10 Appeal process

Once you have your final determination from the agency, you determine whether or not you are happy with it. Sometimes the agency finds documents, sometimes it doesn’t. If the agency can find no documents, that is considered a “no documents” response. If it does find documents, an agency will respond one of three ways:

  1. Released in full (all documents released; no information redacted)
  2. Released/withheld in part (some information released, some redacted) or
  3. Withheld in full (all information redacted, in this case they will often not even send documents, but simply a letter saying no information could be released).

You have the right to appeal an “adverse determination” which is when the agency says it finds no responsive documents, or when the information is redacted or withheld in full. The agency has to tell you why the information was redacted, and you can look up what the exemption to see what type of information was withheld. In your appeal letter you make your case for why the agency incorrectly applied the exemption and make an argument for why the information should be released.

Another type of adverse determination is what is known as the “GLOMAR” response (mentioned in a previous section), and is when the agency says that it “can neither confirm nor deny the existence of documents” responsive to your request. This is often used by intelligence or law enforcement agencies because the very confirmation that information exists or not could be seen as violation of national security. This is a challenging response to appeal, but the best approach is to see if you can argue that similar information has already been released, or is already known publicly. For more information about fighting the GLOMAR response in FOIA litigation, see the work done by the University of Washington Center for Human Rights.[i]

What are those “black outs”?

In declassified documents, redactions are the infamous, dreaded black lines or white boxes that cross out, or cover up information that the government has determined it is not able to release. It is often phrased that information was “withheld” or “exempt from disclosure.”

By law, the agency must tell you under which of the FOIA exemptions it is withholding information. Usually there is a marking like B(1) or B(7)e, which points to the specific sections of the FOIA law that declares which information is exempt. Look up the exemption and see what kind of information is blacked out.  For the B(3) exemption, which refers to information withheld under a different statute, and the agency must tell you what statute under which they are withholding information. For more information, you can plug the statute into a search engine and see what the statute is.

Unfortunately, many researchers will find that it seems like the best material is likely lurking behind those blacked out spaces. Remember, the FOIA says that citizens have a right to access ALL government records, EXCEPT in certain cases. Those certain cases are the exemptions, and the redactions are the marks, blacking (or whiting) out the information that is exempt.

Hint: As time passes, you can often make an argument that there is a reduced threat to national security or public privacy, or other reasons information is withheld. You can request the re-review of a document you already have, and specifically ask for consideration be made to release additional information. It could look something like this: “I request a re-review of State Department cable 1249576, December 6, 1981 (see copy attached). It was originally released over 20 years ago. Due to the passage of time, please re-review the redacted information in the original document for further release.”

 

Making your Argument

If you disagree with the agency’s decision to withhold information, you will want to formulate an argument for why the government may have improperly withheld information, based on the exemptions the agency cites. For guidance on how to make your argument, you can look at existing FOIA case law according to the exemption on the Department of Justice website’s “Department of Justice Guide to the Freedom of Information Act.”[ii] You usually have a 90-day period of receiving your adverse determination in order to respond with an appeal.

The agency will respond acknowledging that they received your appeal and will eventually let you know if they have decided to uphold the original decision or release additional information upon a second review. You can check out chapter 5 in the National Security Archive’s guide, “Effective FOIA Requesting for Everyone”[iii] for more details on the appeal process, and how to develop arguments.

Once you have exhausted your appeal rights, you have the option to file a lawsuit against the agency for their failure to comply with the FOIA. Litigation is an expensive, laborious process, but much important information has been won through litigation, and it is a way to continue to hold the government accountable. See chapter 6 in the National Security Archive’s guide, “Effective FOIA Requesting for Everyone” for more information about the litigation process. You can see court decision on FOIA cases at the Department of Justice website [iv].

“No documents” Response

The fact that an agency is unable to locate and records responsive to your request is considered an “adverse determination.” You have a right to appeal this outcome, whether or not the agency tells you that you have this right. You can respond with an appeal just like you would for other adverse determinations, making the argument, and if you can, provide proof, for why the agency should have documents.

Remember, keep knocking, keep asking! It is our right, and our responsibility! Happy FOIA-ing!

[i] “UWCHR Celebrates Success of FOIA Lawsuit Against CIA,” University of Washington Center for Human Rights, https://jsis.washington.edu/humanrights/2018/05/30/uwchr-celebrates-success-of-foia-lawsuit-against-cia/.

[ii] “Department of Justice Guide to the Freedom of Information Act,” https://www.justice.gov/oip/doj-guide-freedom-information-act-0

[iii] “Effective FOIA Requesting for Everyone,” https://nsarchive.gwu.edu/foia/effective-foia-requesting-everyone

[iv] “Court Decisions Overview,” Department of Justice, https://www.justice.gov/oip/court-decisions-overview

 

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How to FOIA by Emily Willard is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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