Fiscal Year 2024 Chief FOIA Officer Report

Section I:  FOIA Leadership and Applying the Presumption of Openness

A. Leadership Support for FOIA

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

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

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

   Carol R. Miaskoff, Legal Counsel. 

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

   The Chief FOIA Officer and/or the Assistant Legal Counsel for the FOIA Division conducted training for the EEOC’s Chairwoman and/or Commissioners.  The Assistant Legal Counsel for the FOIA Division provided training for non-FOIA staff is provided upon request. 

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

   Yes.

B. Presumption of Openness

5. In some circumstances, agencies may respond to a requester that it can neither confirm nor deny the existence of requested records if acknowledging the existence of records would harm an interest protected by a FOIA exemption. This is commonly referred to as a Glomar response. If your agency tracks Glomar responses, please provide:
   1. the number of times your agency issued a full or partial Glomar response (separate full and partial if possible); and/or
   2. the number of times a Glomar response was issued by exemption (e.g., Exemption 7(C) – 20 times, Exemption 1 – 5 times).

6. If your agency does not track the use of Glomar responses, are you planning to track this information in the future?

   Currently, the Commission’s FOIA processing and tracking system does not have the capability to track the use of Glomar responses. The Commission plans on including the ability to track Glomar responses as a requirement in its upcoming SOW and/or RFQ.

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

Section II:  Fair and Effective FOIA Administration

A. FOIA Training

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

   See response to question I.A.3. supra. In addition, FOIA professionals were provided with an annual Training in March 2023. Also, many FOIA professionals take some, most, or all of the virtual trainings provided by DOJ OIP.

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

   Yes.

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

   See responses to questions I.A.3. and II.A.1. supra. In addition, certain FOIA Division Headquarter staff, including the Assistant Legal Counsel for the FOIA Division, two Senior Attorney Advisors, and the Government Information Specialist Team Lead attended the June 2023 ASAP NTC in New Orleans, LA.

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

   100%.

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

   N/A

6. Describe any efforts your agency has undertaken to inform non-FOIA professionals of their obligations under the FOIA.  In particular, please describe how often and in what formats your agency provides FOIA training or briefings to non-FOIA staff; and if senior leaders at your agency received a briefing on your agency’s FOIA resources, obligations and expectations during the FOIA process?

   See response to question I.A.3. supra. 

B. Outreach

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

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

8. Outside of the standard request process or routine FOIA Liaison or FOIA Requester Service Center interactions, did your FOIA professionals engage in any outreach or dialogue, with the requester community or open government groups regarding your administrative of the FOIA? For example, did you proactively contact frequent requesters, host FOIA-related conference calls with open government groups, or provide FOIA training to members of the public? 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.

   The Assistant Legal Counsel for the FOIA Division, who is also the Commission’s FOIA Public Liaison, is a member of NARA’s FOIA Advisory Committee which is a group consisting of FOIA professionals across the federal government and members of the requester community. The Assistant Legal Counsel for the FOIA Division is also an ASAP board member whose mission is to foster awareness and providing training to both the requester community and federal FOIA staff.

9. The FOIA Improvement Act of 2016 requires additional notification to requesters about the services provided by the agency’s FOIA Public Liaison.  Please provide an estimate of the number of times requesters sought assistance from your agency’s FOIA Public Liaison during FY 2023 (please provide a total number or an estimate of the number for the agency overall). 

   EEOC estimates that the FOIA Public Liaison responded to a minimum of 141 requests for assistance. Additional support to the requester community was provided via the FOIA Requester Service Center (FRSC) line at least 37 times.

C. Other Initiatives

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

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

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

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

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

Section III: Proactive Disclosures

A. Posting Material

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

   In FY 23, as in previous years, over 90% of FOIA requests the Commission receives are for private-sector charge files. Due to the confidentiality provisions of Title VII §§ 706(b) and 709(e) the Commission “shall not make public charges which have been filed.” 29 C.F.R. §§ 1610.17(e), (f). Section 107 of the ADA and 207(a) of GINA explicitly adopt Title VII’s disclosure prohibition. 29 C.F.R. § 1610.17(i).   Because of these prohibitions, the Commission is prohibited from posting materials requested in the vast majority of its FOIA requests. 

2. How long after identifying a record for proactive disclosure does it take your agency to post it?

   See response to question III.A.1. supra. Because the “Rule of Three” proactive disclosure is rare given the Commission’s docket, there currently is not a metric that tracks how long from identification to posting.

3. Does your agency post logs of its FOIA requests?

   Yes. See https://www.eeoc.gov/foia/foia-logs. 

   1. If so, what information is contained in the logs?

      The Commission’s FOIA log contains the following columns: “FOIA #”, “Date Submitted”, “Summary of Request Description”, and “Final Disposition”.

   2. Are they posted in CSV format? If not, what format are they posted in?

      The Commission’s most recent FOIA log (FY2023) is in Excel format.

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

   See response to question III.A.1. supra. 

5. 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.

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

   Headquarters FOIA staff are in the process of converting prior fiscal year FOIA logs from PDF to Excel format.

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

   See response to question III.A.1. supra.

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

Section IV: Steps Taken to Greater Utilize Technology

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

   Yes.

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

   The Commission is exploring acquiring a FOIA processing system that allows staff to process video and audio recordings among other functionalities.

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

   Relativity.

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

   Yes.

5. Did all four of your agency's quarterly reports for Fiscal Year 2023 appear on your agency's website and on FOIA.gov?

   Yes.

6. If your agency did not successfully post all quarterly reports, with information appearing on FOIA.gov, please explain why and provide your agency’s plan for ensuring that such reporting is successful in Fiscal Year 2024. 

   N/A

7. The FOIA Improvement Act of 2016 requires all agencies to post the raw statistical data used to compile their Annual FOIA Reports. Please provide the link to this posting for your agency’s Fiscal Year 2022 Annual FOIA Report and, if available, for your agency’s Fiscal Year 2023 Annual FOIA Report. 

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

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

   Yes.

9. Optional -- Please describe:

   1. Best practices used in greater utilizing technology. 
   2. Any challenges your agency faces in this area.

   N/A

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

A. Remove Barriers to Access

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

   Yes.

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

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

3. Please describe any other steps your agency has taken to remove barriers to accessing government information.

   See response to question III.A.6. supra.

B. Timeliness

4. For Fiscal Year 2023, 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 2023 Annual FOIA Report.

   15.3875 days.

5. 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. 

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

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

   Yes.

7. If your agency uses a separate track for simple requests, according to Annual FOIA Report section VII.A, was the agency overall average number of days to process simple requests twenty working days or fewer in Fiscal Year 2023?

   Yes.

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

   N/A

9. Please provide the percentage of requests processed by your agency in Fiscal Year 2023 that were placed in your simple track. Please use the following calculation based on the data from your Annual FOIA Report: (processed simple requests from Section VII.C.1) divided by (requests processed from Section V.A.) x 100. 

   91.78%.

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

    N/A

C. Backlogs - Requests

11. If your agency had a backlog of requests at the close of Fiscal Year 2023, according to Annual FOIA Report Section XII.D.2, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2022?

    No.

12. If not, according to Annual FOIA Report Section XII.D.1, did your agency process more requests during Fiscal Year 2023 than it did during Fiscal Year 2022? 

    Yes.

13. If your agency’s request backlog increased during Fiscal Year 2023, 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).
    • Litigation

    • Any other reasons – please briefly describe or provide examples when possible.

      The Commission experienced an increase in the number of incoming requests during FY23. It also lost several FOIA staff members during this period. Also, Headquarters FOIA attorneys process FOIA requests and appeals, and the number of FOIA appeals increased by about 36% necessitating additional time from those attorneys to process those appeals. The complexity of requests has increased resulting in large production yields. In many instances FOIA staff must negotiate with requesters to substantially narrow the scope of the request with varying results depending on the requester. There has also been an increase in fee assessment and fee waiver issues that FOIA staff must analyze before production can begin. Finally, there were three (3) FOIA lawsuits opened against the Commission. Two require monthly interim production of a large volume of emails and/or calendar records.

      It should be noted, however, that the “backlog” reflected in the Annual Report means only that the Commission had a number of open and pending requests on the last day of the fiscal year. At any given time, the Commission, agency-wide, has several hundred open and pending requests. These requests are generally for charge files and are not usually aged over the statutory timeframes. The agency’s “backlog” as of September 30, 2023, as defined as requests aged beyond the statutory timeframes was 95. 

14. 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 2023. Please use the following calculation based on data from your Annual FOIA Report: (backlogged requests from Section XII.A) divided by (requests received from Section V.A) x 100. This number can be greater than 100%. If your agency has no request backlog, please answer with “N/A.”

    3.17659615.

D. Backlogs - Appeals

15. If your agency had a backlog of appeals at the close of Fiscal Year 2023, according to Section XII.E.2 of the Annual FOIA Report, did that backlog decrease as compared with the backlog reported at the end of Fiscal Year 2022?   

    Yes. The Commission’s appeal backlog decreased from 29 in 2022 to 9 in 2023.

16. If not, according to section XII.E.1 of the Annual FOIA Report, did your agency process more appeals during Fiscal Year 2023 than it did during Fiscal Year 2022?

    N/A.

17. If your agency’s appeal backlog increased during Fiscal Year 2023, 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).
• Litigation.
• Any other reasons – please briefly describe or provide examples when possible.

• 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 2023. Please use the following calculation based on data from your Annual FOIA Report: (backlogged appeals from Section XII.A) divided by (appeals received from Section VI.A) x 100.  This number can be greater than 100%.  If your agency did not receive any appeals in Fiscal Year 2023 and/or has no appeal backlog, please answer with "N/A."

  1.97368421%.

E. Backlog Reduction Plans

19. In the 2023 guidelines for Chief FOIA Officer Reports, any agency with a backlog of over 1,000 requests in Fiscal Year 2022 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 2023? 

    N/A

20. If your agency had a backlog of more than 1,000 requests in Fiscal Year 2023, please explain your agency’s plan to reduce this backlog during Fiscal Year 2024.

    N/A

F. 10 Oldest Requests

21. In Fiscal Year 2023, did your agency close the ten oldest pending perfected requests that were reported in Section VII.E. of your Fiscal Year 2022 Annual FOIA Report?

    No.

22. 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 2023 Annual FOIA Report.  If you had less than ten total oldest requests to close, please indicate that. 

    Four requests were closed.

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

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

G. 10 Oldest Appeals

24. In Fiscal Year 2023, did your agency close the ten oldest appeals that were reported pending in Section VI.C.5 of your Fiscal Year 2022 Annual FOIA Report?

    Yes.

25. If no, please provide the number of these appeals your agency was able to close by the end of the fiscal year, as listed in Section VI.C.(5) of your Fiscal Year 2023 Annual FOIA Report.  If you had less than ten total oldest appeals to close, please indicate that. 

    N/A

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

    N/A

H. 10 Oldest Consultations

27. In Fiscal Year 2023, did your agency close the ten oldest consultations that were reported pending in Section XII.C. of your Fiscal Year 2023 Annual FOIA Report?

    EEOC did not have any consultations in FY 2023.

28. 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 2022 Annual FOIA Report.  If you had less than ten total oldest consultations to close, please indicate that. 

    N/A

I. Additional Information on 10 Oldest

29. If your agency did not close its ten oldest pending requests, appeals, or consultations, please explain why and provide a plan describing how your agency intends to close those “ten oldest” requests, appeals, and consultations during Fiscal Year 2024.

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

J. Additional Information About FOIA Processing

30. Were any requests at your agency the subject of FOIA litigation during the reporting period? If so, please describe the impact on your agency’s overall FOIA request processing and backlog. If possible, please indicate:

    1. The number and nature of requests subject to litigation:

       Three.

    2. Common causes leading to litigation:

       Plaintiffs filed under a constructive denial theory despite the fact that the size of the yield of responsive records is in the tens of thousands making it a practical impossibility to fulfill fully within the statutory time period.

    3. Any other information to illustrate the impact of litigation on your overall FOIA administration.

       FOIA litigation document productions are processed by OLC’s FOIA Attorney advisors. Those same attorneys – only three total – also process FOIA requests as well as FOIA appeals arising from charge file FOIA requests processed by OFP. Thus, the litigation is limiting the bandwidth these FOIA attorney advisors can devote to their other duties.