A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT
AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS
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H. ADMINISTRATIVE APPEAL PROCEDURES
Whenever a FOIA request is denied, the agency must inform the requester of the reasons for the denial and the requester's right to appeal the denial to the head of the agency. A requester may appeal the denial of a request for a document or for a fee waiver. A requester may contest the type or amount of fees that were charged. A requester may appeal any other type of adverse determination, including a rejection of a request for failure to describe adequately the documents being requested or a response indicating that no requested records were located. A requester can also appeal because the agency failed to conduct an adequate search for the documents that were requested.
A person whose request was granted in part and denied in part may appeal the part that was denied. If an agency has agreed to disclose some but not all requested documents, the filing of an appeal does not affect the release of the documents that are disclosable. There is no risk to the requester in filing an appeal.
The appeal to the head of the agency is a simple administrative appeal. A lawyer can be helpful, but no one needs a lawyer to file an appeal. Anyone who can write a letter can file an appeal. Appeals to the head of the agency often result in the disclosure of some records that had been withheld. A requester who is not convinced that the agency's initial decision is correct should appeal. There is no charge for filing an administrative appeal. An appeal is filed by sending a letter to the head of the agency. The letter must identify the FOIA request that is being appealed. The envelope containing the letter of appeal should be marked in the lower left hand corner with the words ``Freedom of Information Act Appeal.'' \29\
Many agencies assign a number to all FOIA requests that are received. The number should be included in the appeal letter, along with the name and address of the requester. It is a common practice to include a copy of the agency's initial decision letter as part of the appeal, but this is not ordinarily required. It can also be helpful for the requester to include a telephone number in the appeal letter.
An appeal will normally include the requester's arguments supporting disclosure of the documents. A requester may include any facts or any arguments supporting the case for reversing the initial decision. However, an appeal letter does not have to contain any arguments at all. It is sufficient to state that the agency's initial decision is being appealed. Appendix 1 includes a sample appeal letter.
The FOIA does not set a time limit for filing an administrative appeal of a FOIA denial. However, it is good practice to file an appeal promptly. Some agency regulations establish a time limit for filing an administrative appeal. A requester whose appeal is rejected by an agency because it is too late may refile the original FOIA request and start the process again.
A requester who delays filing an appeal runs the risk that the documents could be destroyed. However, as long as an agency is considering a request or an appeal, the agency must preserve the documents.
An agency is required to make a decision on an appeal within 20 days (excluding Saturdays, Sundays, and legal holidays). It is possible for an agency to extend the time limits by an additional 10 days. Once the time period has elapsed, a requester may consider that the appeal has been denied and may proceed with a judicial appeal. However, unless there is an urgent need for records, this may not be the best course of action. The courts are not sympathetic to appeals based solely on an agency's failure to comply with the FOIA's time limits.
\29\ Agency FOIA regulations will ordinarily describe the appeal procedures and requirements with more specificity. At most agencies, decisions on FOIA appeals have been delegated to other agency officials. Requesters who have an opportunity to review agency regulations in the Code of Federal Regulations (available in many libraries and on the Office of the Federal Register website provided at note 20) may be able to speed up the processing of the appeal. However, following the simple procedures described in this Guide will be sufficient to maintain a proper appeal.