(FOIA) Appeal is in the Eye of the Beholder

Whether an agency's decision is an "adverse determination" can depend on how you look at an issue. (NARA identifier 6365954)
Whether an agency’s decision is an “adverse determination” can depend on how you look at an issue. (NARA identifier 6365954)

It’s easy for requesters and agencies to agree that administrative appeals are an important part of the Freedom of Information Act (FOIA) process. It’s not as easy for agencies and requesters to agree on what warrants an appeal.

FOIA requires an agency to notify requesters of their right to appeal “any adverse determination” (5 USC 552 § (a)(6)(A)(i)). This language seems pretty straight-forward: if an agency makes a decision that the requester views as adverse, the requester should be given the right to appeal the decision. Let’s go through a few examples to see how this provision plays out in practice.

Scenario 1: The Federal Bureau of Investigation denies Papa Bear’s request for records concerning Goldilocks.

Scenario 2: The Department of Housing and Urban Development withholds some information from records in response to a request from Old Woman Who Lived in a Shoe concerning redevelopment grants.

Scenario 3: The Department of Agriculture denies a request for expedited processing and for a fee waiver in response to a request from Chicken Little for records related to “the sky falling.”

Scenario 4: The Environmental Protection Agency (EPA) releases five pages in full to Suzie in response to a request for records about seashells on the seashore. The EPA classified Suzie as a commercial requester.

Scenario 5: The EPA releases 20 pages in full to Little Red Riding Hood in response to a request for records about wolves.

Scenario 6: The Occupational Safety and Health Administration sent a “no records” response to Jack and Jill in response to a request for records concerning hills and water pails.

How many of the requesters in the above examples should have been granted appeal rights by the agency? The answer: all of them.

It is easier to spot the “adverse determination” in some of the above examples than in others: for example, it is pretty evident that a requester should be given appeal rights if a record is denied or information is withheld (scenarios 1 and 2). Denying a request for expedited processing or a fee waiver is clearly an adverse determination (scenario 3). Placing a requester in an unfavored fee category might also be seen by the requester as an “adverse determination” even if the amount of fees charged does not change (scenario 4). In the case of a “no records” response (scenario 6)— even in the case of a full release of records (scenarios 4 and 5), the requester might dispute the adequacy of an agency’s search.

And there’s one more scenario that we at OGIS have observed: even if the agency does not provide appeal rights in the final appeal letter, a requester is still entitled to appeal if he’s dissatisfied.

We have written before about how appeals are an “integral part of the FOIA,” and why we encourage requesters to go through the appeals process before bringing a dispute to OGIS.  One reason we always advise requesters to appeal is that it preserves a requester’s rights under the law. Critically, it also provides agency FOIA professionals the opportunity to re-evaluate all of the decisions made in the initial determination—from the adequacy of the search to the application of any exemptions.

The bottom line is that agencies should be careful to let requesters know about their right to appeal, even if the agency does not think it has made an “adverse determination.” Requesters should also not be shy about going through the administrative appeals process if they have a dispute with any part of the agency’s decision.

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