2016 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 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. The 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 to substantive FOIA training for crosstraining. Staff participated in training provided by the Office of Information 

Policy at the Department of Justice and the American Society of Access 

Professionals.

2. 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%

3. 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.

Discretionary Releases:

4. Does your agency have a distinct process or system in place to review records for 

discretionary release?

Answer: Yes. The MSPB routinely reviews exemptible information responsive 

to FOIA requests for discretionary release. 

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

information?

Answer: No.

6. What exemption(s) would have covered the material released as a matter of 

discretion? 

Answer: Not applicable.

7. 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.

Answer: Not applicable.

8. If your agency was not able to make any discretionary releases of information, 

please explain why.

Answer: The MSPB was not able to make discretionary releases of information

in response to some requests due to Exemptions 6 (primarily) and 7C, which do 

not lend themselves to discretionary release. In response to a few requests, MSPB 

also applied Exemption 5 (deliberative process). Releasing the records exempted 

under (b)(5) would undermine the Board’s ability to fully carry out its 

adjudicatory mission. 
Other Initiatives:

9. 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: 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

Processing Procedures:

1. For Fiscal Year 2015, what was the average number of days your agency reported 

for adjudicating requests for expedited processing? 

Answer: 15 days.

2. If your agency's average number of days to adjudicate requests for expedited 

processing was above ten 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 MSPB’s inability to adjudicate requests for expedited processing in 

less than 10 calendar days is directly related to our staffing limitations this year. 

Following the retirement of our only FOIA specialist in December 2014, we 

utilized contractor support beginning in January 2015. However, in addition to 

the time necessary to orient them to our agency’s operations, there was turnover 

in that position in June 2015, and that individual’s supervisor left MSPB in 

August 2015. We expect that our processing of expedited requests will improve 

substantially in FY 2016 once we fill the vacancy for our single FOIA position. 

Of note, we converted that position to the Government Information Specialist job 

series.

3. On July 2, 2015, OIP issued new guidance to agencies on the proper procedures to 

be used in the event an agency has a reason to inquire whether a requester is still 

interested in the processing of his or her request. Please confirm here that to the 

extent your agency may have had occasion to send a "still interested" inquiry, it 

has done so in accordance with the new guidelines for doing so, including 

affording requesters thirty working days to respond.

Answer: The MSPB complied with the new guidance.
Requester Services:

4. Agency FOIA Requester Service Centers and FOIA Public Liaisons serve as the 

face and voice of an agency. In this capacity they provide a very important 

service for requesters, informing them about how the FOIA process works and 

providing specific details on the handling of their individual requests. The FOIA 

also calls on agency FOIA Requester Service Centers and FOIA Public Liaisons 

to assist requesters in resolving disputes. Please explain here any steps your 

agency has taken to strengthen these services to better inform requesters about 

their requests and to prevent or resolve FOIA disputes.

Answer: The MSPB expanded access to a dedicated FOIA mailbox 

(foiahq@mspb.gov) which is actively monitored to improve our responsiveness to 

inquiries and to allow our staff to better track information exchanged between the 

agency and requestors. Additionally, we immediately withdrew an initial 

response to a FOIA request upon realizing our error in a “no records” response, 

thus mooting an appeal and allowing for a “full grant” response. 

Other Initiatives:

5. If there are 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., please describe them here.

Answer: We utilized technology to help us more quickly respond to a routine 

request for records we have received on a monthly basis for years. We also 

worked with the requestor to produce the records in their preferred format. This 

has significantly reduced the time required on a monthly basis to respond to this 

particular request. We also expanded our usage of the FOIAonline system to 

utilize its recordkeeping functionality. This has improved our ability to review 

our responses to closed requests, thus eliminating redundancy and improving our 

ability to search more effectively. 

Section III: Steps Taken to Increase Proactive Disclosures

Posting Material:

1. Describe your agency's process or system for identifying "frequently requested" 

records required to be posted online under Subsection (a)(2) of the FOIA. For 
example, does your agency monitor its FOIA logs or is there some other system in 

place to identify these records for posting.

Answer: We have begun to conduct queries in the FOIAonline system to identify 

frequently requested records. For example, as noted below, we posted our 

“Organization Functions & Delegations of Authority” on our website. In FY 

2016, we plan to expand these efforts to post appropriate records on the MSPB 

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, e.g., oral arguments, requests for 

amicus briefs, changes to our regulations, etc., we consider whether records 

associated with them are suitable for proactive disclosure on our website.

3. When making proactive disclosures of records, are your agency's FOIA 

professionals involved in coding the records for Section 508 compliance or 

otherwise preparing them for posting? If so, provide an estimate of how much 

time is involved for each of your FOIA professionals and your agency overall.

Answer: In FY 2015, MSPB’s website began utilizing AudioEye technology to 

allow for on-the-fly conversion of posted documents into Section 508-compliant 

versions. This does not require the involvement of our FOIA professionals; 

however, the Chief FOIA Officer is a member of our internal Section 508 

Working Group which identified the AudioEye solution.

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

otherwise would like to post?

Answer: Yes. 

5. If so, please briefly explain those challenges.

Answer: Given our staffing challenges this year, our resources have been too 

limited to make proactive disclosures beyond the types we have made in the past. 
6. Provide examples of material that your agency has proactively disclosed during 

the past reporting year, including links to the posted material.

• We posted documents on appealing the removal or transfer of SES 

employees of the Department of Veterans Affairs (www.mspb.gov/vases).

• We posted documents concerning the Board’s request for amicus briefs in 

the matter of Abernathy v. Department of the Army 

(http://www.mspb.gov/SignificantCases/abernathy.htm).

• We posted documents related to the Board’s revisions to its regulations 

governing discovery in compliance proceedings

(www.mspb.gov/regulatoryreview).

• We posted our “Organization Functions & Delegations of Authority,” a 

“frequently requested” document.

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

disclosures for public awareness? If yes, please describe those efforts.

Answer: We used Twitter (@USMSPB) to raise public awareness of these 

postings.

Other Initiatives:

8. If there are any other steps your agency has taken to increase proactive 

disclosures, please describe them here.

Answer: Not applicable. 

Section IV: Steps Taken to Greater Utilize Technology

Making Material Posted Online More Usable:

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

information more useable 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: We made substantial revisions to our FOIA Requestor Service Center

webpage, which includes better identification of the information available on our 

website and links to that information. 

Other Initiatives:

3. Did your agency successfully post all four quarterly reports for Fiscal Year 2015?

Answer: Yes. 

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 Fiscal Year 2016.

Answer: Not applicable. 

5. Do your agency's FOIA professionals use e-mail or other electronic means to 

communicate with requesters whenever feasible? If yes, what are the different 

types of electronic means that are utilized by your agency to communicate with 

requesters?

Answer: Yes. We use email, telephone, FOIAonline, fax, and Twitter 

(@USMSPB) to communicate with requesters. We also improved our email 

communications by setting up a dedicated mailbox (foiahq@mspb.gov) to 

centralize communications between FOIA requestors and MSPB staff. 

6. If your agency does not communicate electronically with requests as a default, are 

there any limitations or restrictions for the use of such means? If yes, does your 

agency inform requesters about such limitations? 

Answer: Not applicable.

Section V: Steps Taken to Improve Timeliness in Responding to Requests and 

Reducing Backlogs

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 2015, 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 

2015 that were placed in your simple track.

Answer: 91%.

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.

Backlogs:

BACKLOGGED REQUESTS

5. If your agency had a backlog of requests at the close of Fiscal Year 2015, did that 

backlog decrease as compared with the backlog reported at the end of Fiscal Year 

2014?

Answer: No, it increased as compared to the backlog reported at the end of FY 

2014. 

6. If not, explain why and describe the causes that contributed to your agency not 

being able reduce its backlog. 

Answer: As noted above, during FY 2015, MSPB lost both our lone full-time 

FOIA specialist and their supervisor. Although we had some temporary 

contractor support to provide basic coverage of our FOIA program, we were 

unable to process requests at the rate they were received. Additionally, many of 

the complex requests we receive are for copies of MSPB appeal files, which are 

extensive and typically contain information which must be redacted under 

Exemption 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 2015.

Answer: 33%.
BACKLOGGED APPEALS

8. If your agency had a backlog of appeals at the close of Fiscal Year 2015, did that 

backlog decrease as compared with the backlog reported at the end of Fiscal Year 

2014?

Answer: We did not have a backlog of appeals at the end of FY 2015. The 

number of backlogged appeals decreased from one at the end of FY 2014 to zero 

at the end of FY 2015.

9. If not, explain why and describe the causes that contributed to your agency not 

being able reduce backlog. 

Answer: Not applicable.

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 2015. 

Answer: Not applicable.

Status of Ten Oldest Requests, Appeals, and Consultations: 

TEN OLDEST REQUESTS

11. In Fiscal Year 2015, did your agency close the ten oldest requests that were 

reported pending in your Fiscal Year 2014 Annual FOIA Report?

Answer: No.

12. 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 2014 

Annual FOIA Report.

Answer: We closed 9 of the 10 oldest requests that were reported pending in our 

FY 2014 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: Not applicable. None of these requests were closed as withdrawn.

TEN OLDEST APPEALS

14. In Fiscal Year 2015, did your agency close the ten oldest appeals that were 

reported pending in your Fiscal Year 2014 Annual FOIA Report?

Answer: Yes. We only reported one pending appeal in our FY 2014 Annual 

FOIA Report.

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 

2014 Annual FOIA Report.

Answer: Not applicable.

TEN OLDEST CONSULTATIONS

16. In Fiscal Year 2015, did your agency close the ten oldest consultations that were 

reported pending in your Fiscal Year 2014 Annual FOIA Report?

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

2014 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 

2014 Annual FOIA Report.

Answer: Not applicable.

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 2014.

Answer: As noted above, given our staffing challenges in FY 2015, we were 

unable to close one of our ten oldest pending request reported in our FY 2014 

Annual FOIA Report.

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 2016.

Answer: We expect to close the one remaining request from our ten oldest 

requests reported in our FY 2014 Annual FOIA Report in FY 2016 once we fill 

the vacancy for our FOIA position.

Interim Responses (not required):

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

requesters when appropriate?

Answer: Yes, we provide interim responses to requesters when appropriate, and 

we increased our use of interim responses in FY 2015.

Use of the FOIA’s Law Enforcement Exclusions

1. Did your agency invoke a statutory exclusion, 5 U.S.C. § 552(c)(1), (2), (3), 

during Fiscal Year 2015?

Answer: No.

2. If so, please provide the total number of times exclusions were invoked.

Answer: Not applicable.