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  3. 2019 Chief FOIA Officer Report for the Equal Employment Opportunity Commission

2019 Chief FOIA Officer Report for the Equal Employment Opportunity Commission

High-Volume Agencies Receiving More Than 50 Requests in FY17

Content of 2019 Chief FOIA Officer Reports

Section 1: Steps Taken to Apply 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.

A. FOIA Leadership

1. The FOIA requires each agency to designate a Chief FOIA Officer who is a senior official at least at the Assistant Secretary or equivalent level. Is your agency's Chief FOIA Officer at or above this level?

No.

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

Carol R. Miaskoff, Associate Legal Counsel.

B. FOIA Training

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

Yes.

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

FOIA Litigation Seminar; Advanced FOIA Seminar; Annual FOIA Report Refresher Training and training addressing the exemptions the EEOC uses most frequently.

Specific FOIA training was provided to new hires via Skype

Conducted training for FOIA unit supervisors.

Conducted training for EEOC non-FOIA professionals who are our FOIA contacts in each office.

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

95%.

6. 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.

Not applicable.

C. Outreach

7. Did your FOIA professionals engage in any outreach or dialogue 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.

Stephanie D. Garner, FOIA Public Liaison, participated in a telephone conference with Tim Riera, Director of EEOC Office of Field Programs' Outreach staff, to discuss FOIA with field Outreach staff. Field Outreach Staff discussed questions with Stephanie Garner submitted by the requester community. The training also enabled the Outreach staff to answer FOIA questions received from the requester community.

D. Other Initiatives

8. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA. In 2016, the Department publicized FOIA-related performance standards for employees that have any role in administering the FOIA, including non-FOIA professionals. Please also indicate whether your agency has considered including FOIA-related performance standards in employee work plans for employees who have any role in administering the FOIA.

Yes, the EEOC has considered including FOIA related performance standards in performance plans of employees with significant FOIA duties.

Previously, training for non FOIA professionals was conducted only on an as-needed basis or as requested by various departments. In compliance with the FOIA, as amended in 2016, FOIA Programs conducted training for EEOC non FOIA professionals at Headquarters.

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

The EEOC continuously reviews its records to determine whether non-confidential material may be posted. Unfortunately, over 98% of the EEOC's FOIA requests are for charge files. The charge files are protected by the confidentiality provisions contained in Title VII, the ADA and GINA;

There will be ongoing training for FOIA professional staff who processes requests for charge files, and the supervisors.

Section II: Steps Taken to Ensure that Your Agency Has an Effective System in Place for Responding to Requests

DOJ's FOIA Guidelines emphasize that "[a]pplication of the proper disclosure standard is only one part of ensuring transparency. Open government requires not just a presumption of disclosure, but also an effective system for responding to FOIA requests." It is essential that agencies effectively manage their FOIA program.

Please answer the following questions to describe the steps your agency has taken to ensure that the management of your FOIA program is effective and efficient. You should also include any additional information that that describes your agency's efforts in this area.

1. For Fiscal Year 2018, 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 2018 Annual FOIA Report.

31.41 days

2. If your agency's average number of days to adjudicate requests for expedited processing was above ten calendar days, please describe the steps your agency will take to ensure that requests for expedited processing are adjudicated within ten calendar days or less.

The offices that failed to adjudicate requests for expedited processing were under-staffed. The offices now have additional staff to process FOIA requests. The offices also received additional training on the FOIA's requirement to determine expedited processing requests within 10 days. Finally, the office with the highest average number of days received the request months after the request was submitted due to a glitch with FOIAXpress.

3. During the reporting period, did your agency conduct a self-assessment of its FOIA program? If so, please describe the methods used, such as reviewing Annual Report data, using active workflows and track management, reviewing and updating processing procedures, etc.

Yes, the Annual Report was reviewed; data to determine where additional resources were required was reviewed; and EEOC's Standard Operating Procedures were reviewed and revised

  • Note: In September 2017, OIP released a FOIA Self-Assessment Toolkit as a resource for agencies conducting a self-assessment of their FOIA program. The Toolkit is available on OIP's website for all agencies to use.

4. 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 2018 (please provide a total number or an estimate of the number).

The EEOC's FOIA Public Liaison responded to 1,748 written and telephonic inquiries.

5. Please describe the best practices used to ensure that your FOIA system operates efficiently and effectively and any challenges your agency faces in this area.

FOIA Programs assigns liaisons to each district office, and the district offices are encouraged to contact the liaison with questions concerning the request, documents located in the charge file, etc. The district offices process the FOIA requests for the charge files located within the district. FOIA requesters are encouraged to contact Stephanie Garner, FOIA Public Liaison or the FOIA Requester Service Center (FRSC) with questions regarding the processing of FOIA requests, status inquiries, etc. Continuous training for FOIA personnel and upgrading FOIAXpress (FX), EEOC's FOIA Tracking System all are part of EEOC's best practices to ensure the system runs effectively. Challenges faced by the EEOC include increases in the number of FOIA requests, the complexity of the requests and until several months ago, lack of adequate FOIA personnel.

Section III: Steps Taken to Increase Proactive Disclosures

The Department of Justice has long focused on the need for agencies to work proactively to post information online without waiting for individual requests to be received.

Please answer the following questions to describe the steps your agency has taken to increase the amount of material that is available on your agency websites. In addition to the questions below, you should also describe any additional steps taken by your agency to make and improve proactive disclosures of information.

1. Provide examples of material that your agency has proactively disclosed during the past reporting year, including links to the posted material.

  1. Informal discussion letters were posted in FY 2018: https://www.eeoc.gov/eeoc/foia/letters/index.cfm;
  2. EEOC's Shutdown Contingency Plan in the Event of Lapses Appropriations: https://www.eeoc.gov/eeoc/shutdown_plan.cfm;
  3. Fiscal Year 2019 Congressional Budget Justification U.S. Equal Employment Opportunity: Commission https://www.eeoc.gov/eeoc/plan/2019budget.cfm;
  4. Press releases: https://www.eeoc.gov/eeoc/newsroom/release/index.cfm; and
  5. Performance and Accountability Report Fiscal Year 2018: https://www.eeoc.gov/eeoc/plan/2018par.cfm.

2. Please describe how your agency identifies records that have been requested and released three or more times (and are therefore required to be proactively disclosed pursuant to 5 U.S.C. § 552(a)(2)(D)).

Review of FOIA requests in FOIAXpress.

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.

FOIA Reference Guide was updated and Order 150.001 is currently under review.

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

EEOC relies upon OCLA support to improve proactive disclosures by posting materials quickly. Challenges the EEOC faces are a short-staffed OCLA department to assist with posting material. FOIA Programs hired an Attorney Advisor, Technology, with responsibility for FOIA technology needs and improving utilization of technology in the FOIA process.

Section IV: Steps Taken to Greater Utilize Technology

A key component of FOIA administration is using technology to make information more accessible. In addition to using the internet to make proactive disclosures, agencies should also be exploring ways to utilize technology in responding to requests.

Please answer the following questions to describe how your agency is utilizing technology to improve its FOIA administration and the public's access to information. You should also include any additional information that that describes your agency's efforts in this area.

1. Is your agency leveraging technology to facilitate efficiency in conducting searches, including searches for emails? If so, please describe the type of technology used. If not, please explain why and please describe the typical search process used instead.

Yes. IT conducts searches for e-mails. The EEOC also recently received licenses for Advanced Document Review (ADR) to assist with deduping e-mails, etc. Additionally, EEOC hired a Senior Attorney Advisor, Technology to leverage technology to facilitate FOIA efficiencies.

2. 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.

3. Did your agency successfully post all four quarterly reports for Fiscal Year 2018?

Yes.

4. 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 2019.

Not applicable.

5. 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 2017 Annual FOIA Report and, if available, for your agency's Fiscal Year 2018 Annual FOIA Report.

FY 2017: FOIA Annual Report 2017 raw data (Excel)

FY 2018: https://www.eeoc.gov/eeoc/foia/reports/annrep2018.cfm

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

EEOC purchased "de-duping" software to assist with reviewing records and emails. After training, certain FOIA processors will receive a license to utilize the de-duping software.

Section V: Steps Taken to Improve Timeliness in Responding to Requests and Reducing Backlogs

The Department of Justice has emphasized the importance of improving timeliness in responding to requests. This section of your Chief FOIA Officer Report addresses both time limits and backlog reduction. Backlog reduction is measured both in terms of numbers of backlogged requests or appeals and by looking at whether agencies closed their ten oldest requests, appeals, and consultations.

For the figures required in this Section, please use the numbers contained in the specified sections of your agency's 2018 Annual FOIA Report and, when applicable, your agency's 2017 Annual FOIA Report.

A. Simple Track

Section VII.A of your agency's Annual FOIA Report, entitled "FOIA Requests - Response Time for All Processed Requests," includes figures that show your agency's average response times for processed requests. For agencies utilizing a multi-track system to process requests, there is a category for "simple" requests, which are those requests that are placed in the agency's fastest (non-expedited) track, based on the low volume and/or simplicity of the records requested.

1. Does your agency utilize a separate track for simple requests? If your agency uses a multi-track system beyond simple, complex, and expedited to process requests, please describe the tracks you use and how they promote efficiency.

Yes, the EEOC utilizes a multi-track system comprising of: simple, complex and expedited.

2. If your agency uses a separate track for simple requests, was the agency overall average number of days to process simple requests twenty working days or fewer in Fiscal Year 2018?

No.

3. Please provide the percentage of requests processed by your agency in Fiscal Year 2018 that were placed in your simple track.

95%

4. 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?

Not applicable.

B. Backlogs

Section XII.A of your agency's Annual FOIA Report, entitled "Backlogs of FOIA Requests and Administrative Appeals" shows the numbers of any backlogged requests or appeals from the fiscal year. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2016 and Fiscal Year 2017 when completing this section of your Chief FOIA Officer Report.

BACKLOGGED REQUESTS

5. If your agency had a backlog of requests at the close of Fiscal Year 2018, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2017?

Yes, the backlog decreased.

6. If not, did your agency process more requests during Fiscal Year 2018 than it did during Fiscal Year 2017?

Not applicable.

7. If your agency's request backlog increased during Fiscal Year 2018, 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.
  • Any other reasons - please briefly describe or provide examples when possible.

Not applicable.

8. 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 2018. If your agency has no request backlog, please answer with "N/A."

10.8%

BACKLOGGED APPEALS

9. If your agency had a backlog of appeals at the close of Fiscal Year 2018, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2017?

No.

10. If not, did your agency process more appeals during Fiscal Year 2018 than it did during Fiscal Year 2017?

No.

11. If your agency's appeal backlog increased during Fiscal Year 2018, 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.
  • Any other reasons - please briefly describe or provide examples when possible.

The appeals were more complex and the Appeals staff was temporarily reduced because individuals were "Detailed" to other offices.

12. 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 2018. If your agency did not receive any appeals in Fiscal Year 2018 and/or has no appeal backlog, please answer with "N/A."

1.9%

C. Backlog Reduction Plans

13. In the 2018 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2017 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 2018?

Yes. EEOC's backlog reduction plan included a multi-prong approach: (1) Implementing triage measures to process the "simplest" of the FOIA requests placed in the simple track; processing the easiest requests as quickly as possible i.e., third party requests; FOIA professionals in offices with no backlog were utilized to assist in processing backlogged FOIA requests; (2) hiring a FOIA/attorney who is also a technology expert to implement better utilization of available technology; (3) hiring additional FOIA staff and filling FOIA vacancies in the component offices; (4) utilizing contract employees and EEOC investigators to process the simplest FOIA requests; (5) requesting additional funding to retain contract and other employee assistance to process the simplest requests; (6) on May 22, 2018 Melanie A. Pustay, Director of DOJ's Office of Information Policy provided training about FOIA and the status of EEOC's FOIA backlog to all senior agency officials; (7) providing FOIA training and support for the directors of the component offices; and 8) enhancing training about how to review these simplest requests.

The multi-prong approach enabled the EEOC to reduce the number of backlogged FOIA requests.

14. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2018, what is your agency's plan to reduce this backlog during Fiscal Year 2019?

The multi-prong approach will continue to be utilized. Additional training and quality control reviews will be implemented to reduce the backlog. The EEOC also hired additional permanent staff to process FOIA requests. It is hoped that the additional staff will assist in reducing the FOIA backlog.

D. Status of Oldest Requests, Appeals, and Consultations

Section VII.E, entitled "Pending Requests - Ten Oldest Pending Requests," Section VI.C.(5), entitled "Ten Oldest Pending Administrative Appeals," and Section XII.C., entitled "Consultations on FOIA Requests - Ten Oldest Consultations Received from Other Agencies and Pending at Your Agency," show the ten oldest pending requests, appeals, and consultations. You should refer to these numbers from your Annual FOIA Reports for both Fiscal Year 2016 and Fiscal Year 2017 when completing this section of your Chief FOIA Officer Report.

OLDEST REQUESTS.

15. In Fiscal Year 2018, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2017 Annual FOIA Report?

Yes.

16. 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 2016 Annual FOIA Report. If you had fewer than ten total oldest requests to close, please indicate that.

Not applicable.

17. Of the requests your agency was able to close from your ten oldest, please indicate how many of these were closed because the request was withdrawn by the requester. If any were closed because the request was withdrawn, did you provide any interim responses prior to the withdrawal?

No requests were closed because the request was withdrawn.

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

The EEOC filled FOIA positions that had been vacant for an extended period of time, and offices that experienced an increase in FOIA requests were authorized to hire additional FOIA staff to assist with processing the requests.

TEN OLDEST APPEALS

19. In Fiscal Year 2018, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2017 Annual FOIA Report?

Yes.

20. 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 VII.C.(5) of your Fiscal Year 2017 Annual FOIA Report. If you had fewer than ten total oldest appeals to close, please indicate that.

Not applicable.

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

Not applicable.

TEN OLDEST CONSULTATIONS

22. In Fiscal Year 2018, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2017 Annual FOIA Report?

Not applicable.

23. 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 2017 Annual FOIA Report. If you had fewer than ten total oldest consultations to close, please indicate that.

Not applicable.

E. Additional Information on Ten Oldest Requests, Appeals, and Consultations & Plans

24. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2018.

Staffing issues and technology issues were faced in the EEOC's attempts to close its ten oldest requests and appeals.

25. If your agency was unable to close any of its ten oldest requests because you were waiting to hear back from other agencies on consultations you sent, please provide the date the request was initially received by your agency, the date when your agency sent the consultation, and the date when you last contacted the agency where the consultation was pending.

Not applicable.

26. 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 2018.

Not applicable.

F. Success Stories

Out of all the activities undertaken by your agency since March 2018 to increase transparency and improve FOIA administration, please briefly describe here at least one success story that you would like to highlight as emblematic of your agency's efforts. The success story can come from any one of the five key areas. As noted above, OIP will highlight these agency success stories during Sunshine Week. To facilitate this process, all agencies should use bullets to describe their success story and limit their text to a half page. The success story is designed to be a quick summary of key achievements. A complete description of all your efforts will be contained in the body of your Chief FOIA Officer Report.

The EEOC wishes to highlight its efforts at reducing its backlog of FOIA requests. With focused support from the head of the agency, EEOC developed a backlog reduction plan that included a multi-prong approach. To develop the plan, we brought together for discussion and planning, the parties who have it within their power to effectuate the change required to stem, reduce and virtually eliminate our FOIA backlog. The resultant backlog reduction plan provides a long-term multi-faceted process. The steps were:

  1. to assess the scope of the backlog and determine which component offices had the greatest need for assistance;
  2. to implement a component-wide triage process to determine the number of simple requests pending and to process the "simplest" requests (for example, third party requests for charge investigation files that must be denied due to statutory confidentiality requirements);
  3. to make the EEOC's Chief FOIA Officer available to speak one-on-one with office directors with the larger backlogs;
  4. to obtain authorization to hire a FOIA/attorney with technology expertise to implement better utilization of available and evolving technology;
  5. to obtain authorization to hire additional FOIA staff and to fill FOIA vacancies in the component offices;
  6. to obtain authorization for funding to hire contractors and for overtime pay for FOIA staff and other employees to help process the simplest FOIA requests pending in the component offices;
  7. to initiate creation of an agency-wide FOIA SharePoint that FOIA professionals in any office in the field or headquarters can access to process backlogged requests;
  8. to accept the offer of Melanie A. Pustay, Director of the Office of Information Policy at DOJ, to present to EEOC executives about FOIA and EEOC's FOIA backlog;
  9. to generate and share with all directors of the FOIA component offices weekly FOIA status reports to help them better manage their FOIA workload. (The weekly reports identify the oldest requests and pinpoint the steps required to process the request (i.e., request the records, review the records, etc.));
  10. to provide FOIA training and support for the directors of the component offices;
  11. to enhance training about how to review the simplest requests;
  12. to hold bi-weekly meetings with the triaging FOIA professionals to review the backlog status of individual offices and to address any concerns identified; and
  13. to communicate to directors and principals at headquarters the backlog reduction progress achieved by the offices.