of the FOIA process was conducted resulting in several improvement action items which are underway.
  • CDC is upgrading its systems supporting FOIA processing including:
  • Transition to the latest version of the FOIA system (FOIAXpress version 9) which includes some key new features and functions to improve FOIA handling efficiency.
  • Investments in new hardware (servers, scanner) to provide better document handling performance.
  • Development of a SharePoint solution to automate the handling of e-document submissions from program offices to the FOIA Office
  • The FOIA Office has just completed an extensive FOIA Standard Operating Procedure (SOP) manual to guide FOIA staff in efficient and consistent handling of the process.
  • A request for proposal for FOIA contractual support services has been released to initially acquire three FOIA analysts and the resulting contract will be extensible to increase the number of contract staff as may be needed. The contract is anticipated to be awarded by June/July 2014.  This will increase the overall FOIA staffing by 25%.
  • The FOIA Office has also recruited an attorney to join the FOIA Office on detail to assist with reducing the backlog of appeals. 

The CDC FOIA Office utilizes a multi-track system for processing requests and strives to strike a balance when processing simple and complex requests.  FOIA staff communicates regularly with requesters.  FOIA staff consults with program staff to determine the types of records in our files, and then works with requesters to ascertain the types of documents in agency files which are most beneficial to the requester. 

Subject Matter Experts are engaged at the program level to review predecisional portions of documents and are encouraged to release as much information as possible.  Absent a strong foreseeable harm justification, documents, or portions thereof, will be released without redactions.

CDC’s headquarters and FOIA Office are in Atlanta, GA.    CDC’s FOIA Office holds internal training sessions with FOIA staff as well as with program officials and program staff throughout the year.  CDC’s FOIA Office arranged to have Food and Drug Administration (FDA)’s long-standing FOIA Officer to conduct a training session for CDC FOIA staff in February of 2014 for two days.  CDC supports the Department of Justice and Office of the Assistant Secretary for Public Affairs (ASPA) webinars.

The CDC website is being updated regularly and links are provided to program websites to allow the public to get up-to-date information, thereby possibly eliminating the need for some FOIA requests.  CDC’s public FOIA website is at:  http://www.cdc.gov/od/foia/.

CMS FOIA Web Page Redesign  

CMS is continuously reviewing and updating its website to facilitate the FOIA process and promote existing online resources.  The Office of Strategic Operations and Regulatory Affairs launched a redesign of the FOIA pages on CMS.gov (http://www.cms.gov/center/freedom-of-information-act-center.html), creating a feature that allows a requestor to check the status of their FOIA request by entering the control number and personal identification number (PIN) provided in the FOIA acknowledgement letter.   CMS also established a “Look What’s New” section to direct the public to newly posted datasets, which in the spirit of openness and transparency includes records identified as of sufficient public interest to warrant automatic disclosure on the agency's website.  This section contains the link to large structured datasets including the highly sought after CMS physician referral pattern data and the Medicare provider utilization and payment data.  From the FOIA webpage, the public can also access the data.medicare.gov (https://data.medicare.gov/) and data.cms.gov (https://data.cms.gov/) websites to access other CMS datasets on hospitals, nursing homes, health plans and many other health care settings and subjects. 

CMS is working collaboratively across CMS to continue to improve the timeliness and visibility of datasets and other information posted to the website.  

CMS FOIA Staffing and Organizational Structure

In order to respond to the large volume of FOIA requests, CMS operate its FOIA program through both a centralized and decentralized FOIA network. The Office of Strategic Operations and Regulatory Affairs, Openness, Transparency and Accountability Group (OTAG), Division of Freedom of Information (DFOI) is the organization that oversees and manages the FOIA program for the agency and is the focal point for implementing the provisions of the Act.  The Regional Offices and corresponding Medicare Administrative Contractors provide coordination and responses to the majority of simple, direct reply requests that do not involve disclosure analysis or redaction of records.

DFOI is tasked with addressing the most complex requests received by CMS and its contractors.  The responsive records involve detailed disclosure analysis to determine whether it is necessary to apply statutory exemptions to protect personal privacy, confidential business, pre-decisional and deliberative information from disclosure.  In general, CMS follows a government-wide practice of first-in, first-out request processing as a result of case law determinations in the Federal Courts. 

CMS is pleased to report a FOIA backlog reduction that exceeded the 10% Presidential mandated goal in our FY 2013 Freedom of Information Act (FOIA) Annual Report to the Department.  In keeping with the Department’s open government and transparency initiatives, we made substantial improvements in our FOIA activities including:

  • Reducing our backlog – initial requests that have not been processed within 20 working days – to 1,426 at the end of FY 2013, a 16.4 percent reduction from FY 2012.
  • Reducing our total pending initial FOIA requests (open plus backlog) to 3,383 at the end of FY 2013, an 8.6 percent reduction from FY 2012.
  • Processing 99.8 percent of our remaining initial FOIA requests from FY 2011.
  • Processing 99.4 percent of our remaining FY 2012 open FOIA requests.
  • Processing 94.8 percent of the 51,364 FOIA requests received in FY 2013.
  • Closing the 10 Oldest Initial Requests and 10 Oldest Appeals that were reported in the FY 2012 CMS Annual FOIA Report.
  • Implementing the FOIA Contractor Portal within the Strategic Work Information Folder Transfer (SWIFT) system to provide a global tracking and reporting system for all FOIA requests administered by CMS and the Medicare Administrative Contractors, Fiscal Intermediaries and Carriers. 
  • Working within CMS and with other HHS components to put more useful CMS materials on the Web and to liberalize our disclosure policies.
  • Maintaining the resources we committed to FOIA, while meeting our commitments under the Affordable Care Act and ongoing programmatic responsibilities.
  • The updated SWIFT FOIA system supports all aspects of the FOIA program, including: redaction, exemption tracking, letter generation, fee tracking, invoice generation, and appeals tracking.   As a result, CMS has improved FOIA processing times and reduced the backlog of open requests from 10,312 in FY 2009 to 1,426 in FY 2013.  The SWIFT FOIA technology facilitates an electronic workflow process that is less prone to human error, reportable, and visible, for CMS, which administers approximately 80% of the FOIA requests received by the U.S. Department of Health and Human Services.

FDA FOIA Backlog Reduction

  • FDA will continue to focus on reduction of its FOIA backlog.  Since 2007, FDA has reduced its backlog by approximately 70 percent.  The OPDIV will focus on training of existing FOIA staff and hiring additional full-time equivalent in certain OPDIV components. In addition, components will review their operating procedures to determine where efficiencies can be improved.
  • FDA will utilize technology and transparency initiatives to reduce the number of incoming FOIA requests by making records available proactively.
  • FDA will work proactively with requesters to assess their needs, negotiate document production, and reduce FOIA processing time.
  • FDA will refresh its FOIA tracking and document storage system

Indian Health Service (IHS) FOIA Backlog Reduction

The Indian Health Service (IHS) FOIA backlog is reduced due largely to Transparency, Participation and Collaboration.  We have only three FOIA cases in backlog for the first time in many years.

There are several factors that led to this achievement. Most importantly, it is all facets of providing excellent customer service by establishing and maintaining working relationships with IHS employees.  This was done with the help of training, consultations, and the guidance being provided to requesters and IHS staff so that they can ensure that the FOIA responsibilities are successfully carried out.  We anticipate that by the end of the year, for the first time, IHS will have a FOIA policy. 

In the spirit of transparency, the IHS has released more information relating to contracts that it had previously withheld and put under the “umbrella” of the protection of information for business entities.   The discretionary releases dealt more with information related to solicitations or contracts; or information about the awards of grants, rather than detailed commercial information.  Specifically, this would be any information such as Data Universal Numbering System Number, Insurance Information, and some budget/financial breakdowns as they relate to IHS funds and/or American Recovery and Reinvestment Act funds. 

We continue to post widely-requested information on the IHS FOIA website and provide the most up-to-date information to the public, by maintaining a strong relationship with those program offices that we have worked with, in order to be provided the responsive information being requested.  For instance, we have consulted with several program offices at the Headquarters level to add their program sites on the FOIA website; and have discussed with those program offices about what information they may have to contribute to the Frequently Requested Records portion of the FOIA staff site and also what links (to other sites or program pages) that they believe would be helpful to the public. 

We continue to ensure that the FOIA program’s website is easily read and accessible under Section 508 of the American Disability Act.  This year, the IHS website has undergone many improvements and kept in line with those changes (not specific to Section 508 accessibility only).  In line with those changes, the FOIA website was continuously tested to be sure that it was still accessible and that documents were complete and easily accessed under the format that they were posted.  We continue to “test” the links each quarter and respond quickly to feedback from others about the ease of our site.  If problems arise, FOIA staff work with IT staff to have them corrected as soon as possible. 

Another factor that we feel led to the reduction in the backlog was also the expertise of the FOIA Coordinators at the Area level.  Because those coordinators have extensive background in health records, knowledge of the FOIA, HIPAA, records management, and vast knowledge of their area programs; we were better able to receive complete records in response to a request for materials. 

We posted several PowerPoint presentations on FOIA and Privacy Act to explain the difference between the two to the public.

http://www.ihs.gov/FOIA/index.cfm?module=dsp_foia_elec_read_room

National Institutes of Health (NIH) FOIA Process

NIH has a very effective system for responding to requests.  FOIA processing at NIH is decentralized; in addition to the central NIH FOIA Office, each NIH Institute & Center (IC) and several NIH Office of the Director (OD) components has its own FOIA Requester Service Center staffed by a FOIA Coordinator with release authority.  By having processing located directly in the IC, the FOIA Coordinators have greater knowledge of the location of requested files, which decreases search time.  Because the FOIA Coordinators and the Program Staff are colleagues within the same organization, there is greater cooperation regarding reviewing proposed redactions which decreases review time. 

Requests may be sent to either the NIH FOIA Office or directly to the IC/OD component FOIA Requester Service Center.  Contact information is located on the NIH FOIA website.  The FOIA Coordinator identifies all offices within the component reasonably likely to have responsive records and initiates a search.  All responsive records are reviewed and if nothing is to be denied, the FOIA Coordinator will process the records and respond directly to the requester. 

Any records requiring a denial are forwarded to the NIH FOIA Office for review, along with copies of all relevant correspondence, the records for denial, and a detailed program statement explaining the reason for the denial.  The program statement must describe the harm that would be caused by release of the material. 

Steps Taken to Reduce Backlog:

Since the issuance of the Open Government Directive, NIH has reduced its backlog of FOIA requests from 70 requests at the end of FY 2009 to 26 requests at the end of FY 2013.  The most effective and simplest step continues to be regular monitoring of the list of pending requests, identifying those that have been pending the longest and meeting with the responsible FOIA Coordinator and FOIA Public Liaison.  Enhancements made to the NIH FOIA Tracking System enable the FOIA Officer to monitor all agency activity as a whole as well as monitor the activity of individual FOIA Requester Service Centers.  In addition, FOIA Coordinators can monitor their own request load with ease.  Increasing backlogs can be spotted and addressed before they become problems.  Finally, prompt triage of incoming requests to identify those where negotiation may be appropriate and effective also has helped to reduce processing times and increase requester satisfaction. 

Each NIH FOIA Requester Service Center has a FOIA Public Liaison.  A complete list is located on the NIH FOIA website:  http://www.nih.gov/icd/od/foia/servicecenter.htm.

Program Support Center (PSC) Backlog Reduction

As part of our efforts to reduce our number of pending requests (as well as the pending requests of the PHS OPDIVS whom we service on appeal), we offer various training programs upon request that are tailored to the audience. 

For example, we are planning to present a “cross-training” to one of our program offices which is meant to educate both program personnel and FOIA personnel.  This program office, the Office of Research Integrity (ORI), accounts for the majority of PSC FOIA’s pending requests.  The goal of this presentation is to inform the program personnel of their requirements under the FOIA as well as PSC FOIA’s expectations of them.  It will also inform the FOIA staff of the special concerns faced by ORI and other issues specific to that program.  This sort of training will foster a trust between the office staff and further PSC FOIA’s understanding of the records which will, in turn, result in processing requests more quickly.

PSC FOIA has also hired additional staff to work on pending requests and appeals, including a temporary contract worker.  This additional workforce has already begun to see significant success.  As stated above, in the past two months alone, PSC FOIA closed more requests and appeals than it had previously this fiscal year.

HHS QUARTERLY FOIA DATA

Quarterly FOIA data reported to the Department of Justice and posted on www.FOIA.gov is publicly available at:  http://www.hhs.gov/foia/quarterly/index.html

Links to Agency Annual FOIA Reports

http://www.hhs.gov/foia/reports/index.html

http://www.hhs.gov/foia/reference/2014_intro.html

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