Checking it Twice: Appeals Provide Necessary Second Look
The FOIA process, as with much in life, provides an opportunity to give our actions a second look. After all, most of us don’t file a major report without asking someone to proofread for errors, right? Or walk out the door without one last check in the mirror?
FOIA directs that requesters can appeal “any adverse determination” to their FOIA requests. 5 U.S.C. § 552(a)(6)(A)(i). As with all things FOIA, agencies have great latitude in interpreting this provision through their regulations. However, while it may seem open-ended to say “any adverse determination,” it’s not entirely a Pandora’s box: there is a fairly limited universe of actions agencies can take on a FOIA request that requesters could dispute. With that, agencies should err on the side of “one last check in the mirror” to give a second look at actions a requester deems adverse.
If there’s one thing OGIS has learned in the past three years — and written about widely on this blog — it’s that constant communication is key. Agencies and requesters should be talking with one another to ensure common understanding, set expectations and avoid any potential disputes before they arise. Agencies should be willing to reconsider any action they take — just as we make sure we didn’t spell “public” wrong in our FOIA reports (and ensure this blouse matches that skirt).
Typical FOIA adverse determinations include:
- withholding information under a FOIA exemption
- “no records” finding
- “Glomar” response — neither confirm nor deny the existence of records
- denial of expedited processing
- fee waiver denial
Other agency actions that may seem adverse to a requester could be:
- fee category placement
- rejection of a request as unperfected
- general dispute on the search
- refusal to produce the document in a form or format requested
Some agency regulations expressly define adverse determinations. For example, the Department of Treasury sets forth five specific instances in which requesters can appeal: denial of records, fee category placement, fee waiver denial, “no records” finding and denial of expedited processing. 31 C.F.R. § 1.5(i)(A)-(E). The Department of Justice’s largely similar regulations also add as an adverse determination instances where a record is not readily reproducible in the form or format sought by the requester — a forward-thinking inclusion. 28 C.F.R. § 16.6(c).
Most agencies do not specifically define adverse determinations in their regulations. But no matter how or whether an agency defines an adverse determination, its meaning should be interpreted broadly. If an agency’s regulation does not expressly include the adverse action a requester complains about, the agency should still give the issue another look — whether it treats the review as an appeal or just an informal, discretionary reconsideration.
The Department of Labor provides a particularly good example of this in its response letters where it makes a full release of records. The agency letter reads, “I consider this a full release under the FOIA; however, if you do not agree, you have the right to appeal this response….” Acknowledging that the requester may have a different view of the agency’s action and providing an opportunity to remedy a potential dispute is a very good practice.
That “second look” an agency gives is almost always done by a different office (and individual) than was responsible for the FOIA response. Often, appeals are sent to an agency’s office of general counsel and agency lawyers will do the fine-toothed review. Other times, separate appeals staffs within a FOIA unit may process FOIA appeals. Of course, in some of the very smallest agencies or understaffed FOIA offices, both requests and appeals may receive attention from the same person. OGIS encourages those individuals to consult with other colleagues on an appeal review to at least bring in a second set of eyes.
That second look might save both parties from a protracted battle or from missing an important detail. While FOIA professionals are some of the most detail-oriented folks out there, we all have our days. And after all, nobody wants to walk out the door wearing two different socks.