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U.S. Equal Employment Opportunity Commission



2013 Chief FOIA Officer Report
of the
U.S. Equal Employment Opportunity Commission

Content of 2013 Chief FOIA Officer Reports

Time frame for Report

Unless otherwise noted, your 2013 Chief FOIA Officer Report should address agency activities that have occurred since the filing of last year's Report, which was March 12, 2012, up until the filing of the 2013 Report, which will be March 11, 2013. Thus, the general reporting period for the Chief FOIA Officer Reports is March 2012 to March 2013.

Section 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.

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.

1. Did your agency hold an agency FOIA conference, or otherwise conduct training during this reporting period?

EEOC provided on-site training to our New York District Office FOIA staff in February, and to our St. Louis District Office staff via videoconference in December and February.

2. Did your FOIA professionals attend any FOIA training, such as that provided by the Department of Justice?

Yes, FOIA Professionals attended several FOIA training sessions provided by the Department of Justice during the relevant reporting period.

3. In his 2009 FOIA Guidelines, the Attorney General strongly encouraged agencies to make discretionary releases of information even when the information might be technically exempt from disclosure under the FOIA. OIP encourages agencies to make such discretionary releases whenever there is no foreseeable harm from release.

No, EEOC did not make any discretionary releases of otherwise exempt information during the relevant reporting period.

4. What exemptions would have covered the information that was released as a matter of discretion?

The Third and Seventh Exemptions to the FOIA would have covered the information released.

6. Describe any other initiatives undertaken by your agency to ensure that the presumption of openness is being applied.

Standards for determining and documenting foreseeable harm are being drafted.

Section 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."

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.

Describe here the steps your agency has taken to ensure that its system for responding to requests is effective and efficient. 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.

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

FOIA professionals have access to IT support in their individual offices, and also have IT support from Headquarters. However, EEOC FOIA professionals do not have dedicated, FOIA-knowledgeable IT support.

2. Do your FOIA professionals work with your agency's Open Government Team?

Yes. The Assistant Legal Counsel, FOIA Programs, is on the Open Government Team.

3. Has your agency assessed whether adequate staffing is being devoted to FOIA administration?

Yes. EEOC has assessed the adequacy of staff being devoted to FOIA administration, and it was found to be insufficient. Due to a hiring freeze, EEOC has been unable to backfill, and unable to supplement its FOIA staff with permanent employees. However, EEOC has been able to retain the voluntary services of AARP members, contract personnel, and interns to help with FOIA administration.

4. Describe any other steps your agency has undertaken to ensure that your FOIA system operates efficiently and effectively, such as conducting self-assessments to find greater efficiencies, improving search processes, streamlining consultations, eliminating redundancy, etc.

Since more than 95% of the 18,000+ FOIA requests received during the reporting period were for investigative charge files, the FOIA Tracking System (FTS) has been integrated with the EEOC charge data system, the Integrated Management System (IMS). Achieving connectivity between these two systems permits FOIA professionals to verify the existence of a charge, the charge number, and the names of the parties to a charge, and for the FTS to forward requests containing the correct charge number directly to the accountable office. FOIA professionals no longer spend hours searching for charge information in the IMS.

Prior to this enhancement to the FTS, all online requests were received in Headquarters. Headquarters FOIA professionals would then manually forward each online request to the appropriate District Office for processing. Headquarters FOIA professionals no longer spend numerous hours forwarding requests to the 16 other FOIA offices for processing.

For the convenience of FOIA requesters, a link was added to EEOC's main web page to take potential requesters directly to the agency FOIA site, and to the online FOIA request site.

The Final Rule revising EEOC's FOIA regulations will be published in the Federal Register by the end of the third quarter of the fiscal year. The revised regulations provide for multi-track processing of requests and appeals.

Information about OGIS is available to the public on the EEOC FOIA web page. Additionally, this information about OGIS is accessible by link from each District Office FOIA site.

EEOC opened a second Requester Service Center (RSC) in its Los Angeles District Office (LADO) to provide customer service to requesters and the public. This RSC performs functions similar to the RSC that opened at Headquarters in 2005, including operating a multilingual telephone line 24 hours a day, seven days a week. Knowledgeable FOIA staff will respond to telephone calls and email messages received during the LADO's regular business hours.

Section 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 both to increase the amount of material that is available on your agency website, and the usability of such information, including providing examples of proactive disclosures that have been made during this past reporting period (i.e., from March 2012 to March 2013). In doing so, answer the questions listed below and 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 posted this past year.

As stated in Section III, EEOC information about OGIS has been posted to the FOIA website. EEOC continues to routinely post a copy of all Office of Legal Counsel "Informal Discussion Letters" on its website. These letters respond to public inquiries for advice on specific issues raised under the statutes that we enforce. Another new addition to our website are Memoranda of Understanding (MOU) that EEOC has entered into with various entities.

2. 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, such as soliciting feedback on the content and presentation of the posted material, improving search capabilities on the site, creating mobile applications, providing explanatory material, etc.?

Yes.

3. If so, provide examples of such improvements.

EEOC is continuously augmenting and updating materials on the EEOC FOIA website to provide the public with the best experience. Illustrative of this effort is the organizational chart depicting the lines of EEOC FOIA authority, a separate chart depicting the EEOC FOIA process, and "Qs & As" for employers and the public explaining the proper way to request agency records under the FOIA. The public can access this information by going to the EEOC FOIA web page, or accessing it by link from the from the FOIA web page of any District Office. FOIA contact information at Headquarters and at every FOIA component is accessible from the EEOC FOIA web page and by link from a District Office FOIA web page. The EEOC FOIA web page receives frequent updates to ensure that its information is current. FOIA information in the FOIA Reference Guide is routinely updated. Requester Service Center responses to inquiries often refer the public to the EEOC FOIA web page for additional information. The EEOC FOIA Reference Guide is frequently downloaded and mailed with our written response to an inquiry.

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

Office of Legal Counsel staff are continuously reviewing agency records including press releases and other announcements for potential prospects for proactive disclosure. We have begun to make available on line EEOC Orders and Memoranda of Understanding in which the public has shown interest.

Section 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 and 2011, agencies reported widespread use of technology in receiving and tracking FOIA requests and preparing agency Annual FOIA Reports. For 2013, as we did in 2012, the questions have been further refined and now address different, more innovative aspects of technology use.

Electronic receipt of FOIA requests:

1. Can FOIA requests be made electronically to your agency?

Yes. FOIA requests and appeals may be made electronically to EEOC.

2. If your agency is decentralized, can FOIA requests be made electronically to allcomponents of your agency?

Yes. Online FOIA requests may be submitted electronically to Headquarters and all EEOC components.

Online tracking of FOIA requests:

3. Can a FOIA requester track the status of his/her request electronically?

Requesters may track the status of requests and appeals made online.

4. If so, describe the information that is provided to the requester through the tracking system. For example, some tracking systems might tell the requester whether the request is "open" or "closed," while others will provide further details to the requester throughout the course of the processing, such as "search commenced" or "documents currently in review. "List the specific types of information that are available through your agency's tracking system.

The FTS provides the requester with confirmation that the online request has been received. Additional information concerning the request is available to the requester as soon as the FOIA professional enters the information into the FTS. Online requesters can view the FTS for information about their request such as its expected completion date, name of the person assigned to process the request, the date the acknowledgment letter was issued, when an extension is taken or a request is tolled, fees assessed, and when the FOIA response is being reviewed prior to issuance.

5. In particular, does your agency tracking system provide the requester with an estimated date of completion for his or her request?

Yes. This information is available to online requesters through the EEOC tracking system and in the acknowledgment letter.

6. If your agency does not provide online tracking of requests, is your agency taking steps to establish this capability?

The EEOC FTS provides online tracking of requests that are made online. All other requesters must contact a Requester Service Center by mail, telephone, fax, or email for a status update on their request.

Use of technology to facilitate processing of requests:

7. 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?

EEOC is currently exploring other types of enhancements to improve its FOIA processing capabilities, such as de-duplicating software and shared platforms which may be utilized to facilitate EEOC FOIA efficiency and timeliness. Headquarters FOIA professionals are attending webinars, seminars, and onsite FOIA presentations and demonstrations of more advanced technologies to determine which can be utilized to facilitate EEOC FOIA efficiency.

8. If so, describe the technological improvements being made.

Any technological improvements are yet to be determined.

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

The President and the Attorney General have emphasized the importance of improving timeliness in responding to requests. This section 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 and appeals. For the figures required in this Section, please use those contained in the specified sections of your agency's 2012 Annual FOIA Report.

1. 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. If your agency does not utilize a separate track for processing simple requests, answer the question below using the figure provided in your report for your non-expedited requests.

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

Currently EEOC does not utilize a separate track for simple requests. However, EEOC will soon publish in the Federal Register the Final Notice of its revised FOIA regulations that provide for multi-track processing of requests and appeals. At that time, EEOC will have a separate track for simple requests.

b. If so, for your agency overall, for Fiscal Year 2012, was the average number of days to process simple requests twenty working days or fewer?

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

The average number of days for non-expedited requests was 18.35.

2. Sections XII.D.(2) and XII.E.(2) of your agency's Annual FOIA Report, entitled "Comparison of Numbers of Requests/Appeals from Previous and Current Annual Report - Backlogged Requests/Appeals," show the numbers of any backlog of pending requests or pending appeals from Fiscal Year 2012 as compared to Fiscal Year 2011. You should refer to those numbers when completing this section of your Chief FOIA Officer Report. In addition, Section VII.E, entitled "Pending Requests - Ten Oldest Pending Requests," and Section VI.C.(5), entitled "Ten Oldest Pending Administrative Appeals," from both Fiscal Year 2011 and Fiscal Year 2012 should be used for this section.

a. If your agency had a backlog of requests at the close of Fiscal Year 2012, did that backlog decrease as compared with Fiscal Year 2011?

No, it did not. In fact, our backlog increased.

b. If your agency had a backlog of administrative appeals in Fiscal Year 2012, did that backlog decrease as compared to Fiscal Year 2011?

Yes. The administrative appeals backlog decreased by more than 60%.

c. In Fiscal Year 2012, did your agency close the ten oldest requests that were pending as of the end of Fiscal Year 2011?

Yes. EEOC closed the ten oldest requests that were pending as of the end of Fiscal Year 2011.

d. In Fiscal Year 2012, did your agency close the ten oldest administrative appeals that were pending as of the end of Fiscal Year 2011?

Yes, EEOC closed the ten oldest administrative appeals that were pending as of the end of Fiscal Year 2011.

3. If you answered "no" to any of the above questions, describe why that has occurred. In doing so, answer the following questions then include any additional explanation:

Request Backlog:

a. Was the lack of a reduction in the request backlog a result of an increase in the number of incoming requests?

Yes, in part. The lack of reduction in the request backlog was caused both by the increased number of requests, and by the inability to backfill vacant FOIA positions.

b. Was the lack of a reduction in the request backlog caused by a loss of staff?

Yes, in part. Nine of the 31 dedicated FOIA positions were vacant most of Fiscal Year 2012. Two positions were backfilled by internal selection in September 2012.

c. Was the lack of a reduction in the request backlog caused by an increase in the complexity of the requests received?

No, the lack of a reduction in the request backlog was not caused by an increase in the complexity of the requests received. Over 95% of the requests EEOC receives each year seek disclosure of employment discrimination charge files. The agency records contained in these files is routine investigative records.

d. What other causes, if any, contributed to the lack of a decrease in the request backlog?

We are not aware of any other contributing causes to the lack of a decrease in the request backlog.

Administrative Appeal Backlog:

a. Was the lack of a reduction in the backlog of administrative appeals a result of an increase in the number of incoming appeals?
b. Was the lack of a reduction in the appeal backlog caused by a loss of staff?
c. Was the lack of a reduction in the appeal backlog caused by an increase in the complexity of the appeals received?
d. What other causes, if any, contributed to the lack of a decrease in the appeal backlog?

4. OIP has issued guidanceencouraging agencies to make interim releases whenever they are working on requests that involve a voluminous amount of material or require searches in multiple locations. By providing rolling releases to requesters, agencies facilitate access to the requested information. If your agency had a backlog in Fiscal Year 2012, please provide an estimate of the number of cases in the backlog where a substantive, interim response was provided during the fiscal year, even though the request was not finally closed.

The EEOC had eight rolling disclosures; four at Headquarters and four in our Chicago District Office. The rolling disclosures released substantive, interim responses to these requesters during the fiscal year.

Use of FOIA's Law Enforcement "Exclusions"

In order to increase transparency regarding the use of the FOIA's statutory law enforcement exclusions, which authorize agencies under certain exceptional circumstances to "treat the records as not subject to the requirements of [the FOIA]," 5 U.S.C. § 552(c)(1), (2), (3), please answer the following questions:

1. Did your agency invoke a statutory exclusion during Fiscal Year 2012?

No.

2. If so, what was the total number of times exclusions were invoked?

Spotlight on Success

Out of all the activities undertaken by your agency since March 2012 to increase transparency and improve FOIA administration, describe here 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.

In August and September of 2012, the Office of Legal Counsel brought backlogged FOIA requests from field FOIA components into Headquarters for processing. OLC was able to enlist the services of several of its appeal attorneys to assist in processing the backlogged FOIA requests. This assistance enabled EEOC to process over 60 requests before the end of the fiscal year, reducing the end of year backlog.

We are also exploring the feasibility of FOIA appeal attorneys providing FOIA training on their visits to District Offices to provide substantive legal training or ethics training, as a cost-saving method.