Appealing an initial denial

If your request is wholly or partially denied, you have the right to appeal to the head of the agency in what is called an administrative appeal. 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 matters that could effectively interfere with your ability to receive records.

Even if your request is only partially denied, you may want to 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 you were charged are too high. A FOIA appeal can be filed by a simple letter. See the Sample FOIA Appeal Letter.

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 cases involving 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 such circumstances exist.)

Certain agencies regularly fail to meet the Act’s time requirements. For example, the FBI and the Department of Homeland Security have an average processing rate of one year, although many requests have lingered for several years at both agencies and others. 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.17 Unless you believe that is not the case, it may be best to wait for the agency to complete the processing of your request — especially because of the 2007 provision precluding the agencies from charging fees in these cases. However, it is wise to keep in touch with the agency while your request is pending so the agency will not think you have lost interest in the documents. You can also track your request on your own, either online or over the phone, by using the tracking number the agency is required to provide you. Agencies must log the date on which they received the request and the estimated date they will complete action on the request, and link that to the tracking number.

Before making a formal appeal, it is often helpful to call the agency’s FOIA 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 some information the agency considers particularly sensitive to be redacted, you may be able to persuade the FOIA officer to give you most of the documents you originally wanted.

If your negotiations are unsuccessful, 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, even though agencies generally permit a longer time to appeal. In some cases, appeals are reviewed by agency personnel better trained in FOIA matters than the employee who initially denied your request. Regardless, making a written appeal imposes a legal duty on the agency to re-evaluate your request and establishes your right to bring a FOIA lawsuit if your appeal is denied.

Your appeal can be made in 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 processing. 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 “FOIA 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, journalists can contact the Reporters Committee’s FOIA attorneys 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 FOIA Appeal Letter.

17 Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976).