TL;DR: The appeal process is a lot less intimidating — and more effective — than you may think. You should use it regularly when you don’t get what you are looking for.
In FOIA Lesson #3, I described the importance of being nice when filing your request, and giving records officers the benefit of the doubt until you have good reason not to. I explained how it can help you get what you want, and faster, since there is in fact a human on the other side of the FOIA.
This time, I’d like to provide some advice on filing an appeal.
If your request was filed with a state or local agency, you’ll have to do some background research to determine if there is even a governing body to appeal to.
In Massachusetts, we have the Secretary of Public Records, which actually does an okay job of adjudicating appeals. In this case, the process is pretty easy: simply forward all correspondence with the agency you filed the request with to the Secretary of Public Record’s email address, along with some solid reasoning as to why you believe the response to be bogus. If the agency never even replied to your request, your job is a hell of a lot easier: just say you are appealing the “constructive denial” of your request. They will then work with the agency to determine if their response (or non-response) was the right move, and will follow up with you in most cases.
New Jersey has the Government Records Council (GRC), which takes appeals in a more formal process. You have to fill out a form or two detailing the reason for your appeal. Then a phone call will be set up in which both parties — you and the agency that wronged you — have a discussion about the request, mediated by the GRC. This process takes quite a bit longer, since the attorneys at the GRC have to read over the materials and then arrange a conference call, but it’s worth it.
I experienced this once a few years ago. I was writing an article for DigBoston on the practice of feeding food waste to pigs. I requested permits to feed waste to pigs from the New Jersey Department of Agriculture. They first stated that they didn’t have the permits; when I pointed out that the law specifically says they should have them, they panicked. I believe they provided some sort of made up rejection, or never responded after that, at which point I appealed to the GRC. During the conference call, interestingly enough, they claimed that they initially denied my request due to concerns over “agro-terrorism.” Only when I requested emails about my request did I learn that no such concerns existed when they provided the initial rejection; it was an excuse they came up with after I pointed out that they should have the records I was seeking.
That’s a needless anecdote meant to illustrate the point that sometimes when you appeal, you may learn something you never expected.
In contrast to filing an appeal with a state agency, if your request is on the federal level, your appeals go to the Department of Justice. In my experience — which has not included any situations in which an agency failed to respond to a request — DOJ has a pretty default response of agreeing with the agency. On occasion, however, they will make a determination that’s partially in your favor, and order the agency to comply with their order. That won’t stop an agency from citing another exemption, however.
As mentioned before, appeals should always include all correspondence between yourself and the agency. The mediating body should be aware of all communications about the request. If you had a phone call at some point to discuss your request with a records officer, it’s a good idea to summarize the conversation in an email to that officer shortly after getting off the phone, while it’s still fresh in your mind. That could come in handy later.
You should cite every single reason why the agency’s response to your request is illegitimate. Did they cite exemptions that you believe should not apply to your request? Mention it, even if you’re not too confident whether you’re in the right. Did they redact things, such as a number, and state that they did so to conceal personally-identifiable information, or to avoid interfering with a law enforcement investigation (a favorite of the FBI)? Describe it in detail, and don’t hesitate to make it lengthy if you have the time. You have nothing to lose here.
Agencies don’t always listen when they are told by an appeal authority that they’re violating FOIA. In Massachusetts, for example, the Secretary of Public Records has almost never referred public records cases to the Attorney General, as is the proper procedure when an agency flagrantly violates the law. At that point, your only option is to file suit, a costly and lengthy process that doesn’t guarantee a win. If you’re in a state that allows you to recoup legal fees if the judge rules in your favor, then you’re one of the lucky ones.
So filing an appeal is sort of an uphill battle, but it’s one in which you literally have nothing to lose. Simply explain why you think the agency’s response is illegitimate, and be sure to give a few reasons why, just in case some reasons don’t hold up under scrutiny. It will take a while, and you probably won’t get anything out of it, but you’ll be surprised on occasion. And for that reason, it’s worth it.