Administrative Appeals

You may file an administrative appeal in any of the following situations:

• Full denial — the agency refused to release any responsive records
• Partial denial — the agency released some records but withheld others under one or more exemptions
• No records found — the agency claims it has no responsive records (an inadequate search is appealable)
• Constructive denial — the agency failed to respond within the statutory deadline (20 business days, or 30 with a valid extension)
• Fee waiver denial — the agency denied your request for a fee waiver or reduction
• Requester category dispute — the agency misclassified your requester category and charged higher fees
• Expedited processing denial — the agency denied your request for expedited treatment
• Scope dispute — you believe the agency interpreted your request too narrowly

You generally must exhaust administrative remedies — meaning you must file and receive a decision on an administrative appeal — before filing suit in federal court, unless you are appealing based on a constructive denial.

Most agency FOIA regulations require appeals to be filed within 90 days of the date of the denial letter, though some agencies allow up to 180 days. Check the denial letter — it must include appeal instructions and the deadline.

A strong appeal letter includes all of the following:

• Clear statement that this is a FOIA administrative appeal
• Date and tracking number of the original request
• Date of the denial letter being appealed
• Name of the agency component that issued the denial
• Description of what was withheld and under which exemptions
• Specific argument for each exemption cited — why it does not apply or was improperly invoked
• Argument that the foreseeable harm standard under the 2016 FOIA Improvement Act was not met
• Request for segregability review — argument that any non-exempt portions must be released even if some material is properly withheld
• Your contact information

Sample appeal opening language:

Appeals must be sent to the correct appeal authority — sending to the wrong office can result in delay or dismissal. The denial letter must identify the appeal address. Common appeal authorities for major agencies:

• DOJ components (FBI, DEA, BOP, USMS, etc.) — Office of Information Policy (OIP), U.S. Department of Justice, 441 G Street NW, 6th Floor, Washington, DC 20530. OIP also accepts appeals via email at OIP@usdoj.gov and online through FOIA Star Portal
• DHS components (ICE, CBP, USCIS, etc.) — Appeals go to the specific component's appeal office, not a centralized DHS address. Check the denial letter.
• All other agencies — Each agency designates its own appeal authority in its FOIA regulations (found in the Code of Federal Regulations). The denial letter must identify it.

For DOJ components, the Office of Information Policy is the centralized appeal authority and processes thousands of appeals annually. OIP's decisions are generally well-reasoned and may be influential even beyond the specific case.

Send by certified mail. Always use certified mail with return receipt requested, or a delivery method that provides proof of receipt and date. The 20-day appeal clock starts from the date of receipt — you need documentation of that date.

• Filing deadline: Most agencies require appeals within 90 days of the denial date. Some allow up to 180 days. Always check the denial letter — missing the appeal deadline forfeits your right to appeal that denial.
• Agency response deadline: 20 business days from receipt of the appeal. The same unusual circumstances extension rules that apply to initial requests also apply to appeals — a 10-day extension is available in limited circumstances.
• Constructive appeal denial: If the agency does not respond within 20 business days (or 30 with a valid extension), administrative remedies are exhausted and you may file suit in federal district court.
• Expedited processing appeals: The 10-calendar-day determination period for expedited processing requests also applies to appeals of expedited processing denials.

Unlike the initial request stage, there is no statutory provision for agencies to toll the appeal clock by claiming backlog or workload. The 20-day deadline for appeals is firm.

If an agency fails to respond to your initial request within the statutory period, you may appeal the constructive denial without waiting for a formal response. A constructive denial appeal puts the agency on formal notice that you are aware of the missed deadline and are asserting your rights.

When filing a constructive denial appeal, the letter should:

• State the date the original request was submitted and the method of submission
• State the tracking number if one was assigned
• Calculate the number of business days that have elapsed since submission
• Note that the statutory 20-day response period has expired without a determination
• State that you are treating this as a constructive denial pursuant to 5 U.S.C. § 552(a)(6)(A)
• Request an immediate determination and production of responsive records

In practice, a well-crafted constructive denial appeal frequently produces a response from the agency within days — the formal appeal process tends to escalate the request within the agency's FOIA office and generate action where none was forthcoming before.

An appeal decision can go one of three ways:

• Affirmed — the agency upholds the original denial. Administrative remedies are exhausted and you may file suit in federal district court if you choose to pursue the matter further.
• Reversed or modified — the agency releases additional records or narrows its withholdings. Review the supplemental release carefully — agencies sometimes release records on appeal that still contain significant redactions warranting further challenge.
• Remanded — the appeal component sends the matter back to the processing component for further action, often to conduct a more thorough search or reconsider specific withholdings.

If the appeal is affirmed and you wish to litigate, you must file suit in federal district court within the applicable statute of limitations. FOIA does not specify a limitations period, but courts have applied the general six-year federal statute of limitations under 28 U.S.C. § 2401(a). Filing sooner is always advisable.

Venue for FOIA suits is broad — you may file in the district where you reside, where your principal place of business is located, where the agency records are situated, or in the District of Columbia.

The Office of Government Information Services (OGIS) is the federal FOIA ombudsman, established by the OPEN Government Act of 2007. OGIS offers free mediation services to help resolve FOIA disputes between requesters and agencies without litigation.

OGIS mediation is non-binding — neither the requester nor the agency is required to accept OGIS's recommendations. However, OGIS can be a useful tool in several situations:

• When an agency is unresponsive and administrative appeals have produced no action
• When there is a dispute about search adequacy that would benefit from a neutral third-party review
• When you want to resolve the dispute without the cost and time of federal litigation
• When you have already exhausted administrative appeals and are considering litigation but prefer to try mediation first

OGIS can be contacted at ogis@nara.gov or by calling 202-741-5770. You can also submit a request for mediation online at archives.gov/ogis.

Important: Using OGIS mediation does not toll any litigation deadlines. If you are considering filing suit, consult with an attorney about timing before pursuing OGIS mediation as a delay to litigation could affect your rights.