The administrative appeal process is an integral part of FOIA. Federal agencies received almost 10,000 FOIA appeals in the year ending September 30, 2010. FOIA sets forth two requirements pertaining to the appeal process:
(1) agencies must notify requesters of the right to appeal any adverse determination; and
(2) agencies must make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after receipt of the appeal. See 5 U.S.C. § 552(a)(6)(A)(i) & (ii).
Generally, the work of reviewing FOIA appeals is the responsibility of agency lawyers and most agencies have decentralized FOIA appeals offices. For these reasons, venues for sharing best practices about the FOIA appeals process have been scarce.
ASAP to the rescue! That’s the American Society of Access Professionals (ASAP), which held its summer Freedom of Information Act (FOIA) training program on August 1-3, 2012 at the Washington Convention Center. The program offered a variety of basic and advanced FOIA, Privacy Act and records management topics. One of the most interesting topics covered FOIA administrative appeals and the panel of experts included Carol Maloney, Director, FOIA-Records Management Services, Program Support Center, U.S. Department of Health and Human Services; Sean O’Neill, Attorney-Advisor, the Office of Information Policy, U.S. Department of Justice; and Shari Suzuki, Chief, FOIA Appeals, Policy and Litigation Branch, U.S. Customs and Border Protection. As panelists described their offices’ appeal procedures, several best practices came to light:
- Discussing the appeal with the appellant and the program office can be an effective way to negotiate issues on appeal, streamline the review process and ultimately hasten an appeal decision.
- Providing appellants in the final appeal decision with details about an agency’s search, such as listing the search terms and the search location within a program office may possibly avoid litigation (and is just good customer service).
- Cross-training of FOIA offices and program offices is a good way to build rapport and share information about each office’s mission and priorities.
- Instituting a broad policy for providing appeal rights in all cases ensures that requesters have an opportunity to ask an agency to review its release determination and provides an agency with a chance to reconsider its release determination before explaining that decision in court.
Managing an Appeal Backlog:
- Categorizing issues on appeal is one way to manage an appeal backlog because the process can assist a manager in identifying routine and complex cases for quick assignment.
- Studying appeal issues to determine if trends are present may reveal a need for training.
These best practices highlight the value of regular, open communication with internal and external stakeholders. OGIS has regularly encouraged better oral and written communication with stakeholders as a cost-effective way to improve the administration of FOIA and avoid disputes. These best practices lend support to the idea that better communication is a way to improve the FOIA appeals process and better manage an appeals backlog. If you have effective practices for handling FOIA appeals in your agency, let us know!