What Happens Next?

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. Therefore, if you are challenging an administrative appeal denial of a fee waiver, a court would not, for example, reach the issue of whether the records requested actually are required to be disclosed under FOIA if that issue was not previously the subject of an administrative appeal.

One notable exception to the “exhaustion” rule is that you generally do not have to exhaust your administrative remedies when the agency simply fails to respond to a FOIA request within the statutorily mandated 20-day timeframe. However, a court may be inclined to withhold ruling on the matter if it feels the controversy could possibly be settled if the agency were granted additional response time (especially if you filed a lawsuit immediately after the 20-day deadline expired). On the other hand, filing suit soon after the 20-day deadline may be a preferred strategy if it will take several months or even years to process the request or you have reason to believe the agency is deliberately stonewalling and otherwise not acting in good faith.

If you are considering filing a lawsuit, it is recommended that you speak with an attorney first as the process can be complex and time consuming to those unfamiliar with, for example, court procedures, jurisdictional issues, substantive FOIA law and general litigation strategies. However, journalists have sometimes had success representing themselves in “pro se” lawsuits. A sample FOIA complaint template is available on our website if you are considering filing a pro se lawsuit.

Additionally, you may consider contacting the Office of Government Information Services and utilizing its FOIA dispute resolution services. OGIS also recommends that you go through the administrative appeals process before seeking its help. More information about OGIS can be found here.