Administrative Appeals

Introduction
Unfortunately, for various reasons, federal agencies at times fail to adhere to FOIA’s disclosure requirements either procedurally or substantively. When this occurs, requesters can appeal adverse decisions to higher authorities within an agency and often must in order to enforce their rights.

An administrative appeal is the process by which requesters ask the agency itself to reconsider its position. It 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.

Timing of an administrative appeal
The timeframe within which an administrative appeal must be submitted by a requester is set by agency regulation. Research the applicable agency's regulations to determine when the appeal is due.

Most agencies, including DOJ, afford a requester 60 calendar days to submit an administrative appeal, though some are shorter.

What can be appealed?
Almost any denial of a right under federal FOIA can be appealed at the administrative level. For example, you 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 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. 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.

It is important to closely follow any appeal instructions as they can be strictly enforced and failure to do so may result in your appeal not being considered.

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.

Contents of an administrative appeal
An administrative appeal should be thorough and persuasive.

First, make clear that you are formally appealing the denial pursuant to FOIA and clearly designate the letter as a FOIA appeal. Provide a summary of your request and the response you received. Additionally, attach all relevant correspondence from the initial request letter to the final adverse determination that is of consequence. Be sure to provide current contact information and express a willingness to resolve the dispute. Also, make a demand that you expect a response within 20 days as required by law.

Next, you will present your policy and legal arguments establishing why you are entitled to what you requested. For specific help, see the sections in the FOIA Wiki that discuss your particular situation.

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. .

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, you may argue in a follow-up appeal that you had no opportunity to adequately address the new claims and that in the interest of fairness, the appeals officer should exercise his discretion to re-open the appeal and allow you to present any new arguments.

OGIS may be able to help resolve these kinds of disputes.

What happens after an administrative appeal?
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.

Sample administrative appeals

 * 11/6/2003 Cox newspapers appeal to the Department of Justice discussing Exemptions 2, 6 and 7(C).
 * 1/31/08 Des Moines Register appeal to the Board of Governors of the Federal Reserve System discussing Exemption 4.
 * 2/10/09 USA TODAY appeal to the Office of the Comptroller of the Currency discussing Exemptions 4, 5 and 8.
 * 3/23/10 USA TODAY appeal to FEMA discussing excessive delay/constructive denial.
 * 8/13/10 USA TODAY appeal to the Department of Justice discussing Exemptions 2, 7(D) and 7(E).
 * 3/7/11 USA TODAY appeal to the Department of Justice discussing Exemption 5, the duty to disclose releasable information and discretionary releases.
 * 4/1/11 Bloomberg appeal to FEMA discussing excessive delay/constructive denial.
 * 5/6/11 Bloomberg appeal to the Department of Health and Human Services discussing Exemption 4 and the duty to disclose releasable information.
 * 5/20/11 Bloomberg appeal to the Securities and Exchange Commission discussing Exemption 4 and the duty to disclose releasable information.
 * 6/30/11 Bloomberg appeal to the Department of Homeland Security discussing whether records constitute "agency records."
 * 9/9/11 Bloomberg appeal to the Federal Trade Commission discussing Exemption 5, the duty to disclose releasable information and excessive delay/constructive denial.
 * 4/17/12 Reporters Committee appeal to the Department of Agriculture discussing fee waivers.
 * 5/1/12 USA TODAY appeal to the Department of Justice discussing Exemptions 6 and 7(C).
 * 5/4/12 Reporters Committee appeal to the Secret Service discussing expedited review..