If your request is wholly or partially denied, you have the right to appeal to the head of the agency. You may also appeal the delay of a response, the failure of the agency to conduct an adequate search, a prohibitively high fee levy, or other matter that could effectively interfere with your ability to receive records.

Even if your request is only partially denied, we suggest that you take the documents you are offered and appeal the rest. You also have the right to appeal if your request was granted but you think the fees charged are too high. An FOI Act appeal can be filed by a simple letter. See Sample FOI Act Appeal Letter, Appendix B.

If 20 business days have elapsed since the date your request should have been received, and you still have not received a reply from the agency, you also have the right to appeal. (An additional 10 days may be available to the agency in “unusual circumstances,” which are defined as voluminous requests or requests requiring a search of field files or consultation between components of an agency. The agency must notify you in advance of the expected delay if these unusual circumstances exist.)

Certain agencies regularly fail to meet the Act’s time requirements. For example, the FBI has such a backlog of requests that it often takes six years to process a request. Other agencies where long delays may be anticipated include the State Department, the Justice Department and the CIA.

Because of the size of the backlogs, courts have been reluctant to strictly enforce the Act’s time limits so long as agencies are processing requests in a reasonable manner.¹⁶ Unless you have reason to believe an agency is acting unreasonably, it may be best to wait for the agency to complete the processing of your request. However, it is wise to keep in touch with the agency by phone or in writing while your request is pending so the agency will not think you have lost interest in the documents.

Before making a formal appeal, it is often helpful to call the agency FOI officer to try to negotiate for release of at least some of the documents that were denied. By agreeing to narrow the scope of your request or permitting deletion of some information the agency considers particularly sensitive, you may be able to persuade the FOI officer to give you most of the documents you originally wanted.

If your negotiations are not successful, however, you should generally make a formal appeal. Appeals are made to the head of the agency involved (for example, the Attorney General or the Secretary of Defense). If possible, file your appeal within 30 days after the denial, although agencies generally permit a longer time to appeal. In some cases, appeals are reviewed by agency personnel better trained in FOI Act matters than the employee who initially denied your request. In any case, only by making a written appeal can you impose a legal duty on the agency to re-evaluate your request, and only by a written appeal can you establish your right to bring an FOI Act lawsuit if your appeal is denied.

Your appeal can be a brief letter to the agency administrator asking that he or she review your previous request and denial and stating your belief that the denial was improper. Attach copies of any correspondence. If the agency cited one or more exemptions as the reason for denying your request, consider arguing in your appeal that the requested documents do not fall within those exemption categories and, even if they do, that the public would benefit from release of the information. You may also want to state your intent to take your case to court if the denial is upheld.

You may also make appeals relating to the agency’s handling of your request. For instance, you can appeal the failure to grant fee benefits or waivers, or the denial of a request for expedited review. If you feel that the agency has not adequately searched for the records you request, you may appeal.

Again, keep a photocopy of your appeal letter, mark the outside of the envelope “FOI Appeal,” and consider sending the appeal letter by registered mail, return receipt requested.

You may also want to include some legal or practical arguments in your appeal letter. For assistance in framing these arguments, you can contact The FOI Service Center for cost-free help, or consult a private attorney. Generally, however, an appeal letter will be sufficient if it contains the elements included in the Sample FOI Act Appeal Letter, Appendix B.

Next section: How to file your FOI Act lawsuit