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                              HHS Chief FOIA Officer Report
                              Section V:  Steps Taken to Improve Timeliness
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Section V:  Steps Taken to Improve Timeliness in Responding to Requests and Reducing Backlogs








  
  
    

  
      





In the administration of the FOIA, the emphasis continues on the importance of improving timeliness in responding to requests. This section of your Chief FOIA Officer Report addresses both time limits and backlog reduction. Backlog reduction is measured both in terms of numbers of backlogged requests or appeals and by looking at whether agencies closed their ten oldest requests, appeals, and consultations.

For the figures required in this Section, please use the numbers contained in the specified sections of your agency’s 2016 Annual FOIA Report and, when applicable, your agency’s 2015 Annual FOIA Report.

**Simple Track**

Section VII.A of your agency’s Annual FOIA Report, entitled "FOIA Requests – Response Time for All Processed Requests," includes figures that show your agency's average response times for processed requests. For agencies utilizing a multi-track system to process requests, there is a category for "simple" requests, which are those requests that are placed in the agency’s fastest (non-expedited) track, based on the low volume and/or simplicity of the records requested.

**Does your agency utilize a separate track for simple requests?**Yes.  With the exception of ACL and SAMHSA, the Department’s OpDivs use a separate track for simple requests.  ACL and SAMHSA received only 22 and 158 FOIA requests and processed 20 and 177 FOIA requests, respectively, during FY 2016; which is about one-half of one percent of the total HHS FOIA request volume.  SAMHSA categorizes FOIA requests as simple vs. complex, but SAMHSA’s small staff limits their ability to multi-track their FOIA requests.  Of note, despite the staffing limitations, SAMHSA reduced its backlog by over 48% during FY 2016.

**If so, for your agency overall in Fiscal Year 2016, was the average number of days to process simple requests twenty working days or fewer?**No.  The average number of days to process simple requests was 27.5 days.

**Please provide the percentage of requests processed by your agency in Fiscal Year 2016 that were placed in your simple track.**Of the 36,190 FOIA requests processed during FY 2016, 50.78% were classified as simple requests.

**If your agency does not track simple requests separately, was the average number of days to process all non-expedited requests twenty working days or fewer?**Not applicable; please see our response above to Question 2.

**Backlogs**

Section XII.A of your agency’s Annual FOIA Report, entitled "Backlogs of FOIA Requests and Administrative Appeals" shows the numbers of any backlogged requests or appeals from the fiscal year. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2015 and Fiscal Year 2016 when completing this section of your Chief FOIA Officer Report.

**Backlogged Requests**

**If your agency had a backlog of requests at the close of Fiscal Year 2016, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2015?  If not, explain why and describe the causes that contributed to your agency not being able reduce its backlog.**Yes. The Department’s FOIA request backlog decreased 21.25% during FY 2016, from 5,745 at the end of FY 2015, to 4,519 at the end of FY 2016.

**If not, explain why and describe the causes that contributed to your agency not being able to reduce its backlog. When doing so, please also indicate if any of the following were contributing factors:**An increase in the number of incoming requests.
	A loss of staff.
	An increase in the complexity of the requests received.  If possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase.
	Any other reasons – please briefly describe or provide examples when possible.Not applicable; please see our response to Question 5 above.

**If you had a request backlog please report the percentage of requests that make up the backlog out of the total number of requests *received* by your agency in Fiscal Year 2016.**The percentage of the FOIA request backlog, in relation to the total number of requests received during FY 2016, was 13.20%.

**Backlogged Appeals**

**If your agency had a backlog of appeals at the close of Fiscal Year 2016, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2015?  If not, explain why and describe the causes that contributed to your agency not being able reduce backlog.**Yes. The Department’s number of backlogged appeals decreased by approximately 14.18% during FY 2016.

**If not, explain why and describe the causes that contributed to your agency not being able to reduce its backlog. When doing so, please also indicate if any of the following were contributing factors:**An increase in the number of incoming appeals.
	A loss of staff.
	An increase in the complexity of the requests received.  If possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase.
	Any other reasons – please briefly describe or provide examples when possible.Not applicable; please see our response to Question 8 above.

**If you had an appeal backlog please report the percentage of appeals that make up the backlog out of the total number of appeals received by your agency in Fiscal Year 2016. If your agency did not receive any appeals in Fiscal Year 2016 and/or has no appeal backlog, please answer with "N/A."**The Department’s FOIA appeal backlog at the end of FY 2016 was 375; the number of appeals received during FY 2016 was 262. Therefore, the FY 2016 appeal backlog was 143.12% of the FOIA appeals received during that time.

**Backlog Reduction Plans**

**In the 2016 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2015 was asked to provide a plan for achieving backlog reduction in the year ahead. Did your agency implement a backlog reduction plan last year? If so, describe your agency’s efforts in implementing this plan and note if your agency was able to achieve backlog reduction in Fiscal Year 2016?**Yes. HHS continued to implement its backlog reduction strategies, and as a result, the HHS FOIA request backlog decreased by over 21%.  A number of different strategies were employed by the OpDivs to achieve this:  employing contract support to supplement the FOIA analyst workforce; improving work processes by implementing new case management systems or improving current case management systems; and evaluating individual steps in the work process for potential improvement and greater efficiency, such as identifying unclear or overly broad FOIA requests at the intake stage, which allows requests to be clarified prior to conducting records searches.

**If your agency had a backlog of more than 1,000 requests in Fiscal Year 2016, what is your agency’s plan to reduce this backlog during Fiscal Year 2017?**HHS has been steadily reducing its backlog, as evidenced by its backlog reduction from over 17,000 requests (as referenced in the 2010 HHS Chief FOIA Officer Report), to the current level of 4,519 backlogged requests at the end of FY 2016. HHS will continue its efforts to maintain adequate resources to support its FOIA offices and employ FOIA technologies that will increase processing efficiency. On an OpDiv-specific level, all but two of the Department’s OpDivs reduced their backlogs during the past year, and those two OpDivs’ backlog increases were not statistically significant in relation to the Department’s total backlog reduction.  NIH had 40 more backlogged requests at the end of FY 2016, and OIG had 14 more backlogged requests; those 54 requests are but a very small percentage of the total backlog.

Of note, ACL has not had a request backlog for several years. Six of the HHS OpDivs have backlogs under 100 requests.  HHS FOIA offices will continue to use contract resources as necessary to assist in backlog reduction and leverage available FOIA resources to the extent feasible within established FY 2017 budget parameters.

**Status of Ten Oldest Requests, Appeals, and Consultations**

Section VII.E, entitled "Pending Requests – Ten Oldest Pending Requests," Section VI.C.(5), entitled "Ten Oldest Pending Administrative Appeals," and Section XII.C., entitled "Consultations on FOIA Requests – Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency," show the ten oldest pending requests, appeals, and consultations. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2015 and Fiscal Year 2016 when completing this section of your Chief FOIA Officer Report.

**Ten Oldest Requests**

**In Fiscal Year 2016, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2015 Annual FOIA Report?**No. Unfortunately, HHS was unable to close all of its ten oldest FOIA requests.  Please see our response to Question 14 below.

**If no, please provide the number of these requests your agency was able to close by the end of the fiscal year, as listed in Section VII.E of your Fiscal Year 2015 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that.**The Department closed seven of its ten oldest FOIA requests during FY 2016.

**Of the requests your agency was able to close from your ten oldest, please indicate how many of these were closed because the request was withdrawn by the requester. If any were closed because the request was withdrawn, did you provide any interim responses prior to the withdrawal?**One of the ten oldest requests was closed because the FOIA requester did not respond to the CDC, after the CDC contacted the requester to ascertain their continued interest in pursuing the request.  An interim response was not provided in this case.

**Ten Oldest Appeals**

**In Fiscal Year 2016, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2015 Annual FOIA Report?**No. Unfortunately, although HHS was able to make a substantial reduction in the total number of backlogged appeals, we were unable to close all of the ten oldest FOIA appeals.  The Department’s appeal processing responsibilities are divided:  CMS is responsible for processing its own appeals, while the PSC FOIA Service Center (transferred to OS FOIA, effective October 1, 2016) and the OS FOIA Office process FOIA appeals for the remaining HHS OpDivs.  At the end of FY 2016, the OS FOIA Office had three of the ten oldest appeals outstanding.  However, shortly thereafter, HHS issued a response to one of those appeals and that appeal was closed during October 2016**.**

**If no, please provide the number of these appeals your agency was able to close by the end of the fiscal year, as listed in Section VII.C.(5) of your Fiscal Year 2015 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that.**As explained above, the Department closed seven of the ten oldest appeals by the end of FY 2016.

**Ten Oldest Consultations**

**In Fiscal Year 2016, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2015 Annual FOIA Report?**No.  Please see our explanation below in our response to Question 19.

**If no, please provide the number of these consultations your agency was able to close by the end of the fiscal year, as listed in Section XII.C. of your Fiscal Year 2015 Annual FOIA Report. If you had less than ten total oldest consultations to close, please indicate that.**HHS had only four outstanding consultations at the end of FY 2015. The Department was able to close three of those four consultations during the FY 2016.  We expect to close the remaining outstanding consultation during FY 2017.

**Additional Information on Ten Oldest Requests, Appeals, and Consultations & Plans**

**Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2015.**Three of the ten oldest backlogged FOIA requests remained outstanding at the CDC. The CDC FOIA Office has undergone significant personnel changes during the past year:  the CDC FOIA Officer retired and the new CDC FOIA Officer joined the agency in June 2016.  Although these three requests were not closed by the end of FY 2016, the CDC made dramatic progress, i.e., a 43% backlog reduction, during FY 2016.

HHS revised and updated its 28-year-old FOIA regulations in FY 2016; which required the OS FOIA office to shift dedicated resources to that initiative. Two staff members in the OS FOIA Office, who customarily focus on FOIA appeals, were actively involved in the FOIA regulation revision process over a period of several months, which reduced the staff hours available for appeal processing.  In addition, records retrieval and storage issues arose with regard to a number of the older backlogged requests and appeals.

**If your agency was unable to close any of its ten oldest requests because you were waiting to hear back from other agencies on consultations you sent, please provide the date the request was initially received by your agency, the date when your agency sent the consultation, and the date when you last contacted the agency where the consultation was pending.**Outstanding consultations did not play a role in these three outstanding oldest requests remaining open.

**If your agency did not close its ten oldest pending requests, appeals, or consultations, please provide a plan describing how your agency intends to close those “ten oldest” requests, appeals, and consultations during Fiscal Year 2017.**Although HHS substantially reduced both its FOIA request and appeal backlogs, we were not able to close all of the ten oldest FOIA requests, appeals, and consultations.  As referenced in our responses to the previous questions, during FY 2016 HHS closed seven of the ten oldest FOIA requests, seven of the ten oldest FOIA appeals, and three of the four outstanding consultations.

The CDC FOIA Office, which holds the three “ten oldest” FOIA requests that remain outstanding, made great strides in reducing its backlog and improving its operations during FY 2016.  The Department anticipates that CDC should be able to close the three outstanding aged requests during FY 2017.

With the completion of the updated HHS’ FOIA regulations (effective November 28, 2016), the OS FOIA Office staff members who were diverted to that initiative have now returned to their primary responsibility of processing appeals.  The OS FOIA Office also has begun training another FOIA analyst to process appeals which includes working on appeals part time, has hired one additional appeals analyst, and is in the process of hiring contract support to assist in processing the FOIA appeal workload.

**Interim Responses**

**Does your agency have a system in place to provide interim responses to requesters when appropriate? *See OIP Guidance*, “****The Importance of Good Communication with FOIA Requesters****.” (Mar. 1, 2010)**Yes.  HHS continues to encourage the use of interim responses and the rolling production of records, when appropriate and feasible, to facilitate responses and to provide better customer service.

**If your agency had a backlog in Fiscal Year 2016, please provide an estimate of the number or percentage of cases in the backlog where a substantive, interim response was provided during the fiscal year, even though the request was not finally closed.**At the close of FY 2016, HHS had a backlog of 4,519 FOIA requests.  The Department’s FOIA operations are decentralized; the estimated number of interim responses agency-wide is approximately 10%.

**Success Stories**

Out of all the activities undertaken by your agency since March 2016 to increase transparency and improve FOIA administration, please briefly describe here at least one success story that you would like to highlight as emblematic of your agency’s efforts. The success story can come from any one of the five key areas.  As noted above, these agency success stories will be highlighted during Sunshine Week by OIP.  To facilitate this process, all agencies should use bullets to describe their success story and limit their text to a half page. The success story is designed to be a quick summary of key achievements. A complete description of all your efforts will be contained in the body of your Chief FOIA Officer Report.

The FOIA Improvement Act of 2016 requires that agencies review and update their FOIA regulations within 180 days of the law’s enactment; i.e., by the end of calendar year 2016. HHS accomplished this before the end of year timeline and was the first federal Department to finalize and publish their updated FOIA regulations.  The final rule was published in the Federal Register on October 28, 2016, and became effective on November 28, 2016.  The updated HHS FOIA regulations incorporate the changes resulting from the FOIA Improvement Act of 2016 and earlier statutory modifications and incorporate practices that should improve the FOIA process both for HHS and the requester community.The OS FOIA Office will publish to the HHS FOIA website the open/pending FOIA requests from all of HHS, beginning with the data reported at the end of January 2017. This additional transparency will demonstrate the commitment by the HHS OpDivs to implement the tenets of active and “intelligent case management”; i.e., to identify and accurately assess the classification and age of all open, pending requests and focus Department-wide processing efforts to significantly improve future response times.***Other Success Stories – From the Department’s Operating Divisions***

ACF leadership aggressively tackled reducing the FOIA backlog by hiring high-quality contract support personnel, approving a long-term increase to current FOIA staffing and purchasing a new database capable of de-duplicating documents, converting most native formats to 508-compliant formats, and allowing the public to submit requests through an online portal. The result of the FY 2016 initiatives was a 53% reduction in ACF’s FOIA backlog and successful litigation outcomes.The CMS FOIA Office has continued to expand upon its electronic processing capabilities and is committed to meeting the electronic records retention requirements established in the November 28, 2011, Presidential Memorandum – “Managing Government Records.” During 2016, the CMS FOIA Office identified an opportunity to improve its electronic records management and FOIA request processing by the Medicare Administrative Contractors (MACs) and Regional Offices. CMS worked with the MAC Contracting Officers Representatives to issue a jointTechnical Direction Letter (TDL) requiring all MACs and Regional Offices to provide responsive records to the FOIA office in electronic format only, to the fullest extent possible. This initiative increased FOIA efficiency, improved the timely processing of incoming requests, and supported CMS efforts to create a robust electronic records management framework.During the past four years, FDA has made hundreds of records available on its website, related to a fungal meningitis outbreak involving compounded drugs which occurred in the fall of 2012. The issue of pharmacy compounding continues to attract significant attention from the media and other members of the public. FDA’s Office of Regulatory Affairs (ORA) proactively posts all Notice of Inspectional Observations issued to US compounding pharmacies in the ORA Electronic Reading Room at http://www.fda.gov/AboutFDA/CentersOffices/OfficeofGlobalRegulatoryOperationsandPolicy/ORA/ORAElectronicReadingRoom/default.htm. ORA also posts other compounding-related records such as pharmacy response letters, recall letters, and state referral letters, and has recently expanded its proactive posting efforts by proactively posting all compounding pharmacy inspection Close Out letters. FDA’s ongoing efforts to promote transparency around the issue of pharmacy compounding enhances public awareness on this subject and provides access to information for our state-level enforcement partners around the country.Introduction
	**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 BacklogsBack to HHS Chief FOIA Officers Report >>

                    
  


Content created by Assistant Secretary for Public Affairs (ASPA) Content last reviewed March 9, 2017 Back to top
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