U.S. Merit Systems Protection Board
1615 M Street, NW
Washington, DC 20419
FREEDOM OF INFORMATION ACT
ANNUAL REPORT
FISCAL YEAR 2006
Part 1
I. Report on Executive Order 13,392 Implementation. On December 14, 2005, the President issued Executive Order 13,392, entitled "Improving Agency Disclosure of Information," which contains several statements of FOIA policy and specific new planning and reporting requirements that affect all federal agencies in their administration of the Act. Among other things, Executive Order 13,392 calls upon all agencies to improve their FOIA operations with both efficiency and customer service in mind. Pursuant to this FOIA executive order, the head of each federal agency now has designated a Chief FOIA Officer to oversee all ongoing agency implementation activities under it, as well as the agency's administration of the FOIA overall. In a letter dated January 4, 2006, Chairman of the MSPB, Neil A. G. McPhie designated Bentley M. Roberts, Jr. as Chief FOIA Officer.
Part 2
I. BASIC INFORMATION REGARDING THIS REPORT.
Questions regarding this report may be directed to:
Arlin Winefordner
Program Management Specialist
Office of the Clerk of the Board
1615 M Street, N.W.
Washington, D.C. 20419
Electronic copies of the report are on the MSPB Web Site: http://www.mspb.gov. Paper copies of the report may be obtained by writing to the above address.
II. HOW TO MAKE A FOIA REQUEST TO THE MSPB.
The Board has prepared a FOIA Guide, which is on its Web Site (http://www.mspb.gov). Paper copies are also available in the Board’s Headquarters Library, by calling 202-653-7200, or by e-mail: foia@mspb.gov. Requesters also will find contact information for the Board’s FOIA Liaisons on the Board’s website at http://mspb.gov/foia/FOIALiasons.htm.
A. Names, addresses and telephone numbers of Board offices where FOIA requests can be filed:
| Atlanta Regional Office (404) 730-2755 |
Central Regional Office Dallas Regional Office (214) 767-0555 |
Western Regional Office
(303) 969-5101 |
| Northeastern Regional Office (212) 264-9372 |
Washington DC Regional Office |
B. MSPB Response Time Ranges for FOIA Requests.
In FY 2006 the Board’s goal was to respond within twenty workdays of receipt of the request. This goal was met or exceeded in 89.2% of the processed requests. Most requests that exceeded 20 processing days were delayed due to the need to request retired records from the National Archives and Records Administration.
C. Why Some FOIA Requests to MSPB Are Not Granted.
Many of the FOIA requests received are for MSPB case files or for documents from case files, which are covered by the Privacy Act. This personal information is accorded the protections provided by exemption 6 of the FOIA to prevent an undue invasion of the personal privacy of appellants, witnesses, and third parties.
III. DEFINITIONS OF TERMS AND ACRONYMS.
A. Agency-specific acronyms or other terms.
None apply
B. Basic terms, expressed in common terminology.
1. FOIA/PA request -- Freedom of Information Act/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.)
2. Initial request -- a request to a federal agency for access to records under the Freedom of Information Act.
3. Appeal -- a request to a federal agency asking that it review, at a higher administrative level, a full 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.
4. Processed request or appeal--a request or appeal for which an agency has taken a final action on the request or appeal in all respects.
5. 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.
6. 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.
7. 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 records requested.
8. 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.
9. Grant--an agency decision to disclose all records in response to a FOIA request.
10. 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, but to withhold others in whole or in part.
11. Denial -- an agency decision not to release any part of a record in response to a FOIA request because the information in the requested records is determined by the agency to be exempt under one or more FOIA exemptions, or for some procedural reason (such as the inability to locate a record in response to a FOIA request).
12. 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).
13. "Perfected" request -- a FOIA request for records that adequately describes the records sought, which has been received by the FOIA officer of the agency or agency component in possession of the records, and for which there is no remaining question about the payment of applicable fees.
14. Exemption 3 statute--a separate federal statute prohibiting the disclosure of a certain type of information and authorizing its withholding under FOIA section (b)(3).
5. Median number--the middle, not average, number. For example, of 3, 7, and 14, the median number is 7.
16. 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 is 8.
IV. EXEMPTION 3 STATUTES
A. Exemption 3 statutes relied on by MSPB during the fiscal year 2006 -- 0
B. Statement of whether a court has upheld the use of such statute -- None
V. INITIAL FOIA/PA ACCESS REQUESTS
A. Numbers of initial requests.
| 1. Number of requests pending as of end of preceding fiscal year |
18 |
| 2. Number of requests received during current fiscal year |
333 |
| 3. Number of requests processed during current fiscal year |
324 |
| 4. Number of requests pending as of end of current fiscal year |
27 |
B. Disposition of initial requests.
| 1. Number of total grants |
276 |
| 2. Number of partial grants |
10 |
| 3. Number of denials |
10 |
a. number of times each FOIA exemption used (counting each exemption once per request)
| Exemption 1 |
0 |
| Exemption 2 |
0 |
| Exemption 3 |
0 |
| Exemption 4 |
0 |
| Exemption 5 |
6 |
| Exemption 6 |
14 |
| Exemption 7(A) |
0 |
| Exemption 7(B) |
0 |
| Exemption 7(C) |
0 |
| Exemption 7(D) |
0 |
| Exemption 7(E) |
0 |
| Exemption 7(F) |
0 |
| Exemption 8 |
0 |
| Exemption 9 |
0 |
4. Other reasons for nondisclosure (total) -- 28
| a. no records |
20 |
| b. referrals |
3 |
| c. request withdrawn |
3 |
| d. fee-related reason |
2 |
| e. records not reasonably described |
0 |
| f. not a proper FOIA request for some other reason |
0 |
| g. not an agency record |
0 |
| h. duplicate request |
0 |
| I. other (specify) |
0 |
VI. Appeals of Initial Denials of FOIA/PA Requests
A. Numbers of appeals.
| 1. Number of appeals received during fiscal year |
|
| 2. Number of appeals processed during fiscal year |
|
B. Disposition of appeals.
| 1. Number completely upheld |
2 |
| 2. Number partially reversed |
1 |
| 3. Number completely reversed |
0 |
a. number of times each FOIA exemption used (counting each exemption once per appeal)
| (1) Exemption 1 |
0 |
| (2) Exemption 2 |
0 |
| (3) Exemption 3 |
0 |
| (4) Exemption 4 |
0 |
| (5) Exemption 5 |
2 |
| (6) Exemption 6 |
1 |
| (7) Exemption 7(A) |
0 |
| (8) Exemption 7(B) |
0 |
| (9) Exemption 7(C) |
0 |
| (10) Exemption(D) |
0 |
| (11) Exemption 7(E) |
0 |
| (12) Exemption 7(F) |
0 |
| (13) Exemption 8 |
0 |
| (14) Exemption 9 |
0 |
4. Other reasons for nondisclosure (total) -- 3
| a. no records |
2 |
| b. referrals |
1 |
| c. request withdrawn |
0 |
| d. fee-related reason |
0 |
| e. records not reasonably described |
0 |
| f. not a proper FOIA request for some other reason |
0 |
| g. not an agency record |
0 |
| h. duplicate request |
0 |
| I. other (specify) |
0 |
VII. Compliance with Time Limits/Status of Pending Requests
A. Median processing time for requests processed during the year.
1. Simple requests (if multiple tracks used).
| a. number of requests processed |
324 |
| b. median number of days to process |
16 |
2. Complex requests (specify for any and all tracks used).
| a. number of requests processed |
0 |
| b. median number of days to process |
0 |
3. Requests accorded expeditious processing.
| a. number of requests processed |
0 |
| b. median number of days to process |
0 |
B. Status of pending requests.
| 1. Number of requests pending as of end of current fiscal year |
27 |
| 2. Median number of days that such requests were pending as of that date |
24 |
| (All 27r cases reported above as pending at the end of FY 2006 have since been closed.) |
|
VIII. Comparisons with Previous Year(s) (Optional)
A. Comparison of numbers of requests received
| 282 requests received in FY 2002 |
| 328 requests received in FY 2003 |
| 381 requests received in FY 2004 |
| 332 requests received in FY 2005 |
| 333 requests received in FY 2006 |
B. Comparison of numbers of requests processed
| 280 requests processed in FY 2002 |
| 328 requests processed in FY 2003 |
| 355 requests processed in FY 2004 |
| 340 requests processed in FY 2005 |
| 324 requests processed in FY 2006 |
C. Comparison of requests that were pending as of the end of the fiscal year
| 2 requests pending in FY 2002 |
| 0 requests pending in FY 2003 |
| 26 requests pending in FY 2004 |
| 18 requests pending in FY 2005 |
| 4 requests pending in FY 2006 |
D. Other statistics significant to agency--In FY 2006, MSPB received 0 requests for expedited processing.
E. Other narrative statements describing agency efforts to improve timeliness of FOIA performance and to make records available to the public.
IX. Costs/FOIA Staffing
A. Staffing levels.
| 1. Number of full-time FOIA personnel |
1 |
| 2. Number of personnel with part-time or occasional FOIA duties (in total work years) |
1 |
| 3. Total number of personnel (in work years) |
2 |
B. Total costs (including staff and all resources)
| 1. FOIA processing (including appeals) |
$ 170,000.00 |
| 2. Litigation-related activities (estimate) |
0 |
| 3. Total costs |
$ 170,000.00 |
| 4. Comparison with previous year(s) (including percentage of change) (optional). |
|
C. Statement of additional resources needed for FOIA compliance (optional)
X. Fees
A. Total amount of fees collected by agency for processing requests -- $581.01
B. Percentage of total costs -- 0.34%
XI. Regulations.
MSPB’s regulations implementing the Freedom of Information Act are found at http://www.mspb.gov/aboutus/title5cfr/1204.htm
XII. Report on FOIA Executive Order Implementation.
A. Description of Supplementation/Modification of agency improvement plan.
Although MSPB’s backlog of FOIA requests is low, on further review of its FOIA Improvement Plan, the Board decided that any backlog of requests is significant issue and, on October 24, 2006, the following modification was made the to item 12. of the improvement plan.
12. Backlog reduction/elimination.
Status: MSPB's FOIA backlog is relatively low--since FY 2001, MSPB has achieved an overall median processing time of 16.4 days. However, the Board notes that, in FY 2005, it reported 18 FOIA requests that remained pending at the end of the fiscal year and that these pending requests attained a median processing time of 24 days. MSPB's approach to reducing its FOIA backlog will target all requests by closely monitoring requests once they attain 15 working days in processing. The Board is implementing a new agency-wide FOIA log this year which will provide better information on FOIA processing. Using this new log, the FOIA Service Center Director will be informed of all requests that are within 5 days of the response due date. The Director will contact the staffperson processing the request to ensure that appropriate steps are taken to avoid, inasmuch as is possible, overdue responses.
Goal: To reduce the median processing time of initial FOIA requests each year (i.e., 15 days or less by 6-01-07 and 14 days or less by 9-30-07.
Steps
• Establish policy for monitoring FOIA requests and broadening agency-wide sharing of information and cooperation. To be completed by 10-30-06.
• Implementation of agency-wide FOIA log. Pilot testing among FOIA staff will be completed by 12-01-06. Launch program on or before 12-15-06.
• Establish schedule for continuous monitoring of FOIA due dates with emphasis on requests approaching 20 days in processing. Due 12-15-06.
• On a quarterly basis, communicate and exchange information with agency-wide FOIA liaisons. To be completed by 11-01-06, 2-01-07, 5-01-07, and 8-01-07. For FY 2008, these dates will be 10-01-07, 01-01-08, 04-01-08, and 07-01-08.
B. Report on agency implementation of its plan, including its performance in meeting milestones, with respect to each improvement area.
The MSPB has met all of the goals of the report that the Board posted on it website on June 13, 2006 and it has met the modified goals discussed in Item A. above. Among the goals MSPB described in the June report were plans for a redesign of several pages on its public website that display information often subject of FOIA requests. The Board successfully launched a new Reading Room and Web Site Index page and a new News and Public Affairs page. It is believed that the availability of the information contained on these pages has served to reduce the number of FOIA requests filed during the last quarter of CY 2006. The Board also has established, on its FOIA Liaisons page, a list of e-mail by which FOIA requests may be filed electronically. The FOIA Director is copied on all requests.
The MSPB met its goal of November 30, 2006 of establishing an agency-wide policy for monitoring and broadening agency-wide sharing of information. We have noticed a huge improvement in communications between the Board’s headquarters offices and it regional and field offices. Also, the Board met its December 1, 2006 goal of implementing a new agency-wide FOIA tracking program. This program allows direct monitoring of all pending FOIA requests. Heretofore, MSPB’s FOIA Director had little or no information as to events in the Board’s regional and field offices. We plan to further enhance this program by adding a feature that will provide reports on demand.
The Board has acquired new programming, particularly in regard to PDF formatted records, that greatly eases our staff ability to search for and redact information contained in such records.
C. Identification and discussion of any deficiency in meeting plan milestones (if applicable).
Not applicable.
D. Additional narrative statement regarding other executive order-related activities (optional).
Not applicable.
E. Concise descriptions of FOIA exemptions.
The nine exemptions to the FOIA authorize federal agencies to withhold information covering: (1) classified national defense and foreign relations information; (2) internal agency rules and practices; (3) information that is prohibited from disclosure by another federal law; (4) trade secrets and other confidential business information; (5) inter-agency or intra-agency communications that are protected by legal privileges; (6) information involving matters of personal privacy; (7) records or information compiled for law enforcement purposes, to the extent that the production of those records (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions, or (F) could reasonably be expected to endanger the life or physical safety of any individual; (8) information relating to the supervision of financial institutions; and (9) geological information on wells.
F. Additional statistics:
1. Time range of requests pending, by date of request (or, where applicable, by date of referral from another agency)
November 9, 2006 (Oldest pending)
January 30, 2007 (Newest pending)
2. Time range of consultations pending with other agencies, by date of initial interagency communication
Not applicable.
G. Attachment: Agency improvement plan (in current form)
U.S. Merit Systems Protection Board (MSPB) Review and Plan in Compliance with Executive Order 13392 (12/19/05)—Improving Agency Disclosure of Information
I. Introduction to FOIA Review and Plan. On December 14, 2005, the President issued Executive Order 13,392, entitled "Improving Agency Disclosure of Information," which contains several statements of FOIA policy and specific new planning and reporting requirements that affect all federal agencies in their administration of the Act. Among other things, Executive Order 13,392 calls upon all agencies to improve their FOIA operations with both efficiency and customer service in mind. Pursuant to this first-of-its-kind FOIA executive order, the head of each federal agency now has designated a Chief FOIA Officer to oversee all ongoing agency implementation activities under it, as well as the agency's administration of the FOIA overall.
Among the responsibilities of each Chief FOIA Officer is to "conduct a review of the agency's FOIA operations to determine whether agency practices are consistent with the policies" that are set forth in this new executive order. Exec. Order No. 13,392, Sec. 3(a) (Dec. 14, 2005); see also id. at Sec. 3(a)(i)-(v) (specifying certain matters to be reviewed). Under the executive order's timetable, these agency reviews are to provide the basis for the development of "agency-specific plan[s]" for improvement of the administration of the Act, id. at Sec. 3(b)(i) -- plans that must include "concrete milestones, with specific timetables and outcomes to be achieved," by which agency improvements can be measured, id. at Sec. 3(b)(iv) -- and these plans are to be submitted in reports to the Department of Justice and the Office of Management and Budget (and then published on agency Web sites, including through posting on each agency's FOIA Web site) by June 14, 2006. Further, agencies are required to specifically report on the implementation of their plans and the meeting of their goals as part of the annual FOIA reports that they prepare for Fiscal Year 2006 and Fiscal Year 2007, which by statute are due to be completed on February 1, 2007, and February 1, 2008, respectively. See id. at Sec. 3(c)(ii).
II. MSPB FOIA operations . The MSPB handles on average about 350 FOIA requests annually, with approximately 80 percent handled in headquarters by the Clerk of the Board and the remaining 20 percent handled in the regions. The Office of General Counsel provides legal advice as requested, and handles approximately 5 FOIA appeals annually. See Appendix I for MSPB FOIA statistics for FY’s 2003-2005.
A. Requirements of the Executive Order. With E.O. 13392 the President directed agencies to ensure citizen-centered and results-oriented Freedom of Information Act (FOIA) operations. The E.O. requires specific actions including:
1. Designation of a Chief FOIA Officer by January 13, 2006. By a letter dated January 4, 2006, Chairman McPhie designated the Clerk of the Board as Chief FOIA Officer, consistent with current duties and responsibilities.
2. Completion of a Review, Development of an Improvement Plan and Reporting to OMB and DOJ by June 14, 2006. This paper includes the required review (Part B) and plan (Part C.)
3. Establish a FOIA Requester Service Center or Centers. On January 11, 2006, the MSPB Chief FOIA officer established the main FOIA Requester Service Center at headquarters in the Office of the Clerk of the Board. Satellite FOIA Requester Service Centers were established in each of the MSPB region and field offices in order to better serve the public in the areas covered by those offices. This information has been posted on the MSPB website.
4. Designate Public Liaisons. Liaisons have been designated in each of the FOIA Requester Service Centers and this information has been posted on the MSPB website.
B. List all areas selected for review. MSPB selected the 27 review areas suggested by the Department of Justice guidelines sent to agencies by e-mail on May 8, 2006.
C. Review Summary. E.O. 13392 requires a review to ensure that agency practices are consistent with the Executive Order’s policies, with reference to appropriate statistical and resource benchmarks, processes, and practices in an evaluation of the following 27 areas that are applicable to MSPB.
Set out below is a narrative explanation of the MSPB’s review results and the areas identified for improvement.
1. Affirmative disclosure under subsection (a)(2). The FOIA as amended in 1996 requires that agencies post on their Web sites frequently requested records, policy statements, staff manuals and instructions to staff, and final agency opinions.
Status: This has been a long standing practice at the MSPB. The MSPB website includes a wealth of information on agency mission, staff, regulations, appellate procedures, budget data, and other information frequently requested by the public.
According to the monthly Web Trends Report, MSPB’s public primarily interest is in records related to its statutory missions—agency final decisions on Federal employee appeals and its special studies on the health of the Federal merit system. MSPB final decisions are placed on the Board’s web site within 5 days or less of their issuance by the Board. MSPB’s special studies are posted concurrently with any public notice of their availability.
Although there is little demand for the MSPB’s initial and non-precedential regional decisions we believe we would better meet the FOIA’s affirmative disclosure obligation under 5 U.S.C. § 552(a)(2) if we make available the initial decisions in those cases in which the initial decisions becomes the Board’s final decision. This is a major project and we have targeted it for FY 2008.
*2. Proactive disclosure of information. When an agency has public information that does not fall into any subsection (a)(2) category but nevertheless could be made readily available to the public, including through posting on the Web, such availability can reduce the need for the making of FOIA requests.
Status: As mentioned above, the primary work products of the MSPB of interest to the public, are appellate decisions and merit systems studies and related products. The MSPB makes every effort to anticipate the information needs of its publics and to have this information readily available on the MSPB website.
3. Overall FOIA Web site improvement. Under the 1996 FOIA Amendments, agencies have specific obligations that they have to meet through their FOIA Web sites and also have the opportunity to use those sites for broader FOIA administration purposes as well, which requires user-friendly formats and navigation.
Status: The MSPB recently revised its website to incorporate the terminology suggestions of Executive Order 13392 to include “FOIA Liaisons” and “ FOIA Requester Centers.” We believe our current website navigation is clear and user friendly, however, OCB staff continuously review comments and suggestions from users, research trade journals, and attend web site management forums, all with the purpose of identifying new developments and ideas that may be helpful to our users, and implementing such improvements on the MSPB web site in a timely manner.
Within the last few months, the Office of the Clerk (OCB) posted a redesign of its “Decisions” page. The new design makes existing features more apparent, reduces the number of clicks necessary to view decisions, and highlights MSPB’s new inventory control numbers for its decisions.
Similar new designs are in the works for the MSPB Studies, Site Map, and Reading Room pages. OCB will coordinate these changes with program offices and hopes to have these new and revised pages available to the public before the end of this calendar year.
*4. Improvement of agency's FOIA Reference Guide. All agencies are required to maintain a FOIA Reference Guide (or FOIA requester handbook) as an aid to potential FOIA requesters in accordance with the requirements of subsection (g) of the Act as added in the 1996 FOIA Amendments. Agencies should double-check to ensure that these guides remain comprehensive and up to date. [The Department of Justice is updating its own FOIA Reference Guide in accordance with the executive order to serve as a model for other agencies.]
Status: MSPB’s “ Guidelines on How to Use the Freedom of Information and Privacy Acts” is available to the public on our website at http://www.mspb.gov/foiaguide.html. We believe it is comprehensive and it is updated on a regular basis. We will review the updated DOJ model to identify potential areas for improvement as soon as it is available.
*5. Automated tracking capabilities. Executive Order 13392 places strong emphasis on the ability of an agency to provide information to FOIA requesters about the status of their requests. Accordingly, agencies should examine their existing capabilities in this regard to identify any need to install new -- or to upgrade existing -- request-tracking systems.
Status: OCB staff are working with the Board’s Information Resources Management (IRM) to bring FOIA and PA requests into the MSPB Document Management System (DMS) by July 2007. Currently, MSPB headquarters, regional, and field offices maintain their own, separate FOIA and other correspondence logs. Incorporating these various logs into a single system will allow MSPB offices to more readily share information and allow better management and monitoring of the effectiveness of MSPB FOIA program efforts. Another hoped for advantage of bringing these requests into the DMS is automation of the annual Freedom of Information Act reports to the Department of Justice and the Privacy Act reports to the Office of Management and the Budget.
*6. Electronic FOIA -- automated processing. New technologies are now being used by many agencies to scan, redact, and process FOIA-requested records faster, with less use of paper and greater quality control. Here, too, agencies should examine the efficiencies that can be achieved by installing (or, where applicable, upgrading) such systems.
Status: We have been reviewing systems for implementing automated FOIA processing at MSPB. As MSPB becomes more reliant on PDF text plus files for its electronic records, we have ordered additional software to accomplish our FOIA mission through better scanning and records redacting . OCB staff recently completed testing software for the purpose of redacting PDF text plus documents and we have initiated a request for its purchase and installation on selected PCs within the Office of the Clerk.
7. Electronic FOIA -- receiving/responding to requests electronically. Beyond the use of advanced technology for FOIA request tracking and FOIA request processing is the potential for use of the Internet as a means of receiving (and in some cases even responding to) FOIA requests. This is an ideal time for agencies to focus on this potential improvement area.
Status: Our new FOIA webpage includes e-mail addresses that encourage electronic requests, and MSPB regularly accepts FOIA and PA requests that are received as e-mail and, when practicable, responds in the same manner. We anticipate that the newly posted FOIA Requesters Center, with its numerous staff contacts, will increase use of e-mail for the purpose of making requests. As a small agency with about 350 requests annually, we do not believe it is necessary to invest in specialized automated FOIA software.
*8. Multi-track processing. Through the 1996 FOIA Amendments, Congress encouraged agencies that have backlogs of pending FOIA requests to establish multi-track processing systems for the processing of their requests.
Status: Not applicable. MSPB does not have a FOIA backlog. Moreover, due to the lack of a backlog, OCB rarely needs to rule on requests for expedited processing.
*9. Troubleshooting of any existing problems (even minor ones) with existing request tracking. Even agencies that have no need to install or upgrade automated FOIA request-tracking systems still can encounter particular problems with the tracking of requests due to human error or other difficulties.
Status: From time to time we have experienced minor human errors (e.g., filing errors) and we believe the automated solutions we are implementing under paragraphs 5 and 6 above will help prevent such errors.
10. Case-by-case problem identification. Problems or mistakes can arise in all aspects of an agency's FOIA operations and it is important to ensure that any lessons learned in particular cases are considered for across-the-board adjustments where necessary.
Status: Errors in FOIA processing at MSPB have been rare. Given our small agency size, sharing information on errors and how to prevent them has not been a problem.
* 11. Expedited processing. Agencies should review their practices to ensure that they are fully in compliance with the law and sound policy in this area as well.
Status : See response to item 8. Over 90% of MSPB’s FOIA requests are processed within 16 days or less. In FY 2005, MSPB granted 2 requests for expedited processing. In both instances the Board would have completed its response within the 20 day timeframe.
*12. Backlog reduction/elimination.
Status: MSPB's FOIA backlog is relatively low--since FY 2001, MSPB has achieved an overall median processing time of 16.4 days. However, the Board notes that, in FY 2005, it reported 18 FOIA requests that remained pending at the end of the fiscal year and that these pending requests attained a median processing time of 24 days. MSPB's approach to reducing its FOIA backlog will target all requests by closely monitoring requests once they attain 15 working days in processing. The Board is implementing a new agency-wide FOIA log this year which will provide better information on FOIA processing. Using this new log, the FOIA Service Center Director will be informed of all requests that are within 5 days of the response due date.
The Director will contact the staffperson processing the request to ensure that appropriate steps are taken to avoid, inasmuch as is possible, overdue responses.
Goal: To reduce the median processing time of initial FOIA requests each year (i.e., 15 days or less by 6-01-07 and 14 days or less by 9-30-07.
Steps
1. Establish policy for monitoring FOIA requests and broadening
agency-wide sharing of information and cooperation. To be completed
by 10-30-06.
2. Implementation of agency-wide FOIA log. Pilot testing among FOIA
staff will be completed by 12-01-06. Launch program on or before
12-15-06.
3. Establish schedule for continuous monitoring of FOIA due dates with
emphasis on requests approaching 20 days in processing. Due 12-15-06.
4. On a quarterly basis, communicate and exchange information with
agency-wide FOIA liaisons. To be completed by 11-01-06, 2-01-07,
5-01-07, and 8-01-07. For FY 2008, these dates will be 10-01-07,
01-01-08, 04-01-08, and 07-01-08.
*13. Politeness/courtesy.
Status: As a small agency with much public contact, our staff is continually trained and evaluated on politeness and courtesy as part of overall customer service. All employees who have FOIA responsibility also have appellate program responsibility. This cross training reinforces a service-oriented approach in dealing with our customers.
*14. Forms of communication with requesters. Unless an agency is entirely confident that its standard forms of communication leave no room for improvement in this regard, it should consider making such improvements where appropriate. In discussing each such improvement area of their plans, agencies should be sure to include descriptions of where they presently stand in that regard and where they hope to be once their implementation efforts have been completed.
Status : MSPB staff communicate with requesters in the same manner by which MSPB is initially contacted, be that telephone, mail, or e-mail. Unless a specific communication format is required, perhaps to verify the identity of a requester or to deliver specific records, MSPB communicates in the manner desired by the requester. MSPB believes that it presently has the means to communicate and to provide requested records in whatever format is desired by requesters. Currently, MSPB sees no need for changes in this area.
15. Acknowledgment letters. This is a significant area for agencies to review with an eye toward improvement.
Status: MSPB does not routinely provide acknowledgement letters to requesters because, in the majority of MSPB responses, the prompt release of the requested documents make acknowledgement letters impractical. That being said, OCB staff are investigating means by which requests to its new e-mail FOIA liaisons contacts may generate immediate acknowledgements of requests. MSPB does acknowledge all requests that it believes may approach the 20 day statutory required deadline for response.
16. System of handling referrals. Agencies routinely engage in the process of making referrals to other agencies of FOIA-requested records that originated with those other agencies. This is an area in which there sometimes is room for improvement in agency practices, with respect to the processes both of making record referrals and responding to them, so it warrants careful consideration.
Status : The MSPB does not often refer requests other agencies. However, there are rare instances when the MSPB lacks the necessary background knowledge of case records and must refer them back to the originating agency. Such cases include criminal law enforcement, where improper redaction could result in harm to a person, property, or law enforcement interests. The small number of such referrals have not contributed to any timeliness problems.
17. System of handling consultations. Where agencies locate responsive records that did not themselves originate with another agency but which contain information that did (or in which another agency has a strong interest), they engage in consultations with those other agencies before responding to the request. Such consultations have been known to consume large amounts of time and to contribute to agency backlogs of pending requests, making this an area deserving of considerable remedial attention. Among other things, agencies encountering such difficulties should consider establishing new protocols and practices designed to achieve timely attention to this by all agencies involved.
Status : In the last two years, the MSPB had one instance where the MSPB’s response to a FOIA request, was of interest to other Federal agencies. This instance involved MSPB participation in discussions on the new Department of Homeland Security Personnel System. OCB staff discussions with other Federal departmental staff resulted in a satisfactory and timely response to the requester. Due to the rarity of such occurrences, MSPB does not believe it necessary at this time to develop special protocols.
18. Process by which necessary cooperation is obtained from agency "program personnel." All agency FOIA personnel know that they have to depend upon the cooperation of agency "program personnel,"– i.e., those who both maintain requested records and often also maintain the particular subject-matter expertise necessary to determine a record's sensitivity -- in order both to locate responsive records and to process them as efficiently as possible. Such agency personnel, who by definition have primary missions that are not FOIA-related, in many cases could be encouraged to place greater priority on providing necessary FOIA assistance. This is an area in which there can be much room for improvement, through such steps as agency directives, protocols for escalating demands, intra-agency meetings, etc.
Status: Since we are a small agency of approximately 230 employees, all of our FOIA liaisons are also “program personnel.” At this time we do not see a need to establish special protocols or directives to achieve the necessary FOIA assistance because we have excellent cooperation and interaction with our FOIA liaisons.
19. Improvement ideas from field office personnel (where applicable). An agency should be sure not to overlook the contributions that can be made by knowledgeable field office FOIA personnel, both as to ideas for agencywide improvements that might not occur to headquarters personnel as well as regarding particular improvements that can be made at field offices (either individually or as a group) themselves.
Status: Since our regional and field offices serve as FOIA Requester Centers, we are in constant contact with them on FOIA matters. We consult with them on a regular basis and will be doing so more in the near future as it relates to our proposed automation improvements. To aid in communication, this year we have created a new e-mail group consisting of all FOIA liaisons, their immediate supervisors, Regional and Field Office Directors, and the Director of Regional Operations. Use of the FOIA Liaison e-mail already has resulted in more responsive information improvements on the MSPB web site as well as an increase in the exchange of ideas with our customers.
20. Additional training needed (formal and/or on-the-job). Because of the historically heavy turnover in FOIA personnel at federal agencies, FOIA training has long been a major element of governmentwide FOIA administration.
Status: We do not have a heavy turnover of FOIA personnel at MSPB, perhaps because of our small size and the fact that our FOIA personnel also have program responsibilities. On the rare occasion of turnover, we help coordinate the necessary training for new employees.
21. In-house training on "safeguarding label"/FOIA exemption distinctions. Across the federal government, agencies now use a variety of labels to designate certain types of unclassified records as those requiring special safeguarding or document controls for one reason or another. As has been observed, these "safeguarding labels" -- such as "For Official Use Only" ("FOUO") or "Sensitive But Unclassified" ("SBU"), to name just two -- generally "describe broad types of potentially sensitive information that might not even fall within any of the FOIA exemptions." Increasingly, though, the use of such administrative labels might be seen as indistinct from FOIA-processing decisions at some agencies, so their attention to this area could be beneficial.
Status : This is an interesting idea and one that MSPB will investigate further. However, the Board already has “labels” unique to its mission that serves to designate certain records as requiring special safeguarding. For instance, when a Board administrative judge seals a record, this alerts MSPB FOIA/PA staff that the record requires sensitive handling. Another “flag” that MSPB attaches to case records indicates intense public interest. Staff training on these indicators is conducted for all new employees and periodic refresher training is provided as needed.
22. Increased staffing (where applicable). This potential improvement area requires little elaboration beyond the observation that agencies always should consider the propriety of reallocation of staffing resources where warranted by current circumstances. In this case, the existence of the executive order itself, with its new FOIA policies and FOIA-related obligations, provides a basis for such consideration.
Status: We have no current need for increased staffing.
23. Changes to personnel practices (job series, grades, etc.) needed. In addition to examining staffing levels, agencies should look at the grade levels of their employees who are devoted to FOIA administration. In some cases, upgrades in this regard might be readily within an agency's power to implement.
Status: We continually review grade levels of those employees we think occupy positions that should be upgraded.
24. Contracting out/hiring of contract employees. An increasing number of agencies have made good use of either contracting out certain limited FOIA-related activities or hiring contract employees for FOIA work, or both.
Status: There is no need for contracting out FOIA work at MSPB.
25. Purchase of new equipment needed. Beyond the possible installation or upgrade of automated request-tracking or request-processing equipment, agencies should not overlook the possible need for more basic office equipment in support of their FOIA operations.
Status: See response to item 6. Once the DMS system incorporates FOIA, PA, and other administrative records, OCB and IRM will determine needs and acquire additional hardware that may be required by the Regional and Field offices.
26. Centralization/decentralization. Generally speaking, federal agencies handle their FOIA responsibilities on either a centralized basis (more common with small- or medium-sized agencies) or a decentralized basis (more common with larger agencies). At some agencies, it is a close call as to which approach is best. This is a good time for each agency to review its overall FOIA-administration structure in order to ensure that it is the most effective one possible.
Status: Although we are a small agency, we have decentralized our FOIA structure so that FOIA requests are handled as close to the potential requester as possible. Often, case records requested under FOIA are in the regional or field offices where our customers can best be served. Our main FOIA Requester Center in headquarters handles administration and management for the program agencywide.
*27. Recycling of improvement information gleaned from FOIA Requester Service Centers. All agencies should be sure to take full advantage of the information that they now will be gaining -- in what can be regarded as "customer feedback" form -- through the new FOIA Requester Service Centers (and FOIA Public Liaisons as well) that they establish. Agencies should consider setting up a formal process for such requester-provided information to be tapped for the making of generic improvements in order to be well positioned to achieve the type of improvements that the executive order calls for.
Status: This is an excellent suggestion and OCB will continue to implement this by reviewing requester-provider information and creating a database (with personal identifiers erased) of these comments and suggestions. These comments will be become a new section of the MSPB FOIA intra-agency page; i.e., “Comments from Our Requesters.”
III. Improvement Areas with Milestones . MSPB has identified XX improvement areas as outline below. The improvement areas are grouped into the following time periods: (1) Areas anticipated to be completed by December 31, 2006; (2) Areas anticipated to be completed by December 31, 2007; (3) Areas anticipated to be completed after December 31, 2007.
A. Areas anticipated to be completed by December 31, 2006
Improvement Area 1 (2006)
1. Name: Website Postings of Frequently Requested Records (see review area 1).
2. Objective: New website designs for the MSPB Studies, Site Map, and Reading Room pages.
3. Plan Outline: Develop new and improved pages in coordination with program offices.
4. Target Date: December 31, 2006.
5. Means of measurement of success: Success measurements will include positive feedback from our on-line customers as well as an increase in the number webpage hits.
Improvement Area 2 (2006)
1. Name: Improved Records Labeling (see review area 21).
2. Objective: Identify improved or additional information safeguarding areas for labeling.
3. Plan Outline: Conduct a review of existing agency practices and areas for improvement.
4. Target Date: December 31, 2006.
5. Means of measurement of success: Better understanding and handling of MSPB information through the use of improved labeling.
B. Areas anticipated to be completed by December 31, 2007
Improvement Area 1 (2007)
1. Name: Revise MSPB’s “ Guidelines on How to Use the Freedom of Information and Privacy Acts” (see review area 4).
2. Objective: We will review the updated DOJ model to identify potential areas for improvement as soon as it is available.
3. Plan Outline: After an extensive review of the model DOJ guidelines, MSPB will re-write its guidelines, as appropriate.
4. Target Date: June 1, 2007.
5. Means of measurement of success: Closeness of MSPB guidelines to the model DOJ guidelines, as appropriate; fewer requests for advice regarding the filing of a FOIA request or appeal; positive customer feedback to FOIA requester centers; and improved compliance with incoming FOIA appeals.
Improvement Area 2 (2007)
1. Name: Automatic Tracking and Processing Capabilities (see review areas 5 and 6).
2. Objective: B ring FOIA and PA request documentation into the MSPB Document Management System (DMS). Investigate and purchase software for improving FOIA records scanning and redacting .
3. Plan Outline: Revise the MSPB DMS to accommodate FOIA and PA requests, and install new software for scanning and redacting.
4. Target Date: July 1, 2007.
5. Means of measurement of success: (a). MSPB offices will be able to share information; (b). Better management and monitoring of the effectiveness of MSPB FOIA program efforts; (c). Automation of the annual Freedom of Information Act reports to the Department of Justice and the Privacy Act reports to the Office of Management and the Budget; and faster scanning and redacting of FOIA records.
Improvement Area 3 (2007)
1. Name: Automated Acknowledgements (see review area 15).
2. Objective: Research means by which requests to its new e-mail FOIA liaisons contacts may generate immediate acknowledgements of requests, and implement such means .
3. Plan Outline: See objective above. This may involve the evaluation, acquisition, development and/or implantation of a new system.
4. Target Date: July 1, 2007.
5. Means of measurement of success: Existence of automated responses to FOIA requests made by e-mail.
Improvement Area 4 (2007)
1. Name: Improvement Ideas Recycling (see review area 27).
2. Objective: R eview requester-provider information and create a database (with personal identifiers erased) of these comments and suggestions. Implement improvements as applicable. These comments will be become a new section of the MSPB FOIA intra-agency page; i.e., “Comments from Our Requesters.”
3. Plan Outline: See objective.
4. Target Date: September 30, 2007.
5. Means of measurement of success: Examples of improvements generated from requester comments.
C. Areas anticipated to be completed by December 31, 2008
Improvement Area ` (2008)
1. Name: Make available on the website non-precedential initial decisions that become final.
2. Objective: M eet the FOIA’s affirmative disclosure obligation under 5 U.S.C. § 552(a)(2) by making available the many initial decisions in those cases in which the initial decisions becomes the Board’s final decision.
3. Plan Outline: Identify past decisions available, and begin ongoing posting of target decisions. This will require cost/benefit analysis of alternative means to accomplish this task.
4. Target Date: September 30, 2008 (there is very little current demand for these non-precedential decisions.)
5. Means of measurement of success: Ongoing availability of target decisions.