Scope Of The Freedom of Information Act
What Records Can Be Requested Under The FOIA?
Making an FOIA Request
Fees and Fee Waivers
Requirements for Agency Responses
Reasons Access May Be Denied Under the FOIA
Exemption 1: Classified Documents
Exemption 2: Internal Personnel Rules and Practices
Exemption 3: Information Exempt Under Other Laws
Exemption 4: Confidential Business Information
Exemption 5: Internal Government Communications
Exemption 6: Personal Privacy
Exemption 7: Law Enforcement
Exemption 8: Financial Institutions
Exemption 9: Geological Information
Administrative Appeal Procedures
Filing a Judicial Appeal
The federal Freedom of Information Act applies to documents held by agencies in the executive branch of the federal government. The executive branch includes cabinet departments, military departments, government corporations, government controlled corporations, independent regulatory agencies, and other establishments in the executive branch.
The FOIA does not apply to elected officials of the federal government, including the President, Vice President, Senators, and Congressmen. The FOIA does not apply to the federal judiciary. The FOIA does not apply to private companies; persons who receive federal contracts or grants; tax-exempt organizations; or state or local governments.
All States and some localities have passed laws like the FOIA that allow people to request access to records. In addition, there are other federal and state laws that may permit access to documents held by organizations not covered by the federal FOIA.
The FOIA requires agencies to publish or make available for public inspection several types of information. This includes: (1) descriptions of agency organization and office addresses; (2) statements of the general course and method of agency operation; (3) rules of procedure and descriptions of forms; (4) substantive rules of general applicability and general policy statements; (5) final opinions made in the adjudication of cases; and (6) administrative staff manuals that affect the public. This information must either be published in the Federal Register or made available for inspection and copying without the formality of an FOIA request.
All other "records" of a federal agency may be requested under the FOIA. However, the FOIA does not define "record". Any item containing information that is in the possession, custody, or control of an agency is usually considered to be an agency record under the FOIA. Personal notes of agency employees may not be agency records. A document that is not a "record" will not be available under the FOIA.
The form in which a record is maintained by an agency does not affect its availability. A request may seek a printed or typed document, tape recording, map, photograph, computer printout, computer tape or disk, or a similar item.
Of course, not all records that can be requested must be disclosed. Information that is exempt from disclosure is described below in the section entitled "Reasons Access May Be Denied Under the FOIA".
The FOIA carefully provides that a requester may ask for records rather than information. This means that an agency is only required to look for an existing record or document in response to an FOIA request. An agency is not obliged to create a new record to comply with a request. An agency is not required to collect information it does not have. Nor must an agency do research or analyze data for a requester.
Requesters must ask for existing records. Requests may have to be carefully written in order to obtain the desired information. Sometimes, an agency will help a requester identify a specific document that contains the information being sought. Other times, a requester may need to be creative when writing an FOIA request in order to identify an existing document or set of documents containing the desired information.
There is a second general limitation on FOIA requests. The law requires that each request must reasonably describe the records being sought. This means that a request must be specific enough to permit a professional employee of the agency who is familiar with the subject matter to locate the record in a reasonable period of time.
Because agencies organize and index records in different ways, one agency may consider a request to be reasonably descriptive while another agency may reject a similar request as too vague. For example, the Federal Bureau of Investigation has a central index for its primary record system. As a result, the FBI is able to search for records about a specific person. However, agencies that do not maintain a central name index may be unable to conduct the same type of search. These agencies may reject a similar request because the request does not describe records that can be identified.
Requesters should make requests as specific as possible. If a particular document is required, it should be identified precisely, preferably by date and title. However, a request does not always have to be that specific. A requester who cannot identify a specific record should clearly explain his or her needs. A requester should make sure, however, that a request is broad enough to include all desired information.
For example, assume that a requester wants to obtain a list of toxic waste sites near his home. A request to the Environmental Protection Agency for all records on toxic waste would cover many more records than are needed. The fees for such a request might be very high, and it is possible that the request might be rejected as too vague.
A request for all toxic waste sites within three miles of a particular address is very specific. But it is unlikely that EPA would have an existing record containing data organized in that fashion. As a result, the request might be denied because there is no existing record containing the information.
The requester might do better to ask for a list of toxic waste sites in his city, county, or state. It is more likely that existing records might contain this information. The requester might also want to tell the agency in the request letter exactly what information is desired. This additional explanation may help the agency to find a record that meets the request.
Many people include their telephone number with their requests. Some questions about the scope of a request can be resolved quickly when an agency employee and the requester talk. This is an efficient way to resolve questions that arise during the processing of FOIA requests.
It is to everyone's advantage if requests are as precise and as narrow as possible. The requester benefits because the request can be processed faster and cheaper. The agency benefits because it can do a better job of responding to the request. The agency will also be able to use its resources to respond to more requests. The FOIA works best when both the requester and the agency act cooperatively.
The first step in making a request under the FOIA is to identify the agency that has the records. An FOIA request must be addressed to a specific agency. There is no central government records office that services FOIA requests.
Often, a requester knows beforehand which agency has the desired records. If not, a requester can consult a government directory such as the United States Government Manual. This manual has a complete list of all federal agencies, a description of agency functions, and the address of each agency. A requester who is uncertain about which agency has the records that are needed can make FOIA requests at more than one agency.
Agencies normally require that FOIA requests be in writing. Letters requesting records under the FOIA can be short and simple. No one needs a lawyer to make an FOIA request.
The request letter should be addressed to the agency's FOIA Officer or to the head of the agency. The envelope containing the written request should be marked "Freedom of Information Act Request" in the bottom left-hand corner.
There are three basic elements to an FOIA request letter. First, the letter should state that the request is being made under the Freedom of Information Act. Second, the request should identify the records that are being sought as specifically as possible. Third, the name and address of the requester must be included.
Under the 1986 amendments to the FOIA, fees chargeable vary with the status or purpose of the requester. As a result, a requester may have to provide additional information to permit the agency to determine the appropriate fees. Different fees can be charged to commercial users, representatives of the news media, educational or noncommercial scientific institutions, and individuals. The next section explains the fee structure in more detail.
There are several optional items that are often included in an FOIA request. The first is the telephone number of the requester. This permits an agency employee processing a request to speak with the requester if necessary.
A second optional item is a limitation on the fees that the requester is willing to pay. It is common for a requester to ask to be notified in advance if the charges will exceed a fixed amount. This allows the requester to modify or withdraw a request if the cost may be too high. Also, by stating a willingness to pay a set amount of fees in the original request letter, a requester may avoid the necessity of additional correspondence and delay.
A third optional item sometimes included in an FOIA request is a request for a waiver or reduction of fees. The 1986 amendments to the FOIA changed the rules for fee waivers. Fees must be waived or reduced if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Decisions about granting fee waivers are separate from and different than decisions about the amount of fees that can be charged to a requester.
A requester should keep a copy of the request letter and related correspondence until the request has been finally resolved.
FOIA requesters may have to pay fees covering some or all of the costs of processing their requests. As amended in 1986, the law establishes three types of fees that may be charged. The 1986 law makes the process of determining the applicable fees more c>
educe or eliminate entirely the cost for small, non-commercial requests.
First, fees can be imposed to recover the cost of copying documents. All agencies have a fixed price for making copies using copying machines. A requester is usually charged the actual cost of copying computer tapes, photographs, and other nonstandard documents.
Second, fees can also be imposed to recover the costs of searching for documents. This includes the time spent looking for material responsive to a request. A requester can minimize search charges by making clear, narrow requests for identifiable documents whenever possible.
Third, fees can be charged to recover review costs. Review is the process of examining documents to determine whether any portion is exempt from disclosure. Before the 1986 amendments took effect, no review costs were charged to any requester. Effective on April 25, 1987, review costs may be charged to commercial requesters only. Review charges only include costs incurred during the initial examination of a document. An agency may not charge for any costs incurred in resolving issues of law or policy that may arise while processing a request.
Different fees apply to different requesters. There are three categories of FOIA requesters. The first includes representatives of the news media, and educational or noncommercial scientific institutions whose purpose is scholarly or scientific research. A requester in this category who is not seeking records for commercial use can only be billed for reasonable standard document duplication charges. A request for information from a representative of the news media is not considered to be for commercial use if the request is in support of a news gathering or dissemination function.
The second category includes FOIA requesters seeking records for commercial use. Commercial use is not defined in the law, but it generally includes profit making activities. A commercial user can be charged reasonable standard charges for document duplication, search, and review.
The third category of FOIA requesters includes everyone not in the first two categories. People seeking information for personal use, public interest groups, and non-profit organizations are examples of requesters who fall into the third group. Charges for these requesters are limited to reasonable standard charges for document duplication and search. Review costs may not be charged. The 1986 amendments did not change the fees charged to these requesters.
Small requests are free for a requester in the first and third categories. This includes all requesters except commercial users. There is no charge for the first two hours of search time and for the first 100 pages of documents. A non-commercial requester who limits a request to a small number of easily found records will not pay any fees at all.
In addition, the law also prevents agencies from charging fees if the cost of collecting the fee would exceed the amount collected. This limitation applies to all requests, including those seeking documents for commercial use. Thus, if the allowable charges for any FOIA request are small, no fees are imposed.
Each agency sets charges for duplication, search, and review based on its own costs. The amount of these charges is listed in agency FOIA regulations. Each agency also sets its own threshold for minimum charges.
The 1986 FOIA amendments also changed the law on fee waivers. Fees now must be waived or reduced if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
The 1986 amendments on fees and fee waivers have created some confusion. Determinations about fees are separate and distinct from determinations about fee waivers. For example, a requester who can demonstrate that he or she is a news reporter may only be charged duplication fees. But a requester found to be a reporter is not automatically entitled to a waiver of those fees. A reporter who seeks a waiver must demonstrate that the request also meets the standards for waivers.
Normally, only after a requester has been categorized to determine the applicable fees does the issue of a fee waiver arise. A requester who seeks a fee waiver should ask for a waiver in the original request letter. However, a request for a waiver can be made at a later time. The requester should describe how disclosure will contribute to public understanding of the operations or activities of the government. The sample request letter in the appendix includes optional language asking for a fee waiver.
Any requester may ask for a fee waiver. Some will find it easier to qualify than others. A news reporter who is only charged duplication costs may still ask that the charges be waived because of the public benefits that will result from disclosure. A representative of the news media, a scholar, or a public interest group are more likely to qualify for a waiver of fees. A commercial user may find it difficult to qualify for waivers.
The eligibility of other requesters will vary. A key element in qualifying for a fee waiver is the relationship of the information to public understanding of the operations or activities of government. Another important factor is the ability of the requester to convey that information to other interested members of the public. A requester is not eligible for a fee waiver solely because of indigence.
Each agency is required to determine within ten days (excluding Saturdays, Sundays, and legal holidays) after the receipt of a request whether to comply with the request. The actual disclosure of documents is required to follow promptly thereafter. If a request is denied in whole or in part, the agency must tell the requester the reasons for the denial. The agency must also tell the requester that there is a right to appeal any adverse determination to the head of the agency.
The FOIA permits an agency to extend the time limits up to ten days in unusual circumstances. These circumstances include the need to collect records from remote locations, review large numbers of records, and consult with other agencies. The agency is supposed to notify the requester whenever an extension is invoked.
The statutory time limits for responses are not always met. An agency sometimes receives an unexpectedly large number of FOIA requests at one time and is unable to meet the deadlines. Some agencies assign inadequate resources to FOIA offices. The Congress does not condone the failure of any agency to meet the law's time limits. However, as a practical matter, there is little that a requester can do about it. The courts have been reluctant to provide relief solely because the FOIA's time limits have not been met.
The best advice to requesters is to be patient. The law allows a requester to consider that his or her request has been denied if it has not been decided within the time limits. This permits the requester to file an administrative appeal or file a lawsuit in federal district court. However, this is not always the best course of action. The filing of an administrative or judicial appeal will not necessarily result in any faster processing of the request.
Each agency generally processes requests in the order of receipt. Some agencies will expedite the processing of urgent requests. Anyone with a pressing need for records should consult with the agency FOIA officer about how to ask for expedited treatment of requests.
An agency may refuse to disclose an agency record that falls within any of the FOIA's nine statutory exemptions. The exemptions protect against the disclosure of information that would harm national defense or foreign policy, privacy of individuals, proprietary interests of business, functioning of the government, and other important interests. A document that does not qualify as an "agency record" may be denied because only agency records are available under the FOIA. Personal notes of agency employees may be denied on this basis. However, most records in the possession of an agency are "agency records" within the meaning of the FOIA.
An agency may withhold exempt information, but it is not always required to do so. For example, an agency may disclose an exempt internal memorandum because no harm would result from its disclosure. However, an agency is not likely to agree to disclose an exempt document that is classified or that contains a trade secret.
When a record contains some information that qualifies as exempt, the entire record is not necessarily exempt. Instead, the FOIA specifically provides that any reasonably segregable portions of a record must be provided to a requester after the deletion of the portions that are exempt. This is a very important requirement because it prevents an agency from withholding an entire document simply because one line or one page is exempt.
The first FOIA exemption permits the withholding of properly classified documents. Information may be classified in the interest of national defense or foreign policy.
The rules for classification are established by the President and not the FOIA or other law. The FOIA provides that, if a document has been properly classified under a presidential Executive Order, the document can be withheld from disclosure.
Classified documents may be requested under the FOIA. An agency can review the document to determine if it still requires protection. In addition, the Executive Order on Security Classification establishes a special procedure for requesting the declassification of documents. If a requested document is declassified, it can be released in response to an FOIA request. However, a document that is declassified may be still be exempt under other FOIA exemptions.
The second FOIA exemption covers matters that are related solely to an agency's internal personnel rules and practices. As interpreted by the courts, there are two separate classes of documents that are generally held to fall within exemption two.
First, information relating to personnel rules or internal agency practices is exempt if it is trivial administrative matter of no genuine public interest. A rule governing lunch hours for agency employees is an example.
Second, an internal administrative manual can be exempt if disclosure would risk circumvention of law or agency regulations. In order to fall into this category, the material will normally have to regulate internal agency conduct rather than public behavior.
The third exemption incorporates into the FOIA other laws that restrict the availability of information. To qualify under this exemption, a statute must require that matters be withheld from the public in such a manner as to leave no discretion to the agency. Alternatively, the statute must establish particular criteria for withholding or refer to particular types of matters to be withheld.
One example of a qualifying statute is the provision of the Tax Code prohibiting the public disclosure of tax returns and tax return information. Another qualifying Exemption 3 statute is the law designating identifiable census data as confidential. Whether a particular statute qualifies under Exemption 3 can be a difficult legal question.
The fourth exemption protects from public disclosure two types of information: trade secrets and confidential business information. A trade secret is a commercially valuable plan, formula, process, or device. This is a narrow category of information. An example of a trade secret is the recipe for a commercial food product.
The second type of protected data is commercial or financial information obtained from a person and privileged or confidential. The courts have held that data qualifies for withholding if disclosure by the government would be likely to harm the competitive position of the person who submitted the information. Detailed information on a company's marketing plans, profits, or costs can qualify as confidential business information. Information may also be withheld if disclosure would be likely to impair the government's ability to obtain similar information in the future.
Only information obtained from a person other than a government agency qualifies under the fourth exemption. A person is an individual, a partnership, or a corporation. Information that an agency created on its own cannot normally be withheld under exemption four.
Although there is no formal requirement under the FOIA, many agencies will notify a submitter of business information that disclosure of the information is being considered. The submitter then has an opportunity to convince the agency that the information qualifies for withholding. A submitter can also file suit to block disclosure under the FOIA. Such lawsuits are generally referred to as "reverse" FOIA lawsuits because the FOIA is being used in an attempt to prevent rather than to require the disclosure of information. A reverse FOIA lawsuit may be filed when the submitter of documents and the government disagree whether the information is confidential.
The FOIA's fifth exemption applies to internal government documents. An example is a letter from one government department to another about a joint decision that has not yet been made. Another example is a memorandum from an agency employee to his supervisor describing options for conducting the agency's business.
The purpose of the fifth exemption is to safeguard the deliberative policy making process of government. The exemption encourages frank discussion of policy matters between agency officials by allowing supporting documents to be withheld from public disclosure. The exemption also protects against premature disclosure of policies before final adoption.
While the policy behind the fifth exemption is well- accepted, the application of the exemption is complicated. The fifth exemption may be the most difficult FOIA exemption to understand and apply. For example, the exemption protects the policy making process, but it does not protect purely factual information related to the policy process. Factual information must be disclosed unless it is inextricably intertwined with protected information about an agency decision.
Protection for the decision making process is appropriate only for the period while decisions are being made. Thus, the fifth exemption has been held to distinguish between documents that are pre-decisional and therefore may be protected, and those which are post-decisional and therefore not subject to protection. Once a policy is adopted, the public has a greater interest in knowing the basis for the decision.
The exemption also incorporates some of the privileges that apply in litigation involving the government. For example, papers prepared by the government's lawyers can be withheld in the same way that papers prepared by private lawyers for clients are not available through discovery in civil litigation.
The sixth exemption covers personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption protects the privacy interests of individuals by allowing an agency to withhold intimate personal data kept in government files. Only individuals have privacy interests. Corporations and other legal persons have no privacy rights under the sixth exemption.
The exemption requires agencies to strike a balance between an individual's privacy interest and the public's right to know. However, since only a clearly unwarranted invasion of privacy is a basis for withholding, there is a perceptible tilt in favor of disclosure in the exemption. Nevertheless, the sixth exemption makes it harder to obtain information about another individual without the consent of that individual.
The Privacy Act of 1974 also regulates the disclosure of personal information about an individual. The FOIA and the Privacy Act overlap in part, but there is no inconsistency. An individual seeking records about himself or herself should cite both laws when making a request. This ensures that the maximum amount of disclosable information will be released. Records that can be denied to an individual under the Privacy Act are not necessarily exempt under the FOIA.
The seventh exemption allows agencies to withhold law enforcement records in order to protect the law enforcement process from interference. The exemption was amended slightly in 1986, but it still retains six specific subexemptions.
Exemption (7)(A) allows the withholding of a law enforcement record that could reasonably be expected to interfere with enforcement proceedings. This exemption protects an active law enforcement investigation from interference through premature disclosure.
Exemption (7)(B) allows the withholding of information that would deprive a person of a right to a fair trial or an impartial adjudication. This exemption is rarely used.
Exemption (7)(C) recognizes that individuals have a privacy interest in information maintained in law enforcement files. If the disclosure of information could reasonably be expected to constitute an unwarranted invasion of personal privacy, the information is exempt from disclosure. The standards for privacy protection in Exemption 6 and Exemption (7)(C) differ slightly. Exemption (7)(C) protects against an unwarranted invasion of personal privacy while Exemption 6 protects against clearly a unwarranted invasion. Also, Exemption (7)(C) allows the withholding of information that "could reasonably be expected to" invade someone's privacy. Under Exemption 6, information can be withheld only if disclosure "would" invade someone's privacy.
Exemption (7)(D) protects the identity of confidential sources. Information that could reasonably be expected to reveal the identity of a confidential source is exempt. A confidential source can include a state, local, or foreign agency or authority, or a private institution that furnished information on a confidential basis. In addition, the exemption protects information furnished by a confidential source if the data was compiled by a criminal law enforcement authority during a criminal investigation or by an agency conducting a lawful national security intelligence investigation.
Exemption (7)(E) protects from disclosure information that would reveal techniques and procedures for law enforcement investigations or prosecutions or that would disclose guidelines for law enforcement investigations or prosecutions if disclosure of the information could reasonably be expected to risk circumvention of the law.
Exemption (7)(F) protects law enforcement information that could reasonably be expected to endanger the life or physical safety of any individual.
The eighth exemption protects information that is contained in or related to examination, operating, or condition reports prepared by or for a bank supervisory agency such as the Federal Deposit Insurance Corporation, the Federal Reserve, or similar agencies.
The ninth FOIA exemption covers geological and geophysical information, data, and maps about wells. This exemption is rarely used.
The 1986 amendments to the FOIA gave limited authority to agencies to respond to a request without confirming the existence of the requested records. Ordinarily, any proper request must receive an answer stating whether there is any responsive information, even if the requested information is exempt from disclosure.
In some narrow circumstances, acknowledgement of the existence of a record can produce consequences similar to those resulting from disclosure of the record itself. In order to avoid this type of problem, the 1986 amendments established three "record exclusions".
The exclusions allow an agency to treat certain exempt records as if the records were not subject to the FOIA. An agency is not required to confirm the existence of three specific categories of records. If these records are requested, the agency may respond that there are no disclosable records responsive to the request. However, these exclusions do not broaden the authority of any agency to withhold documents from the public. The exclusions are only applicable to information that is otherwise exempt from disclosure.
The first exclusion may be used when a request seeks information that is exempt because disclosure could reasonably be expected to interfere with a current law enforcement investigation (exemption (7)(A)). There are three specific prerequisites for the application of this exclusion. First, the investigation in question must involve a possible violation of criminal law. Second, there must be reason to believe that the subject of the investigation is not already aware that the investigation is underway. Third, disclosure of the existence of the records -- as distinguished from the contents of the records -- could reasonably be expected to interfere with enforcement proceedings.
When all of these conditions exist, an agency may respond to an FOIA request for investigatory records as if the records are not subject to the requirements of the FOIA. In other words, the agency's response does not have to reveal that it is conducting an investigation.
The second exclusion applies to informant records maintained by a criminal law enforcement agency under the informant's name or personal identifier. The agency is not required to confirm the existence of these records unless the informant's status has been officially confirmed. This exclusion helps agencies to protect the identity of confidential informants. Information that might identify informants has always been exempt under the FOIA.
The third exclusion only applies to records maintained by the Federal Bureau of Investigation which pertain to foreign intelligence, counterintelligence, or international terrorism. When the existence of these types of records is classified, the FBI may treat the records as not subject to the requirements of FOIA.
This exclusion does not apply to all classified records on the specific subjects. It only applies when the records are classified and when the existence of the records is also classified. Since the underlying records must be classified before the exclusion is relevant, agencies have no new substantive withholding authority.
In enacting these exclusions, congressional sponsors stated that it was their intent that agencies must inform FOIA requesters that these exclusions are available for agency use. Requesters who believe that records were improperly withheld because of the exclusions can seek judicial review.
Whenever an 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. 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."
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 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 an 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 twenty days (excluding Saturdays, Sundays, and federal holidays). It is possible for an agency to extend the time limits by an additional ten 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.
When an administrative appeal is denied, a requester has the right to appeal the denial in court. An FOIA appeal can be filed in the United States District Court in the district where the requester lives. The requester can also file suit in the district where the documents are located or in the District of Columbia. When a requester goes to court, the burden of justifying the withholding of documents is on the government. This is a distinct advantage for the requester.
Requesters are sometimes successful when they go to court, but the results vary considerably. Some requesters who file judicial appeals find that an agency will disclose some documents previously withheld rather than fight about disclosure in court. This does not always happen, and there is no guarantee that the filing of a judicial appeal will result in any additional disclosure.
Most requesters require the assistance of an attorney to file a judicial appeal. A person who files a lawsuit and substantially prevails may be awarded reasonable attorney fees and litigation costs reasonably incurred. Some requesters may be able to handle their own appeal without an attorney. Since this is not a litigation guide, details of the judicial appeal process have been not included. Anyone considering filing an appeal can begin by reading the provisions of the FOIA on judicial review.