You have several options if your FOIA request is denied in whole or in part. First, you can attempt to resolve informally any disputes you have with the responding agency. If informal resolution fails, you should appeal the denial within the relevant agency before taking any other action. If your appeal is unsuccessful and the agency withheld the information because it is classified, you can apply to have the information declassified. If these options have failed to resolve the dispute, you can seek mediation through the newly authorized FOIA ombudsman or file a lawsuit in court to enforce your rights under FOIA.
Each of these options is described briefly in this section.
The simplest -- and often most effective -- remedy is to seek informal resolution of the dispute. Delays are frequently due to the overworked nature of most FOIA officers. Your offer to "revise" or "narrow" the scope of your request can go a long way toward getting faster, and better, treatment of your request. If you revise your request, be sure to make clear that you willingness to compromise is not considered a "new" request by the agency (a new request will start the FOIA clock running again). If the agency tells you that the records don't exist, ask them to describe their search methodology. Perhaps they aren't looking for the right things or in the right places. It might also help if you offer to resolve fee or fee waiver issues by paying a small amount.
While you engage in informal resolution be sure and keep records of all of your contacts with the agency. Track all time and response deadlines carefully.
Appealing within the Relevant Agency
If the agency denies your request or does not respond within the required time period, you can appeal to the agency's FOIA Appeals Officer. If the agency sent you a denial letter, it should set out the agency's appeal procedures. Take special note of the time limitation for appeals, which are usually around thirty days. If you haven't received any response from the agency (an excessive delay in complying with a request constitutes a denial under FOIA) you should send your appeal to the head of the agency.
Appeal letters can be used to challenge the agency's failure to respond in a timely fashion, a decision not to release records in whole or in part, the adequacy of the search used to locate responsive records, and the agency's refusal to grant you a fee waiver.
In your FOIA appeal letter you should:
- Cite section 552(a)(6) of FOIA and clearly list your grounds for appeal;
- Attach copies of the original request letter and the denial letter;
- Take some time to explain the reasons why the denial should be reconsidered (for example, because the exemption does not properly apply to the document, or because the agency should waive the exemption in the current case); and
- State that you expect a final ruling on your appeal within 20 working days, as required by FOIA.
Make sure you are familiar with the exemptions to FOIA so you can argue that the records you are seeking are not or should not be exempted. See the section on FOIA Exemptions in this guide for more information.
If the agency denies your appeal or does not respond within 20 days, you may file a lawsuit in federal court (see below).
If the agency denied your request because the information is classified (i.e. the agency relied on the national security exemption), you can make a separate request for mandatory declassification review of the information. You can learn more about declassification review procedure by going to the Reporters Committee for Freedom of the Press' FOIA Guide.
Currently there is no mediation available for FOIA disputes. However, the Open Government Act of 2007, which amends FOIA, provides for the establishment of a new FOIA ombudsman, the Office of Government Information Services, to mediate such disputes. There is some uncertainty about whether the Office will be an organ of the more independent National Archives and Records Administration or the Department of Justice (which defends lawsuits against agencies that refuse to furnish requested documents) (see this Washington Post article and Senator Leahy's Senate address on the issue).
Once the situation is clarified, we will update this section with the procedures for instituting FOIA mediation.
Filing a Lawsuit
If your request is denied, and your internal appeal does not reverse this decision, you may sue the agency in the United State District Court in your state of residence, in the state where the records are located, or in the District of Columbia. It is generally recommended that you retain an attorney to bring such a suit. If your lawsuit is "substantially successful", the agency will be ordered to pay your attorney's fees. See the section in this guide on Finding Legal Help for help with hiring lawyer or getting other assistance.
However, you have the right to appear on your own behalf in court by filing a complaint pro se. If you decide to do this, you will find the Reporters Committee for Freedom of the Press' sample complaint for a FOI records denial and Public Citizen Litigation Group's Sample FOIA Litigation Documents very useful.
Obtaining records through legal action can be a costly and drawn-out process. Some lawsuits over FOIA denials can last more than a year. If you assert that there is a public interest in your timely access to the records, the court could speed up your case through “expeditious consideration.”
Lastly, keep in mind that if you file a lawsuit, you must do so within six years from the date of your initial FOIA request, even if you receive no response or an incomplete response from the agency.