HHS Fiscal Year 2006 Freedom of Information Annual Report

A. HHS and OPDIV Freedom of Information Officers/FOIA Requester Service Centers:

Health and Human Services (HHS)
Freedom of Information Officer
Mary E. Switzer Building, Room 5416
330 C Street, S.W.
Washington, D.C. 20201
Phone: 202-690-7453

Administration for Children and Families (ACF)
Freedom of Information Officer
901 D Street, S.W.
7th Floor West
Aerospace Building
Washington, D.C. 20447
Phone: 202-401-9215

Administration on Aging (AOA)
Freedom of Information Officer
Washington, D.C. 20201
Phone: 202-357-3540

Centers for Medicare & Medicaid Services (CMS)
Freedom of Information Officer
North Building, Room N2-20-06
7500 Security Boulevard
Baltimore, Maryland 21244
Telephone (410) 786-5353

Office of Public Health and Science (OPHS)
Freedom of Information Officer
Room 17-A-46, Parklawn Building
5600 Fishers Lane
Rockville, MD 20857
Phone: 301-443-5252

Agency for Healthcare Research and Quality (AHRQ)
Freedom of Information Officer
540 Gaither Road
The Eisenberg Building, Room 2222
Rockville, Maryland 20850
Phone: 301-427-1866

Centers for Disease Control and Prevention (CDC) and/or
Agency for Toxic Substances and Disease Registry (ATSDR)
Freedom of Information Officer
1600 Clifton Road, Building 21, MS D-54
Atlanta, Georgia 30333
Phone: 404-639-7270

Food and Drug Administration (FDA)
Freedom of Information Officer
Parklawn Building, Room 6-30
5600 Fishers Lane
Rockville, Maryland 20857
Phone: 301-827-6567

Health Resources and Services Administration (HRSA)
Freedom of Information Officer
Parklawn Building, Room 14-15
5600 Fishers Lane
Rockville, Maryland 20857
Phone: 301-443-3376

Indian Health Service (IHS)
Freedom of Information Officer
12300 Twinbrook Parkway, Suite 450
Twinbrook II, Metro Plaza Building
Rockville, Maryland 20857
Phone: 301-443-1116

National Institutes of Health (NIH)
Freedom of Information Officer
Building 31, Room 5B35
9000 Rockville Pike
Bethesda, Maryland 20892
Phone: 301-496-5633

Substance Abuse and Mental Health Services Administration (SAMHSA)
Freedom of Information Officer
1 Choke Cherry Road, Room 8-1042
Rockville, Maryland 20857
Phone: 240-276-2137

B. Brief description of agency=s response time range(s): There is no overall time range because individual operating divisions (OPDIVS) have authority to release or deny their own records, and vary greatly in terms of the size and volume of FOIA requests processed. Individual OPDIV response times can range from same day response to over a year, depending on the complexity of the request.

C. Brief description of why some requests are not granted: Documents requested were protected by an exemption and release would have caused harm to the interest protected by the exemption.

A. Agency-specific acronyms or other terms:

HHS - U.S. Department of Health and Human Services
OPDIVs - Operating Divisions of HHS
OS - Office of the Secretary, HHS
OASPA - Office of the Assistant Secretary for Public Affairs, HHS
AoA - Administration on Aging
ACF - Administration for Children and Families
AHRQ - Agency for Healthcare Research and Quality
ATSDR - Agency for Toxic Substances and Disease Registry
CDC - Centers for Disease Control and Prevention
FDA - Food and Drug Administration
HRSA - Health Resources and Services Administration
IHS - Indian Health Services
NIH - National Institutes of Health
OPHS - Office of Public Health and Science
PHS - Public Health Service
PRO - Professional Review Organization
PSC - Program Support Center
SAMHSA - Substance Abuse and Mental Health Services Administration

B. Basic terms (from FOIA UPDATE, Summer 1997):

FOIA/PA request - Freedom of Information/Privacy Act request. A FOIA request is generally a request for access to records concerning a third party, an organization, or a particular topic of interest. A Privacy Act request is a request for records concerning one. Such requests are also treated as FOIA requests. (All requests for access to records, regardless of which law is cited by the requester, are included in this report).

Initial Request - A request to a federal agency for access to records under the Freedom of Information Act.

Appeal - A request to a federal agency asking that it review at a higher administrative level a full denial or partial denial of access to records under the Freedom of Information Act, or any other FOIA determination such as a matter pertaining to fees.

Processed Request or Appeal - A request or appeal for which an agency has taken final action on the request or appeal in all respects.

Multi-track processing - A system in which simple requests requiring relatively minimal review are placed in one processing track and more voluminous and complex requests are placed in one or more other tracks. Requests in each track are processed on a first-in/first-out basis. A requester who has an urgent need for records may request expedited processing (see below).

Expedited processing - An agency will process a FOIA request on an expedited basis when a requester has shown an exceptional need or urgency for the records which warrants prioritization of his or her request over other requests that were made earlier.

Simple request - A FOIA request that an agency using multi-track processing places in its fastest (non-expedited) track based on the volume and/or simplicity of the records requested.

Complex request - A FOIA request, which an agency using multi-track processing places in a slower track, based on the volume and/or complexity of records requested.

Grant - An agency decision to disclose all records in full response to a FOIA request.

Partial grant - An agency decision to disclose a record in part in response to a FOIA request, deleting information determined to be exempt under one or more of the FOIA exemptions; or a decision to disclose some records in their entireties, but to withhold others in whole or in part.

Denial - An agency decision not to release any part of a record or records in response to a FOIA request because all the information in the requested records is determined by the agency to be exempt under one or more of FOIA exemptions or for some procedural reason (such as because no record is located in response to a FOIA request).

Time Limits - The time period in the Freedom of Information Act for an agency to respond to a FOIA request (ordinarily 20 working days from proper receipt of a perfected FOIA request).

Perfected request - A FOIA request for records which adequately describes the records sought, which has been received by the FOIA office of the agency component in possession of the records, and for which there is no remaining question about the payment of applicable fees.

Exemption 3 statute - A separate federal statute prohibiting the disclosure of a certain type of information and authorizing its withholding under FOIA subsection (b)(3).

Median number - The middle number, not the average. For example, of 3, 7, and 14, the median number is 7.

Average number - The number obtained by dividing the sum of a group of numbers by the quantity of numbers in the group. For example, of 3, 7, and 14, the average number is eight.

A. List of Exemption 3 statutes relied on by the agency during report year: (See chart)

1. Brief description of type(s) of information withheld under each statute: (See chart)

2. Has a court upheld the use of each statute? If so, cite example: (See chart)

1. Numbers of initial requests (line 1 + line 2 - line 3 = line 4): (See chart below)

   1. Number of requests pending at close of preceding fiscal year: 24,484
   2. Number of requests received during reporting fiscal year: 258,152
   3. Number of requests processed during reporting fiscal year: 256,573
   4. Number of requests pending at close of reporting fiscal year: (This number should match Line VII.B.1.) 26,063
   
   

2. Disposition of Initial Requests: (See chart)

    

   1. Number granted in full: 240,747
   2. Number granted in part: 752
   3. Number of full denials: 2,236 (See chart)
      
      

      1. Number of times each FOIA exemption was used:

      Exemption 1: 0
      Exemption 2: 24
      Exemption 3: 57
      Exemption 4: 436
      Exemption 5: 201
      Exemption 6: 2,581
      Exemption 7
      
          Exemption 7(A): 106
          Exemption 7(B): 1
          Exemption 7(C): 66
          Exemption 7(D): 15
          Exemption 7(E): 10
          Exemption 7(F): 0
      
      Exemption 8: 0
      Exemption 9: 0

       

       

   4. Other reasons for non-disclosure (total): 14,535 (See chart)

       

      1. No records: 4,537
      2. Referrals: 1,047
      3. Request withdrawn: 2,736
      4. Fee-related reason: 653
      5. Records not reasonably described: 2,312
      6. Not a proper FOIA request for some other reason:888
      7. Not an agency record: 34
      8. Duplicate request: 260
      9. Other (specify): 408 administrative closures--primarily when requester did not respond to queries as to continued interest; and, when materials are more readily available from other sources, e.g. internet, libraries, etc.)

1. Numbers of Appeals:

   1. Number of appeals received during the fiscal year: 218
      
   2. Number of appeals processed during the fiscal year: 209
   
   

2. Disposition of Appeals:

   1. Number completely upheld: 62
   2. Number partially reversed: 27
   3. Number completely reversed: 53
      
      

      1. Number of times each FOIA exemption used (counting each exemption used once per appeal)

         Exemption 1: 0
         Exemption 2: 2
         Exemption 3: 8
         Exemption 4: 29
         Exemption 5: 20
         Exemption 6: 33
         Exemption 7
         
             Exemption 7(A): 3
             Exemption 7(B): 0
             Exemption 7(C): 3
             Exemption 7(D): 0
             Exemption 7(E): 0
             Exemption 7(F): 0
         
         Exemption 8: 0
         Exemption 9: 0

   4. Other reasons for non-disclosure (total): 67

      1. No records: 26
      2. Referrals:1
      3. Request withdrawn: 17
      4. Fee-related reason : 6
      5. Records not reasonably described: 0
      6. Not a proper FOIA request for some other reason: 0
      7. Not an agency record: 3
      8. Duplicate request: 1
      9. Other (specify): 13 administrative closures (primarily when requester did not respond to queries as to continued interest; and, when materials are more readily available from other sources, (e.g. internet, libraries, etc.)

1. Median Processing Time for Requests Processed During the Year: (See chart)

   1. Simple Requests (if multiple tracks used):

      1. Number of requests processed: 49,948
      2. Median number of days to process: (See chart)
      
      

   2. Complex Requests (includes total of complex requests and single-track systems):

      1. Number of requests processed: 7,002
      2. Median number of days to process: (See chart)
      
      

   3. Requests Accorded Expedited Processing:

      1. Number of requests processed: 61
      2. Median number of days to process: (See chart)

   4. Single Track Requests:

      1. Number of requests processed: 199,562
      2. Median number of days to process: (See chart)
   
   

2. Status of Pending Requests (if multiple tracks are being used, report for each track as well as totals). (See chart)

   1. Number of requests pending as of the end of the fiscal year covered in this report (from Line V.A.4): 26,063

   2. Median number of days that such requests were pending as of that date: Medians vary greatly from OPDIV to OPDIV.

1. Comparison of numbers of requests received: Increased by 16.1%, from 222,372 to 258,152

2. Comparison of numbers of requests processed: Increased by 15.9%. from 221,402 to 256,579

3. Comparison of median numbers of days requests were pending as of end of fiscal year: See Chart for Section VII B

4. Other statistics significant to components: None

5. Other narrative statements describing agency efforts to improve timeliness of FOIA performance and to make records available to the public (e.g., backlog-reduction activities; public availability of new categories of records): None

1. Staffing levels:

   1. Number of full-time FOIA personnel: 181

   2. Number of personnel with part-time or occasional FOIA duties (in total work-years): 73.63

   3. Total number of personnel (in work years): 254.63

2. Total costs (including staff and all resources):

   1. FOIA processing (including appeals): $18,560,804

   2. Litigation-related activities (estimated): $1,015,390

   3. Total costs: $19,576,194

   4. Comparison with previous year(s) (including percentage of change) (optional):

1. Total amount of fees collected by agency for processing requests: $748,654

2. Percentage of total costs: 4%

The FOIA regulation implementing the 1996 amendments to the Freedom of Information Act was published as a Notice of Proposed Rule Making and public comments have been received. The passage of PL 105-277 requiring OMB to revise circular A-110 will require further revisions to the HHS FOIA regulation and public comments on those new sections. That effort is currently underway. Until such time as the revised regulation is published as a new final rule, the current HHS FOIA regulation can be found at 45 CFR Part 5, and at: http://www.hhs.gov/foia/45cfr5.html.

1. Description of supplementation/modification of agency improvement plan (if applicable): None

2. Report on agency implementation of its plan, including its performance in meeting milestones, with respect to each improvement area:

   The Department has met its goals and most milestones established in the report submitted June 2006, in response to Executive Order 13392, that were to be completed for this reporting period.

   Backlog Reduction

   The various FOIA Requester Service Centers (FRSCs) have accomplished a series of improvements.

   Among the itemized goals achieved was the OS FRSC having filled a vacant FOIA specialist position and establishment and filling of a new position, and the completion of reviews by the various HHS FRSCs to assess the feasibility of gaining the assistance of staff outside of FRSCs; some FRSCs may use part-time or temporary assistance where possible. CMS has developed measures to monitor caseloads and assess productivity, and its efforts in integrating FOIA functionalities into the OS Executive Secretariat?s developing automated system are ongoing.

   FRSCs are now using letters to verify that requesters of older FOIA requests remain interested; and have reviewed and continue to review requests to confirm appropriateness of routing and redirect them as appropriate. NIH has completed processing of FOIA requests in ten NIH components with requests pending since 2004 or earlier. The FRSCs, as appropriate, have developed and implemented requirements for analysts to routinely seek status from FOIA contacts regarding a division?s or office?s progress in responding to FOIA requests and incorporated this into the performance plans of FOIA specialists. The FRSCs, as needed, are now contacting their component program offices as to backlogs for status and establishing action plans to address problems. The OS has initiated and is continuing to hold meetings with FOIA Coordinators to discuss issues and coordinate actions.

   Improving Processing

   The OS developed and distributed, Departmentwide, standardized/formatted response letters to aid in the development of response letters in order to decrease the time needed in responding to FOIA requests; and has established a practice of sharing, for use by FRSCs Departmentwide, the identity of FOIA requesters who have outstanding FOIA processing fees. The FRSCs have, individually, reviewed their internal FOIA request processes in order to simplify the review and approval process for routine tasks, such as acknowledgement and referral letters, some have implemented their own standard method of acknowledgement of receipt. The FDA has developed a draft checklist for use by its component offices to improve the processing of incoming FOIA requests. The draft is now being circulated for comment and implementation is expected shortly.

   The FDA organizational components which use a multi-track system have developed standardized procedures for assigning incoming FOIA requests to help ensure consistency in FDA component offices.

   The OS FRSC has not only reviewed the potential use of a document scanner but has also proceeded to purchase and to install a scanner and redaction software. The CMS is continuing to review the use of and will establish a FOIA tracking system with target dates for each step of the process, which will highlight missed target dates for follow-up within a reasonable amount of time, which continues to be anticipated to be completed by December 2007. The FDA FRSC has completed work with FDA component offices to confirm file status for legacy databases, which were combined into a new tracking system.

   Improving Resources

   The NIH FRSC has completed its revision of General Guidance provided to those who provide/submit information to the NIH. The FDA has completed revisions to the agency?s ?Staff Manual Guide? for processing FOIA requests, in order to establish standardized policy throughout component offices. The FOI/PA Division, OS, initiated and continues to hold meetings, since April 2006, with HHS FOIA Officers to discuss issues and problems. The HHS FRSCs are also now holding meetings with their FOIA coordinating offices to discuss issues and problems. The NIH FRSC is developing an online training module for NIH staff, and is now on track to meet the goal of accomplishing this by December 31, 2007. The HHS FRSCs are continuing to seek opportunities to increase staff training on specific FOIA topics.

   As stated previously the FOI/PA Division, OS, has established and hired one new staff position; and has filled a vacant senior specialist position. The HHS FRSCs have reviewed the feasibility of increasing participation of other staff in FOIA request processing, and some limited or part-time utilization of other permanent staff or temporary/summer employees may be utilized. For example, the ACF may use temporary student assistants during summer 2007.

   As mentioned previously, CMS has developed measures to monitor staff caseloads and assess productivity; and, it is working to more fully implement these measures through the implementation of an automated system. Further, the CMS is also working to develop an electronic tracking and redaction component to an HHS-wide System for Enterprise Records and Correspondence Handling (SERCH), and is preparing to outline workflow processes to be replicated in SERCH.

   Increasing Public Awareness

   The OS has developed and is now circulating internally for comment, and will soon issue for public comment a revised HHS FOIA regulation. Although the initial projected date for publication in the Federal Register was December 2006, we now anticipate publication by June 2007. We still anticipate final implementation by the anticipated goal of December 2008.

   The FDA has revised and expanded its FOIA Handbook, which is available to the requester community through FDA?s internet website. The revisions include information relating to the new Service Center; the names, addresses and telephone numbers for the Public Liaisons; additional information on how to submit a request for expedited processing; a description of the multi-track process, as revised; and information on categories of frequently requested records. The SAMHSA FRSC has updated its SAMHSA FOIA Guide Book and posted it on its webpage.

   The OS FRSC has completed the various steps to plan, develop, and implement the capability to accept web-based FOIA requests through the OS FRSC web coordination was required to post the final modifications to the webpage as of page. The bulk of the work was completed by December 31st and additional January 19, 2006.

   The HRSA FRSC has worked with its Office of Information Technology and its grants office to assess the feasibility of releasing electronic copies of grant documents, which are the most frequently requested documents. The HRSA FRSC has also identified frequently requested records and made them available through its Electronic Reading Room, and has assigned a staff member to conduct a quarterly review of its Electronic Reading Room information and to make additional links available, as needed.

   The FDA Central FOIA Office has implemented an enhanced, web-based FOIA request tracking system.

   The OS FRSC has reviewed its FOIA website and made recommendations on ways to make it more user-friendly for the general public; this will remain a continuing effort.

   The OS FRSC, working with the HHS Web Communications Division, has also conducted usability testing on the HHS FOIA website with the goal of improving customer service. Improvements include the removal of dead links; updating information; redescriptions to clarify items; the posting of Privacy Act systems of records notices, Privacy Act contacts, and Privacy Impact Assessments; and, the integration of the FOIA web request functionality.

   The OS FRSC and the HHS Web Communications Division is continuing to conduct a review of FRSC websites to ensure easy and linking capabilities for records and information online by March 1, 2007. This work is continuing and is expected to be completed by March 1, 2007. Working with the HHS Web Communications Division, OS is anticipated to issue recommendations to standardize FRSC websites, as originally projected, by June 1, 2007.

   The FDA FRSC is assessing how to best enhance the use of the internet, to include proactive posting and posting of frequently requested records; the original anticipated completion date for this project remains as December 31, 2007.

3. Identification and discussion of any deficiency in meeting plan milestones (if applicable):

   A goal in the area of backlog reduction was for HHS to reduce its current Department backlog by 5 percent. Although HHS significantly increased the number of FOIA requests closed in FY2006 ? HHS closed 35,177 more requests in FY2006 than were closed in FY2005 ? HHS was faced with an even larger number of new FOIA requests (35,780 new requests) in FY2006. Thus, despite the Department?s best efforts to improve processing, including significant increases in the numbers of FOIA requests closed by CMS, FDA, NIH and IHS, the number of new FOIA requests submitted to HHS during FY2006 resulted in a modest increase in the Department?s FOIA backlog. In order to account for the number of new FOIA requests submitted to the Department in the future, which cannot be anticipated with certainty, HHS intends to reexamine its goal in the area of backlog reduction by May 15, 2007.

   The FDA has developed a checklist for use by component offices to improve the processing of incoming FOIA requests. While the policies in the checklist have already been implemented, the checklist is being reformatted as an attachment to the agency?s Staff Manual Guide (SMG), and forwarded for final clearance. While the initial milestone for this was December 31, 2006, the SMG is now expected to be completed by June 1, 2007. The delays are the result of FDA headquarters staff turnover, and a heavy FOIA litigation workload. This is a standalone milestone and does not affect other milestones.

   The OS FRSC did complete the various steps to plan, develop, and implement the capability to accept web-based FOIA requests through the OS FRSC web page. Although the bulk of the work was completed by December 31, 2006, additional coordination was required to coordinate the final modifications to the webpage, which is now operational and was posted January 19, 2006. This affects no other milestones.

   There has been a delay in the OS publishing, originally planned by December 31, 2006, of a Notice of Proposed Rulemaking to revise the Department?s FOIA regulations. The Notice has been drafted and is undergoing Departmental review, and will be published in the Federal Register for public comment. The delay was caused by the need to meet deadlines imposed by FOIA litigation and other administrative and FOIA processing workload demands and affects no other milestones. The Department remains committed to publish the Final Regulation, according to plan, by December 31, 2008.

4. Additional narrative statement regarding other executive order-related activities (optional):

   The Office of General Counsel staff provided a ?Lessons Learned? presentation and led discussion for HHS FOIA Officers concerning FOIA litigation and suggestions to improve the handling of FOIA requests during a recent HHS FOIA Officers Meeting, such as the need to establish and maintain contact with requesters.

5. Concise description of FOIA exemptions: A description of the FOIA exemptions may be found at 45 C.F.R. ?? 5.61-5.69, and at: http://www.hhs.gov/foia/45cfr5.html.

6. Additional statistics:

   1. Time range of requests pending, by date of request (or, where applicable, by date of referral from another agency):

      FOIA Requests: October 28, 1994 to January 31, 2007

   2. Time range of consultations pending with other agencies, by date of initial interagency communication: December 16, 2004 (no other consultations)

7. Attachment: Agency improvement plan (in current form): See the following: http://www.hhs.gov/foia/FOIAOpReviewPlan.pdf