How to Appeal a FOIA Denial and Use OGIS Mediation

What counts as a FOIA denial you can appeal

An appeal is a written request to the agency's designated appeal authority. It asks the agency to review the initial decision on your request ^[1]. You file it with the agency, not with a court.

You can appeal when the agency cites a FOIA exemption. You can appeal when it says it has no responsive records. You can also appeal when it says it cannot confirm or deny that records exist ^[2].

OGIS calls the appeal an important part of the FOIA process ^[2]. Filing one preserves your administrative rights ^[2]. It also gives the agency a chance to look at your request anew and reconsider every part of its first response ^[2].

Before you appeal: talk to the agency

A denial is not always the last word. The FOIA says the agency's notice must tell you that you can seek dispute resolution from its FOIA Public Liaison or from the Office of Government Information Services (OGIS) ^[3].

OGIS says that in its experience it is often most efficient to contact the agency directly before asking OGIS for help ^[4]. Start with a short call or email to the FOIA Public Liaison. Ask what the agency needs to reconsider.

Do not let that conversation eat your deadline. A journalist quoted by the Reporters Committee warns that many appeal windows are short ^[5].

How do you find the deadline and the appeal office?

Your denial letter is the first place to look. OGIS says an agency's final response letter should say where to send the appeal and give the time limit ^[2].

The details are agency-specific. Confirm them with the agency before you file ^[2].

The FOIA sets a floor for the deadline. The agency must tell you of your right to appeal to the head of the agency. The window is set by the agency head and cannot be less than 90 days after the adverse determination ^[3].

The Justice Department's template for agency regulations suggests 90 calendar days from the date of the response ^[6]. Your agency's own regulations and letter control the actual deadline ^[6].

Note the deadline the day the letter arrives. Check for responses promptly ^[5].

The denial notice must also name the people responsible for the denial, with their titles or positions ^[3]. Copy those details into your file.

Step by step: how to write and send a FOIA appeal

FOIA.gov says an appeal typically needs only a letter or email to the agency's designated appeal authority ^[1]. The letter states that you are appealing the initial decision ^[1].

Video from The Justice Department (official YouTube channel; hosted on FOIA.gov). Open at youtube.com. Content from youtube.com loads only if you click.

Follow these steps.

1. Read the denial letter. Find the appeal office, the deadline, the request number, and the date of the letter ^[2].
2. Confirm the appeal address and deadline with the agency. Procedures differ by agency ^[2].
3. Read the statute, regulation, or court decision the agency cites. Do it yourself rather than relying on the agency's summary ^[5].
4. Address your appeal to the agency's designated appeal authority ^[1].
5. State that you are appealing the agency's release determination. Reference the agency's FOIA request number and the date of its correspondence ^[2].
6. Say which parts of the response you challenge and why. Keep it short and specific ^[1].
7. Send it before the deadline. Keep copies of your request, the agency's response, and your appeal. You will have materials ready if you later ask OGIS for help ^[7].

The sample letter below is written for one agency. Swap in your own agency's appeal office before you send anything. Appeal procedures are agency-specific ^[2].

Document · Centers for Medicare & Medicaid Services (CMS.gov)

Sample Freedom of Information Act Appeal Letter (CMS)

Open at cms.gov

Document from Centers for Medicare & Medicaid Services (CMS.gov). Open at cms.gov. Content from cms.gov loads only if you click.

What should you argue in the appeal?

Match your argument to the reason for the denial. Do not argue everything at once.

If the agency cites an exemption, check whether it explained the harm. The FOIA lets an agency withhold information only if it reasonably foresees that disclosure would harm an interest protected by an exemption, or if another law prohibits disclosure ^[3].

If the agency withheld a whole record, ask about the parts that could be released. The FOIA requires agencies to take reasonable steps to segregate and release nonexempt information ^[3].

If the agency says it found no records, you can appeal that too ^[2]. Say why you think records should exist.

If the agency cites a law, read that law. A ProPublica reporter quoted by the Reporters Committee advises reading the statute, regulation, or court decision the agency cites for yourself ^[5].

What happens after you appeal?

The FOIA directs agencies to decide an appeal within twenty working days after receiving it ^[3]. Weekends and legal public holidays do not count toward that total ^[3].

According to OGIS, the appeals office may affirm the initial response in full, or it may reverse or modify it ^[2].

If the agency upholds its denial in whole or in part, it must notify you of the provisions for judicial review ^[3]. Read that notice closely.

How does OGIS mediation work?

OGIS is the Office of Government Information Services. Congress wrote into the FOIA that OGIS offers mediation to resolve disputes between requesters and agencies as a nonexclusive alternative to litigation ^[3].

OGIS is not a court and not an appeal. Participation is voluntary, and OGIS has no binding authority, so it cannot order an agency to change its decision ^[4].

OGIS also says it does not replace the FOIA administrative appeals process ^[4]. Its assistance does not replace your appeal ^[2].

OGIS's assistance does not replace the appeal, so don't skip the appeal; OGIS also says that, in its experience, contacting the agency directly is often most efficient before seeking OGIS assistance ^[4]. You can ask OGIS for help by email at ogis@nara.gov, with your materials as PDF attachments. You can also mail them to 8601 Adelphi Rd Room 3600, College Park, MD 20740-6001 ^[7].

Contact the agency before you go to OGIS. ^[4]

What if the appeal fails or the agency stalls?

The Justice Department's template regulation says that before you seek court review of an adverse determination, you generally must first submit a timely administrative appeal ^[6]. That is why a missed appeal deadline can cost you options ^[6].

Delay is covered too. Under the statute, you are deemed to have exhausted your administrative remedies if the agency fails to comply with the applicable FOIA time limits ^[3].

If a dispute reaches a federal district court, the statute says the court determines the matter de novo ^[3].

Court review is a separate step beyond the agency appeal. Consider talking to a lawyer before you file suit ^[6]. This guide is general information, not legal advice. Federal rules and agency rules both matter here, so check your agency's regulations ^[2].

Tips from working journalists and mistakes to avoid

Read what the agency cites. Do it before you write a word of your appeal ^[5].

Watch the clock. Many appeal windows are short ^[5].

For more on the request side of the process, watch the video below.

Avoid these mistakes:

• Going to OGIS and skipping the appeal. OGIS says its assistance does not replace the appeal ^[2].
• Sending the appeal to the wrong office. Appeal details are agency-specific ^[2].
• Missing the deadline. Your agency's letter and regulations control it ^[6].
• Leaving out the request number or the date of the response. OGIS advises you to reference both ^[2].

If that is you, see how a press credential can document your work. It does not give you legal rights or access to records.

Keep copies of your request, the agency's response, and your appeal. Those copies give you materials to send OGIS if you ask for help ^[7]. If you want a community of independent reporters behind your work, you can join the National Press Association.