What Can I Appeal?

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. In cases of undue delay you will obviously not receive an official denial letter, but you can technically make such an appeal once the 20-day response deadline under FOIA has passed.  

The federal FOIA explicitly provides that agencies must notify requesters of their right to administratively appeal a denial.² In a denial letter, the agency should provide you with the contact information of the individual or office within the agency that handles FOIA appeals as well as information regarding appeal deadlines, submission methods and any other special instructions. It is important that you closely follow any appeal instructions as they can be strictly enforced and failure to do so may result in your appeal not being considered.

For example, an agency may not consider your appeal if you miss the submission deadline (which often varies from 30 to 60 days from the date of the denial). Agencies can often be very strict about deadlines, even rejecting appeals because they were not received by the agency by the appeals deadline (as often required by regulation) rather than simply being postmarked by the deadline.    

For issues such as fee waivers and expedited processing denials, agencies will often inform you of such determinations before releasing (or withholding) the records subject to the request. These issues can be appealed right away regardless of whether the agency has made any final determination on whether to release records to you.  

If an agency fails to provide all the required information on how to file an appeal in its denial letter, you should contact the agency’s FOIA Public Liaison Officer or call the Reporters Committee if you have questions. In any event, it is always a good idea to review the relevant agency’s FOIA regulations as they will provide explicit instructions on the specifics of FOIA appeals within the agency. FOIA regulations are usually made available through an agency’s FOIA homepage, much like how the U.S. Deparment of Labor has done here. If you are having trouble locating them, call the Reporters Committee.

² See id. at § 552(a)(6)(A)(i).