2014 Chief FOIA Officer Report

for the Merit Systems Protection Board (MSPB)

by

William D. Spencer

Clerk of the Board and

Chief FOIA Officer

The MSPB (www.mspb.gov) is an independent, quasi-judicial agency in

the Executive Branch that serves as the guardian of Federal merit 

systems. Our mission is to protect the merit system principles and 

promote an effective Federal workforce free of prohibited personnel 

practices. We carry out our statutory responsibilities and authorities 

primarily by adjudicating individual employee appeals and by conducting

merit systems studies. In addition, MSPB reviews the significant actions

of the Office of Personnel Management to assess the degree to which those

actions may affect merit system principles and prohibited personnel

practices.

The MSPB is headquartered in Washington, DC, with eight Regional and Field

Offices. 

Section I: Steps Taken to Apply the Presumption of Openness

FOIA Training:

1. Did your agency hold an agency FOIA conference, or otherwise conduct training 

during this reporting period? 

Answer: No.

2. If so, please provide the number of conferences or trainings held, a brief 

description of the topics covered, and an estimate of the number of participants 

from your agency who were in attendance. 

Answer: Not applicable.

3. Did your FOIA professionals attend any FOIA training during the reporting 

period such as that provided by the Department of Justice?

Answer: Yes.

4. Provide an estimate of the percentage of your FOIA professionals who attended 

substantive FOIA training during this reporting period. 

Answer: 50%
5. OIP has issued guidance that every agency should make core, substantive FOIA 

training available to all their FOIA professionals at least once each year. Provide 

your agency’s plan for ensuring that such training is offered to all agency FOIA 

professionals by March 2015. Your plan should anticipate an upcoming reporting 

requirement for your 2015 Chief FOIA Officer Reports that will ask whether all 

agency FOIA professionals attended substantive FOIA training in the past year. 

Answer: MSPB’s two core FOIA professionals monitor all available FOIA 

training opportunities and make efforts to attend any which will enhance their 

knowledge of current FOIA law and procedures. Additionally, MSPB encourages 

employees with recently-added FOIA duties to attend substantive FOIA training: 

one MSPB FOIA professional is scheduled to attend a 3-day FOIA training in 

April 2014. 

Outreach: 

6. Did your FOIA professionals engage in any outreach and dialogue with the 

requester community or open government groups regarding your administration 

of the FOIA? If so, please briefly discuss that engagement.

Answer: No. Although we did not do this during the reporting period, we plan 

to do so in 2014.

Discretionary Disclosures:

7. Does your agency have a formal process 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 at your agency have a 

process in place for making discretionary releases. 

Answer: Yes. MSPB routinely reviews exemptible information responsive to 

FOIA requests for discretionary release.

8. During the reporting period did your agency make any discretionary releases of 

otherwise exempt information? 

Answer: No.

9. What exemptions would have covered the information that was released as a 

matter of discretion? 

Answer: Not applicable.

10. Provide a narrative description, or some examples of, the types of information 

that your agency released as a matter of discretion. 

Answer: Not applicable.
11. If your agency was not able to make any discretionary releases of information, 

please explain why.

Answer: We did not have any FOIA requests that raised the possibility of 

making a discretionary release.

Other Initiatives:

12. Did your agency post all of the required quarterly FOIA reports for Fiscal Year 

2013? If not, please explain why not and what your plan is for ensuring that such 

reporting is successfully accomplished for Fiscal Year 2014.

Answer: Yes.

13. Describe any other initiatives undertaken by your agency to ensure that the 

presumption of openness is being applied. If any of these initiatives are online, 

please provide links in your description. 

Answer: There were no new initiatives undertaken during the reporting period.

Section II: Steps Taken to Ensure that Your Agency

Has an Effective System in Place for Responding to Requests 

Personnel:

1. Has your agency converted all of its FOIA professionals to the new Government 

Information Specialist job series? 

Answer: No.

2. If not, what proportion of personnel has been converted to the new job series?

Answer: None.

3. If not, what is your plan to ensure that all FOIA professionals’ position 

descriptions are converted?

Answer: We will coordinate with our Director of Human Resources to convert 

the position descriptions in 2014.
 Processing Procedures:

4. For Fiscal Year 2013 did your agency maintain an average of ten or less calendar 

days to adjudicate requests for expedited processing? If not, describe the steps 

your agency will take to ensure that requests for expedited processing are 

adjudicated within ten calendar days or less.

Answer: No, MSPB did not expedite any requests in FY 2013.

5. Has your agency taken any steps to make the handling of consultations and 

referrals more efficient and effective, such as entering into agreements with other 

agencies or components on how to handle certain categories or types of records 

involving shared equities so as to avoid the need for a consultation or referral 

altogether, or otherwise implementing procedures that speed up or eliminate the 

need for consultations. If so, please describe those steps. 

Answer: No.

 Requester Services:

6. Do you use e-mail or other electronic means to communicate with requesters 

when feasible?

Answer: Yes.

7. Does your agency notify requesters of the mediation services offered by the Office 

of Government Information Services (OGIS) at NARA? 

Answer: Yes.

8. Describe any other steps your agency has undertaken to ensure that your FOIA 

system operates efficiently and effectively, such as conducting self-assessments to 

find greater efficiencies, improving search processes, eliminating redundancy, 

etc. 

Answer: We continually review our FOIA system, “FOIAonline,” for any 

deficiencies and we work with our partner agencies to continuously enhance the 

system for greater efficiency, improve search processes, and eliminate

redundancy. For example, 3 videos recently were posted to help instruct users 

how to perform the basic functions of: creating an account, making a request, 

and searching requests. See 

https://foiaonline.regulations.gov/foia/action/public/home/resources.
Section III: Steps Taken to Increase Proactive Disclosures

Posting Material:

1. Do your FOIA professionals have a system in place to identify records for 

proactive disclosures? 

Answer: Yes.

2. If so, describe the system that is in place.

Answer: We have routine processes in place to post Board decisions, agency 

reports, media interviews, Federal Register notices, etc. Additionally, when the 

Board undertakes any new initiatives, it considers whether records associated 

with them are suitable for proactive disclosures on our website. 

3. Provide examples of material that your agency has posted this past reporting

period, including links to where this material can be found online. 

Answer: We posted information on the following initiatives, including 

proactively disclosing a substantial number of documents.

Under “Significant Cases,” we posted relevant Board issuances, Federal Register 

notices, and amicus briefs that addressed the Whistleblower Protection 

Enhancement Act of 2012. See 

http://www.mspb.gov/SignificantCases/index.htm.

During the revision of our initial appeal form, we posted the various revisions, 

timeline, Federal Register notices, and comments received from the public. See 

http://www.mspb.gov/appeals/revisedappealform.htm.

We continued our Regulatory Review Initiative and posted information about 

proposed options to revise the Board’s jurisdictional regulation and 20+ 

comments received in response to the Federal Register notice. See 

http://www.mspb.gov/regulatoryreview/index.htm.

We also posted 8 agency administrative files relevant to the 32,000+ Department 

of Defense furlough appeals to facilitate easier access by appellants to this 

information. See http://www.mspb.gov/furloughappeals/index.htm.

 Making Posted Material More Useful:

4. Beyond posting new material, is your agency taking steps to make the posted

information more useful to the public, especially to the community of individuals

who regularly access your agency’s website, such as soliciting feedback on the 

content and presentation of posted material, improving search capabilities on the 

site, posting material in open formats, making information available through

mobile applications, providing explanatory material, etc.?

Answer: Yes.
 5. If so, provide examples of such improvements. 

Answer: In response to a usability review of our website by the General Services 

Administration in January 2013, we improved and relocated the Search field on 

our website so it appears at the top of each page, and searches include the website 

and our document management system. We also used Twitter (@USMSPB) to 

publicize and solicit feedback on our posted material.

6. Did your agency use any means to publicize or highlight important proactive 

disclosures for public awareness? If so, was social media utilized? 

Answer: Yes. We used press releases, listservs, and Twitter (@USMSPB) to 

publicize or highlight important proactive disclosures for public awareness.

7. Has your agency encountered challenges that make it difficult to post records you

otherwise would like to post? If so, please briefly explain what those challenges 

are. 

Answer: Yes. Additional staffing would allow us to provide more services to 

our requester community, e.g., evaluating records for posting.

 8. Describe any other steps taken to increase proactive disclosures at your agency. 

Answer: We continually review ways to increase proactive disclosures.

Section IV: Steps Taken to Greater Utilize Technology 

Online tracking of FOIA requests:

1. Can a FOIA requester track the status of his/her request electronically? 

Answer: Yes.

2. If yes, how is this tracking function provided to the public? For example, is it 

being done through regularly updated FOIA logs, online portals, or other 

mediums? 

Answer: The tracking function is provided to the public through FOIAonline.

3. Describe the information that is provided to the requester through the tracking 

system. For example, some tracking systems might tell the requester whether the 

request is "open" or "closed," while others will provide further details to the 

requester throughout the course of the processing, such as "search commenced" 

or "documents currently in review.” List the specific types of information that are 

available through your agency's tracking system. 
Answer: FOIAonline enables a requester to do the following: track the progress 

of each request, e.g., whether the request is open or closed, submit FOIA requests 

to multiple agencies, and automatically receive notification when an agency has 

received a request.

4. In particular, does your agency tracking system provide the requester with an 

estimated date of completion for his/her request? 

Answer: No.

5. If your agency does not provide online tracking of requests, is your agency taking 

steps to establish this capability? If not, please explain why.

Answer: Not applicable.

Use of technology to facilitate processing of requests:

6. Beyond using technology to redact documents, is your agency taking steps to 

utilize more advanced technology to facilitate overall FOIA efficiency, such as 

improving record search capabilities, utilizing document sharing platforms for 

consultations and referrals, or employing software that can sort and de-duplicate 

documents? 

Answer: There were no new initiatives to use more advanced technology during 

the reporting period.

 7. If so, describe the technological improvements being made. 

Answer: Not applicable.

8. Are there additional technological tools that would be helpful to achieving further 

efficiencies in your agency’s FOIA program? 

Answer: Yes. As we move toward all-electronic case files, it is obviously easier 

if we do not have to scan documents first before redacting them, and it is easier, 

less costly, and more efficient to produce case documents electronically than on 

paper. In this process, we also are exploring ways to produce entire case files in 

an indexed, organized fashion.

Section V: Steps Taken to Improve Timeliness in

Responding to Requests and Reducing Backlogs 

Simple Track Requests:

1. 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. 

a. Does your agency utilize a separate track for simple requests?

Answer: Yes.

b. If so, for your agency overall, for Fiscal Year 2013, was the average number of 

days to process simple requests twenty working days or fewer? 

Answer: No.

c. If your agency does not track simple requests separately, was the average 

number of days to process non-expedited requests twenty working days or 

fewer?

Answer: Not applicable.

Backlogs and “Ten Oldest” Requests, Appeals and Consultations:

2. 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. 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 2012 and Fiscal Year 2013 when completing this 

section of your Chief FOIA Officer Report. 

Backlogs 

a. If your agency had a backlog of requests at the close of Fiscal Year 2013, did 

that backlog decrease as compared with Fiscal Year 2012?

Answer: We did not have a backlog.

b. If your agency had a backlog of administrative appeals in Fiscal Year 2013, did 

that backlog decrease as compared to Fiscal Year 2012?

Answer: No.
Ten Oldest Requests

c. In Fiscal Year 2013, did your agency close the ten oldest requests that were 

pending as of the end of Fiscal Year 2012? 

Answer: Yes.

d. 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 

2012 Annual FOIA Report. If you had less than ten total oldest requests to 

close, please indicate that. For example, if you only had seven requests listed 

as part of your "ten oldest" in Section VII.E. and you closed two of them, you 

should note that you closed two out of seven “oldest” requests. 

Answer: Not applicable.

Ten Oldest Appeals

e. In Fiscal Year 2013, did your agency close the ten oldest administrative 

appeals that were pending as of the end of Fiscal Year 2012? 

Answer: No.

f. If no, please provide the number of these appeals your agency was able to 

close, as well as the number of appeals your agency had in Section VI.C.(5) of 

your Fiscal Year 2012 Annual FOIA Report. 

Answer: 0 and 1.

Ten Oldest Consultations

g. In Fiscal Year 2013, did your agency close the ten oldest consultations 

received by your agency and pending as of the end of Fiscal Year 2012?

Answer: We did not have any consultations in FY 2013.

h. If no, please provide the number of these consultations your agency did close, 

as well as the number of pending consultations your agency listed in Section 

XII.C. of your Fiscal Year 2012 Annual FOIA Report.

Answer: Not applicable.

Reasons for Any Backlogs:

3. If you answered “no” to any of the questions in item 2 above, describe why your

agency was not able to reduce backlogs and/or close the ten oldest pending 
requests, appeals, and consultations. In doing so, answer the following questions 

then include any additional explanation: 

 Request and/or Appeal Backlog

a. Was the lack of a reduction in the request and/or appeal backlog a result of an 

increase in the number of incoming requests or appeals?

Answer: No.

b. Was the lack of a reduction in the request and/or appeal backlog caused by a 

loss of staff?

Answer: No.

c. Was the lack of a reduction in the request and/or appeal backlog caused by an 

increase in the complexity of the requests received?

Answer: Yes.

d. What other causes, if any, contributed to the lack of a decrease in the request 

and/or appeal backlog?

Answer: None.

 “Ten oldest” Not Closed

e. Briefly explain the obstacles your agency faced in closing its ten oldest 

requests, appeals, and consultations from Fiscal Year 2012. 

Answer: MSPB needed additional time to coordinate a response to the one 

backlogged appeal due to the complexity of the information being requested.

f. If your agency was unable to close any of its ten oldest requests or appeals 

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. 

Answer: Not applicable.

Plans for Closing of Ten Oldest Pending Requests, Appeals, and Consultations and 

Reducing Backlogs:

4. If your agency did not close its ten oldest pending requests, appeals, and 

consultations, please provide a plan describing how your agency intends to close 

those “ten oldest” requests, appeals, and consultations during Fiscal Year 2014.
Answer: We are pleased to report that the one backlogged appeal reported in 

the 2013 Annual FOIA Report was closed in early FY 2014.

5. If your agency had a backlog of more than 1000 pending requests and did not 

reduce that backlog in Fiscal Year 2013, provide your agency’s plan for achieving 

backlog reduction in the year ahead. 

Answer: Not applicable.

Interim Responses:

6. Does your agency have a system in place to provide interim responses to 

requesters when appropriate? 

Answer: Yes.

7. If your agency had a backlog in Fiscal Year 2013, 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. 

Answer: We did not have a backlog.

Use of FOIA’s Law Enforcement “Exclusions”

1. Did your agency invoke a statutory exclusion during Fiscal Year 2013? 

Answer: No.

2. If so, what was the total number of times exclusions were invoked? 

Answer: Not applicable.

Spotlight on Success

We continue to successfully use FOIAonline, and we plan to further make use of its 

capabilities by uploading FOIA responses into the system. This it is very helpful for 

monitoring pending requests and deadlines. Also, we reduced administrative appeals by 

increasing our communication with requesters to resolve any questions or concerns 

regarding their FOIA request or our response. Finally, as indicated in our response to 

Question 3 in Section III, we continue to post documents on our website associated with 

important initiatives to both enhance our transparency and increase proactive 

disclosures. An upcoming effort will be in conjunction with resetting our agency’s 

research agenda in 2014.