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FOIA Facts: FOIA Appeals, the Unspoken Problem

By Scott A. Hodes, Published on October 15, 2005

Most everyone knows that in order to get records under the FOIA, you must contact an agency, in writing and then wait for them to get you your information. Each year, agencies publish statistics in a report to Congress on how many requests they get, how many of the requests were honored and how many were denied. On the denials, agencies must announce how many appeals they got, how many were affirmed and how many were denied.

The major difference between the statistics reported on initial requests and appeals is that on initial requests the average amount of time it takes an agency to answer a FOIA request is given. There is no requirement to announce how long it takes for an appeal to be answered, and therefore agencies to not provide this information.

Administrative appeals are necessary for requesters who have been thwarted by agencies in honoring their FOIA requests. Many times, agencies simply deny initial requests because they know that requesters won’t take the time to file an administrative appeal even if the agency is aware that its initial decision is incorrect. Other times agencies will deny records initially because they know that by the time the appeal is adjudicated, the material sought will not be important to the agency or the requester and this stall tactic may keep the agency out of the media spotlight for the time being. On other occasions, the agency may deny records even though it is an open question on whether the reason for the denial is valid. In these cases, it is up to the office hearing the appeal to be the adjudicator of the law. Furthermore, once an initial denial decision is made, it is necessary for the requester to file an administrative appeal if the requester wishes to take the matter to court. Failure to appeal will allow the government to dismiss a complaint for failure to exhaust administrative remedies.

As the amount of time on how long it takes agencies to complete administrative appeals of FOIA denials is not published, I can not provide any analysis of statistical data on the subject. I can, however provide anecdotal evidence that suggests that agencies are not completing administrative appeals in a timely manner. I’ve assisted a number of clients in appealing matters before various agencies. It is the exception to the rule that a decision to the appeal is made in the time allowed by statute. More often than not, a number of months (and in some cases, years) go by before an appeal decision is made.

This delay is bad for both the government and requesters. The government is harmed in two specific ways. The first being that the agency that fails to respond in a timely manner loses goodwill with the public. While most agency personnel may not actually care about that, the more goodwill the government agencies lose (on a number of matters, not just FOIA), the harder it is for agencies to accomplish their missions. As a non-FOIA example, I submit that FEMA’s recent performance in Hurricane Katrina caused it to lose a large amount of the public’s goodwill toward it. While not responding to FOIA appeals in a timely manner do not rise to this level of government failure, it is one area that can cause the public to think that government agencies are not serious in responding to their obligations under the law.

The government is also harmed in a much more specific way. By not responding to FOIA appeals in a timely manner, agencies invite lawsuits of their decisions. FOIA litigation is much more expensive to government agencies than the administrative process. It requires involvement of Department of Justice personnel, agency General Counsel personnel and others not usually working on day to day FOIA matters. Additionally, those with FOIA duties are taken off those duties to respond to the litigation. The cost of work hours lost through litigation is not recorded. However I submit that completing FOIA appeals (and requests for that matter) would cut agency litigation costs noticeably.

Of course, requesters are also harmed by agency failures to respond to appeals in a timely manner. Requesters are, in many cases, denied information they are entitled to for many months (or years). Requesters, in some cases, must resort to litigation to get either the documents or a response from the government on why it is withholding the actual records. I’ll let you in on a little secret here. Sometimes, requesters are satisfied with a decent explanation of why they can’t have requested records and a short summary of what is being withheld.

Agencies rarely pay attention to timely answering FOIA appeals. If they did, requesters would feel a little more satisfied with the FOIA process, and agencies could pay more attention to other areas of FOIA that needs their attention. It’s time for attention to be paid to FOIA appeals.

[Editor's Note:  See also, House Report 109-226: A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 To Request Government Records (85 pages, PDF), September 20. 2005.