How to make a FOIA Appeal
FOIA APPEALS
What do you do when, after all of your best efforts and after you've exhausted all of your administrative options, yet the agency refuses to release the information? You can then go to court. You may also contest the type or amount of fees which you were charged. Moreover, you can 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.
Reviewing courts should undertake their analysis of FOIA requests by "recognizing the enduring beliefs underlying freedom of information laws: that an informed public is desirable, that access to information prevents governmental abuse and helps secure freedom, and that, ultimately, government must answer to its citizens."
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 792 (3rd Cir. 1994).
You can also appeal because the agency failed to conduct an adequate search for the documents that you requested. The filing of an appeal does not affect or delay the release of documents which the agency ruled should be disclosed in response to your initial FOIA request. In other words, a partial "win" at the first administrative level is not put at risk if you decide to appeal. There is no charge for filing an appeal.
Practice Tips:
1. If the agency rules against you at the administrative level-on either disclosure or fee waiver issues-the agency is bound to adhere to the reasons it provides at that stage; it cannot raise new issues later if litigation is required. "Taken together, these principles lead us to the following conclusion: on judicial review, the agency must stand on whatever reasons for denial it gave in the administrative proceeding." Friends of the Coast Fork v. U.S. Dept. of the Interior, 110 F.3d 53, 55 (9th. Cir 1997). The practical impact of this requires you to understand very early in your request process if you have a reasonable chance to get the requested materials at the administrative level, or if you are merely going through the motions to exhaust your administrative remedies in order to get into court. If you are in the former context; go ahead and make your best argument. Try to work with the agency to best inform it of your needs and the correct application of the law to your request. If you are in the latter realm-for some reason you are sure that you are going to get hosed at the administrative level-it is important not to do anything to help the agency make its best arguments during the administrative phase. In this situation, you want the agency to ignore you, to make unreasonable and unlawful arguments; they will be stuck with them once you are in court. You will win.
2. An administrative appeal may be undertaken upon either, the denial of an initial FOIA request, or an agency's failure to issue a determination within the statutory 20-day time deadline. 5 U.S.C. §§ 552(a)(6)(A)(i), 552(a)(6)(C).
3. An appeal should outline all facts which you think are relevant to your request. Reviewing courts, while not limited to the record before the agency (except for fee waivers, for which they are limited to review on the administrative record), do tend to consider what a reasonable agency decisionmaker would do when confronted with the facts before it. In other words, if you fail to mention an important fact at the administrative level, it will work against you when raising it at the litigation stage. This is a frequent problem we encounter which can severely limit one's options in court.
4. Deadlines for the filing of an appeal are noted in each agency's FOIA regulations located in CFRs. They are often as short as 20 working days, so it is important to act promptly when a denial of your initial request is issued. Although, if you miss your appeal deadline you could always refile your another FOIA request, it would just add to the delay in reaching the ultimate resolution of your information request.
5. Appeals need not include reference to statutory, regulatory, or case law, but it helps. Even if you are not comfortable with legal research, simply citing the agency's rules which have been violated can make the appeal much more effective.
6. An agency is required to make a "determination" on the merits of a FOIA appeal within 20 working days of receipt. 5 U.S.C. § 552(a)(6)(A)(ii). The agency must "immediately notify the person making such request of the provisions for judicial review of that determination." Id.
1. An agency may unilaterally extend the response deadline by up to 10 working days in "unusual circumstances," but only upon giving written notice to the requester. 5 U.S.C. § 552(a)(6)(B)(i). This right may not be exercised if the agency has already exceeded its 10 day response deadline for the initial request. Id.
2. FOIA requires any denial of a request to list the "names and titles or positions of each person responsible for the denial." 5 U.S.C.§ 552(a)(6)(C).
7. Avoid impassioned prose ("you are killing all of the animals in the ocean, I must know why!"), it may make you feel better, but it will not convince the reviewer that you are right and may cloud the issues.
8. Remember that you are not only trying to convince the agency to release the requested materials, you are also creating a record for a judge to review should legal action be required. If you think of additional issues or arguments which have not been included in either the initial request or the appeal, draft a letter (not a phone call-you want a paper trail) which sets them out. Make a record for review, make a record for review, make a record for review.
"The Freedom of Information Act: 'a federal regulation obliging government agencies to release all information they had to anyone who made application for it, except information they had that they did not want to release.'"
Joseph Heller, "Closing Time" (1994).
