New Issues/Exemptions Raised on Appeal

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.

In such situations, you should argue in a follow-up appeal that you had no opportunity to adequately address the new claims and that in the interest of fairness, the appeals officer should exercise his discretion to re-open the appeal and allow you to present any new arguments.

OGIS may be able to help resolve these kinds of disputes. If you ultimately decide to file a lawsuit, you will have the opportunity to address any additional reasons for denying your request. In fact, courts review FOIA disputes “de novo,” which means “from the beginning.” Courts are not generally supposed to give deference to the agency’s prior decision. Both you and the agency are allowed to raise any and all arguments in favor of disclosure or withholding, even new arguments not addressed at all in the administrative appeals stage. Because of this, a lawyer with knowledge of FOIA could prove useful to you.