Fiscal Year 2023 Chief FOIA Officer Report - Agency Received More Than 50 Requests

High-Volume Agencies Receiving More Than 50 Requests in FY20

 

Content of 2023 Chief FOIA Officer Reports

Section I: FOIA Leadership and Applying the Presumption of Openness

The guiding principle underlying DOJ’s FOIA Guidelines is the presumption of openness. Please answer the following questions in order to describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA.  You may also include any additional information that illustrates how your agency is working to apply the presumption of openness.

1.     The FOIA requires each agency to designate a Chief FOIA Officer who is a senior official at the Assistant Secretary or equivalent level.  See 5 U.S.C. § 552(j)(1) (2018).  Is your agency’s Chief FOIA Officer at this level?

Yes, the Legal Counsel reports directly to the EEOC’s Chair Charlotte A. Burrows.

2.     Please provide the name and title of your agency’s Chief FOIA Officer.

Carol R. Miaskoff, Legal Counsel

3.     What steps has your agency taken to incorporate FOIA into its core mission? For example, has your agency incorporated FOIA milestones into its strategic plan?

The Chief FOIA Officer conducted training for the EEOC’s Chairwoman and Commissioners.  Training for new employees is provided during the on boarding process; and, finally, training is offered to any non- FOIA employees on an as needed or requested basis.  Agency-wide FOIA training was provided to agency personnel.  Ad hoc training was provided to FOIA professionals and other agency staff as requested.

4.     The Attorney General’s 2022 FOIA Guidelines provides that “agencies should confirm in response letters to FOIA requesters that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.” Does your agency provide such confirmation in its response letters?

Yes

5.     With respect to Glomar responses, please answer the below questions:

a)     In addition to tracking the asserted exemption, does your agency specifically track whether a request involved a Glomar response?

No.

b)     If yes, please provide:

i)       the number of times your agency issued a full or partial Glomar response (separate full and partial if possible);

N/A

ii)     the number of times a Glomar response was issued by exemption (e.g., Exemption 7(C) –20 times, Exemption 1 –5 times).

N/A

c)     If your agency does not track the use of Glomar responses, what would your agency need to do to track in the future? If possible, please describe the resources and time involved.

EEOC tracks the number of times Exemption (b)(7)(C) is used, but this does not necessarily mean the request contained a Glomar response.  In order to do that, EEOC would have to work with its FOIA processing contractor to create a way to capture instances where a Glomar response was used.  This would also likely require FOIA professionals to ensure that a final response containing a Glomar response was reflected in the FOIA processing system.

6.     Optional -- If there are any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied, please describe them here.

N/A

Section II: Ensuring Fair and Effective FOIA Administration

1.     The FOIA directs agency Chief FOIA Officers to ensure that FOIA training is offered to agency personnel. See 5 U.S.C. §552(a)(j)(2)(F). Please describe the efforts your agency has undertaken to ensure proper FOIA training is made available and used by agency personnel.

The Chief FOIA Officer conducted training for the EEOC’s Chairwoman and Commissioners.  Training for new employees is provided during the on boarding process; and, finally, training is offered to any non- FOIA employees on an as needed or requested basis.  Agency-wide FOIA training was provided to agency personnel.  Ad hoc training was provided to FOIA professionals and other agency staff as requested.

2.     Did your FOIA professionals or the personnel at your agency who have FOIA responsibilities attend substantive FOIA training during the reporting period such as that provided by the Department of Justice?

Yes

3.     If yes, please provide a brief description of the type of training attended or conducted and the topics covered.

The Office of Legal Counsel conducted training for all FOIA professionals.  The training addressed FOIA’s requirements; FOIA’s exemptions, with particular emphasis on the exemptions utilized most often by the EEOC, importance of acknowledgement letters, determination letters, identifying redactions, etc.  New FOIA employees were also provided FOIA on-boarding training by the FOIA Division.  In addition, FOIA Division staff attended the following:  DOJ Chief FOIA Officer Report – 10-17-22, DOJ Annual & Quarterly Report Refresher 10-4-22

4.     Please provide an estimate of the percentage of your FOIA professionals and staff with FOIA responsibilities who attended substantive FOIA training during this reporting period.

100%

5.     OIP has directed agencies to “take steps to ensure that all of their FOIA professionals attend substantive FOIA training at least once throughout the year.” If your response to the previous question is that less than 80% of your FOIA professionals attended training, please explain your agency’s plan to ensure that all FOIA professionals receive or attend substantive FOIA training during the next reporting year.

N/A

6.     Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA.  In particular, please describe:

How often and in what formats your agency provides FOIA training or briefings to non-FOIA staff; and if senior leaders at your agency received a briefing on your agency’s FOIA resources, obligations and expectations during the FOIA process?

The Chief FOIA Officer presented a FOIA briefing to the Chairwoman and Vice Chair.  The Chief Operations Officer also received several briefings on various topics, including fee waiver and fee categorization and FOIA’s statutory requirements concerns timeframe and who can submit a FOIA.  FOIA training is also presented via slides and/or oral briefing on an as needed and/or requested basis.

7.     Did your FOIA professionals engage in any outreach or dialogue, outside of the standard request process, with the requester community or open government groups regarding your administration of the FOIA?  Please describe any such outreach or dialogue, and, if applicable, any specific examples of how this dialogue has led to improvements in your agency’s FOIA administration.

No

8.     As part of the standard request process, do your FOIA professionals proactively contact requesters concerning complex or voluminous requests in an effort to clarify or narrow the scope of the request so requesters can receive responses more quickly? Please describe any such outreach or dialogue, and, if applicable, any specific examples.

Yes.  FOIA professionals, both the Attorney Advisors and Government Information Specialists, negotiate with requesters over the phone concerning the temporal scope of the request, the precise search terms to be used when conducting an email search, and identifying particular custodians likely to have records potentially responsive to the request.

9.  The FOIA Improvement Act of 2016 requires additional notification to requesters about the services provided by the agency’s FOIA Public Liaison.  Please provide an estimate of the number of times requesters sought assistance from your agency’s FOIA Public Liaison during FY 2022 (please provide a total number or an estimate of the number). 

EEOC estimates that the FOIA Public Liaison responded to a minimum of 300 requests for assistance.

10. Has your agency evaluated the allocation of agency personnel resources needed to respond to current and anticipated FOIA demands? If so, please describe what changes your agency has or will implement.

Yes. Best practices used to ensure that your FOIA system operates efficiently and effectively.  Fully staffing the FOIA components.

11. How does your agency use data or processing metrics to ensure efficient management of your FOIA workload? For example, case management reports, staff processing statistics, etc. In addition, please specifically highlight any data analysis methods or technologies used.

EEOC’s FOIA Processing software provides the ability to run reports on a variety of metrics.  Reports are generated regularly concerning staff workload, number of requests received, closed, pending, and overdue which are made available to District Directors and the Chief FOIA Officer and other EEOC staff upon request.

12. Optional -- If there are any other initiatives undertaken by your agency to ensure fair and effective FOIA administration, please describe them here.

N/A

Section III: Proactive Disclosures

1.     Please describe what steps your agency takes to identify, track, and post (a)(2) proactive disclosures.     

FOIA professional staff regularly coordinates to identify records that have been requested by three or more requesters.  The individuals logging the FOIA requests also track whether the same records have been requested three or more times.

2.     Provide examples of any material that your agency has proactively disclosed during the past reporting year, including records that have been requested and released three or more times in accordance with 5 U.S.C. § 552(a)(2)(D).  Please include links to these materials as well.

Over 85% of EEOC’s FOIA requests concern charge files.  Based on Title VII’s confidentiality provisions and Exemption (b)(7)(C) the EEOC is prohibited from posting materials requested in the vast majority of its FOIA requests.  The EEOC, however, has now added additional FOIA logs to its website:  https://www.eeoc.gov/foia/foia-logs

3.     Beyond posting new material, is your agency taking steps to make the posted information more useful to the public, especially to the community of individuals who regularly access your agency’s website?

Yes

4.     If yes, please provide examples of such improvements.  In particular, please describe steps your agency is taking to post information in open, machine-readable, and machine-actionable formats, to the extent feasible.  If not posting in open formats, please explain why and note any challenges.

EEOC’s entire website was updated in September 2021.  As a result of the update, information is easier to locate.  For example, EEOC’s FOIA webpage is accessible via link from EEOC’s homepage.  Once at EEOC’s FOIA webpage, links to EEOC’s FOIA Library, resources, reference guide and “contact us” pages are available at the left-hand side and links to submit a FOIA request or Appeal via EEOC’s online portal is available at the right-hand side.

5.     Does your proactive disclosure process or system involve any collaboration with agency staff outside the FOIA office, such as IT or data personnel?  If so, describe this interaction.

Yes, Office of Federal Operations (OFP), Office of Information Technology (OIT) and Office of Communications and Legislative Affairs (OCLA) are involved in the proactive disclosure process.

6.     Optional --Please describe the best practices used to improve proactive disclosures and any challenges your agency faces in this area.    

N/A

Section IV: Steps Taken to Greater Utilize Technology

1.     Has your agency reviewed its FOIA-related technological capabilities to identify resources needed to respond to current and anticipated FOIA demands?

Yes.

2.     Please briefly describe any new types of technology your agency began using during the reporting period to support your FOIA program.

EEOC’s FOIA Division began using Relativity to process high-volume requests including requests for emails and calendar invites.

3.     Does your agency currently use any technology to automate record processing? For example, does your agency use machine learning, predictive coding, technology assisted review or similar tools to conduct searches or make redactions? If so, please describe and, if possible, estimate how much time and financial resources are saved since implementing the technology.

Relativity

4.     OIP issued guidance in 2017 encouraging agencies to regularly review their FOIA websites to ensure that they contain essential resources, and are informative and user-friendly.  Has your agency reviewed its FOIA website(s) during the reporting period to ensure it addresses the elements noted in the guidance?

Yes.

5.     Did all four of your agency's quarterly reports for Fiscal Year 2021 appear on your agency's website and on FOIA.gov?

Yes.

6.     If your agency did not successfully post all quarterly reports, with information appearing on FOIA.gov, please explain why and provide your agency’s plan for ensuring that such reporting is successful in Fiscal Year 2022.

N/A

7.     The FOIA Improvement Act of 2016 requires all agencies to post the raw statistical data used to compile their Annual FOIA Reports.  Please provide the link to this posting for your agency’s Fiscal Year 2020 Annual FOIA Report and, if available, for your agency’s Fiscal Year 2021 Annual FOIA Report. 

https://www.eeoc.gov/foia/reports/foia-reports

8.     In February 2019, DOJ and OMB issued joint Guidance establishing interoperability standards to receive requests from the National FOIA Portal on FOIA.gov. Are all components of your agency in compliance with the guidance?

Yes

9.     Optional --Please describe the best practices used in greater utilizing technology and any challenges your agency faces in this area.

N/A

Section V: Steps Taken to Remove Barriers to Access, Improve Timeliness in Responding to Requests, and Reduce Backlogs

1.     Has your agency established alternative means of access to first-party requested records outside of the FOIA process?

Yes.

2.     If yes, please provide examples. If no, please indicate why not. Please also indicate if you do not know.

Section 83 of Volume I of the EEOC’s Compliance Manual was created as an alternative means for Charging Parties and Respondents (First Party requesters) to gain access to charge files.

3.     For Fiscal Year 2022, what was the average number of days your agency reported for adjudicating requests for expedited processing?  Please see Section VIII.A of your agency's Fiscal Year 2022 Annual FOIA Report.

16.04 days.

4.     If your agency's average number of days to adjudicate requests for expedited processing was above ten calendar days, according to Section VIII.A. of your agency's Fiscal Year 2022 Annual FOIA Report, please describe the steps your agency will take to ensure that requests for expedited processing are adjudicated within ten calendar days or less.

We will continue to remind the Government Information Specialists the FOIA requires that expedited requests be adjudicated within ten days.

5.     Does your agency utilize a separate track for simple requests?   

Yes

6.     If your agency uses a separate track for simple requests, according to Annual FOIA Report section VII.A, was the agency overall average number of days to process simple requests twenty working days or fewer in Fiscal Year 2022?

Yes.

7.     If not, did the simple track average processing time decrease compared to the previous Fiscal Year?

N/A

8.     Please provide the percentage of requests processed by your agency in Fiscal Year 2022 that were placed in your simple track.  Please use the following calculation based on the data from your Annual FOIA Report: (processed simple requests from Section VII.C.1) divided by (requests processed from Section V.A.) x 100. 

92

9.     If your agency does not track simple requests separately, was the average number of days to process all non-expedited requests twenty working days or fewer?

N/A

10.  If your agency had a backlog of requests at the close of Fiscal Year 2022, according to Annual FOIA Report Section XII.D.2, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2021?

Yes

11.  If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2022 than it did during Fiscal Year 2021?

N/A

12.  If your agency’s request backlog increased during Fiscal Year 2022, please explain why and describe the causes that contributed to your agency not being able to reduce its backlog.  When doing so, please also indicate if any of the following were contributing factors:

• An increase in the number of incoming requests.
• A loss of staff.
• An increase in the complexity of the requests received.  If possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase.
• Impact of COVID-19 and workplace and safety precautions
• Any other reasons – please briefly describe or provide examples when possible.

N/A

13.  If you had a request backlog please report the percentage of requests that make up the backlog out of the total number of requests received by your agency in Fiscal Year 2022. Please use the following calculation based on data from your Annual FOIA Report: (backlogged requests from Section XII.A) divided by (requests received from Section V.A) x 100.  This number can be greater than 100%.  If your agency has no request backlog, please answer with “N/A.”

0.378

14.  If your agency had a backlog of appeals at the close of Fiscal Year 2022, according to Section XII.E.2 of the Annual FOIA Report, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2021?  

Yes

15.  If not, according to section XII.E.1 of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2022 than it did during Fiscal Year 2021?

N/A

16.  If your agency’s appeal backlog increased during Fiscal Year 2021, please explain why and describe the causes that contributed to your agency not being able to reduce its backlog.  When doing so, please also indicate if any of the following were contributing factors:

• An increase in the number of incoming appeals.
• A loss of staff.
• An increase in the complexity of the requests received.  If possible, please provide examples or briefly describe the types of complex requests contributing to your backlog increase.
• Impact of COVID-19 and workplace and safety precautions.
• Any other reasons – please briefly describe or provide examples when possible.

N/A

17.  If you had an appeal backlog please report the percentage of appeals that make up the backlog out of the total number of appeals received by your agency in Fiscal Year 2022. Please use the following calculation based on data from your Annual FOIA Report: (backlogged appeals from Section XII.A) divided by (appeals received from Section VI.A) x 100.  This number can be greater than 100%.  If your agency did not receive any appeals in Fiscal Year 2022 and/or has no appeal backlog, please answer with "N/A."

14.15

18.  In the 2022 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1,000 requests in Fiscal Year 2020 was asked to provide a plan for achieving backlog reduction in the year ahead.  Did your agency implement a backlog reduction plan last year?  If so, describe your agency’s efforts in implementing this plan and note if your agency was able to achieve backlog reduction in Fiscal Year 2022?

N/A

19.  If your agency had a backlog of more than 1,000 requests in Fiscal Year 2022, please explain your agency’s plan to reduce this backlog during Fiscal Year 2023.

N/A

20.  In Fiscal Year 2022, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2021 Annual FOIA Report?

No

21.  If no, please provide the number of these requests your agency was able to close by the end of the fiscal year, as listed in Section VII.E of your Fiscal Year 2021 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that.

Five requests were closed.

22.  Beyond work on the ten oldest requests, please describe any steps your agency took to reduce the overall age of your pending requests.

FOIA staff were provided with additional resource and training to process aged requests including authorization for overtime and/or credit hours in order to maximize efforts.

23.  In Fiscal Year 2022, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2021 Annual FOIA Report?

Yes

24.  If no, please provide the number of these appeals your agency was able to close by the end of the fiscal year, as listed in Section VI.C.(5) of your Fiscal Year 2021 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that.

N/A

25.  Beyond work on the ten oldest appeals, please describe any steps your agency took to reduce the overall age of your pending appeals.

N/A

26.  In Fiscal Year 2022, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2021 Annual FOIA Report?

N/A-EEOC did not have any consultations in FY 2021

27.  If no, please provide the number of these consultations your agency was able to close by the end of the fiscal year, as listed in Section XII.C. of your Fiscal Year 2021 Annual FOIA Report.  If you had less than ten total oldest consultations to close, please indicate that.

N/A

28.  If your agency did not close its ten oldest pending requests, appeals, or consultations, please provide a plan describing how your agency intends to close those “ten oldest” requests, appeals, and consultations during Fiscal Year 2023.

Overtime funds and/or Credit Hours have been allocated to process the oldest requests because the processors are unable to review and process the high number responsive records associated with the requests.

29.  Were any requests at your agency the subject of FOIA litigation during the reporting period? If so, please describe the impact on your agency’s overall FOIA request processing and backlog. If possible, please indicate the number and nature of requests subject to litigation, common causes leading to litigation, and any other information to illustrate the impact of litigation on your overall FOIA administration.

Yes.  Two requests opened in the Summer of 2022 are now the subject of FOIA litigation.  Each request is a separate lawsuit although both requests are from the same requester concerning similar material.  The sheer volume of the requests – roughly 35,000 records in one and nearly 300,000 records in the other – will result in significant time and resources to fully process.  Given our limited staff and resources, and because of the high volume of requests the agency receives annually, it is likely that the agency’s backlog will increase by this time next year.

30.  How many requests during Fiscal Year 2022 involved unusual circumstances as defined by the FOIA? (This information is available in your agency’s FY22 raw data).

4