When responding to a Freedom of Information Act request, sometimes agencies provide unsatisfactory or untimely responses.Â In such cases, start by evaluating the basis of the denial and then move toward making an appeal of the agency determination.
Here are some of the more common roadblocks that pop up:
- Your requested materials were entirely or partially withheld. This may be due to FOIA exemptions.
- The requested documents were not found. If you are confident that the records exist, the agency may not have conducted a thorough enough search.
- The production fees are unreasonable. There is often a fee for reproducing records and occasionally for staff time; however, these fees should not be excessive.
- A response to your FOIA request has not been received for 20 days. Agencies are allowed to request up to 30 days for large or complicated requests, but advance notice must be given.
- Any other adverse determination, such as fulfilling a request for a fee waiver.
Submitting an Appeal
If you are dissatisfied with the outcome of your FOIA request, you must submit an administrative appeal to the contact listed on the response you received from the government agency.Â In the event that you did not receive a response in a timely manner, the appeal should be sent to the head FOIA contact at the agency (click here for the US Department of Justice’s list of each US agency’s principal FOIA contact).
Before sending an appeal letter, you may want to consider the following:
- If the response time is slow, call the agency or use the request’s tracking number to verify whether a response is being prepared.Â If so, it may be best to wait for the agency to complete the request.Â Some agencies have FOIA response times that average much longer than 20 days due to a backlog of requests.
- If documents were withheld, it may be advantageous to call the FOIA officer at the agency to negotiate the release of the requested records.Â Suggesting slight changes to the original request (such as redactions or a more narrow scope) may persuade the agency to fulfill it.
If an appeal letter is still necessary, request a reconsideration of your original request and explain why the denial was unacceptable.Â Attach all correspondence with the agency to the letter, and mail it within 30 days of the initial denial.
Filing a Lawsuit
If your FOIA appeal is also denied or there is no response from the agency, FOIA lawsuits may be filed in the US District Court nearest you, the agency or in Washington, D.C.Â This can be done up to six years after the denial, but should be done as soon as possible.Â A lawyer is not required to submit a FOIA Complaint to the court, and filing fees are relatively inexpensive.
Once the government responds to the Complaint, it will be apparent how difficult the case will be and whether it will be worthwhile to pursue the case by hiring an attorney.Â Should you win your case, the denying agency will be required to pay for any court and attorney fees.
Successful FOIA Lawsuits
The appeals process can be lengthy, but it may ultimately lead to the release of the desired documents.Â The Reporters Committee for Freedom of the Press lists some FOIA appeals that have been settled in the Supreme Court.
Sample Templates are Available Online
The Reporters Committee for Freedom of the Press has more detailed information and tips related to submitting FOIA appeals and filing lawsuits.Â They also provide sample templates for FOIA appeal letters and FOIA Complaints to help guide those unfamiliar with the process.