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2011 Chief FOIA Officer Report

2011 Chief FOIA Officer Report

 

I.  Steps Taken to Apply the Presumption of Openness

The guiding principle underlying the President's FOIA Memorandum and the    Attorney General's FOIA Guidelines is the presumption of openness. 

1.  Describe the steps your agency has taken to ensure that the presumption of openness is being applied to all decisions involving the FOIA. To do so, you should answer the questions listed below and then include any additional information you would like to describe how your agency is working to apply the presumption of openness. 

   a. Describe how the President’s FOIA Memorandum and the Attorney

       General’s FOIA Guidelines have been publicized throughout your agency.

 

          Both documents along with any other FOIA policy-related information

          were immediately disseminated to the Agency’s FOIA Service Center Staff           (FOIA Contacts) and Public Liaisons.  Links to the President’s

Memorandum and Department of Justice (DOJ) guidance are available on SBA’s FOIA           Home Page.


   b. What training has been attended and/or conducted on the new FOIA

       Guidelines?
 

·       SBA’s mandatory Agency-wide annual FOIA online training has been

revised to comply with the new FOIA Guidelines and was successfully conducted.

 

·       SBA sponsored a FOIA training session for Senior Management, Public Liaisons and FOIA Contacts that was led by Melanie Pustay, Director, DOJ’s Office of Information Policy (OIP) which focused on the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines.  A video of the presentation is posted on the Agency’s internal training website.

 

·       The FOI/Privacy Acts (FOI/PA) Office staff attended all of OIP’s FOIA FY 10 training conferences. 

 

·       The FOI/PA Office staff attended the 2010 FOIA training seminar hosted by the American Society of Access Professionals.

 

   c. How has your agency created or modified your internal guidance to reflect

       the presumption of openness?

 

·       Updated FOIA request referral memorandum to include presumption of openness language.

·       FOIA responses are reviewed for compliance with presumption of openness.

·       Contacted any office that provided a response that did not properly apply presumption of openness.  If necessary required that office amend the response to provide the greatest disclosure.  On occasion remanded cases for re-processing.

·       The mandatory Agency-wide annual FOIA online training has been revised to comply with the new FOIA Guidelines.

·       Provided individualized FOIA training and guidance to agency personnel and stressed presumption of openness policy.

                        
   d. To what extent has your agency made discretionary releases of otherwise

        exempt information?

 

          SBA primarily cites Exemptions 4, 5 and 6 as the basis for the denial of

          information.  Much of the information withheld is commercial or

          personal and is therefore protected pursuant to Exemptions 4 and/or 6

          respectively.  However, Exemption 5 is cited less frequently than

          Exemptions 4 and 6 both at the initial level and at the appellate level.  

         

          2010 - Ex. 5 cited in .016% of all FOIA responses

                             

          2009 - Ex. 5 cited in .02% of all FOIA responses

 

          2008 - Ex. 5 cited in .03% of all FOIA responses


   e. What exemptions would have covered the information that was released

       as a matter of discretion?

 

          Exemption 5


   f. How does your agency review records to determine whether discretionary

      releases are possible?
 

          Records that are not commercial or personal in nature are reviewed

          for full disclosure after determining that release will not negatively

          impact program effectiveness and public participation in agency

          programs.   

 

  g. Describe any other initiatives undertaken by your agency to ensure that

      the presumption of openness is being applied.

 

The FOI/PA Office staff routinely works with the FOIA Contacts, FOIA Public Liaisons and senior agency officials to help enforce the presumption of

           openness.

2. Report the extent to which the numbers of requests where records have been released in full and the numbers of requests where records have been released in part has changed from those numbers as reported in your previous year's Annual FOIA Report.

                   In 2010, SBA received 3166 FOIA requests and provided 2601 full

             disclosure responses, approximately 82.2%.

 

             In 2009, SBA received 3898 FOIA requests and provided 3204 full

              disclosure responses, approximately 82.2%.

 

             Therefore, our 2010 initial responses release-in-full response rate is consistent

             with our 2009 responses.

 

 

             In 2010, SBA provided 172 partial initial disclosures: 5.4%

             In 2010, SBA provided 1 appellate initial disclosure out of 19 appeals: 5.26%

              

             In 2009, SBA provided 186 initial partial responses: 4.77%

             In 2009 SBA provided 9 appellate partial responses out of 39 appeals: 4.33%

 

             Therefore, our 2010 partial releases both at the initial and appellate levels

             increased in percentages as compared to our 2009 partial releases.            

 

II.  Steps Taken to Ensure that Your Agency has an Effective System In Place for Responding to Requests

As the Attorney General emphasized in his FOIA Guidelines, "[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." 

Describe here the steps your agency has taken to ensure that your system for responding to requests is effective and efficient. This section should include a discussion of how your agency has addressed the key roles played by the broad spectrum of agency personnel who work with FOIA professionals in responding to requests, including, in particular, steps taken to ensure that FOIA professionals have sufficient IT support. To do so, answer the questions below and then include any additional information that you would like to describe how your agency ensures that your FOIA system is efficient and effective.

The SBA established the FOI/PA Office in 1977 to provide management oversight and implementation of the Agency's FOIA and PA programs in accordance with Title 5 of the United States Code, sections 552 and 552a. The FOI/PA Office adjudicates administrative appeals and provides guidance and training to Agency staff with regard to the collection, use, and disclosure of Agency information. The FOI/PA Office staff currently consists of the Chief of the FOI/PA Office and one FOIA Specialist. The Office operates under the direction of the Agency Chief FOIA Officer within the Office of Hearings and Appeals (OHA). Pursuant to EO 13392, the FOI/PA Office is designated as a FOIA Requester Service Center along with each of the Agency’s program and field offices.

 

The SBA’s FOIA process is decentralized throughout its program and field offices to allow the office that maintains the requested records to provide the initial response to the requester. For approximately the past 18 years, SBA has maintained official FOIA contacts in all program and field offices. Requesters may submit initial requests either to the FOI/PA Office or to the SBA office that maintains the pertinent records. Routinely within 48 hours of receipt of a request, the case is entered into the Agency’s FOIA Tracking System, an acknowledgment is provided to the requester that includes the case tracking number, the FOI/PA Office contact information, and when necessary, a referral to

          the appropriate Agency office(s) . When a referral is made, the requester is

          provided with the contact information of the responding office(s).

 

          The FOI/PA Office provides both general and detailed guidance at the initial   level. At times the Office defers some issues to the Agency’s Office of General        Counsel (OGC) to avoid compromising a requester’s administrative FOIA appeal          rights. The Office advocates on behalf of requesters by constant and instant         communication with all FOIA contacts and the vigilant reinforcement of the       presumption of openness and disclosure. In order to provide the public with the        greatest FOIA benefit, when deemed necessary an office may be instructed to        amend the initial response for broader disclosure or in selected cases a remand       may be made for a more thorough review and response. In FY 10 SBA’s median           response time for all processed, perfected FOIA requests was seven days and

          the average response time was 12 days. Therefore, the vast majority of FOIA requesters routinely receive prompt, timely FOIA processing from SBA.            Reponses to perfected requests in which information was granted, were made in

          seven median days. In FY 2010, of the 3166 initial requests SBA responded to,

          there were 2601 full disclosures, 172 partial disclosures and only 25 full denials.   

 

SBA vigorously promotes electronic FOIA activity. The majority of initial FOIA requests that SBA receives are submitted electronically. Acknowledgments, referrals and responses are provided electronically whenever possible.   Electronic correspondence allows the FOIA staff to provide guidance much more rapidly and broadly than conventional correspondence methods. This also       allows the FOI/PA Office staff to promptly review responses for accuracy and consistency and to take necessary action if a response does not uphold the principles of disclosure and openness.     

 

          Approximately 16 years ago the FOI/PA Office began using an electronic FOIA Tracking System. Seven years ago the system was deployed Agency-wide and       at that time SBA began providing requesters with a  case tracking number and contact information for the responding office(s).  All FOIA Contacts are           responsible for updating and maintaining the system for their office.  To ensure       privacy, access to the system is limited by job performance need and is also      password protected.

 

          SBA recently purchased FOIA Tracking and Case Management software from   Privasoft. The system is currently in the testing stage.  Upon completion of this           stage, the system will be deployed to all of SBA’s FOIA Contacts and Public     Liaisons. We anticipate this will enhance SBA’s FOIA process as the system

          has the capacity to manage and monitor every stage of FOIA processing.

 

          To further ensure that SBA upholds the spirit of disclosure and properly           recognizes that FOIA is the responsibility of all employees, in 2003, SBA began           an annual mandatory online FOIA training requirement for all Agency employees.           In addition, FOIA training is accessible to all SBA employees through an       electronic online training site.  The training materials include two videos of a      FOIA training session hosted by SBA and conducted by Melanie Pustay, DOJ,

          that specifically addresses SBA records, transparency, and open government.

 

a.     Do FOIA professionals within your agency have sufficient IT support?

   Yes

b.     Describe how your agency’s FOIA professionals interact with your Open Government Team.

                                  The FOI/PA Office staff has had several meetings and telephone

                       conversations with the Open Government Team.  In addition         

                       the FOI/PA Office staff has attended external Open Government

                       events with SBA’s Open Government staff.

c.     Describe the steps your agency has taken to assess whether adequate staffing is being devoted to responding to FOIA requests.

                                   The FOI/PA Office staff routinely reviews and updates the list

                        of FOIA Contacts and Public Liaisons to ensure that each

                          program and field office has sufficient FOIA staffing levels.         

d.     Describe any other steps your agency has undertaken to ensure that your FOIA system operates efficiently and effectively.

                                    The FOI/PA Office staff communicates on a regular basis with

                         the Agency’s FOIA Contacts either by telephone or email or

                         at meetings.  As FOIA duties are an auxiliary responsibility

                         for SBA’s FOIA Contacts and Public Liaisons, this regular

                         communication helps promote the importance of FOIA and

                         helps foster a positive attitude and approach to FOIA.

 

III.  Steps Taken To Increase Proactive Disclosures

Both the President and Attorney General focused on the need for agencies to work proactively to post information online without waiting for individual requests to be received. 

Describe here the steps your agency has taken to increase the amount of material that is available on your agency website, including providing examples of proactive disclosures that have been made since issuance of the new FOIA Guidelines.   In doing so, answer the questions listed below and describe any additional steps taken by your agency to make proactive disclosures of information.

 

          The OHA and FOI/PA Office developed an Open Government FOIA Plan

          as its “Stretch Goal” in response to the Open Government Criterion for FOIA.

          The Plan outlines the SBA’s public roadmap for promoting “Excellence in

          Processing FOIA Requests and Enhancing the Agency’s FOIA Operations.”

          This Plan demonstrates SBA’s commitment to ensuring the President’s directive

          regarding the presumption of disclosure is being applied to all FOIA decisions,

          including increased proactive disclosures and increased discretionary releases.

          In addition, SBA has completely redesigned the Agency website to address Open

          Government Initiatives of transparency, participation and collaboration. 

           Improved navigation, advanced search functionality, a dashboard that

           provides direct access to data sets, reports, content on agency programs

           and operations.  Website will feature a new tool, SBA Direct, so users can

          customize and tailor the online search and quickly locate information

           pertinent to their needs and location. The new site uses Web 2.0 tools.

 

   a. Has your agency added new material to your agency website since last year?

 

             Yes


   b. What types of records have been posted?


             

  • Dynamic Small Business Search system
  • Recovery Act Information
  • Executed Partnership Agreements between SBA and 40 Federal agencies
  • Annual 408 Report to Congress for 2009
  • The 8(a) BD hotline mailbox for reporting potential fraud, waste and abuse

 

              General Information on all Office of Hearings and Appeals Cases

  • FAQs
  • Protective Order Information
  • Program Regulations & Rules of Procedure
  • Sample Certificate of Service
  • Search OHA Decisions
  • 8(a) Early Graduation/Termination

o   FAQs

o   Sample Certificate of Service

o   Search OHA Decisions

  • Guidelines for Size Determinations
  • North American Industrial Classification System Appeals
    • FAQs
    • 8(a) Appeals
    • Program Regulations & Rules of Procedure
    • 8(a) Appeal Checklist
    • 8(a) Eligibility
    • FAQs
    • Sample Certificate of Service
    • Search OHA Decisions
  • 8(a) Suspension
    • FAQs
    • Sample Certificate of Service                          
    • Search OHA Decisions
  • Executed Partnership Agreements between SBA and 40 Federal agencies
  • Annual 408 Report to Congress for 2009
  • 8(a) BD hotline mailbox for reporting potential fraud, waste and abuse
  • Service Disabled Veterans Owned Appeals

o   FAQs

o   Program Regulations & Rules of Procedure

o   Sample Certificate of Service

o   Search OHA Decisions

o   New Regulations Applicable to Appeals Filed on or After 9/20/10

  • OHA Rules of Procedure
  • OHA Staff Directory
  • OHA Decisions

 

Office of Inspector General 2010 Proactive Disclosures

Semi-Annual Reports

Monthly Updates

 

Top Management Challenges

·        Fiscal Year 2011 Report on the Most Serious Management and Performance Challenges Facing the Small Business Administration (report: http://www.sba.gov/sites/default/files/oig_reports_tmc_fy11_0.pdf)

 

Audits

 

Testimony

  • Peggy E. Gustafson, Inspector General, U.S. Small Business Administration, Before the Small Business Committee, United States House of Representatives, April 21, 2010

 

Recovery Oversight Plans

 

Recovery Act Monthly Financial Activities

·       November 2010 Report

·       October 2010 Report

·       September 2010 Report (Recovery.gov)

·       August 2010 Report (Recovery.gov)

·       July 2010 Report

·       June 2010 Report

·       May 2010 Report

·       April 2010 Report

·       Small Business Administration (SBA) Funding Notification Report (XLS 997KB) (Recovery.gov)

·       March 2010 Report

·       February 2010 Report

·       January 2010 Report

·       December 2009 Report

 

   c. Give examples of the types of records your agency now posts that used to be available only by making a FOIA request for them.

 

    Prior to Open Government, the following types of records were obtained from SBA

    through FOIA disclosures:

 

  • Annual Loan Loss Reports
  • SBA Credit Card Holders
  • Original Disaster Business Loan Approvals
  • SBA Business Loan – Summary Data
  • Approved 7(a) and 504 Business Loans
  • Hearings and Appeals Decisions
  • Privacy Act Systems of Records
  • Regulations
  • Office of Advocacy Reports

                        

   d. What system do you have in place to routinely identify records that are appropriate for posting?

 

              The FOI/PA Office has access to all FOIA requests and can thereby

               determine trends in FOIA requests and topics of public interest.  In

              addition the FOI/PA Office consults with program offices to encourage

              and promote proactive disclosures and postings.

             
   e. How do you utilize social media in disseminating information?

 

               SBA utilizes Youtube, Facebook and Twitter.

 

   f. Describe any other steps taken to increase proactive disclosures at your agency.

         

                The FOI/PA Office will continue meeting with selected SBA program

               offices to continue proactive disclosure.

 

IV.  Steps Taken To Greater Utilize Technology

A key component of the President's FOIA Memorandum was the direction to "use modern technology to inform citizens about what is known and done by their Government."  In addition to using the internet to make proactive disclosures, agencies should also be exploring ways to utilize technology in responding to requests.  In 2010 agencies reported widespread use of technology in handling FOIA requests.  For this section of your Chief FOIA Officer Report for 2011, please answer the following more targeted questions:

  1. Electronic receipt of FOIA requests:

               a.   What proportion of the components within your agency which receive

               FOIA requests have the capability to receive such requests electronically?

      100 percent

           b.   To what extent have you increased the number of components doing so

                  since the filing of your last Chief FOIA Officer Report?

 

                                     No increase as 100 percent of SBA offices have been able  

                          to receive online FOIA requests since EFOIA was enacted.

 

             c.   What methods does your agency use to receive requests

                  electronically?

 

                       Requesters may submit FOIA requests electronically to SBA’s

                       FOIA Inbox, FOI/PA Office employee’s inboxes, each SBA FOIA

Public Liaison and FOIA Contact.  Requests are also submitted by fax machine.

 

     2.  Electronic tracking of FOIA requests:

 

              a.   What proportion of components within your agency which receive          

                     FOIA requests have the capability to track such requests electronically?

 

                        100 percent

 

               b.   To what extent have you increased the number of components doing so

                     since the filing of your last Chief FOIA Officer Report?

 

                         None, FY 09 was 100 percent also.

 

               c.   What methods does your agency use to track requests electronically?

 

                      All FOIA cases are electronically tracked by SBA’s FOIA Public

Liaisons and FOIA Contacts who utilize the Agency-wide FOIA Tracking System.

 

      3.    Electronic processing of FOIA requests: 

 

                a.   What proportion of components within your agency which receive FOIA

                      requests have the capability to process such requests electronically?

 

                           100 percent

 

                b.   To what extent have you increased the number of components doing so

                      since the filing of your last Chief FOIA Officer Report?

 

                         None, FY 09 was 100 percent also.

 

                c.   What methods does your agency use to process requests electronically?

                    

                         SBA responds to FOIA requests electronically by way of email

                         whenever possible.  Responses are also provided by fax if email

                         is not available. 

 

                       Currently the majority of SBA offices do not have electronic redaction

                       capability.  However, upon the deployment of the newly purchased FOIA

                       Tracking and Case Management software, all SBA offices will have

                       electronic redaction capabilities.

 

                       The vast majority of SBA’s record searches are conducted electronically.

 

   4.    Electronic preparation of your Annual FOIA Report:

 

               a.   What type of technology does your agency use to prepare your agency

                      Annual FOIA Report, i.e., specify whether the technology is FOIA-specific

                      or a generic data-processing system. 

                   

                         SBA currently operates an in-house FOIA Tracking System which

                          has limited reporting capabilities.

 

              b.    If you are not satisfied with your existing system to prepare your Annual

                      FOIA Report, describe the steps you have taken to increase your use of

                      technology for next year.

                   

                         SBA recently purchased and is currently in the testing stage of a new

                         FOIA specific tracking and database system which among other

                         features will be able to produce future Annual FOIA Reports.

 

V.  Steps Taken to Reduce Backlogs and Improve Timeliness in Responding to Requests

Improvements to timeliness in responding to pending FOIA requests and reductions in backlogs are both ongoing agency efforts.  The President and the Attorney General have emphasized the importance of improving timeliness in responding to requests.  Section XII of your Annual FOIA Report includes figures that show your agency's backlog of pending requests and administrative appeals for the past two fiscal years.  You should refer to those numbers when completing this section of your Chief FOIA Officer Report.  In this section you should address the following elements. 

1.  If your agency has a backlog, report here whether that backlog is decreasing.  That reduction should be measured in two ways.  First, report whether the number of backlogged requests and backlogged administrative appeals that remain pending at the end of the fiscal year decreased or increased, and by how many, when compared with last fiscal year.  Second, report whether your agency closed in Fiscal Year 2010 the ten oldest of those pending requests and appeals from Fiscal Year 2009, and if not, report how many of them your agency did close.   

           a.    FY 10: 3 requests backlogged

                               0 appeals backlogged

 

                   FY 09: 8 requests backlogged

                               0 appeals backlogged

 

            b.   Yes, the ten oldest pending FOIA requests from Fiscal Year 2009 were

                  closed and there were no pending appeals during that time.

2.  If there has not been a reduction in the backlog as measured by either of these metrics, describe why that has occurred.  In doing so, answer the following questions and then include any other additional explanation:

         Not applicable

a.     Is the backlog increase a result of an increase in the number of incoming requests or appeals?

b.     Is the backlog increase caused by a loss of staff?

c.     Is the backlog increase caused by an increase in the complexity of the requests received?

d.     What other causes, if any, contributed to the increase in backlog?

3.   Describe the steps your agency is taking to reduce any backlogs and to  improve timeliness in responding to requests and administrative appeals.  In doing so answer the following questions and then also include any other steps being taken to improve timeliness.

    1. Does your agency routinely set goals and monitor the progress of your FOIA caseload? 

Yes

    1. Has your agency increased its FOIA staffing?

No

    1. Has your agency made IT improvements to increase timeliness?

      Yes

                      d.   Has your agency Chief FOIA Officer been involved in overseeing your

                     agency’s capacity to process requests?

 

                                     Yes


                                        Spotlight on Success

 

Out of all the activities undertaken by your agency in this last year to increase transparency, describe here one success story that you would like to highlight as emblematic of your efforts.

 

The OHA/FOI/PA staff developed an Open Government FOIA Plan to outline the Agency’s public roadmap for continuing its commitment to “Excellence in Processing FOIA Requests and Enhancing the Agency’s FOIA Operations.”  The Plan was developed as a “Stretch Goal” in response to the Open Government Criterion for FOIA.  It details the steps we will take to promote transparency and proactive disclosure of information.  These steps include: (1) reviewing frequently requested information and other information currently available for download, to proactively use technology to disseminate useful information rather than waiting for specific requests under the FOIA; (2) enhancing the FOI/PA website to foster the public’s use of this information, to increase public knowledge, and promote public awareness of the FOI/Pa Office’s services; and (3) working in collaboration with Agency program offices to identify high value information or data sets not yet available,  and to establish a reasonable timeline for online publication in open formats.

 

Clearly, this Plan demonstrates the Agency’s commitment to ensuring the President’s directive regarding the presumption of disclosure is being applied to all decisions involving the FOIA, including through increased proactive disclosures and increased discretionary releases.  Moreover, it should be noted that the Agency received recognition in the March 15, 2010 issue of the Washington Post.  The article was titled “FOIA-Request Audit Shows Response to Obama Transparency Pledge is Uneven” and stated  that “President Obama issued new guidelines on government transparency on his first full day of office, ordering agencies to “adopt a presumption in favor “of FOIA requests and laying groundwork for eventual release of reams of previously undisclosed government information on the Internet.  But less than a third of the 90 agencies that process requests for information have significantly changed their practices since that initial order, the report said.  The departments of Justice and Agriculture, and the Office of Management and Budget and the Small Business Administration earned high marks for completely or partly fulfilling more requests and denying fewer of them during fiscal 2009.”