Administrative Appeals

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The FOIA Process

Making a FOIA Request

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Pre-determination communications

Pre-determination agency actions

Determinations

Releasing Records

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Administrative Appeals and/or OGIS

Litigation

Introduction

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.

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.

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. Research the applicable agency's regulations to determine when the appeal is due. However, 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 well as attaching all relevant correspondence from the initial request letter to the final adverse determination that is of consequence.

Next, the requester can present legal and policy arguments as to why they are entitled to the requested records. 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.[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 his discretion to re-open the appeal and allow you to present any new arguments. OGIS may also 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. See the Litigation entry for more information about judicial review of FOIA requests.

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. .

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

  1. See 5 U.S.C. § 552(a)(6)(A)(i)
  2. https://www.congress.gov/bill/114th-congress/senate-bill/337/text
  3. 5 U.S.C. 552(a)(6)(A)(ii)