The Freedom of Information Act (FOIA) offers the public relatively expansive access to federal government records. (We won’t dive into FOIA’s reach here . . . maybe in another post.)
Here, we want to talk about something else: what to do when you don’t get the records you request. And the answer is: file a FOIA administrative appeal.
In responding to a FOIA request, a federal agency may refuse to provide certain records (or portions of records) for multiple reasons. It might claim that the records are protected by one of FOIA’s exemptions, such as classified information, trade secrets, or privileged communications. Or it might claim that certain records don’t exist (even though you know better).
If you disagree with any FOIA-related agency decision, the first avenue for challenge is an administrative appeal. These appeals consist of filing an appeal with the agency’s internal FOIA office. For example, if you received an adverse decision from a Department of the Interior office or bureau, you’d file your administrative appeal with DOI’s FOIA Appeal Office.
While each agency has its own rules and procedures, the process is typically straightforward and relatively uniform across agencies. We’ll use the General Services Administration’s process as an example.
Timing
A GSA FOIA requester has 90 calendar days (the time frame dictated by the FOIA statute) to appeal. So while you have time to consider an appeal, your appellate rights don’t last forever.
Contents of appeal
The appeal itself doesn’t require many elements. For GSA FOIA appeals, the appellant must include (1) the FOIA tracking number assigned to the original FOIA request, (2) the grounds for your disagreement with GSA’s adverse FOIA determination, and (3) a discussion of why GSA should release the records.
This last point is the most important. Articulating a valid argument to counter the agency’s initial decision may involve a complex discussion of the FOIA statute and case law developed by federal courts. Be sure to develop a robust argument that the agency’s decision was legally flawed.
Lastly, you should also attach your original FOIA request and the agency’s original response to your appeal.
Where to file
GSA has a designated email address (and mailing address, if you prefer ) for submitting your FOIA appeal. Most other agencies have a similar submission mechanism.
Agency deadline
GSA (or any other agency) has 20 business days to respond to a properly submitted appeal. Under some circumstances, GSA may extend this response period.
Federal court review
If, after an administrative appeal, the agency still refuses to produce the requested records, you may ask a federal court to review the agency’s withholding or other decision. But take note: you usually can’t jump directly to federal court without first going through an administrative appeal. In legal-speak, you must “exhaust the administrative remedies”–i.e., use all avenues at the agency legal–before asking for a court for judicial review.
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FOIA administrative appeals play an important role in obtaining requested records from the federal government. If you have any questions about, or need to pursue, a FOIA appeal, give us a call at 913-354-2630.