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2017 Chief FOIA Officer Report for the Equal Employment Opportunity Commission

Agencies Receiving More than 1,000 Requests in FY2015

Content of 2017 Chief FOIA Officer Reports

Name and Title of your Agency's Chief FOIA Officer: 
Peggy Mastroianni, Legal Counsel, EEOC

Section 1:  Steps Taken to Apply 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 Training

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

Yes

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

DOJ training:  FOIA Amendments Training; Introduction to FOIA; FOIA for Attorneys and Access Professionals numerous Best Practices Workshops FOIA;  American Association of Access Professionals Annual FOIA conference in Alexandria, Virginia;  and conducted training regarding the Improvement Act of 2016.

3. 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%

4. 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

B. Outreach

5. Did your FOIA professionals engage in any outreach or dialogue with the requester community or open government groups regarding your administration of the FOIA?

Yes.  Stephanie D. Garner, Assistant Legal Counsel, engaged in outreach with the requester community in Lancaster, Pennsylvania and in the District of Columbia.  Ms. Garner spoke to the counsel for Inspectors General (CIGIE)  FOIA/ Privacy Act group concerning the processing of  federal sector EEO complaint files under the FOIA.  In Lancaster, the audience was comprised of state Fair Employment Practice Agencies (FEPAs) operating in Pennsylvania.  The topics included how the FOIA interacts with dual shared charge files (state and federal) and whether FEPAs are obligated to follow state or federal disclosure regulations.  In Washington, D. C., Ms. Garner spoke at a technical Assistance Program (TAPS) sponsored by the EEOC's Washington Field Office.  Attendees were local stakeholders and the topics included the FOIA and how records requests are processed by the agency.

6. If you did not conduct any outreach during the reporting period, please describe why.

Not applicable

C. Other Initiatives

7. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA.

Non-FOIA professionals received FOIA training either as requested by the individual office or when FOIA Programs determined training was necessary; distributing memoranda on the FOIA, announcements on FOIA matters, making available OIP's FOIA for Senior Executive's briefing video, distributing the FOIA infographic developed by OIP, having our agency staff take OIP's FOIA for all Federal Employees eLearning module, etc.

8. 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, in response to the codification of the foreseeable harm standard in the FOIA Improvement Act of 2016 began providing the non-confidential portions of the Position Statements produced by Respondents in response to the charge filed against it to the Charging Party without a FOIA request (any PII information or deliberative process information is redacted prior to providing the records to the Charging Party.)  EEOC has also provided substantive training to FOIA professionals on exemption (b)(5) and the foreseeable harm standard  and is drafting guidance specifically for non-FOIA staff to explain the presumption of disclosure and the applicability of foreseeable harm to all agency records, particularly those contained in investigative and litigation files

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

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.

A. Processing Procedures

1. For Fiscal Year 2016, 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 2016 Annual FOIA Report.

6 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.

Not applicable

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 EEOC reviewed and updated processing procedures at Headquarters to improve workflow.

4. Please provide an estimate of how many requests your agency processed in Fiscal Year 2016 that were from commercial use requesters.  If your agency is decentralized, please identify any components within your agency that received a majority of their requests from commercial use requesters.

6%.  EEOC's Office of Legal Counsel (OLC) processes all requests submitted by commercial use requesters. 

B. Requester Services

5. Does your agency provide a mechanism for requesters to provide feedback about their experience with the FOIA process at your agency?  If so, please describe the methods used, such as making the FOIA Public Liaison available to receive feedback, using surveys posted on the agency's website, etc.

Yes.  The FOIA Public Liaison is available to receive feedback.

6. 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 how often requesters sought assistance from your agency's FOIA Public Liaison.

8%.

7. The FOIA Improvement Act of 2016 requires agencies to make their reference material or guide for requesting records or information from the agency electronically available to the public.  Please provide a link to your agency's FOIA reference guide. 

https://www.eeoc.gov/eeoc/foia/handbook.cfm

C. Other Initiatives

8. If there are any other steps your agency has undertaken to ensure that your FOIA system operates efficiently and effectively, such as improving search processes, eliminating redundancy, etc., please describe them here.

We have not taken any such steps.

Section III:  Steps Taken to Increase Proactive Disclosures

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.

A. Posting Material

1. Describe your agency's process or system for identifying "frequently requested" records that should be posted online.

EEOC monitors non-charge file FOIA requests. If the same material has been requested three times or has been requested two times with a strong likelihood of a third request, the material is posted on-line.

2. Does your agency have a distinct process or system in place to identify other records for proactive disclosure?   If so, please describe your agency's process or system.

Almost 99% of the almost 18,000 FOIA requests and 7,000 Section 83 of Volume I the EEOC Compliance Manual requests EEOC receives annually are for investigative charge files. Three of the statutes the EEOC enforces -- Title VII, the ADA, and GINA -- contain confidentiality provisions that prohibit the EEOC, its officers, and employees from making charge information public under penalty of arrest, fine, and jail. Consequently, EEOC cannot release this information to the public.  However, EEOC does make aggregated annual statistical data concerning employment discrimination charges available on its website, and discloses non-confidential statistical data arrays requested by the public. EEOC also made its first quarterly FOIA log available on its FOIA page.

With regard to the remaining 1% of FOIAs, EEOC is proactively disclosing as much of the requested material as is permitted by Title VII and the Privacy Act.  Examples of some of the proactive disclosures on our website include informal discussion letters, Fair Employment Practice contracts, and aggregated EEO-1 data predating November 1, 1996, when agencies were required to make records available in electronic as well as paper format.

During FOIA Staff meetings, individuals identify unusual FOIA requests and/or similar requests. These requests are reviewed to determine whether the records requested should be posted online.  Another means of identifying frequently requested records arises when compiling the FOIA request log and reviewing the records requested.

3. Has your agency encountered challenges that make it difficult to post records you otherwise would like to post?

Yes, staffing shortages create difficulties in reviewing and posting documents, and making them Section 508 compliant.

4. If so, briefly explain those challenges and how your agency is working to overcome them.

The EEOC is attempting to retain additional staff such as interns or detailees, to handle FOIA requests, and will begin to post detailed descriptions of non-confidential FOIAs to the website.

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

FOIA logs: http://www.eeoc.gov/eeoc/foia/logs.cfm  and 2013 FEPA/TERO Contracts: http://www.eeoc.gov/eeoc/doingbusiness/contracts/fepa_tero.cfm.  Informal discussion letters: http://www.eeoc.gov/eeoc/foia/letters/index.cfm  and the Federal Sector Digests are also accessible from our FOIA Library, http://www.eeoc.gov/federal/digest/index.cfm.  Guidance documents: https://www.eeoc.gov/laws/guidance/subject.cfm and Frequently Asked Questions: https://www.eeoc.gov/eeoc/foia/faq.cfm#q15

6. Did your agency use any means to publicize or highlight important proactive disclosures for public awareness?  If yes, please describe these efforts.

Yes, the information was either posted on the EEOC's website and/or issued via press release.

 B. Other Initiatives

7. If there are any other steps your agency has taken to improve proactive disclosures, please describe them here.  For example, has your agency engaged requesters in determining how and what to post?  Has your agency used web analytics to inform your proactive disclosures?

No.

Section IV:  Steps Taken to Greater Utilize Technology

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.

A. Making Material Posted Online More Useful

1. 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?

   The EEOC is making its information available in its most useful format.

2. If yes, please provide examples of such improvements.

The EEOC is making its information available in its most useful format.

3. Have your agency's FOIA professionals interacted with other agency staff (such as technology specialists or public affairs or communications professionals) in order to identify if there are any new ways to post agency information online?

Yes

B. Use of Technology to Facilitate Processing of Requests

4. Did your agency conduct training for FOIA staff on any new processing tools during the reporting period, such as for a new case management system, or for search, redaction, or other processing tools?

Yes

5. Beyond using technology to redact documents, is your agency taking steps to utilize more advanced technology to facilitate overall FOIA efficiency, such as improving record search capabilities, utilizing document sharing platforms for consultations and referrals, or employing software that can sort and de-duplicate documents?  If yes please describe:

  • The technological improvements being made.
  • The impact of using these technologies on your agency's request processing.

Yes- we have equipment that assists in searching and locating specific terms making it easier to locate and redact PII information, deliberative process information, etc.

6. Are there additional tools that could be utilized by your agency to create further efficiencies?

Yes- de-duplicating technology.

C. Other Initiatives

7. Did your agency successfully post all four quarterly reports for Fiscal Year 2016?

Yes

8. 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 2017.

Not applicable

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

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 2016 Annual FOIA Report and, when applicable, your agency's 2015 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?

Yes

2. If so, for your agency overall in Fiscal Year 2016, was the average number of days to process simple requests twenty working days or fewer?

No

3. Please provide the percentage of requests processed by your agency in Fiscal Year 2016 that were placed in your simple track.

99.6%

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 2015 and Fiscal Year 2016 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 2016, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2015?  If not, explain why and describe the causes that contributed to your agency not being able reduce its backlog.

No. 

6. If not, 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.

Loss of staff; technological issues and an increase in complex FOIA requests for: statistical data arrayed in requester specified formats; data seeking a myriad amount of data from many different offices of the EEOC at the same time; data and records related to matters the agency is currently litigating against the requester; and data involved in the creation and development of agency policy issuances.

7. 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 2016.

4.49%

BACKLOGGED APPEALS

8. If your agency had a backlog of appeals at the close of Fiscal Year 2016, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2015?  If not, explain why and describe the causes that contributed to your agency not being able reduce backlog.

No

9. If not, 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.

Technological issues with and learning to utilize new FOIA software, and an increase in complex FOIA requests that were appealed.

10. 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 2016. If your agency did not receive any appeals in Fiscal Year 2016 and/or has no appeal backlog, please answer with "N/A."

5.45%

C. Backlog Reduction Plans

11. In the 2016 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1000 requests in Fiscal Year 2015 was asked to provide a plan for achieving backlog reduction in the year ahead.  Did you 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 2016?

Not applicable

12. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2016, what is your agency's plan to reduce this backlog during Fiscal Year 2017?

Not applicable

D. Status of Ten 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 2015 and Fiscal Year 2016 when completing this section of your Chief FOIA Officer Report. 

TEN OLDEST REQUESTS

13. In Fiscal Year 2016, did your agency close the ten oldest requests that were reported pending in your Fiscal Year 2015 Annual FOIA Report?

Yes

14. 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 2015 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that.

Not applicable

15. 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 withdrawn.

TEN OLDEST APPEALS

16. In Fiscal Year 2016, did your agency close the ten oldest appeals that were reported pending in your Fiscal Year 2015 Annual FOIA Report?

Yes

17. 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 2015 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that.

Not applicable

TEN OLDEST CONSULTATIONS

18. In Fiscal Year 2016, did your agency close the ten oldest consultations that were reported pending in your Fiscal Year 2015 Annual FOIA Report?

Not applicable

19. 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 2015 Annual FOIA Report.  If you had less than ten total oldest consultations to close, please indicate that.

Not applicable

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

20. Briefly explain any obstacles your agency faced in closing its ten oldest requests, appeals, and consultations from Fiscal Year 2015.

Not applicable

21. 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

22. 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 2017.

Not applicable

F. Interim Responses

23. Does your agency have a system in place to provide interim responses to requesters when appropriate?  See OIP Guidance, "The Importance of Good Communication with FOIA Requesters." (Mar. 1, 2010)

Yes

24. If your agency had a backlog in Fiscal Year 2016, please provide an estimate of the number or percentage of cases in the backlog where a substantive, interim response was provided during the fiscal year, even though the request was not finally closed.

100% of the backlogged requests handled by OLC received substantive interim responses.   The components responsible for processing charge file requests do not normally provide interim responses.  The file is processed all at one time.   

G. Success Stories

Out of all the activities undertaken by your agency since March 2016 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, these agency success stories will be highlighted during Sunshine Week by OIP.  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.

Despite staff shortages and limited funding, EEOC conducted, or participated in, its first three outreach events for the FOIA community.