Administrative Appeals
Introduction
Federal agencies at times fail to adhere to FOIA’s requirements, either procedurally or substantively. When this occurs, requesters can appeal adverse decisions to higher authorities within an agency. An administrative appeal is the process by which requesters ask the agency itself to reconsider its position. In most instances, a requester is required to file an administrative appeal before pursuing legal action if they have received an adverse determination from the agency.
An administrative appeal is not the equivalent of a federal lawsuit and no judge is involved in deciding the merits of an administrative appeal. Agency personnel (often more senior officials and attorneys) will review the initial decisions made by FOIA processing and review staff and determine whether to uphold or reverse that decision.
What can be appealed?
Almost any denial of a right under federal FOIA can be appealed at the administrative level. For example, a requester can appeal the denial of:
- access to records, including partial denials;
- fee waivers, media fee benefits or excessive fee estimates;
- expedited processing;
- record format requests;
- the adequacy of a records search and “no records” responses; and
- undue delay in responding to a request.
The federal FOIA explicitly provides that agencies must notify requesters of their right to administratively appeal a denial.[1] In a denial letter, the agency should provide 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. If an agency fails to provide all the required information on how to file an appeal in its denial letter, contact the agency’s FOIA Public Liaison Officer.
Timing of an administrative appeal
The timeframe within which an administrative appeal must be submitted by a requester is set by agency regulation. Most agencies afford 90 calendar days, but a requester should research the applicable agency's FOIA regulations to determine when the appeal is due.
The FOIA Improvement Act of 2016 requires agencies to afford requesters no less than 90 days to submit an administrative appeal from the date of an "adverse determination."[2]
Contents of an administrative appeal
An administrative appeal should be thorough and persuasive.
First, the requester should make clear that they are formally appealing the denial pursuant to FOIA and clearly designate the letter as a FOIA appeal. It is helpful to provide a summary of the request and the response received. As a best practice, the requester should attach all relevant correspondence to the administrative appeal, including at least the initial request letter and the final communication/adverse determination preceding the appeal.
Next, the requester can present legal and policy arguments as to why they are entitled to the requested records. Crafting an argument based on to the law and cases addressing the issue(s) raised in the administrative appeal are generally the most likely to be persuasive. The FOIA Wiki has pages on most issues that would be addressed in an administrative appeal, and sample administrative appeals are linked in the section below.
Timing of the agency response to an administrative appeal
An agency is required by law to respond to an administrative appeal within 20 business days.[3]
New issues raised by the agency in responding to an administrative 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. In such situations, the requester may argue in a follow-up appeal that they had no opportunity to adequately address the new claims, and that in the interest of fairness the appeals officer should exercise their discretion to re-open the appeal. OGIS may also be able to help resolve these kinds of disputes.
What happens after an administrative appeal?
An adverse decision in response to an administrative appeal is generally final and can be appealed no further at the agency level. Such decisions can, however, be challenged in court. See the Litigation page for more information about judicial review of FOIA requests.
Sample administrative appeals
| Date | Requester | Agency | Primary Issue(s) | Link to appeal |
|---|---|---|---|---|
| 2/10/2009 | USA TODAY | Office of the Comptroller of the Currency | Exemptions (4, 5, 8) | appeal |
| 3/23/2010 | USA TODAY | FEMA | Delay/Constructive Denial | Appeal |
| 4/1/2011 | Bloomberg | FEMA | Delay/Constructive Denial | Appeal |
| 3/17/2011 | USA Today | DOJ | Exemptions (5) | Appeal |
| 6/6/2017 | RCFP | CBP | Delay/Constructive Denial | Appeal |
Recent district court opinions on administrative appeals
Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.
See Also
External Links
References
- ↑ See 5 U.S.C. § 552(a)(6)(A)(i)
- ↑ https://www.congress.gov/bill/114th-congress/senate-bill/337/text
- ↑ 5 U.S.C. 552(a)(6)(A)(ii)