Appeals and Enforcement

Type:

ESSAY

There are several types of records request denials. First, there is a substantive denial, where you are denied access to the actual records, generally because the government has determined an exemption to mandatory disclosure applies to some or all of the materials requested.

Another kind of denial is when the government responds to the request by saying it has no records that are responsive to the request. The appeal under these circumstances would be based on the contention that the agency failed to conduct an adequate search for the records.

The federal or state agency's failure to find records responsive to the request does not necessarily mean they failed conduct an adequate search. Agencies must show that the search conducted was reasonable under the circumstances, not that it was perfect or that all possible records were recovered. To determine whether a search was adequate, it's important to ask where the agency looked. Courts will consider the location of searches and the cost of a search. The requirement is only that the agencies look in places where it is reasonable to believe records will be recovered. Courts will not require an agency to conduct an expensive search when there is little likelihood of finding responsive records.

Third, many jurisdictions treat excessive delays in responding to a request – under federal FOIA, more than 20 days without a response or a request for more time – as a constructive denial, though you are probably not well-served by filing a lawsuit immediately after the 20 days have passed, given that this 20-day deadline is rarely met. If the deadline has passed, it would be preferable to either contact the FOIA officer at the agency or the Office of Government Information Services who can check on the status of your request. And finally, earlier in the request process, you may be denied your application for a fee waiver or an expedited review request.

All these denials may be appealed, even partial denials. Appeals can be filed with the agency and often with an ombudsman office or attorney general. Requesters also have the option of bringing suit against the agency in the appropriate court.

Appeal Letter

Any appeal filed with an agency will take the form of an appeal letter. Filing an appeal imposes a legal duty on the agency to reevaluate your request. The deadline to file an appeal with an agency varies depending on agency regulation. For example, the Department of Justice requires an appeal to be filed within 60 days of the date of denial and the Department of Health and Human Services requires an appeal within 30 days of receipt of the denial or partial response. Make sure you check your denial letter or the agency regulations to ensure you do not miss your deadline to appeal.

When denied a fee waiver, expedited review request or if you have received a substantive denial, your appeal letter may include both the public interest and legal arguments in favor of disclosure and in opposition of the agency’s use of an exemption. For example, when appealing a fee waiver denial, you should argue why your request is in the public interest and why the exemption(s) cited by the agency were improperly applied. When arguing that your request is in the public interest, you should stress how the records will inform the public understanding of the operations and activities of the government.

See our section on Fees for more information on how to argue for a fee waiver and Exemptions for what types of records are properly withheld under the law to help draft your appeal.

An appeal letter can also be used when there has been no response to a request, resulting in denial as a result of an excessive delay.

If you need to file an appeal, our FOIA Letter Generator can help you draft the language needed to address your denial. Other example FOIA appeal letters can be found at the website for FOIA Advocates, and the National Freedom of Information Coalition. The Federal Trade Commission also has a sample letter you can look at, as well as the Centers for Medicare & Medicaid Services, a branch of the Department of Health and Human Services.

Filing an appeal letter with the agency can be successful and you never need to go to court. For example, after his initial request was denied both by the Securities and Exchange Commission and the federal district court, Colorado attorney Kevin Evans redrafted his records request to obtain more information concerning SEC employees that were disciplined for viewing pornography during work hours. That request was again denied; however, after filing an appeal letter with the agency, the SEC reconsidered its position and released to him the names of contractor companies and the location of SEC offices that employed the workers.

Administrative appeals are certainly not always going to be successful and often are not the last step in the FOIA process. That is why it is important to familiarize yourself with the other options available to you both at the federal level and in your individual state. Whether that be through an ombudsman agency, the attorney general's office or the court system.

Appeal to an Ombudsman or Attorney General

Many states and the federal government have an intermediary office or officer that handles records disputes. Created by the 2007 FOIA amendments, the federal government began operating Office of Government Information Services in 2009. OGIS does not have the authority to order an agency to cooperate and contacting OGIS does not take the place of filing an administrative appeal to the agency. OGIS serves as a free mediation office and a means to facilitate communication between requesters and government agencies.

Miriam Nisbet, director of OGIS, advised that you file an appeal first to create a record on the dispute. If you cannot wait for the records, going to court immediately after an initial denial is possible in many cases.

Many states provide an ombudsman office or the attorney general has to enforcement powers over the open records law. Whether these offices or officers have binding authority to enforce the act varies state to state. For example, Connecticut’s Freedom of Information Commission has had binding authority to resolve records disputes since 1975 and Illinois’ Public Access Counselor, a position within the state’s attorney general’s office, was granted binding authority when the state updated its records act in 2010. In Mississippi, however, the Ethics Commission may only offer advisory opinions in disputes.

An ombudsman office, even if it can only offer mediation or advisory opinions, can be a helpful and productive avenue for requesters to pursue before resorting to court action, which can be costly. Ombudsman services can offer expert advice and often can aid a requester in refining a request to resolve confusion or facilitate communication with an unresponsive agency.

For more information on available ombudsman services in your state, you may consult this chart, or, for more detail, read The Open Records appeal process: State-to-state, where do you go? Also, check out our State Open Government Guide to see what the law is in [your state] in regards to an intermediary agency to help resolve records disputes.

Lawsuits

If your appeal to an agency or ombudsman office is denied, you may choose to continue to pursue your request, is to file suit in an appropriate court, though you may file suit without ever using the available ombudsman services available. You may also pursue a lawsuit, in some jurisdictions, without first filing an administrative appeal. Federal FOIA requires you to exhaust all administrative remedies before filing a lawsuit. Here’s an example of a FOIA complaint for federal court.

Once a complaint is filed, the government, generally, has the burden to justify nondisclosure, which generally requires specificity rather than bare assertions that a record is exempt.

The cost of going to court can seem prohibitive, and it often does deter requesters from bringing their cases to court. However, many states and the federal government will award attorney’s fees and litigation costs to requesters if they are deemed to have prevailed in court action. Under federal law, even if an agency voluntarily releases the documents prior to a court order, the requester may be deemed to have "prevailed” and can recover costs.

State laws regarding recoupment of litigation fees vary, with some states awarding fees in any kind of successful court action regarding a records dispute, like New Jersey, and others with a more discretionary based system where fees tend to rarely be awarded, like New York. [Check out our State Open Government Guide to see what the law is in [your state] in regards to awarding attorney’s fees and court costs in records disputes.]

Recent news articles from our website:

June 1, 2011

April 29, 2011 NJ court: High costs is denial of access; awards atty’s fees

March 30, 2011 New website tracks federal FOIA lawsuits

March 18, 2011 OGIS issues first year report

March 10, 2011 SEC OKs requests for contractor porn-viewing data

March 4, 2011 Ill. Public Access Counselor: names of gun owners public

February 17, 2011 Pa. court orders addresses of 911 calls must be released

February 2, 2011 Study: municipal clerks confused about records laws

October 21, 2010 Budget, interagency issues limit influence of OGIS

October 18, 2010 N.Y. county to pay civil liberty union’s attorney’s fees

October 7, 2010 Journalists receives government records after 7 years