HHS Fiscal Year 2014 Freedom of Information Annual Report

I. BASIC INFORMATION REGARDING REPORT

1. Name, title, address, and telephone number of person(s) to be contacted with questions about the Report.

Michael S. Marquis
Director, Freedom of Information/Privacy Acts Division
Office of the Assistant Secretary for Public Affairs
United Sates Department of Health and Human Services
330 C Street, S.W., Room 2221
Washington D.C. 20201
(202) 690-7453

2. ELECTRONIC ADDRESS FOR THIS REPORT ON THE WORLD WIDE WEB:

3. ADDRESS FOR PAPER COPIES OF THIS REPORT

Contact Michael Marquis or Michael Bell, FOIA Public Liaison, at the address or telephone number listed above, or at: https://www.hhs.gov/foia/contacts/index.html

II. HOW TO MAKE A FOIA REQUEST

1. HHS and OPDIV Freedom of Information Officers/FOIA Requester Service Centers:

Department of Health and Human Services (HHS):
Website: https://www.hhs.gov/foia
Freedom of Information Officer
Mary E. Switzer Building, Room 2206
330 C Street, S.W.
Washington, D.C. 20201
Phone: 202-690-7453

Administration for Children and Families (ACF):
Website: https://www.acf.hhs.gov/freedom-of-information-act
Freedom of Information Officer
901 D Street, S.W.
7th Floor West
Aerospace Building
Washington, D.C. 20447
Phone: 202-401-9215

Administration for Community Living (ACL):
Website: https://www.acl.gov/Site_Utilities/FOIA/index.aspx
Freedom of Information Officer
Administration for Community Living
Washington, D.C. 20201
Phone: 202-357-3540

Agency for Healthcare Research and Quality (AHRQ):
Website: https://www.ahrq.gov/news/foia.htm
Freedom of Information Officer
540 Gaither Road
The Eisenberg Building, Room 3129
Rockville, Maryland 20850
Phone: 301-427-1866

Centers for Disease Control and Prevention (CDC):
Website: https://www.cdc.gov/od/foia/
Freedom of Information Officer
1600 Clifton Road, N.E., MS D-54
Atlanta, Georgia 30333
Phone: 404-498-1580

Centers for Medicare & Medicaid Services (CMS):
Website: https://www.cms.hhs.gov/foia/
Freedom of Information Officer
North Building, Room N2-20-06
7500 Security Boulevard
Baltimore, Maryland 21244
Phone: 410-786-5353

Food and Drug Administration (FDA):
Website: https://www.fda.gov/RegulatoryInformation/foi/
Division of Freedom of Information
Office the Executive Secretariat, OC
12420 Parklawn Drive, Room 1020
Rockville, Maryland 20857
301-796-3900 (main)

Health Resources and Services Administration (HRSA):
Website: https://www.hrsa.gov/foia/
Freedom of Information Officer
Parklawn Building, Room 14-15
5600 Fishers Lane
Rockville, Maryland 20857
Phone: 301-443-3376

Indian Health Service (IHS):
Website: https://www.ihs.gov/AdminMngrResources/FOIA/
Freedom of Information Officer
12300 Twinbrook Parkway, Suite 450
Twinbrook II, Metro Plaza Building
Rockville, Maryland 20857
Phone: 301-443-1116

National Institute of Health (NIH):
Website: https://www.nih.gov/icd/od/foia/
Freedom of Information Officer
Building 31, Room 5B35
31 Center Drive
Bethesda, Maryland 20892
Phone: 301-496-5633

Office of Inspector General (OIG):
Website: https://oig.hhs.gov/foia/
Freedom of Information Officer
Cohen Building, Suite 1062
330 Independence Ave, S.W.
Washington, D.C. 20201
Phone: 202-619-2541

Office of Public Health and Science (OPHS):
Website: https://www.hhs.gov/about/agencies/asa/psc/index.html
Freedom of Information Officer
Room 17-66, Parklawn Building
5600 Fishers Lane
Rockville, MD 20857
Phone: 301-443-5252

Office of the Assistant Secretary for Health (OASH):
Website: https://www.hhs.gov/about/agencies/asa/psc/index.html
Freedom of Information Officer
7700 Wisconsin Avenue, Suite 920
Bethesda, MD 20857
Phone: 301-492-4800

Substance Abuse and Mental Health Services Administration (SAMHSA):
Website: https://www.samhsa.gov/foia/
Freedom of Information Officer
1 Choke Cherry Road, Room 8-1042
Rockville, Maryland 20857
Phone: 240-276-2137

2. 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. Information withheld may include home addresses and phone numbers, social security numbers, medical records, proprietary business records, investigatory records, that if released may interfere with open investigations, and drafts of documents.

3. HHS FOIA Regulations: https://www.hhs.gov/foia/index.html

III. ACRONYMS, DEFINITIONS, AND EXEMPTIONS:

1. The following acronyms / agency component abbreviations, are utilized in this report:

Component Abbreviation	Component Name
OS	Office of the Secretary
ACF	Administration for Children and Families
ACL	Administration for Community Living
CDC	Centers for Disease Control and Prevention
CMS	Centers for Medicare & Medicaid Services
FDA	Food and Drug Administration
HRSA	Health Resources and Services Administration
IHS	Indian Health Service
NIH	National Institutes of Health
OASH	Office of the Assistant Secretary for Health
OIG	Office of Inspector General
SAMHSA	Substance Abuse and Mental Health Services Administration

 

2. Following are definitions of terms used in this Report:

Administrative Appeal – a request to a federal agency asking that it review at a higher administrative level a FOIA determination made by the agency at the initial request level.

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 8.

Backlog – the number of requests or administrative appeals that are pending at an agency at the end of the fiscal year that are beyond the statutory time period for a response.

Component – for agencies that process requests on a decentralized basis, a "component" is an entity, also sometimes referred to as an Office, Division, Bureau, Center, or Directorate, within the agency that processes FOIA requests. The FOIA now requires that agencies include in their Annual FOIA Report data for both the agency overall and for each principal component of the agency.

Consultation – the procedure whereby the agency responding to a FOIA request first forwards a record to another agency or component within the same agency for its review because that other agency has an interest in the document. Once the agency in receipt of the consultation finishes its review of the record, it responds back to the agency or component within the same agency that forwarded it. That agency, in turn, will then respond to the FOIA requester.

Exemption 3 Statute – a federal statute that exempts information from disclosure and which the agency relies on to withhold information under subsection (b)(3) of the FOIA.

FOIA Request – a FOIA request is generally a request to a federal agency for access to records concerning another person (i.e., a "third- party" request), or concerning an organization, or a particular topic of interest. FOIA requests also include requests made by requesters seeking records concerning themselves (i.e., "first-party" requests) when those requesters are not subject to the Privacy Act, such as non- U.S. citizens. Moreover, because all first-party requesters should be afforded the benefit of both the access provisions of the FOIA as well as those of the Privacy Act, FOIA requests also include any first-party requests where an agency determines that it must search beyond its Privacy Act "systems of records" or where a Privacy Act exemption applies, and the agency looks to FOIA to afford the greatest possible access. All requests which require the agency to utilize the FOIA in responding to the requester are included in this Report. Additionally, a FOIA request includes records referred to the agency for processing and direct response to the requester. It does not, however, include records for which the agency has received a consultation from another agency. (Consultations are reported separately in Section XII of this Report.)

Full Grant – an agency decision to disclose all records in full in response to a FOIA request.

Full Denial – an agency decision not to release any records in response to a FOIA request because the records are exempt in their entireties under one or more of the FOIA exemptions, or because of a procedural reason, such as when no records could be located.

Median Number – the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.

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 granted expedited processing are placed in yet another track. Requests in each track are processed on a first in/first out basis.

Expedited Processing – an agency will process a FOIA request on an expedited basis when a requester satisfies the requirements for expedited processing as set forth in the statute and in agency regulations.

Simple Request – a FOIA request that an agency using multi-track processing places in its fastest (non- expedited) track based on the low 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 high volume and/or complexity of the records requested.

Partial Grant/Partial Denial – in response to a FOIA request, an agency decision to disclose portions of the records and to withhold other portions that are exempt under the FOIA, or to otherwise deny a portion of the request for a procedural reason.

Pending Request or Pending Administrative Appeal – a request or administrative appeal for which an agency has not taken final action in all respects.

Perfected Request – a request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any) and procedures to be followed.

Processed Request or Processed Administrative Appeal – a request or administrative appeal for which an agency has taken final action in all respects.

Range in Number of Days – the lowest and highest number of days to process requests or administrative appeals.

Time Limits – the time period in the statute for an agency to respond to a FOIA request (ordinarily twenty working days from receipt of a perfected FOIA request).

3. Following are concise descriptions of the nine FOIA exemptions:

Exemption 1: classified national defense and foreign relations information

Exemption 2: information that is related solely to the internal personnel rules and practices of an agency

Exemption 3: information that is prohibited from disclosure by another federal law

Exemption 4: trade secrets and other confidential business information

Exemption 5: inter-agency or intra-agency communications that are protected by legal privileges

Exemption 6: information involving matters of personal privacy

Exemption 7: records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual

Exemption 8: information relating to the supervision of financial institutions

Exemption 9: geological information on wells

IV. Exemption 3 Statutes

Statute	Type of Information Withheld	Case Citation	Agency / Component	Number of Times Relied upon by Agency / Component	Total Number of Times Relied upon by Agency Overall
42 U.S.C § 247d-6b(d)	National stockpile information	None	OS	1	2
			CDC	1
18 U.S.C. § 208(d)(1)	Providing that "a copy of any determination granting an exemption under subsection (b)(1) or (b)(3) [from application of penalties for acts affecting personal financial interests determined to constitute bribery, graft, or conflicts of interest] shall be made available to the public," but exempting from this disclosure requirement "any information contained in the determination that would be exempt from disclosure under section 552 of title 5"	Seife v. NIH, 874 F. Supp. 2d 248, 256 (S.D.N.Y. 2012).	OS	1	1
42 U.S.C § 247d-6b(d)	Technical data or scientific information that is created or obtained during the countermeasure and product advanced research and development	None	OS	1	1
15 U.S.C § 1335a (b)(2)(A)	Cigarette additive information	None	CDC	1	1
42 U.S.C § 242m(d)	Identifiable information for certain research and statistical activities – guarantee of confidentiality	None	CDC	6	6
50 U.S.C Section §3024(i)	Intelligence sources and methods	None	CDC	1	1
21 USC § 350 d(a)(5)	Food, Drug & Cosmetic Act	None	FDA	11	11
21 U.S.C. § 331(j) (Food, Drug, and Cosmetic Act)	Certain information "concerning any method or process which as a trade secret is entitled to protection"	Anderson v. HHS, 907 F.d 936 950-5-1 (10th Cir. 1990).	FDA	163	163
42 U.S.C § 300aa12(d)(4)(A)	"Except as provided in subparagraph (B), information submitted to a special master or the court in a proceeding on a petition [for compensation under the National Vaccine Injury Compensation Program] . . . without the express written consent of the person who submitted the information"	Long V DOJ, NO 06CB1086, 2011 WL 113925 at *10 (N.D.N.Y. Mar. 25, 2011).	HRSA	1	1
42 U.S.C § 11137(b)	Adverse reports of a health care practitioner's conduct reported to the National Practitioner Data Base	None	HRSA	2	2
25 U.S.C § 1675(a)(3)	Medical quality assurance records cannot be released		IHS	2	2
5 U.S.C § 574(j)	Confidential communications with agency Ombudsman (3rd party neutral)	None	NIH	1	1
5 U.S.C. app. § 107(a) (Ethics in Government Act of 1978)	Financial disclosure information pertaining to certain government employees	Meyerhoff v. EPA, 958 F.2d 1498, 1500-02 (9th Cir. 1992); Seife v. NIH, 874 F. Supp. 2d 248, 254 (S.D.N.Y. 2012); Concepcion v. FBI, 606 F. Supp. 2d 14, 33 (D.D.C. 2009), renewed motion for summary judgment granted in part on other grounds, 699 F. Supp. 2d 106 (D.D.C. 2010); Glascoe v. DOJ, No. 04-0486, 2005 WL 1139269, at *1 (D.D.C. May 15, 2005).	NIH	2	2
15 U.S.C. § 3710a(c)(7)(A)	“[T]rade secrets or commercial or financial, under the meaning of section 552(b)(4) of Title 5, which is obtained in the conduct of research or as a result of activities under this chapter,” which pertains to cooperative research and development agreements for the purpose of technological and industrial innovation.	Publ. Citizen Health Research Group v. NIH, 209 F.Supp.2d 37, 43, 51 (D.D.C. 2002); DeLorme Pub. Col, Inc., v. NOAA, 917 F.Supp.867, 871-72 (D. Me. 1996), appeal dismissed per stipulation, No. 96-1601 (1st Cir. July 8, 1996).	NIH	11	11
42 U.S.C. § 262a(h)(1)	Information regarding select agents	None	NIH	2	44
			OIG	37
			CDC	5
35 U.S.C. § 209(f)	Plans of a licensee for development or marketing of a federally owned invention.		NIH	1	1
41 U.S.C. § 2102 (amending 41 U.S.C.§ 423(a)(1))* (Procurement Integrity Act)	Contractor bid or proposal information; source selection information	Legal & Safety Employer Research, Inc. v. U.S. Dep’t of the Army, No. Civ. S001748, 2001 WL 34098652, at *3-4 (E.D. Cal. May 4, 2001) (dictum).	NIH	1	2
			CMS	1
41 U.S.C. § 253b(m)(1) (currently at 41 U.S.C. § 4702)	Contractor proposals that are in the possession or control of an executive agency and that have not been set forth or incorporated by reference into contracts.	Sinkfield v. HUD, No. 10- 885, 2012 U.S. Dist. LEXIS 35233, at *13-15 (S.D. Ohio Mar. 15, 2012); Margolin v. NASA, No. 09-CV-00421, 2011 WL 1303221, at *6 (D. Nev. Mar. 31, 2011); Hornbostel v. U.S. Dep't of the Interior, 305 F. Supp. 2d 21, 30 (D.D.C. 2003), summary affirmance granted, No. 03-5257, 2004 WL 1900562 (D.C. Cir. Aug. 25, 2004).	NIH	1	43
			CDC	5
			CMS	28
			FDA	3
			OASH	6
42 U.S.C § 1306C	Master File Death Records		OIG	2	2
Inspector General Act of 1978 (Public Law 95–452; 5 U.S.C. App.)	Complaints by employees; Disclosure of identity; Reprisals	None	OIG	43	43
Fed. R. Crim. P. 6(e), enacted by Act of July 30, 1977, Pub. L. No. 95-78, 91 Stat. 319	Certain records pertaining to grand jury proceedings	Sussman v. USMS, 494 F.3d 1106, 1113 (D.C. Cir. 2007); Fund for Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 867-68 (D.C. Cir. 1981); Durham v. U.S. Atty. Gen., No. 06-843, 2008 WL 620744, at *2 (E.D. Tex. Mar. 3, 2008); Cozen O'Connor v. U.S. Dep't of Treasury, 570 F. Supp. 2d 749, 776 (E.D. Pa. 2008).	OIG	1	1

V. A. FOIA REQUESTS -- RECEIVED, PROCESSED AND PENDING FOIA REQUESTS

Component / Agency	Number of Requests Pending as of Start of Fiscal Year	Number of Requests Received in Fiscal Year	Number of Requests Processed in Fiscal Year	Number of Requests Pending as of End of Fiscal Year
OS	388	1,531	1,605	314
ACF	154	1,864	1,255	763
ACL	0	13	11	2
CDC	578	1,141	1,028	691
CMS	3,383	26,361	25,027	4,717
FDA	2,863	10,224	10,191	2,896
HRSA	89	355	352	92
IHS	28	152	160	20
NIH	71	1,169	1,156	84
OASH	138	437	455	120
OIG	6	843	815	34
SAMHSA	96	193	238	51
AGENCY OVERALL	7,794	44,283	42,293	9,784

 

Due to the Government Shutdown in October 2013, there were data entry delays in reporting the correct ending/ beginning pending case counts. The following changes are reported for the HHS components:

OS: reported 390 at the end of FY 2013, 388 at the beginning of FY 2014.

ACF: reported 153 at the end of FY 2013, 154 at the beginning of FY 2014.

CDC: reported 580 at the end of FY 2013, 578 at the beginning pf FY 2014.

HRSA: reported 81 at the beginning pf FY 2014, 89 at the beginning of FY 2014.

NIH: reported 70 at the end of FY 2013, 71 at the beginning of FY 2014.

OASH: reported 143 at the beginning of FY 2013, 138 at the beginning of FY 2014.

SAMSHA: reported 103 at the end of FY 2013; 96 at the beginning of FY 2014

V. B. (1) DISPOSITION OF FOIA REQUESTS - ALL PROCESSED REQUESTS

 

V. B. (2) DISPOSITION OF FOIA REQUESTS -- "OTHER" REASONS FOR "FULL DENIALS BASED ON REASONS OTHER THAN EXEMPTIONS"

 

Component / Agency	Description of "Other" Reasons for Denials from Chart B (1)	Number of Times "Other" Reason Was Relied Upon	COMPONENT TOTAL
OS	Administrative Closure- Based on response/non-response to continued interest correspondence	18	22
	Litigation	3
	Referred to Website	1
ACF	Fail to respond to designated date	1	1
ACL	N/A	0	0
CDC	Administrative Closure- Based on response/non-response to continued interest correspondence	209	209
CMS	Aggregate Cases	16	98
	Litigation and Subpoena	17
	Administrative Closure - Based on response/non-response to continued interest correspondence	65
FDA	Referred requester to record posted on internet	99	99
HRSA	N/A	0	0
IHS	Information on the website	4	23
	Administrative Closure- Based on response/ non-response to continued interest calls and correspondence	19
NIH	N/A	0	0
OASH	Failed to respond on designated date	19	21
	No response to subpoena as request letter	1
	No response to unpaid invoice letter	1
OIG	In Litigation	1	21
	Administrative Closure- Based on response/non-response to continued interest correspondence	20
SAMHSA	Administrative Closure- based on response/non response to continued interest calls and correspondence	9	10
	Unable to Locate Requester	1
AGENCY OVERALL			504

 

V. B. (3). DISPOSITION OF FOIA REQUESTS - NUMBER OF TIMES EXEMPTIONS APPLIED

 

VI. A. ADMINISTRATIVE APPEALS OF INITIAL DETERMINATIONS OF FOIA REQUESTS -- RECEIVED, PROCESSED, AND PENDING ADMINISTRATIVE APPEALS

Component / Agency	Number of Appeals Pending as of Start of Fiscal Year	Number of Appeals Received in Fiscal Year	Number of Appeals Processed in Fiscal Year	Number of Appeals Pending as of End of Fiscal Year
OS	190	203	218	175
CMS	151	122	28	245
AGENCY OVERALL	341	325	246	420

 

OS: Due to the Government Shutdown in October 2013, there were data entry delays in reporting the correct ending pending/ beginning pending case counts resulting in two appeals reopening and increasing the total at the close of FY 2013 from 188 to 190.

VI. B. DISPOSITION OF ADMINISTRATIVE APPEALS -- ALL PROCESSED APPEALS

Component / Agency	Number Affirmed on Appeal	Number Partially Affirmed & Partially Reversed/Remanded on Appeal	Number Completely Reversed/Remanded on Appeal	Number of Appeals Closed for Other Reasons	TOTAL
OS	83	30	6	99	218
CMS	3	4	1	20	28
AGENCY OVERALL	86	34	7	119	246

 

VI. C. (1). REASONS FOR DENIAL ON APPEAL -- NUMBER OF TIMES EXEMPTIONS APPLIED

 

VI. C. (2). REASONS FOR DENIAL ON APPEAL -- REASONS OTHER THAN EXEMPTIONS

 

VI. C. (3). REASONS FOR DENIAL ON APPEAL -- "OTHER" REASONS

Component / Agency	Description of "Other" Reasons for Denial on Appeal from Chart C (2)	Number of Times "Other" Reason Was Relied Upon	COMPONENT TOTAL
OS	Appeal Moot	26	35
	No response to unpaid invoice letter	1
	Appeal Untimely	8
CMS	Aggregated Cases	1	1
AGENCY OVERALL			36

 

VI. C. (4). RESPONSE TIME FOR ADMINISTRATIVE APPEALS

Component / Agency	Median Number of Days	Average Number of Days	Lowest Number of Days	Highest Number of Days
OS	124.00	589.00	<1	1,574.00
CMS	362.00	346.00	8.00	631.00
AGENCY OVERALL	150.00	314.00	8.00	1,574.00

 

VI. C. (5). TEN OLDEST PENDING ADMINISTRATIVE APPEALS

Component / Agency	Sub-Row Heading	10th Oldest Appeal	9th	8th	7th	6th	5th	4th	3rd	2nd	Oldest Appeal
OS	Date of Appeal	2009- 10-15	2009- 03-17	2009- 02-12	2009- 02-12	2009- 01-30	2008- 09-15	2008- 09-09	2008- 09-09	2008- 02-20	2008- 02-08
	Number of Days Pending	1245	1393	1415	1415	1424	1517	1521	1521	1662	1669
CMS	Date of Appeal	2011- 11-07	2011- 11-01	2011- 10-26	2011- 10-19	2011- 10-03	2011- 08-29	2011- 08-19	2011- 08-11	2011- 06-23	2011- 06-01
	Number of Days Pending	726	732	736	741	752	776	782	788	822	838
AGENCY OVERALL	Date of Appeal	2009- 10-15	2009- 03-17	2009- 02-12	2009- 02-12	2009- 01-30	2008- 09-15	2008- 09-09	2008- 09-09	2008- 02-20	2008- 02-08
	Number of Days Pending	1245	1393	1415	1415	1424	1517	1521	1521	1662	1669

VII. A. Processed Requests - Response Time for All Processed Perfected Requests

VII. B. Processed Requests - Response Time for Perfected Requests in Which Information Was Granted

 

VII. C. 1. PROCESSED REQUESTS -- RESPONSE TIME IN DAY INCREMENTS – SIMPLE REQUESTS

 

VII. C. 2. PROCESSED REQUESTS -- RESPONSE TIME IN DAY INCREMENTS – COMPLEX REQUESTS

 

VII. C. 3. PROCESSED REQUESTS -- RESPONSE TIME IN DAY INCREMENTS – REQUESTS GRANTED EXPEDITED PROCESSING

 

VII. D. PENDING REQUESTS -- ALL PENDING PERFECTED REQUESTS

 

VII. E. PENDING REQUESTS -- TEN OLDEST PENDING PERFECTED REQUESTS