FOIA appeal procedures

You must file a written appeal to the Chairman within 90 calendar days of the agency's written denial. The appeal should clearly identify the agency determination being appealed and include the assigned FOIA tracking number, and you should mark the appeal or its envelope (or the subject line of an electronic submission) “Freedom of Information Act Appeal.” See the Requirements for making an appeal in 2201.10(a).

• Include the FOIA tracking number and a clear statement of what decision you are appealing.
• If mailing, mark the envelope; if emailing, put “Freedom of Information Act Appeal” in the subject line.
• Timeliness is measured from the agency's written notice of denial.

Yes — an electronically transmitted appeal is timely if it is transmitted within 90 calendar days of the agency's written notice of denial. The regulation specifies that appeals must be postmarked or, in the case of electronic submissions, transmitted within 90 calendar days to be considered timely. See 2201.10(a).

• Keep records (e.g., sent email timestamp) to prove transmission date if needed.

You should identify the agency determination you are appealing and include the assigned FOIA tracking number, and mark the appeal or its envelope (or state in the subject line of an electronic transmission) “Freedom of Information Act Appeal.” The regulation lists these items as the required elements to facilitate handling. See 2201.10(a).

• If available, reference dates and any prior correspondence to make review faster.
• Attach copies of the denial notice and the original FOIA request when possible.

The Chairman will act on the appeal within 20 working days after receipt of the appeal. The Commission's rule requires adjudication under 5 U.S.C. 552(a)(6)(A)(ii) within that 20-working-day period. See 2201.10(b).

• "Working days" means the period measured in business days (per the regulation's requirement to act within the specified time frame).

If the request becomes a matter of FOIA litigation, the appeal ordinarily will not be adjudicated. The regulation states that appeals generally are not adjudicated once litigation begins. See 2201.10(b).

• If litigation has been filed, the court will typically resolve the dispute rather than the administrative appeal process.

On receipt of any appeal involving classified information, the Chairman will take appropriate action to ensure compliance with applicable classification rules. The regulation directs the Chairman to follow classification requirements when classified material is involved. See 2201.10(b).

• Processing may involve coordination with classification authorities to protect national security or other classified interests.

If the Chairman wholly or partially upholds the denial, the decision must include the reasons for the affirmance and identify any FOIA exemptions applied, plus notification that the requester may obtain judicial review and information about OGIS dispute resolution services. The regulation requires these elements in the written decision. See Decisions on appeals in 2201.10(c).

• The decision must state the legal reasons and cite applicable FOIA exemptions.
• It must inform you of your right to seek judicial review under 5 U.S.C. 552(a)(4)(B)-(G) and of OGIS services.

Yes — the Chairman's decision must notify the requester that they may obtain judicial review of the decision under 5 U.S.C. 552(a)(4)(B)-(G). The regulation explicitly requires this notification in any decision that upholds a denial. See 2201.10(c).

• The decision will also inform you about non-exclusive alternatives like OGIS mediation.

If the Chairman's decision is remanded or modified on appeal to the court, the agency will notify the requester in writing and then further process the request in accordance with the court's determination. The regulation requires written notification and further processing after a remand or modification. See 2201.10(c).

• The agency will respond directly to the requester about how the request will be handled post-remand.

Yes — the decision must inform the requester of the dispute resolution services offered by the Office of Government Information Services (OGIS) as a non-exclusive alternative to litigation. The regulation specifically requires this notification. See 2201.10(c).

• OGIS mediation is voluntary and independent of the court process.

No — dispute resolution through OGIS is voluntary, and the Commission will participate as a partner if it agrees to take part. The regulation states that dispute resolution is voluntary and that the Commission will actively engage if it chooses to participate. See 2201.10(d).

• Either party can opt to use OGIS, but neither is forced into the process by this rule.

Generally, yes — before seeking judicial review of the Commission's adverse determination, a requester must first submit a timely administrative appeal. The regulation makes this a general requirement prior to court review. See 2201.10(e).

• There may be limited exceptions based on the courts' jurisdiction or other laws, but the rule says you generally must appeal first.

Yes — denials of requests for expedited processing or for fee waivers can be appealed in writing to the Chairman, just like denials of records requests. The regulation explicitly includes those denials among appealable agency actions. See 2201.10(a).

• Appeal these decisions within the same 90-calendar-day timeframe.

The 90-calendar-day period begins on the date of the agency's written notice of denial. The regulation specifies that the appeal must be postmarked or transmitted within 90 calendar days of that date. See 2201.10(a).

• Keep the agency's denial notice to document the start date if timeliness is disputed.