2017 Chief FOIA Officer Report

for the Merit Systems Protection Board (MSPB)

by

William D. Spencer

Acting CIO 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

A. FOIA Training:

1. Did your FOIA professionals or the personnel at your agency who have FOIA responsibilities 

attend any FOIA training or conference during the reporting period such as that provided by the 

Department of Justice?

Answer: Yes. MSPB’s FOIA professionals conscientiously monitor training opportunities for 

both themselves and other MSPB staff with FOIA responsibilities. We also send attorneys in the 

Office of the Clerk of the Board--without direct FOIA responsibilities-- and members of the

Information Services Team (which handles FOIA, privacy, and records management) to 

substantive FOIA training to provide cross-training and awareness. 

2. If yes, please provide a brief description of the type of training attended and the topics covered.

Answer: Staff participated in training provided by the Office of Information Policy (OIP) at the 

Department of Justice and the American Society of Access Professionals. Training attended 

included full-day informational seminars and half-day sessions such as the Best Practices 

workshops, the Annual and Chief FOIA Officer Report workshops, and the 2016 FOIA 

Amendments Act update. Staff also attended trainings on broader topics, including an overview 

of the exemptions, proper ways to apply redactions, and in-depth discussions on specific 

exemptions. 
3. Provide an estimate of the percentage of your FOIA professionals and staff with FOIA 

responsibilities who attended substantive FOIA training during this reporting period.

Answer: 100%

4. OIP has directed agencies to “take steps to ensure that all of their FOIA professionals attend 

substantive FOIA training at least once throughout the year.” If your response to the previous 

question is that less than 80% of your FOIA professionals attended training, please explain your 

agency’s plan to ensure that all FOIA professionals receive or attend substantive FOIA training 

during the next reporting year.

Answer: Not applicable.

B. Outreach

 5. Did your FOIA professionals engage in any outreach or dialogue with the requester community 

or open government groups regarding your administration of the FOIA?

Answer: No. Due to limited resources in our FOIA program, we were unable to engage in any 

outreach or dialogue with the requester community.

C. Other Initiatives

 6. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their 

obligations under the FOIA.

Answer: MSPB took several steps this year to raise awareness of FOIA obligations for non-FOIA 

professionals. With the addition of a new, full-time Government Information Specialist (GIS), 

search memos to program offices are more thorough and detailed. Additionally, during 

Sunshine Week 2016, MSPB’s Chief FOIA Officer sent a series of agency-wide emails that 

explained the purpose and history of Sunshine Week; how MSPB’s FOIA program operates, 

including how requests are processed; the statutory deadline requirements; and each 

employee’s role regarding FOIA. The all-employee emails included links to MSPB’s FOIA reports, 

OIP’s FOIA Infographic, and ways to obtain more information on FOIA. During Sunshine Week, 

MSPB’s senior staff members received a separate email asking them to view OIP’s video 

specifically for agency senior executives and reminding them that “FOIA is everyone’s 

responsibility.” 

 
 7. If there are any other initiatives undertaken by your agency to ensure that the presumption of 

openness is being applied, please describe them here.

Answer: With the codification of the “foreseeable harm” standard in the 2016 FOIA 

Amendments Act, we have further emphasized this consideration in our analysis when we 

review records for release. For example, where a full release is not possible, our FOIA team 

consults with program staff to better understand the nature of the requested records, with the 

goal determining how we can provide more transparency by making a partial disclosure, if 

possible. 

 

Section II: Steps Taken to Ensure that Your Agency Has an Effective System in

Place for Responding to Requests

A. Processing Procedure:

 1. For Fiscal Year 2016, what was the average number of days your agency reported for 

adjudicating requests for expedited processing?

Answer: 2.74 days.

 2. If your agency’s average number of days to adjudicate requests for expedited processing was 

above 10 calendar days, please describe the steps your agency will take to ensure that requests 

for expedited processing are adjudicated within ten calendar days or less.

Answer: The average number of days reported for adjudicating requests for expedited 

processing dropped substantially from last year. With the stabilization of our staffing situation, 

we have made it a priority to focus on the requirements for our FOIA program as outlined in the 

statute.

 3. During the reporting period, did your agency conduct a self-assessment of its FOIA program? If 

so, please describe the methods used, such as reviewing Annual Report data, using active 

workflows and track management, reviewing and updating processing procedures, etc.

Answer: As our staffing challenges stabilized, we continually assessed our performance 

throughout the year. Our new GIS worked to develop new methods and strategies to effectively 

and timely process incoming requests and to begin the work of reducing the existing backlog. 

Our self-assessments occurred during weekly meetings where current processing methods were 

discussed and tweaked. We also used observations gleaned from the quarterly and annual 
reports to provide us with the current state of our FOIA program and inform the path forward. 

We will continue these self-assessment efforts in the coming year with the recent addition of 

our Chief Privacy Officer & Director of Information Services, who has a strong background in 

FOIA litigation. 

4. Please provide an estimate of how many requests your agency processed in Fiscal Year 2016 

that were from commercial use requesters. If your agency is decentralized, please identify any 

components within your agency that received a majority of their requests from commercial use 

requesters. 

Answer: We processed approximately 21 requests (of approximately 31) from commercial use 

requesters. However, MSPB’s regulations provide that we do not charge fees under $100 and 

we did not estimate or calculate the total fees for each of the commercial requesters. 

B. Requester Service:

 6. The FOIA Improvement Act of 2016 requires additional notification to requesters about the 

services provided by the agency’s FOIA Public Liaison. Please provide an estimate of how often 

requesters sought assistance from your agency’s FOIA Public Liaison.

Answer: While requesters have called MSPB’s main FOIA number for information and help with 

their requests, no caller has specifically sought the help of the FOIA Public Liaison.

 7. The FOIA Improvement Act of 2016 requires agencies to make their reference material or guide 

for requesting records of information from the agency electronically available to the public. 

Please provide a link to your agency’s FOIA reference guide.

Answer: http://www.mspb.gov/foia/request.htm

C. Other Initiatives

 8. If there are any other steps your agency has undertaken to ensure that your FOIA system 

operates efficiently and effectively, such as improving search processes, eliminating redundancy, 

etc., please describe them here.

Answer: Prior to December 2016, MSPB allowed FOIA requesters to submit requests to our 

headquarters office or directly to any of our 8 regional and field offices. This system had been in 

place for a long time and was reflective of a time in years past when records were mostly paper 

and accessible in only one physical location. Given the combined effect of the prevalence and 
accessibility of electronic records, the statutory requirement to post frequently requested 

records, and continuous need to identify records for proactive disclosure, MSPB centralized all 

FOIA operations to the Office of the Clerk of the Board. This change reduces confusion for 

requestors when submitting their requests and ensures greater consistency in MSPB’s FOIA 

processes. 

We also worked internally to better understand our existing technology and how we can 

effectively use such technology to most effectively and efficiently conduct electronic searches 

for certain types of records requests. 

Section III: Steps Taken to Increase Proactive Disclosures

A. Posting Material

 1. Describe your agency’s process or system for identifying “frequently requested” records that 

should be posted online.

Answer: We use the FOIAonline system to identify frequently requested records. For example, 

we received numerous requests for a series of identical or related records, and we were able to 

locate the records using FOIAonline and post them on our website. 

 2. Does your agency have a distinct process or system in place to identify other records for

proactive disclosure? If so, please describe your agency’s process or system.

Answer: Yes. 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, we consider whether records associated with them are suitable for proactive 

disclosure on our website. As awareness of FOIA has grown within MSPB, non-FOIA 

professionals have started to reach out with ideas for proactive disclosures. For example, an 

MSPB program office anticipated that a recently-created dataset would be of interest to the 

public and likely the subject of future FOIA requests, and initiated discussions with our FOIA 

staff on how best to make this data available. We anticipate that the dataset will be posted as a 

proactive disclosure in spring 2017. 

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

would like to post?

Answer: Yes.
 4. If so, briefly explain those challenges and how your agency is working to overcome them.

Answer: Because we have only 1 full-time employee dedicated to FOIA, our resources to 

identify, prepare, and proactively post records are limited. 

 

 5. Provide examples of material that your agency has proactively disclosed during the past 

reporting year, including links to the posted material.

Answer: 

• We posted documents concerning the departure of our Chairman, including a press release and 

FAQ

(https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1376617&version=1381992

&application=ACROBAT) and 

(https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1376654&version=1382029

&application=ACROBAT); 

• We posted an electronic version of a print publication titled The Merit Systems Principles: Keys 

to Managing the Federal Workforce

(https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=1371890&version=1377261&

application=ACROBAT);

• We posted documents that, together, create a primer on adverse action procedures for Federal 

employees (https://www.mspb.gov/studies/adverse_action_report/); and 

• We post weekly Case Reports that provide descriptions of court and Board decisions to inform 

and help the public locate Board precedents 

(https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1381519&version=1386905

&application=ACROBAT).

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

public awareness? If yes, please describe these efforts.

Answer: We used Twitter (@USMSPB) to raise public awareness of the postings.

B. Other Initiatives

 7. If there are any other steps your agency has taken to improve proactive disclosures, please 

describe them here. For example, has your agency engaged requesters in determining how and 

what to post? Has your agency used web analytics to inform your proactive disclosures?

Answer: As awareness of FOIA grows among MSPB program staff, there has been a willingness 

to consider whether the public would benefit from proactively disclosing a record before 

requests are received for the document. For example, a program office proactively identified a 
dataset used by its staff that would likely be the subject of multiple FOIA requests and initiated 

discussions with the FOIA office on how best to proactively post it. 

Section IV: Steps Taken to Greater Utilize Technology

A. Making Material Posted Online More Useful

 1. 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?

Answer: Yes. 

 2. If yes, please provide examples of such improvements.

Answer: In March 2016, we made substantial revisions to our FOIA Requester Service Center 

page to make it more user-friendly. We continue to evaluate the usefulness of that information 

and have made additional changes to the page, as appropriate. All FOIA materials, including our 

annual reports, FY 2016 raw data report, and e-FOIA Reading Room, are available from this 

page. Our FOIA Requester Service Center page summarizes the categories of records available 

elsewhere on the MSPB website and includes hyperlinks to allow requesters to easily access 

those records. 

In addition, the MSPB website is organized so that records for new and relevant topics—most 

likely to be of interest to the public—are highlighted and easily accessible from the home page. 

We continue to use Twitter to inform the public when new information or records are available 

on our website, including new press releases, reports, and newsletters. 

B. Other Initiatives

 3. Did your agency successfully post all four quarterly reports for Fiscal Year 2016?

Answer: MSPB successfully posted quarterly reports for the second through fourth quarter of 

FY 2016.

 4. If your agency did not successfully post all quarterly reports, with information appearing on 

FOIA.gov, please explain why and provide your agency’s plan for ensuring that such reporting is 

successful in FY 2017.
Answer: Due to many FOIA staffing changes throughout FY 2015 and early FY 2016, MSPB did 

not have a full-time dedicated FOIA professional until the end of the second quarter of FY 2016. 

Since that time, MSPB has been able to timely post each quarterly report. 

 
Section V: Steps Taken to Improve Timeliness in 

Responding to Requests and Reducing Backlogs

A. Simple Track

 

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

Answer: Yes.

 2. 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?

Answer: No.

 3. Please provide the percentage of requests processed by your agency in Fiscal Year 2016 that 

were placed in your simple track.

Answer: 89%

 4. 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?

Answer: Not applicable.

B. Backlogs

BACKLOGGED REQUESTS

 5. If your agency has a backlog of request 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 to reduce its 

backlog.

Answer: MSPB experienced an increase in our backlog from FY 2015 to FY 2016. Our backlog 

was 44 requests at the end of FY 2015 and increased to a backlog of 69 requests at the end of FY 

2016.
 6. 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.

Answer: MSPB’s backlog increased from FY 2015 to FY 2016, mostly as a result of the personnel 

turnover throughout the year, including 6 months without a dedicated, full-time GIS. 

Additionally, MSPB received more FOIA requests in FY 2016 than in FY 2015 (206 compared to 

165), and many of the requests received are complex requests for copies of MSPB appeal files, 

which are extensive and typically contain information which must be redacted under Exemption 

(b)(6). 

 7. 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. 

Answer: 47%

BACKLOGGED APPEALS 

 8. If your agency had a backlog of appeals at the close of the 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 to reduce backlog.

Answer: MSPB had no backlog of FOIA appeals at the end of FY 2015. We had a backlog of two

FOIA appeals at the end of FY 2016 (an increase).

 9. 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.

Answer: Although MSPB ended FY 2016 with two backlogged appeals, both of which were 

complex, those appeals have now been closed. 

 10. 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”.

Answer: 18%

C. Status of Ten Oldest Requests, Appeals, and Consultations

TEN OLDEST REQUESTS

 11. In Fiscal Year 2016, did your agency close the ten oldest requests that were reported pending in 

your Fiscal Year 2015 Annual FOIA Report?

Answer: No.

 12. If no, please provide the number of the 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.

Answer: In FY 2016, MSPB was able to close 5 of the oldest 10 requests that were reported 

pending in our FY 2015 Annual FOIA Report.

 13. 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?

Answer: Of the 5 requests that were closed, 2 were closed with a disposition of withdrawn. No 

interim release was provided to the requester for either of the withdrawn requests.

TEN OLDEST APPEALS

 14. In fiscal Year 2016, did your agency close the ten oldest appeals that were reported pending in 

your Fiscal Year 2015 Annual FOIA Report?

Answer: Not applicable; MSPB had no appeals pending at the end of FY 2015.

 15. 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. 

Answer: Not applicable.

TEN OLDEST CONSULTATIONS

16. In Fiscal Year 2016, did your agency close the ten oldest consultations that were reported 

pending in your Fiscal year 2015 Annual FOIA Report?

Answer: Not applicable. We did not report any pending consultations in our FY 2015 Annual 

FOIA Report.

 17. 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.

Answer: Not Applicable.
E. Additional Information on Ten Oldest Requests, Appeals, and Consultations & Plans

 18. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and 

consultations from Fiscal Year 2015.

Answer: As explained above, e.g., in response to Section V.B.6., MSPB continued to face 

significant personnel challenges in our FOIA program through FY 2016, and the remaining 10 

oldest requests from FY 2015 were complex and time consuming. 

 19. 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.

Answer: Not Applicable.

 20. 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.

Answer: We have already identified the 10 oldest requests currently pending for FY 2017. We 

have made it a goal to close a certain amount of old, backlogged requests each quarter, and we 

are temporarily utilizing additional personnel resources within the Office of the Clerk of the 

Board to help us close these oldest requests. 

F. 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. 

Answer: With the onboarding of a full-time, seasoned GIS in mid-FY 2016, combined with the FY 

2017 onboarding of our Chief Privacy Officer & Director of Information Services with a strong 

background in both privacy and FOIA litigation, the overall capabilities of our FOIA program have

improved substantially. Among our achievements since March 2016: 

• Fully utilizing FOIAonline as the electronic repository for all FOIA records; 

• Engaging MSPB’s IT staff to educate them on the requirements of FOIA and how to 

effectively utilize our existing technologies to conduct searches;

• Prioritizing more frequent and transparent communication with requestors, including 

relaying our recent staffing challenges and the realities of our backlog and workload; 

• Increasing the number of interim releases; and 
• Employing a team-oriented, thoughtful approach to processing complex FOIA requests given 

MSPB’s unique role as an independent agency with quasi-judicial functions involving the 

Federal workforce.