Section I: Steps Taken to Apply the Presumption of Openness
Please answer the following questions in order to describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. You may also include any additional information that illustrates how your agency is working to apply the presumption of openness.
- Did your agency conduct FOIA training during the reporting period for FOIA professionals?
Yes. Please see a description of the agency’s training activities below in Item 2.
- If yes, please provide a brief description of the type of training conducted and the topics covered.
The Department conducted a wide variety of training sessions during the reporting period. Quarterly FOIA meetings were reestablished during 2014, the goal being to engage departmental FOIA Directors as a community to continuously improve Department FOIA operations. Topics such as best practices, handling and processing voluminous requests, streamlining appeal processing, 508 compliance and proactive disclosure were raised, and topics of interest will be identified for future meetings.
OpDivs within the Department worked cooperatively to provide training to other FOIA offices. As an example, CDC enlisted FDA’s long-tenured FOIA Officer to travel to CDC in Atlanta and conduct a two-day training session for all CDC FOIA staff. The focus of this training session was on best practices, customer relationships, and a thorough discussion of the exemptions under the Act and their applications. In addition, the PSC FOIA staff provided procedural training to FOIA and program staff at SAMHSA in November 2014.
ACF, CDC, CMS, FDA, NIH, PSC and OIG all provided in house training for FOIA professionals. Additionally ACF, CDC, CMS, FDA, IHS, OIG and PSC provided guidance and training to non-FOIA staff. Specific examples of training provided during 2014 are provided below.
ACF conducted training available to all ACF staff, by including audio and/or audio- video conferencing for regional office employees. This included ACF’s Sunshine Week kick-off FOIA Overview training, a Brown Bag Lunch on “The Requester’s Perspective”, and Requester Roundtables for Immigration attorneys and for Hispanic Organizations. Additionally, ACF conducted on-site FOIA overview training open to all regional office staff in 4 of their 10 Regional offices; during the months of March, April, May, June, August, September 2014, ACF also offered specialized training in handling referred requests.
The CDC FOIA Office developed a comprehensive standard operating procedure (SOP) manual to address the use of CDC’s FOIA processing system and extensive training was provided to all FOIA staff. On-going in-house training was provided to FOIA staff in varying formats by the FOIA Officer. Roadshows were provided to program staff, subject matter experts (SMEs) and management to increase awareness of CDC staff responsibilities for responding to FOIA requests, increase knowledge of the Act, and stress the importance of transparency in government. Meetings with program staff and management officials were conducted to promote a better understanding of the provisions of the Act and each individual’s responsibility to ensure a thorough search for documents responsive to each received request.
CMS conducted training for its FOIA staff, addressing the FOIA-Privacy Act nexus. Additionally, training was provided to agency staff to help them fulfill their responsibilities under the FOIA. This training covered the areas of records search, search terms, billing of search time, categories of requesters, and establishing the appropriate ending date for a search. CMS also conducted training discussions with CMS’ regional offices and Medicare Administrative Contractor staff regarding misdirected search efforts and the Office of Information Policy’s guidelines for processing, referring, and tolling time for such requests.
In March and July 2014, FDA offered two Introduction to FOIA training sessions (4 hours each) to the offices and centers within the FDA’s directorates, which included both in-person and webinar participation. This training was recorded and uploaded to FDA’s FOIA intranet page for future reference and viewing. Topics included the history and the statutory provisions of the FOIA, FOIA Exemptions, FDA’s FOIA regulations, the OPEN Government Act, President Obama’s Memorandum, Attorney General Holder’s Memorandum, and redaction exercises. On November 24, 2014, a new training, “Advanced Topics in FOIA” was presented. Topics included discretionary exemptions of the FOIA, the Privacy Act, FOIA fees, denials, and consultations/referrals. In addition, various FDA components provided organization-specific training for their new and existing staff.
IHS provided training and education for other program staff with IHS, to assist with the processing of FOIA requests and to ensure that the agency’s program offices perform an adequate search and provide complete and accurate records. IHS also provided training to employees who work closely with FOIA staff, in order to ensure these staff provide responsive materials to the IHS FOIA staff in a timely manner.
NIH’s FOIA Officer held quarterly meetings with the NIH FOIA professionals to discuss various FOIA related topics. Included in those meetings were discussions of NIH FOIA litigation results including lessons learned; FOIA case-law updates; guidance regarding the application of exemption (b)(4) (emphasis: evaluating responses to submitter notices), exemption (b)(5) (emphasis: foreseeable harm analysis) and exemption (b)(6); processing referrals and consultations; and processing-related best practices. Other topics included conducting and documenting searches (emphasis: on electronic files searches), considerations for fee waiver requests and requests for expedited processing, working with program officials to identify records for pro-active disclosure, and records retention schedules for FOIA request files. NIH also held smaller group training with FOIA professionals from two NIH components, addressing the subjects of FOIA denials and appeals, and the processing FOIA requests for contracts and contract-related documents.
Did your FOIA professionals attend any FOIA training or conference during the reporting period such as that provided by the Department of Justice?
- Such training or events can include offerings from OIP, your own agency or another agency or organization.
Yes. HHS encourages department employees to attend FOIA training provided by the U.S. Department of Justice (DOJ), the American Society of Access Professionals (ASAP), the USDA Graduate School, and other sources of FOIA information. During 2014, Departmental FOIA staff attended FOIA training, seminars and roundtables provided by the DOJ, ASAP, the District of Columbia Bar Association, the USDA Graduate School and other organizations. Examples of the training, educational events and meetings attended are listed below:
- ACF – Sunshine Week Kick-Off
- American University, Washington College of Law – Sunshine Day Forum
- ASAP - 6th Annual Training Conference
- ASAP – Government Information Specialist Position
(the Deputy Agency Chief FOIA Officer was a panel participant in this meeting)
- Brown Bag Lunch – Harry Hammitt, Access Reports - The Requesters Perspective
- District of Columbia Bar Association – FOIA Litigation
- DOJ - The Freedom of Information Act for Attorney and Access Professionals
- DOJ - Best Practices Workshop – Reducing Backlogs and Improving Timeliness
(at which the OS FOIA Officer was a featured speaker)
- DOJ - Common Core FOIA Regulations Kick-Off Meeting, OIP
- DOJ - FOIA Technology Working Group Meeting
- DOJ - FOIA Requester Roundtable
- DOJ - FY 2014 Annual FOIA Report and 2015 Chief FOIA Officer Report Refresher Training
- FOIA Xpress Training (OS FOIA staff)
- Georgetown Law Privacy Center - The Privacy Act @40: A Celebration and Appraisal on the 40th Anniversary of the Privacy Act and the 1974 Amendments to the Freedom of Information Act
- HHS – November 2014 FOIA Officers Conference
- International Association of Privacy Professionals (IAPP) – The Impact of Government Disclosure
- Newseum – National Freedom of Information Day 2014
- Office of Government Information Services (OGIS) – Dispute Resolution Skills Training for FOIA Professionals
- PSC – Procedural training for FOIA and program staff at SAMHSA
- White House Open Government Team\OIP – Proactive disclosure workshop
Provide an estimate of the percentage of your FOIA professionals and staff with FOIA responsibilities who attended substantive FOIA training during this reporting period.
Within the Department, 100% of OS, ACF, CDC, HRSA, NIH and SAMHSA FOIA staff attended substantive FOIA training during 2014. The remaining OpDivs reported that 25% to 95% of their staffs attended FOIA training; the average for those remaining OpDivs attending substantive training was approximately 60%. Within the Department, as a whole, approximately 80% of staff attended training.
In the 2014 Chief FOIA Officer Report Guidelines, OIP asked agencies to provide a plan for ensuring that core, substantive FOIA training is offered to all agency FOIA professionals at least once each year. Please provide the status of your agency’s implementation of this plan. Include any successes or challenges your agency has seen in implementing your plan. The Department and its OpDivs substantially met the training plans and goals referenced in HHS’ 2014 Chief FOIA Officer Report, as described in the responses to Question 2 and Question 3 of this section. Although OS was not able to schedule an agency-wide annual FOIA conference as planned, OS reinstituted FOIA officer meetings to facilitate exchange of ideas and information, and the other OpDivs participated in training activities as planned. The Department continues to encourage and promote training opportunities for FOIA staff, both in-house and from other agencies and organizations. During 2014, we were pleased to see the wide variety of FOIA related training and educational activities HHS FOIA staff attended and the number of different organizations which offered FOIA related education and training. However, budget limitations can present a challenge for some HHS OpDivs when there are fees for educational or training programs, or when longer distance travel is required to attend training. Also, when FOIA offices have vacancies, the increased workload can negatively impact the ability of FOIA staff to take advantage of available training opportunities.
Did your FOIA professionals engage in any outreach or dialogue with the requester community or open government groups regarding your administration of the FOIA?
- This question addresses outreach that is conducted outside of the individual request or appeal process. For example, outreach activities can include engaging with frequent requesters by holding meetings or events which include them, conducting surveys or otherwise soliciting requester feedback, or participating in any other requester initiative coordinated by your agency or by others, such as OIP.
Yes. The decentralized FOIA offices in the HHS OpDivs utilize a variety of ways to engage with the FOIA requester community. As an example, the OS FOIA Public Liaison participated in a June 2014 FOIA Roundtable, held by the Cause of Action, an organization which frequently submits FOIA requests. The roundtable included a question and answer session with Cause of Action staff. Additional outreach activities by OpDivs are listed below:
- Attending Requester Roundtables, sponsored by OIP
- Hosting Requester Roundtables
- Attending FOIA Advisory Committee meetings at OGIS, which include members of the requester community
- Continuing outreach and dialogue with the requester community and open government groups in the course of processing their requests
- Surveying frequent FOIA requesters and asking for feedback on ways to make their experience easier and/or faster
If you did not conduct any outreach during the reporting period, please describe why?
A few of the HHS OpDivs receive a relatively small volume of FOIA requests and/or do not have many frequent or returning requesters. Some OpDivs reach out to requesters on an individual basis, due to the distinct differences in the information being requested and/or based on the complexity of the request. Relatively simple and straightforward requests for records customarily do not require outreach activities. Additionally, an increased volume of incoming FOIA requests can limit an OpDiv’s ability to conduct outreach activities.
Does your agency have a distinct process or system in place to review records for discretionary release?
- If so, please briefly describe this process.
- If your agency is decentralized, please specify whether all components of your agency have such a process or system in place?
HHS’ FOIA operations are decentralized. The FOIA offices within the Department are responsible for performing a foreseeable harm analysis on a case by case basis when the records being reviewed may fall within a discretionary exemption. OS and eight of the OpDivs have a defined process wherein records are analyzed for the possibility of a discretionary release, and, as referenced by the response to Question 9 immediately below, OS and nine of the OpDivs report making discretionary releases of information during FY 2014. The exemption most frequently requiring this analysis is exemption (b)(5) and, to a much lesser degree, (b)(2) and, occasionally, exemption (b)(7)(E). In determining whether a discretionary release should be made, FOIA staff solicit input from the program offices who are the custodians of the records and subject matter experts (SME). When these entities recommend withholding records, we ask that the program area or SME clearly articulate a foreseeable harm from disclosure, to support nondisclosure. As the result of the predisclosure notification process of Executive Order 12,600, the agency is sometimes able to make further disclosures in cases for which exemption (b)(4) is potentially applicable, when the submitter of the records has no objection to the release of their business or organization’s information. The Department has adopted the Attorney General’s guidelines regarding discretionary releases, as evidenced by the relatively small percentage of times the Department has invoked exemption (b)(5), the exemption which lends itself most frequently to a discretionary release; in relation to the total volume of requests processed annually.
During the reporting period, did your agency make any discretionary releases of information?
Yes. OS, ACF, CDC, CMS, FDA, IHS, NIH, OIG, PSC and SAMHSA all made discretionary releases.
What exemption(s) would have covered the material released as a matter of discretion? For a discussion of the exemptions that allow for discretionary releases, please see OIP’s guidance on implementing the President’s and Attorney General’s FOIA Memoranda.
The Department’s OpDivs made discretionary releases under FOIA exemptions (b)(2), (b)(5), and (b)(7)(E).
Provide a narrative description, as well as some specific examples, of the types of information that your agency released as a matter of discretion during the reporting year.
The Department is committed to employing the foreseeable harm standard when reviewing records for a discretionary release. Examples of such releases are below.
OS frequently releases draft documents, when there is no foreseeable harm.
ACF has made certain discretionary releases on high visibility subject matters proactively available online. During the migration of unaccompanied children from Central America, ACF maintained a web page in which it posted regular updates of information such as where children were released to sponsors, a breakdown by country of origin, copies of forms, a factsheet, and FAQs. ACF FOIA worked with the Office of Public Affairs and the web team to ensure that information was posted and regularly updated. Additionally, during 2014, ACF began posting certain high-ranking grant applications in its reading room, after redacting any personally identifiable information (PII) within the application and making the records 508 compliant. Also, the Office of Head Start in ACF began posting local Head Start grantees’ monitoring report online.
CDC released portions of predecisional documents, in those cases where a foreseeable harm could not be substantiated.
CMS released portions of memoranda and emails which, although technically covered by exemption (b)(5), deliberative process, would not result in any foreseeable harm.
FDA routinely reviews records for discretionary release. For example, some internal discussions and recommendations in approval records which may have formerly been withheld under FOIA Exemption (b)(5) as deliberative and pre-decisional information, are now being routinely released. In addition, FDA releases drafts and internal emails that might have been previously withheld under Exemption (b)(5).
IHS released additional information this year relating to contracts or solicitations, including the following: DUNS number, insurance information, and some budget/financial breakdowns as they relate to IHS funds and/or American Recovery and Reinvestment Act (ARRA) funds.
NIH released deliberative email discussions of program issues, as well as draft documents. Specific examples include email discussions related to the preliminary plans for a public meeting, and discussions related to the planning of several clinical trials.
OIG released some information pertaining to an investigation, after reviewing the records under exemptions (b)(5) and (b)(7)(E). Additionally, OIG proactively released some information from its law enforcement manual.
PSC released portions of emails regarding a previous agency decision. In certain instances, PSC FOIA has released the back and forth communications on the reasons a particular decision was made and other actions were not taken.
SAMHSA released portions of information from discussions and recommendations regarding drug testing protocols from meetings of the Drug Testing Advisory Board (DTAB), after reviewing the records under exemption (b)(5). Although the majority of the information within the closed meetings was confidential, portions of the records were disclosed to facilitate transparency.
If your agency was not able to make any discretionary releases of information, please explain why.
The majority of the HHS OpDivs were able to make discretionary releases of information. For a few OpDivs, the categories of records being frequently requested involved information that was clearly exempt under exemptions (b)(6), (b)(4), or (b)(3).
Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA?
- Efforts can include training for non-FOIA professionals, distributing memoranda on the FOIA, announcements on FOIA matters, etc.
HHS realizes the value of educating non-FOIA staff regarding the implementation of the FOIA and its processing and procedural responsibilities. Department initiatives and methods are summarized below:
- Conducting FOIA overview training for central and regional office staff
- Providing Power Point presentations to program staff for information and reference
- Conducting conference calls with program staff on a regular basis, in order to clarify requests and explain the general requirements of FOIA
- Providing subject-specific training with program staff on issues such as conducting adequate searches, documenting search time, and establishing the appropriate ending date for a search
- Offering an Introduction to FOIA workshop at least once annually, available to all agency staff
- Attending program area staff meetings, to talk about the FOIA
- Educating non-FOIA staff through issuances of FOIA policy memos and directives
- Making FOIA training available through a webinar
If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here.
If any of these initiatives are online, please provide links in your description.
Of all the OpDivs in the Department, ACL receives the fewest requests, generally receiving less than 20 FOIA requests annually. During FY 2014, ACL received approximately .03% of the Department’s FOIA requests. However, despite that small volume, ACL is in the process of planning for a new website, which would enhance ACL’s ability to post online those materials which the agency has found to be of continuing interest to the public.
During FY2013, CMS began an initiative to make releasable contract information more readily available to the public. The first step of the process was to require a policy for public disclosure of and predisclosure notifications in newly awarded contracts; which substantiates any withholdings based on exemption (b)(4) and provides a 508 compliant version of the redacted contract within 30 days after the award. This saves time and eliminates the need to send out notices under Executive Order 12,600. The ultimate goal is to publicly post the redacted contracts proactively online after the contractor’s withholding recommendations and disclosure input are reviewed by the CMS FOIA Office and found to be soundly based.
FDA has a Transparency Task Force, which was created in 2009 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. Information about the Task Force is available at the agency’s transparency website, at http://www.fda.gov/aboutfda/transparency/transparencyinitiative/default.htm.
FDA also has the FDA Track Program, FDA's agency-wide performance management system that monitors FDA programs through key performance measures and projects. These measures and projects are developed by the program offices across the FDA and reported on a monthly basis. http://www.fda.gov/aboutfda/transparency/track/default.htm
- Section I: Steps Taken to Apply the Presumption of Openness
- Section II: Steps Taken to Ensure that Your Agency Has an Effective System in Place for Responding to Requests
- Section III: Steps Taken to Increase Proactive Disclosures
- Section IV: Steps Taken to Greater Utilize Technology
- Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reduce Backlogs