HHS Fiscal Year 2007 Freedom of Information Annual Report

1. AGENCY: U.S. Department of Health and Human Services

   REPORT PREPARED BY: Robert Eckert

   TITLE: Director, Freedom of Information/Privacy Acts Division, Office of the Assistant Secretary for Public Affairs, HHS

   ADDRESS: 330 C Street, S.W., Room 5416, Washington D.C. 20201

   PHONE NUMBER: (202) 690-7453

   ELECTRONIC ADDRESS FOR THIS REPORT ON THE WORLD WIDE WEB: http://www.hhs.gov/foia/reports/07anlrpt.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 (IHS): 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:

   HHS Freedom of Information Officer
   U.S. Department of Health and Human Services
   Mary E. Switzer Building, Room 5416
   330 C Street, S.W.
   Washington, D.C. 20201

2. HOW TO MAKE A FOIA REQUEST: Please see HHS Guide to Information

   Resources at: www.hhs.gov/about/infoguid.html#foia

   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.
   7^th 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
   Phone: 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, N.E., Building 16, Room 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.

3. 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 Service
   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, 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 remainingquestion 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.

4. EXEMPTION 3 STATUTES: (See chart)

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

   1. Brief description of type(s) of information withheld under each statute:
   2. Has a court upheld the use of each statute? If so, cite example:
   
   

5. INITIAL FOIA/PA ACCESS REQUESTS (Include all requests, 3rd or 1st party):

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

   1. Number of requests pending at close of preceding fiscal year: 28,728*
   2. Number of requests received during reporting fiscal year: 289,721
   3. Number of requests processed during reporting fiscal year: 290,315
   4. Number of requests pending at close of reporting fiscal year: (This number should match Line VII.B.1.) 28,134

   *FDA combined 10 center/office FOI tracking systems into a single agency-wide tracking system in the second quarter of FY 2006. There were discrepancies among the Agency's legacy system and the new system that came to light only this year. FDA reports that the actual number of requests pending as of the end of preceding year is as shown above.

   B. Disposition of Initial Requests: (See chart)

   1. Number granted in full: 276,886
   2. Number granted in part: 792
   3. Number of full denials: 2,096
      
      1. Number of times each FOIA exemption was used:
         Exemption 1: 0
         Exemption 2: 52
         Exemption 3: 51
         Exemption 4: 444
         Exemption 5: 179
         Exemption 6: 2,524
         Exemption 7:
         Exemption 7(A): 71
         Exemption 7(B): 0
         Exemption 7 (C): 80
         Exemption 7 (D): 19
         Exemption 7 (E): 13
         Exemption 7 (F): 5
         Exemption 8: 0
         Exemption 9: 0
         
   4. Other reasons for non-disclosure (total): 10,541 (See chart)
      
      1. No records: 4,051
      2. Referrals: 541
      3. Request withdrawn: 2,793
      4. Fee-related reason: 300
      5. Records not reasonably described: 316
      6. Not a proper FOIA request for some other reason: 790
      7. Not an agency record: 41
      8. Duplicate request: 307
      9. Other (specify): 1,402
   5. 
      

6. APPEALS OF INITIAL DENIALS OF FOIA/PA REQUESTS (include all access requests whether first or third party):

   A. Numbers of Appeals:

   1. Number of appeals received during the fiscal year: 216
   2. Number of appeals processed during the fiscal year: 141

   B. Disposition of Appeals:

   1. Number completely upheld: 26
   2. Number partially reversed: 10
   3. Number completely reversed: 32
      
      1. Number of times each FOIA exemption used (counting each exemption used once per appeal)
         Exemption 1: 0
         Exemption 2: 0
         Exemption 3: 1
         Exemption 4: 8
         Exemption 5: 13
         Exemption 6: 19
         Exemption 7
         Exemption 7(A): 5
         Exemption 7(B): 0
         Exemption 7(C): 5
         Exemption 7(D): 3
         Exemption 7(E): 0
         Exemption 7(F): 0
         Exemption 8: 0
         Exemption 9: 0
         
   4. Other reasons for non-disclosure (total): 73
      
      1. No records: 28
      2. Referrals: 1
      3. Request withdrawn: 13
      4. Fee-related reason: 7
      5. Records not reasonably described: 0
      6. Not a proper FOIA request for some other reason: 0
      7. Not an agency record: 0
      8. Duplicate request: 1
      9. Other (specify): 23 Administrative closures, records previously released to appellant
   
   

7. COMPLIANCE WITH TIME LIMITS/STATUS OF PENDING REQUESTS:

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

   1. Simple Requests (if multiple tracks used):
      1. Number of requests processed: 46,676
      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: 5,785
      2. Median number of days to process: (See chart)
   3. Requests Accorded Expedited Processing:
      1. Number of requests processed: 52
      2. Median number of days to process: (See chart)
   4. Single Track Requests:
      1. Number of requests processed: 236,937
      2. 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). (See chart)

   1. Number of requests pending as of the end of the fiscal year covered in this report (from Line V.A.4): 28,134
   2. Median number of days that such requests were pending as of that date: Medians vary greatly from OPDIV to OPDIV. (See chart)
   
   

8. COMPARISONS WITH PREVIOUS YEAR (S): (Optional):

   A. Comparison of numbers of requests received: Increased by 12.3% from 258,152 to 289,721

   B. Comparison of numbers of requests processed: Increased by 13.1% from 256,579 to 290,315

   C. Comparison of median numbers of days requests were pending as of end of fiscal year: (See chart for Section VII B)

   D. Other statistics significant to components: None

   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): (See Section XII)

9. COSTS/FOIA STAFFING:

   A. Staffing levels: (See chart)

   1. Number of full-time FOIA personnel: 170
   2. Number of personnel with part-time or occasional FOIA duties (in total work-years): 79.24
   3. Total number of personnel (in work years): 249.24

   B. Total costs (including staff and all resources): (See chart)

   1. FOIA processing (including appeals): $21,668,722.58
   2. Litigation-related activities (estimated): $660,738.65
   3. Total costs: $22,329,461.23
   4. Comparison with previous year(s) (including percentage of change) (optional):
   
   

10. FEES: (See chart)

    A. Total amount of fees collected by agency for processing requests: $715,221.84

    B. Percentage of total costs: 3.2%

11. FOIA REGULATIONS (including fee schedule):

    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 were received. The passage of PL 105-277, requiring OMB to revise Circular A-110, and of the Openness Promotes Effectiveness in Our National Government Act of 2007, 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.

12. Report on FOIA Executive Order Implementation

    1. Description of supplementation/modification of agency improvement plan (if applicable):

       As discussed in the FY 2006 Annual Report (also Updated Status Report at: http://www.hhs.gov/foia/reference/updatedstatus.html), the HHS found that it could not reliably predict the number of new FOIA requests submitted to the Department in the future. Therefore, the Department committed to reexamine its goal in the area of backlog reduction by May 15, 2007. The reexamination was accomplished on March 15, 2007. The change to the HHS FOIA Improvement Plan modified the goal for backlog reduction from a 5% reduction in all pending requests to that of achieving a 5% reduction in FY 2007 in backlogged requests received by HHS prior to FY 2007.

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

       Reduce Backlog

       As planned, and following up from a previous item involving the review of FOIA requests to confirm appropriateness of routing and whether the request is placed in the correct track (completed on time by December 31, 2006), the various FRSCs also rerouted the FOIA request files and closed the wrongly-assigned track files as of March 1, 2007.

       Further, as stated above, the revised goal of achieving a 5% reduction in FY 2007 in backlogged requests received by HHS prior to FY 2007 has been achieved. The HHS achieved, in FY 2007, a reduction of 24% of requests received prior to FY 2007.

       Improve Processing

       The CMS FRSC was to establish FOIA tracking which would highlight missed target dates for follow-up within a reasonable amount of time, by December 2007. By April 30, 2007, the CMS FRSC fully implemented a spreadsheet application as an internal tracking mechanism, in order to monitor the inventory of pending and closed FOIA requests throughout the year. This system is programmed to calculate the mathematical requirements (e.g., median processing, and pending timeframes) of the FOIA Annual Report.

       The FDA FRSC was to examine the use of electronic mail to send automatic acknowledgement letters by December 31, 2006; which FDA completed as of that date. This year, determinations and recommendations for action of the report were to be completed by December 31, 2007; the FDA decided, by that date, not to pursue the option of using electronic mail for this purpose, in good part because of extensive reprogramming of its FOIA tracking system.

       The NIH FRSC was to develop an online training module for NIH staff by December 31, 2007. This goal was accomplished, as a FOIA instructional video was posted on the NIH website for NIH staff as of November 30, 2007.

       Increase Public Awareness

       The FDA FRSC completed, as of December 31, 2007, a review on how to enhance its use of the internet. The findings are under consideration as to which enhancements to finally implement.

       The OS FRSC (FOI/Privacy Acts Division) and the HHS Web Communications Division were to conduct a review of OPDIV FRSC websites to ensure easy access and linking capabilities for records and information online by March 1, 2007; and recommendations to standardize FRSC websites were to be issued by June 1, 2007. Although the projected completion date was not met, as reported later in this report, the review of HHS FOIA web pages was completed September 14, 2007. Further, the OS FRSC (OS FOI/Privacy Acts Division) and the HHS Web Communications Division held meetings and developed, through to fruition, a series of OS FOIA web site changes, the final result of which was posted online November 1, 2007. Based on these changes, a standardized template for HHS FOIA webpages was issued to the OPDIVs on November 27, 2007. This was highlighted by a FOIA Officers’ Meeting on December 4, 2007, held in order to elicit the support and final implementation of the standardization framework.

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

       1. FOIA Improvement Plan area to which this deficient milestone relates.

       Increase Public Awareness

       2. Deficient milestone and the original target date from the FOIA Improvement Plan.

       The FOI/Privacy Acts Division, Office of the Secretary, was initially to develop, issue for public comment, and finalize a revised HHS FOIA regulation. This was to have been published in the Federal Register for public comment by December 2006, and finalized by December 2008. In the HHS Updated Status Report of August 1, 2007, the anticipated publishing date was revised to January 2008.

       3. Steps taken to correct the deficiency and the dates by which the steps were completed.

       The litigation, administrative, and operational demands have continued, as mentioned in the Updated Status Report, as FOIA request processing, appeals, FOIA policy, and Privacy Act policy and Privacy Act request demands on the OS FRSC have continued to result in the need for additional time. More importantly, changes to the FOIA required by amendments in the “Openness Promotes Effectiveness in our National Government Act of 2007” now require that additional review and changes be made to the draft regulation.

       4. Future remedial steps and the dates by which the steps will be completed.

       The work that remains to be done, therefore, includes additional review and editing of the draft, to include changes made necessary by the new amendments to the FOIA. This is expected to be accomplished by June 30, 2008. Therefore, I now anticipate that the Notice of Proposed Rulemaking to revise the Department’s FOIA regulations will be published by November 2008; and, final implementation is anticipated by December 2008.

       1. FOIA Improvement Plan area to which the deficient milestone relates.

       Improve Public Awareness

       2. Deficient milestone and the original target date from the FOIA Improvement Plan.

       The OS FRSC (OS FOI/Privacy Acts Division) and the HHS Web Communications Division were to conduct a review of OPDIV FRSC websites to ensure easy access and linking capabilities for records and information online by March 1, 2007; and recommendations to standardize FRSC websites were to be issued by June 1, 2007.

       3. Steps taken to correct the deficiency and the dates by which the steps were completed.

       The deadlines for these integrated items were not met due to workload demands, referenced above. A review of HHS FOIA web pages was completed September 14, 2007. Further, the OS FRSC (OS FOI/Privacy Acts Division) and the HHS Web Communications Division held meetings and developed, through to fruition, a series of OS FOIA web site changes, the final result of which was posted online November 1, 2007. Based on these changes, a standardized template for HHS FOIA webpages was issued to the OPDIVs on November 27, 2007. This was highlighted by a FOIA Officers’ Meeting on December 4, 2007, held in order to elicit the support and final implementation of the standardization framework.

       4. Future remedial steps and the dates by which the steps will be completed.

       None.

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

    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. Ten Oldest Pending FOIA Requests

       Calendar Year	1999	2000	2001	2002	2003	2004	2005	2006
       Requests	Nov. 23	Jan. 24 Mar. 28 Apr. 13 Jun. 13 Jun. 29 Jul. 21 Jul. 26 Aug. 17 Dec. 5

       2. Consultations:

       a.) Number of Consultations Received, Processed, and Pending

       Consultations Received From Other Agencies During FY07	Consultations Received From Other Agencies That Were Processed by Your Agency During FY07 (includes those received prior to FY07)	Consultations Received From Other Agencies That Were Pending at Your Agency as of October 1, 2007 (includes those received prior to FY07)
       2	1	1

       b.) Ten Oldest Consultations from other Agencies by Date Received

       Calendar Year	1999	2000	2001	2002	2003	2004	2005	2006	2007
       Consults Received	---	---	---	---	---	---	---	---	3/19

    7. Attachment

       Agency improvement plan (in current form) http://www.hhs.gov/foia/foiaopreviewplan.pdf

IV. Exemption 3 Statutes

V. INITIAL FOI/PA ACCESS REQUESTS

V.A. Numbers of Initial Requests

(1) Includes Privacy Act records requests.

(2) FDA combined 10 center/office FOI tracking systems into a single agency-wide tracking system in the second quarter of FY 2006. There were discrepancies among the Agency's legacy system and the new system, that came to light only this year. FDA reports that the actual number of requests pending as of the end of preceding year is as shown above.

(3) At the close of FY 2006 the NIH reported 561 pending requests. In FY 2007, the NIH closed 11 cases retroactively as these cases had been completed during previous fiscal years.

V.B. Disposition of Initial Requests

V.B.3. Exemptions Claimed Under the FOIA (1)

(1) No claims for exemption (1), (8), or (9).

V.B.4. Other Reasons for Nondisclosure (Total)

(1) Administrative closures, when requester did not respond to queries as to continued interest in FOIA request; and, when materials are more readily available from other sources, e.g., the internet and libraries

VII.A. Median Processing Time for Requests Processed During the Year

(1)   Calculated median day figure does not include median day information for 11 NIH FOIA requests closed retroactively

(2)   Estimate

VII. B. Status of Pending Requests

IX. Costs/FOIA Staffing; and X. Fees