The Appeal of the Appeal Letter

While the Freedom of Information Act (FOIA) requires agencies to notify requesters of the legal reasoning for upholding either all or part of an initial denial, the statute gives agencies very little—well, actually, no—additional guidance about what should be in an appeal response.

As you might know, we at OGIS are big fans of the administrative appeals process. As we have previously explained, filing an administrative appeal is critical to protecting your rights under the law. We also appreciate that during the appeals process, the agency has an opportunity to re-evaluate all of its original decisions—from the adequacy of the search to the use of any exemptions.

Through our mediation process, we see many appeal response letters. We love to see well-written appeal response letters that help the requester better understand the agency’s decisions. A quick poll of OGIS’s staff turned up a few FOIA offices that we believe send out detailed, helpful appeal responses: several staff members cited the usefulness of appeal response letters written by the U.S. Customs and Bureau Protection at the Department of Homeland Security. Our staff also mentioned that they have seen detailed and thorough letters written by the United States Postal Services and USPS Office of Inspector General. OGIS staff also noted that appeal responses from the Department of Energy’s Office of Hearings and Appeals are detailed and reflect that the office has gone through a thorough process of fact gathering and analysis before issuing the response – you can view a summary of all of the office’s latest decisions, including on FOIA appeals here.

The next question, of course, is what is it about these appeals responses that we like?

While the Office of Information Policy (OIP) at the Department of Justice has not issued guidance specifically on appeals responses, a great deal of OIP’s guidance on what elements should be included in an agency’s initial response is very useful when thinking about what is included in a good appeal response. For example, as OIP suggests agencies, should make a “reasonable effort” to provide the requester with an estimate of the amount of material withheld and describe the agency’s administrative actions. Additionally, agencies should provide requesters with an individualized tracking number for any request that it will take more than 20 days to respond to, and the agency should include information about how to track the status of the appeal.

Other features we generally see in good appeal responses are:

• Summary of the issues raised in the appeal. Our favorite appeal letters generally summarize the issues that the requester raised in the appeal. This practice is in line with OIP’s guidance on initial responses encouraging agencies to include a description of the agency’s interpretation of the request. This practice ensures that the agency and the requester share a common understanding of the issues, and helps assure the requester that the agency considered all of his or her arguments.
• Explanation of the agency’s actions. During a good appeals process, an agency employee who has some degree of independence from the decisions made during initial processing will gather and review the facts of the case. A good appeal letter will explain to the requester the steps that the agency took during this review process. Providing an explanation of the agency’s actions helps improve the requester’s confidence in the thoroughness of the agency’s appeal process.
• Explanation of the agency’s decisions. A good appeal letter will help the requester understand the agency’s position by providing a thorough explanation of the agency’s decision.
• Relevant case law. Providing requesters with citations to relevant case law will help them better understand the relative merit of their claims, and their chances of prevailing if they file a suit against the agency.

We understand that writing good appeals responses takes time and resources that not all FOIA or legal offices have immediately on hand. The Coast Guard Administrative Law Judge (ALJ) program which, as we noted in our compliance reviews of the Federal Emergency Management Agency and the Coast Guard FOIA programs, processes appeals for DHS components on a reimbursable basis, prepares detailed and useful appeal response letters. This program is a great way for a component that handles a relatively small number of appeals per year to ensure that appeals are thoroughly and independently reviewed and responded to by someone with some level of expertise in the law without having to have a legal expert on staff dedicated to handling appeals.

Has an agency sent you a particularly good response to an appeal that helped you better understand the agency’s decision? Let us know about it in the comments section!