Freedom of Information

Sometimes an agency will reply on appeal with new or additional bases to deny access to a record or deny some other right under FOIA. This can be extremely unfair because you may have had no notice or opportunity to address these additional bases when writing an appeal and the agency is now claiming you can appeal no further.

An adverse decision at the administrative appeal stage is generally final and can be appealed no further at the agency level. Such decisions can, however, be challenged in court. Before filing a lawsuit, courts generally require that you “exhaust” your administrative remedies on any issue you want the court to resolve.

Your appeal letter is your argument so it should be thorough and persuasive.

Almost any denial of a right under federal FOIA can be appealed at the administrative level. For example, you can appeal the denial of: (1) access to records, including partial denials; (2) fee waivers, media fee benefits or excessive fee estimates; (3) expedited processing; (4) record format requests; (5) the adequacy of a records search and “no records” responses; and (6) undue delay in responding to you request.

Administrative appeals are often the next step in the FOIA process when you are denied some benefit or record under the federal Freedom of Information Act. It is the process by which you ask the agency itself to reconsider its position. It is not the equivalent of a federal lawsuit and no judge is involved in deciding the merits of your administrative appeal. Agency personnel (often more senior officials and attorneys) will review the initial decisions made by FOIA processing and review staff and determine whether to uphold or reverse that decision.

“…could reasonably be expected to endanger the life or physical safety of any individual.”

“. . .

“could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private insti

The government sometimes takes the position that even acknowledging that someone was involved in or the target of a criminal investigation would be a privacy violation. Courts have in some occasions sanctioned the practice of providing a “Glomar” response in such situations.

If you receive a Glomar response under Exemption 7(C) that refuses to confirm or deny the existence of records, you may attempt to overcome it by asserting an overriding public interest, such as those described above.