| | HHS Fiscal Year 2004 Freedom of Information Annual Report- AGENCY: U.S. Department of Health and Human Services
REPORT PREPARED BY: Rosario Cirrincione TITLE: Director, Freedom of Information and Privacy Acts Division, Office of the Assistant Secretary for Public Affairs, HHS. ADDRESS: Room 645F, 200 Independence Avenue, S.W., Washington, D.C. 20201 PHONE NUMBER: (202) 690-7453 ELECTRONIC ADDRESS FOR THIS REPORT ON THE WORLD WIDE WEB: www.hhs.gov/foia/reports/04anlrpt.html ** Copies of the annual reports of a number of individual HHS Operating Divisions can be found by contacting the responsible component shown in Section II below, or by locating a FOIA link at the following websites: Administration on Aging (AOA): http://www.aoa.gov/ Agency for Healthcare Research and Quality (AHRQ): http://www.ahrq.gov Centers for Disease Control and Prevention (CDC): http://www.cdc.gov Centers for Medicare & Medicaid Services (CMS): http://www.cms.gov Food and Drug Administration (FDA): http://www.fda.gov Health Resources and Services Administration (HRSA): http://www.hrsa.gov/ Indian Health Service: http://www.ihs.gov National Institute of Health (NIH): http://www.nih.gov/ Office of Public Health and Science (OPHS): www.psc.gov/aos/foia/ ADDRESS FOR PAPER COPIES OF THIS REPORT: Freedom of Information/Privacy Acts Division U.S. Department of Health and Human Services Hubert H. Humphrey Building/Room 645-F 200 Independence Avenue, S.W. Washington, DC 20201 - HOW TO MAKE A FOIA REQUEST: Please see HHS Guide to Information
Resources at www.hhs.gov/about/infoguid.html#foia A. Names, addresses, and telephone numbers of all individual agency components and offices that process FOIA requests: HHS Freedom of Information Officer Room 645-F, Hubert H. Humphrey Building 200 Independence Avenue, S.W. Washington, D.C. 20201 Telephone: (202) 690-7453 Administration for Children and Families (ACF) Freedom of Information Officer Room 645-F, Hubert H. Humphrey Building 200 Independence Avenue, S.W. Washington, D.C. 20201 Telephone: (202) 690-7453 Administration on Aging (AOA) Freedom of Information Officer Executive Secretariat Washington D.C. 20201 Telephone: (202) 357-3540 Agency for Healthcare Research and Quality (AHRQ) Freedom of Information Officer 540 Gaither Road, Room 2222 Rockville, MD 20850 Telephone: (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 Rd, N.E., MSD 54 Atlanta, Georgia 30333 Telephone: (404) 639-7270 Centers for Medicare & Medicaid Services (CMS) Freedom of Information Officer 7500 Security Boulevard Room N2-20-16, North Building Baltimore, Maryland 21244 Telephone (410) 786-5352 Food and Drug Administration (FDA) Freedom of Information Officer 5600 Fishers Lane (HFI-35), Room 12A-16 Rockville MD 20857 Telephone: (301) 827-6500 Health Resources and Services Administration (HRSA) Freedom of Information Officer Office of Communications, Room 14-15 5600 Fishers Lane Rockville, MD 20857 Telephone: (301) 443-2865 Indian Health Service (IHS) Freedom of Information Officer Suite 450 12300 Twinbrook Parkway, Rockville, MD 20852 Telephone: (301) 443-1116 National Institutes of Health (NIH) Freedom of Information Officer Room 5B35, Building 31 9000 Rockville Pike Bethesda, MD 20892 Telephone: (301) 496-5633 Office of Public Health and Science (OPHS) Freedom of Information Officer, Room 17A-46 5600 Fishers Lane Rockville, MD 20857 Telephone: (301) 443-5252 Substance Abuse and Mental Health Services Administration (SAMHSA) Freedom of Information Officer Room 8-1042 1 Choke Cherry Road Rockville, MD 20857 Telephone: (240) 276-2130 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. - DEFINITIONS OF TERMS AND ACRONYMS USED IN REPORT:
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 oneself. 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, that 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. - EXEMPTION 3 STATUTES
A. List of Exemption 3 statutes relied on by the agency during report year: (See chart) Brief description of type(s) of information withheld under each statute: (See chart) Has a court upheld the use of each statute? If so, cite example: (See chart below)
- INITIAL FOIA/PA ACCESS REQUESTS (Include all requests, 3rd or 1st party): (See chart below)
- Numbers of initial requests (line 1 + line 2 - line 3 = line 4):
- Number of requests pending at close of preceding fiscal year: 20,947 (does not include 318 requests closed retroactively by NIH for FY 2003)
- Number of requests received during reporting fiscal year: 225,006
- Number of requests processed during reporting fiscal year: 222,408
- Number of requests pending at close of reporting fiscal year: 23,545 (This number should match Line VII.B.1.)
- Disposition of Initial Requests:
- Number granted in full: 206,951
- Number granted in part: 753
- Number of full denials: 2,134
- Number of times each FOIA exemption was used:
Exemption 1: 0000 Exemption 2: 30 Exemption 3: 27 Exemption 4: 411 Exemption 5: 159 Exemption 6: 2472 Exemption 7
Exemption 7(A): 67 Exemption 7(B): 1 Exemption 7 (C): 18 Exemption 7 (D): 6 Exemption 7 (E): 2 Exemption 7 (F): 0
Exemption 8: 0000 Exemption 9: 0000
4. Other reasons for non-disclosure (total): 12,570 - No records: 4,126
- Referrals: 401
- Request withdrawn: 4,142
- Fee-related reason: 803
- Records not reasonably described: 1,140
- Not a proper FOIA request for some other reason:1,017
- Not an agency record: 51
- Duplicate request: 280
- Other (specify): 610 (administrative closures; and materials more readily available from other sources, e.g. internet, libraries, etc.)
VI. APPEALS OF INITIAL DENIALS OF FOIA/PA REQUESTS (include all access requests whether first or third party, See chart): A. Numbers of Appeals: 1. Number of appeals received during the fiscal year: 168 2. Number of appeals processed during the fiscal year: 132 B. Disposition of Appeals: 1. Number completely upheld: 50 2. Number partially reversed: 21 3. Number completely reversed: 17 a. Number of times each FOIA exemption used (counting each exemption used once per appeal) Exemption 1: 0 Exemption 2: 3 Exemption 3: 1 Exemption 4: 11 Exemption 5: 22 Exemption 6: 19 Exemption 7
Exemption 7(A): 3 Exemption 7(B): 0 Exemption 7(C): 5 Exemption 7(D): 2 Exemption 7(E): 0 Exemption 7(F): 0 Exemption 8: 0 Exemption 9: 0 4. Other reasons for non-disclosure (total): 44 a. No records: 15 b. Referrals:0 c. Request withdrawn: 19 d. Fee-related reason : 6 e. Records not reasonably described: 0 f. Not a proper FOIA request for some other reason: 1 g. Not an agency record: 1 h. Duplicate request: 0 i. Other (specify): 2 (administrative closures, material more readily available from other sources, e.g., internet, libraries, etc.
VII. COMPLIANCE WITH TIME LIMITS/STATUS OF PENDING REQUESTS: (See chart) A. Median Processing Time for Requests Processed During the Year: (Some OPDIVs do not use multiple tracks-see attached) 1. Simple Requests (if multiple tracks used): a. number of requests processed: 44,761 (See chart) b. median number of days to process: (See chart)
2. Complex Requests (includes total of complex requests and single-track systems): a. number of requests processed: 177,633 (See chart) b. median number of days to process: (See chart)
3. Requests Accorded Expedited Processing: a. number of requests processed: 14 b. median number of days to process: (See chart)
B. Status of Pending Requests (if multiple tracks are being used, report for each track as well as totals). 1. Number of requests pending as of the end of the fiscal year covered in this report (from Line V.A.4): 23,545 2. Median number of days that such requests were pending as of that date: Medians vary greatly from OPDIV to OPDIV. (See chart)
VIII. COMPARISONS WITH PREVIOUS YEAR(S): (Optional): A. Comparison of numbers of requests received: Increased by 53.8%, from 146,257 to 225,006. B. Comparison of numbers of requests processed: Increased by 58.5%, from 144,143 to 222,408 C. Comparison of median numbers of days requests were pending as of end of fiscal year: See chart for Section VII D. Other statistics significant to components: The HHS received 145 requests for expedited processing, of which 14 were granted.
All but one of the HHS organizational components experienced increased in FOIA requests received, including significant growth in some OPDIVs. For example, the Office of the Secretary (OS) FOIA/PA office, which operationally services primarily the OS and the ACF, and provides overall HHS policy coordination, experienced a 33.7% increase in FOIA requests received. Although 26.3% more FOIA requests were processed than in FY 2003, the OS backlog increased by 44.8%. E. 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): No comments.
IX. COSTS/FOIA STAFFING: (See chart) A. 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): 70.43 3. Total number of personnel (in work years): 251.43
B. Total costs (including staff and all resources): 1. FOIA processing (including appeals): $17,797,355 2. Litigation-related activities (estimated): $1,427,345 3. Total costs: $19,224,700 4. Comparison with previous year(s) (including percentage of change) (optional):
X. FEES: (See chart below) A. Total amount of fees collected by agency for processing requests: $759,367 B. Percentage of total costs: 4%
XI. FOIA REGULATIONS (including fee schedule): The FOIA regulation implementing the 1996 amendments to the Freedom of Information Act has been 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, however the current HHS FOIA regulation can be found at 45 CFR Part 5, and at: www.hhs.gov/foia/45cfr5.html.
IV. Exemption 3 Statutes Statute/Rule | Type of Information Withheld | Case Citation | 5 U.S.C. 107(a)(2) Appendix 4 | Confidential financial disclosure reports | Meyerhoff v. EPA, 958 F.2nd (9th Cir 1992) | 41 U.S.C. 253b (m) | Contractor proposals not incorporated into agency contracts | Hornbostel v. United States Dep’t of the Interior, 305 F. Suppp. 2d 21 (D.D.C. 2003) | 42 U.S.C. 242m(d) 308(d) | National Death Index, information regarding fatalities | No | 42 U.S.C. 11137(b) | Adverse reports of a physician’s conduct or practice | No | V. Initial FOI/PA Access Requests V.A. Numbers of Initial Requests (1) | Number of Requests Pending as of End of Preceding Year | Number of Requests Received in Current Year | Number of Requests Processed in Current Year | Number of Requests Pending as of End of Current Year | OS | 362 | 1,309 | 1148 | 523 | AOA | 0 | 13 | 13 | 0 | CMS | 3,073 | 32,725 | 31,714 | 4,084 | OASPH | 228 | 589 | 530 | 287 | AHRQ | 9 | 78 | 76 | 11 | CDC | 172 | 1,003 | 979 | 196 | FDA | 16,535 | 18,676 | 18,540 | 16,671 | HRSA | 34 | 428 | 416 | 46 | IHS | 44 | 158,274 | 158,277 | 41 | NIH | 451 (2) | 11,764 | 10,583 | 1,632 | SAMHSA | 39 | 147 | 132 | 54 | PHS Total | 17,512 | 190,959 | 189,533 | 18,938 | HHS Total | 20,947 | 225,006 | 222,408 | 23,545 |
(1)Figures include Privacy Act records requests (2) Does not include 318 additional "pending" requests closed retroactively for FY 2003 V.B. Disposition of Initial Requests | Number of Total Grants | Number of Partial Grants | Number of Full Denials | Total of Other Reasons for Nondisclosure | OS | 251 | 358 | 23 | 516 | AOA | 3 | 5 | 1 | 4 | CMS | 24,572 | 65 | 1,956 | 5,121 | OASPH | 333 | 5 | 23 | 169 | AHRQ | 56 | 0 | 0 | 20 | CDC | 498 | 106 | 10 | 365 | FDA | 12,529 | 47 | 44 | 5,920 | HRSA | 320 | 42 | 9 | 45 | IHS | 158,174 | 27 | 54 | 22 | NIH | 10,180 | 21 | 12 | 370 | SAMHSA | 35 | 77 | 2 | 18 | PHS Total | 182,125 | 325 | 154 | 6,929 | HHS Total | 206,951 | 753 | 2,134 | 12,570 | V.B.3. Exemptions Claimed Under the FOIA (1) | (2) | (3) | (4) | (5) | (6) | (7) (A) | (7) (B) | (7) (C) | (7) (D) | (7) (E) | (7) (F) | OS | 1 | 2 | 205 | 42 | 313 | 29 | 0 | 5 | 2 | 1 | 0 | AOA | 1 | 0 | 5 | 1 | 5 | 0 | 0 | 0 | 0 | 0 | 0 | CMS | 3 | 2 | 7 | 29 | 1996 | 3 | 0 | 5 | 0 | 0 | 0 | OASPH | 6 | 2 | 0 | 11 | 7 | 6 | 1 | 1 | 0 | 0 | 0 | AHRQ | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | 0 | CDC | 13 | 3 | 42 | 39 | 57 | 2 | 0 | 0 | 0 | 0 | 0 | FDA | 4 | 9 | 53 | 3 | 16 | 24 | 0 | 3 | 1 | 1 | 0 | HRSA | 1 | 3 | 21 | 19 | 11 | 0 | 0 | 0 | 0 | 0 | 0 | IHS | 0 | 0 | 53 | 8 | 19 | 1 | 0 | 0 | 0 | 0 | 0 | NIH | 1 | 4 | 7 | 8 | 15 | 2 | 0 | 4 | 3 | 0 | 0 | SAMHSA | 0 | 2 | 36 | 2 | 39 | 0 | 0 | 0 | 0 | 0 | 0 | PHS Total | 25 | 23 | 212 | 90 | 164 | 35 | 1 | 8 | 4 | 1 | 0 | HHS Total | 30 | 27 | 429 | 162 | 2478 | 67 | 1 | 18 | 6 | 2 | 0 |
(1) No claims for exemption (1), (8), or (9). V.B.4. Other Reasons for Nondisclosure (Total) | No Records | Referrals | Request Withdrawn | Fee-Related Reason | Records Not Reasonably Described | Not a Proper FOIA Request for Some Other Reason | Not an Agency Record | Duplicate Request | Other | OS | 123 | 260 | 80 | 10 | 1 | 10 | 3 | 13 | 16 | AOA | 1 | 2 | 1 | 0 | 0 | 0 | 0 | 0 | 0 | CMS | 2269 | 21 | 429 | 450 | 1119 | 756 | 0 | 3 | 74 | OASPH | 72 | 12 | 64 | 6 | 1 | 2 | 0 | 3 | 9 | AHRQ | 11 | 1 | 6 | 0 | 0 | 1 | 1 | 0 | 0 | CDC | 146 | 13 | 52 | 31 | 2 | 2 | 43 | 3 | 73 | FDA | 1237 | 66 | 3391 | 293 | 0 | 244 | 0 | 254 | 435 | HRSA | 28 | 6 | 4 | 2 | 1 | 1 | 1 | 2 | 0 | IHS | 9 | 9 | 0 | 0 | 0 | 1 | 0 | 0 | 3 | NIH | 217 | 9 | 114 | 10 | 16 | 0 | 3 | 1 | 0 | SAMHSA | 13 | 2 | 1 | 1 | 0 | 0 | 0 | 1 | 0 | PHS Total | 1733 | 118 | 3632 | 343 | 20 | 251 | 48 | 264 | 520 | HHS Total | 4126 | 401 | 4142 | 803 | 1140 | 1017 | 51 | 280 | 610 |
VII. Compliance With Time Limits/Status of Pending Requests
A. Median Processing Time for Requests Processed During the Year | OS | AOA | CMS | OASPH | AHRQ | CDC | FDA | HRSA | IHS | NIH | SAM-HSA | 1. a. Number of Simple Requests (Where multiple tracks used) | 0 | 0 | 31,051 | 72 (1) | 0 | 0 | 13,626 | 0 | 0 | 0 | 0 | b. Median Days to Process | 0 | 0 | 9 | 10 | 0 | 0 | 25 | 0 | 0 | 0 | 0 | 2.a. Number of Complex Requests (Where multiple tracks used) | 0 | 0 | 652 | 446 | 0 | 0 | 1,993 | 0 | 0 | 0 | 0 | b. Median Days to Process | 0 | 0 | 77 | 60 | 0 | 0 | 325 | 0 | 0 | 0 | 0 | 3. a. Number of Expedited Requests | 1 | 0 | 11 | 0 | 0 | 2 | 0 | 0 | 0 | 0 | 0 | b. Median Days to Process | 2 | 0 | 66 | 0 | 0 | 52 | 0 | 0 | 0 | 0 | 0 | 4. a. Number of Single Track Requests | 1147 | 13 | 0 | 0 | 76 | 977 | 2,921 | 416 | 158,277 | 10,583 | 132 | b. Median Days to Process | 55 (2) | 5 | 0 | 0 | 25 | 36 | 113 | 20 (3) | 32 | 182 | 38 |
(1) Does not include 12 additional OAPHS requests referred to other organizations (2) Based on sample (3) Calendar days B. Status of Pending Requests | OS | AOA | CMS | OASPH | AHRQ | CDC | FDA | HRSA | IHS | NIH | SAMHSA | 1. Number of Requests Pending | 523 | 0 | 2272 (1) | 287 | 11 | 196 | 16671 | 46 | 41 | 1632 | 54 | 2. Number of Median Days of Pending Requests as of Septem-ber 30, 2004 | 135 (2) | 0 | 11 | 65 (3) | 10 | 18 | 240 (4) | 14 | 32 | 174 | 60 | | | | 1812 (5) | | | | | | | | | | | | (6) | | | | | | | | |
- Simple requests
- Based on sample
- Multi-track median figures unavailable
- Multi-track median day figures unavailable
- Complex requests
- Median day figures unavailable for complex requests
IX. Costs/FOIA Staffing, and X. Fees | Staffing Levels | Costs (Estimated) | Fees | | Full-Time Staff | Staff With Part-Time or Occasional FOIA Duties (In Total Work-years) | Staff (In Work-Years) | FOIA Processing | Litigation-Related Activities | Total Costs | Total Fees Collected | % of Costs | OS | 5 | 0.00 | 5.00 | $ 458,677 | $ 119,772 | $ 578,449 | $ 9,006 | 2 | AOA | 0 | 0.04 | 0.04 | 2,576 | 0 | 2,576 | 0 | 0 | CMS | 72 | 14.20 | 86.20 | 2,179,180 | 105,000 | 2,284,180 | 240,279 | 11 | OAPHS | 2 | 1.50 | 3.50 | 208,343 | 30,906 | 239,249 | 6,484 | 3 | AHRQ | 1 | 0.25 | 1.25 | 52,925 | 0 | 52,925 | 869 | 2 | CDC | 5 | 0.00 | 5.00 | 345,348 | 0 | 345,348 | 28,688 | 8 | FDA | 74 | 17.05 | 91.05 | 11,606,883 | 1,168,966 | 12,775,849 | 405,140 | 3 | HRSA | 2 | 0.50 | 2.50 | 173,900 | 432 | 174,332 | 6,962 | 3 | IHS | 2 | 13.00 | 15.00 | 443,451 | 0 | 443,451 | 4,345 | 1 | NIH | 17 | 23.89 | 40.89 | 2,259,372 | 2,269 | 2,261,641 | 56,494 | 3 | SAMHSA | 1 | 0.00 | 1.00 | 66,700 | 0 | 66,700 | 1,100 | 2 | PHS Total | 104 | 56.19 | 160.19 | $15,156,922 | $1,202,573 | $16,359,495 | $510,082 | 3 | HHS Total | 181 | 70.43 | 251.43 | $17,797,355 | $1,427,345 | $19,224,700 | $759,367 | 4 |
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