Section I: FOIA Leadership and Applying the Presumption of Openness

The guiding principle underlying the Attorney General’s FOIA Guidelines is the presumption of openness.  The Guidelines also highlight the importance of agency leadership in ensuring effective FOIA administration.  Please answer the following questions about FOIA leadership at your agency and describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA.

A.  FOIA Leadership

1.  The FOIA requires each agency to designate a Chief FOIA Officer who is a senior official at the Assistant Secretary or equivalent level.  See 5 U.S.C. § 552(j)(1) (2018).  Is your agency’s Chief FOIA Officer at or above this level?

Yes.

2.  Please provide the name and title of your agency’s Chief FOIA Officer.

Rich Danker
Agency Chief FOIA Officer
Assistant Secretary for Public Affairs
U.S. Department of Health and Human Services

3.   What steps has your agency taken to incorporate FOIA into its core mission? For example, has your agency incorporated FOIA milestones into its strategic plan?

The Department integrated FOIA into its strategic operations through targeted investments in staffing, training, technology, and process improvements. HHS consolidated the FOIA functions of the Administration for Children and Families (ACF), the Administration for Community Living (ACL), and the Centers for Disease Control and Prevention (CDC) under the Office of the Secretary (OS) FOIA program to streamline operations, improve efficiency, and enhance customer service.

The Department also initiated a pilot of an artificial intelligence/large language model (AI/LLM)-based automated review and redaction system to support FOIA processing, consistent with Department of Justice (DOJ) guidance encouraging agencies to leverage technology to improve efficiency while maintaining compliance with the FOIA statute. The pilot is designed to evaluate whether AI-assisted tools can support responsiveness determinations and assist in identifying potentially applicable FOIA exemptions during the document review process. The tool will not replace human decision-making.  All responsiveness determinations, exemption applications, and final release decisions will remain subject to review and approval by trained FOIA professionals to ensure compliance with statutory requirements, applicable case law, and DOJ Office of Information Policy (OIP) guidance.

Consistent with federal AI governance principles, the pilot incorporates:

  • Human oversight and accountability, ensuring AI outputs are reviewed by qualified FOIA analysts;
  • Quality control and validation testing to assess accuracy, consistency, and exemption identification reliability;
  • Transparency and documentation, including clear records of how AI-assisted determinations are evaluated and finalized; and
  • Risk management safeguards, including protection of sensitive information and adherence to records management and privacy requirements.

If validated through testing, OS anticipates that AI-assisted review may improve efficiency in high-volume and complex cases, promote greater consistency in exemption identification, enhance timeliness of responses, and contribute to backlog reduction—while maintaining full compliance with FOIA’s statutory obligations and DOJ policy guidance.

At CMS, which receives nearly 60% of the Department’s FOIA requests, FOIA operations were strengthened through enhanced leadership development, expanded staffing, updated technology, and data-driven performance management. CMS aligned FOIA metrics with its Objectives and Key Results (OKRs), focusing on timely processing of simple and complex perfected requests, reducing the ten oldest requests and appeals, and maintaining the overall backlog at or below 10 percent of total case volume in FY 2025.

B.  Presumption of Openness

4.  The Attorney General’s 2022 FOIA Guidelines provides that “agencies should confirm in response letters to FOIA requesters that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.” Does your agency provide such confirmation in its response letters?

All HHS FOIA Offices have updated their response letters to indicate that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.

5. In some circumstances, agencies may respond to a requester that it can neither confirm nor deny the existence of requested records if acknowledging the existence of records would harm an interested protected by a FOIA exemption.  This is commonly referred to as a Glomar response.   If your agency tracks Glomar responses, please provide:

  • the number of times your agency issued a full or partial Glomar response during Fiscal Year (FY) 2025 (separate full and partial if possible);
  • the number of times a Glomar response was issued by exemption during FY 2025 (e.g., Exemption 7(C) – 20 times, Exemption 1 – 5 times).

For the relevant reporting period, HHS FOIA Offices issued the following Glomar responses:

  • FDA issued seventeen Glomar responses.  The following exemptions were cited for these responses:
    • Exemption 2 – 1 time; Exemption 3 – 6 times; Exemption 4 - 9 times; Exemption 6 – 3 times; Exemption 7(C) – 2 times; and Exemption 7(D) – 1 time.
  • HRSA issued one Glomar response: Exemption 6 – 1 time; Exemption 7(C) – 1 time; Exemption 7(D) – 1 time.
  • NIH issued one Glomar response and cited Exemption 6 – 1 time.

The remaining HHS FOIA Offices either did not report issuing Glomar responses or do not track this information. It should be noted that most HHS FOIA Offices rarely issue Glomar responses because of the limited number of requests received involving investigatory records.

6. Optional -- If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here. 

HHS FOIA Offices apply the foreseeable harm standard and only withhold information when they reasonably foresee that disclosure would harm an interest protected by an exemption or if disclosure is prohibited by law.  When there is doubt, HHS FOIA Offices err on the side of openness.  HHS FOIA Offices also, where appropriate, make discretionary disclosures of information.  Moreover, when the full disclosure of a record is not possible, HHS FOIA Offices consider whether partial release of information is possible and take reasonable steps to segregate and release nonexempt information.

The Department continues to follow Department-wide policy guidance, issued in 2024, on applying the foreseeable harm standard which outlines how the standard is applied relative to each of the FOIA exemptions.  The guidance serves to assist Departmental FOIA Professionals and programmatic experts in applying the foreseeable harm standard when processing FOIA requests as well as administrative appeals and discusses the relevant factors that should be considered when conducting the foreseeable harm analysis.  Furthermore, the guidance instructs Departmental FOIA Professionals, in a case where the Department foresees harm in release, to identify specific harm that would be caused to the interests protected by the relevant exemption(s), and to connect those harms in a direct and meaningful way to the information being withheld.

HHS FOIA Offices have further emphasized the need to ensure that the presumption of openness is applied by providing program offices and senior agency leadership with training sessions and materials on a wide range of FOIA subjects including the foreseeable harm standard, the procedural requirements for conducting an adequate search for responsive records, and an overview of the roles and responsibilities of all agency officials for implementing the FOIA.  Additionally, HHS FOIA Offices have worked closely with program offices to identify records that can be posted proactively and to ensure that proactively posted records are posted to agency websites in an efficient and user-friendly manner.

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