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FOIA requests

FOIA Appeals: What to Do When an Agency Says No

We review the agency’s response, work out how much time you have left, and prepare and file your administrative FOIA appeal. Miami office, English and Spanish, everything handled remotely if you prefer.

Woman carefully reading a document with a pen in hand at a desk, bookshelves behind her

What is a FOIA appeal?

It is the challenge you file with the same agency when its response to your FOIA request is adverse. The statute guarantees at least 90 days from that response to appeal, and each agency sets its own period within that minimum. The agency then has 20 working days to decide the appeal.

Document with a pen resting on it and a steel ruler, beside a leather folder and a brass lamp

What counts as an adverse determination

At the Justice Department, which includes the FBI and the immigration courts, adverse determinations include:

  • Records withheld as exempt, in full or in part.
  • A finding that the request does not reasonably describe the records.
  • Records that do not exist, cannot be located or have been destroyed.
  • Records that cannot be reproduced in the format requested.
  • Denials involving fees, fee waivers or expedited processing.

At Homeland Security (USCIS, CBP and ICE), you can also appeal if you question the adequacy of the search, if the agency misread the request or answered only part of it, or if there is a procedural problem such as miscalculated fees.

Common problems

Hand holding a page with paragraphs blocked out by black bars, a scale of justice behind

Redacted paragraphs

And no clear reason why.

Man opening an empty folder on his desk and looking inside with surprise

A "no records" response

When you know records exist.

Woman checking her wristwatch with tension beside a desk with an open folder

A denied expedite request or fee waiver

With little explanation.

Desk calendar with several days circled in red, beside a pen and an hourglass

An unclear deadline

Each agency counts its appeal period differently.

Woman holding a phone to her ear on hold, looking out a window at dusk

Silence

Time passes and the agency does not answer.

How we handle it

Redactions

What we do: We check which exemption the agency cited for each part and whether it showed how much was deleted.

"No records"

What we do: We compare the search with what was asked for and, if it falls short, raise it in the appeal.

A denied expedite request or fee waiver

What we do: We appeal that decision, which is an adverse determination too.

An unclear deadline

What we do: We calculate that agency's period from the date of the response.

Silence

What we do: We contact the FOIA Public Liaison and, if you decide to, OGIS mediation, without letting the appeal deadline run out.

How it works

1. Send us the agency's response

With its date and the request number.

2. We calculate the deadline

That agency's period, counted from the date of the response.

3. We review what was denied and why

Every exemption cited and every redaction.

4. We draft the appeal

It identifies the decision being appealed and explains why it is wrong.

5. We file it the way the agency takes appeals

At the Justice Department, with its Office of Information Policy, including through its web portal.

6. We track it to a decision

And tell you what the agency decided.

What goes in the appeal

  • The request number and the decision being appealed. So the agency knows which response it is reviewing.
  • Why the decision is wrong. Point by point: each exemption, each redaction, or the search that fell short.
  • The “Freedom of Information Act Appeal” marking. On the letter and envelope, or in the subject line of an electronic submission, to speed up handling.

If the request goes to litigation, the Justice Department ordinarily stops deciding the appeal.

Deadlines: the statute and each agency

AgencyTime to appealWhere
Statutory minimumAt least 90 days from the responseEach agency sets its own
Justice Department (FBI, immigration courts)90 calendar days from the responseOffice of Information Policy
Homeland Security (USCIS, CBP, ICE)90 working days from the responseThe component’s Appeals Officer

One difference that matters: the Justice Department counts calendar days; Homeland Security counts working days. For any other agency, we check its regulation before filing.

Once the appeal is received, the agency has 20 working days to decide it, extendable in unusual circumstances. We cannot promise when it will decide.

Alongside the appeal: the FOIA Public Liaison and OGIS

  • FOIA Public Liaison. Every response must tell you about your right to ask the agency’s FOIA Public Liaison for help.
  • Dispute resolution. An adverse response must also tell you that you can seek dispute resolution from the FOIA Public Liaison or the Office of Government Information Services (OGIS).
  • What OGIS is. An office of the National Archives that mediates between requesters and agencies as a non-exclusive alternative to litigation. Mediation is voluntary and neutral: OGIS does not take either side. See its mediation program.

The statute frames mediation as an alternative to litigation, not to the appeal. So while it runs, we keep tracking the appeal deadline.

If the appeal is denied too

At the Justice Department, the appeal decision comes in writing. If it upholds the denial, it gives the reasons and tells you about your right to sue and about OGIS mediation. At Homeland Security, an adverse decision by the Appeals Officer is the department’s final action.

The next step is a federal district court, which can order the release of records improperly withheld; there, the agency carries the burden of justifying the withholding. Before suing, you generally must have filed a timely administrative appeal. A lawsuit is a matter for a licensed attorney.

The foreseeable harm standard

Since the 2016 amendments, an agency may withhold information only if it reasonably foresees that release would harm an interest protected by an exemption, or if the law prohibits release. It must also release any reasonably segregable part of the record. Both are points we check in every redacted response.

Why Riveros Corp

A real office in Miami

175 SW 7th ST, Suite 1905. Come in, or do everything remotely.

English and Spanish

For requesters who prefer to hear in Spanish what the agency decided.

Deadline control

We count from the day the response arrives, using each agency's rule.

We know the agencies in this branch

USCIS, CBP, ICE, the immigration courts, the FBI and the business regulators.

Who is behind it

Riveros Corp was founded by Zulma E. Bourelly, a Florida Notary Public, County Court Mediator and ACAMS-certified CAMS.

What we do, and what we don't

We do

We don't

Requesting for a client

If a representative filed the original request, it had to name the client; if it did not, courts have held that the client may not be able to sue over it later. We check this before appealing.

Legal basis

  • Freedom of Information Act, 5 U.S.C. §552(a)(6), appeals and deadlines.
  • 5 U.S.C. §552(h), Office of Government Information Services.
  • Justice Department regulations, 28 CFR 16.6 and 16.8.
  • Homeland Security regulations, 6 CFR 5.8.
  • FOIA Improvement Act of 2016, the foreseeable harm standard.

Frequently asked questions

At least 90 days from the response. At the Justice Department it is 90 calendar days; at Homeland Security, 90 working days.

The statute gives it 20 working days, extendable in unusual circumstances. We cannot promise when it will decide.

An office of the National Archives that mediates between requesters and agencies, on a voluntary and neutral basis.

No. The statute frames it as an alternative to litigation, not to the appeal, so we don’t let the appeal deadline lapse while it runs.

The rule that an agency may withhold information only if it reasonably foresees harm to an interest an exemption protects, or if the law prohibits release.

Yes. Records that do not exist or cannot be located is an adverse determination, and at Homeland Security you can appeal an inadequate search.

Yes. At the Justice Department, denying expedited processing is an adverse determination.

Yes. Denials involving fees or fee waivers are adverse determinations, and at Homeland Security you can also appeal fees you believe were miscalculated.

It helps: the appeal should identify the decision being appealed and the request number. At Homeland Security, include it if you know it.

At the Justice Department, the decision gives the reasons and tells you about your right to sue and about OGIS mediation. A lawsuit is a matter for a licensed attorney.

Yes. We prepare it and file it in your name, the way the agency takes appeals.

Was your FOIA request denied or redacted?

Message us on WhatsApp, call +1 305 647 3000 or visit our Miami office. Send us the agency’s response and we’ll tell you how much time you have left.

Email: [email protected] · 175 SW 7th ST, Suite 1905, Miami FL 33130

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