What to Do When the Government Denies Your FOIA Request

Getting a FOIA denial isn't the end of the road. Most denials can be reversed or narrowed through the appeal process, and agencies routinely release records once a lawsuit is filed. Here's the playbook.

Step 1: Read the Denial Letter Carefully

The letter must identify:

Which records are withheld (or that no records were found)
Which specific FOIA exemption(s) are being claimed
The volume of records withheld
Your right to appeal, and the deadline (usually 90 days)

Any missing element is itself a procedural violation you can raise on appeal.

Step 2: Identify What Went Wrong

Common problems with FOIA denials:

The exemption doesn't fit the record. Exemption 5 for a final decision, Exemption 7(A) for a closed case, Exemption 6 for a public official's work conduct — all common overreaches.
No foreseeable harm shown. The 2016 FOIA Improvement Act requires agencies to explain how disclosure would harm an interest the exemption protects.
No segregation. Agencies must release "any reasonably segregable portion" of a document after redacting exempt material. Full withholdings are rarely defensible.
Inadequate search. "No records found" is often the result of a search that didn't cover the right custodians, systems, or terms.
Fees or scope pretext. An agency demands a huge fee estimate or claims the request is "unduly burdensome" to avoid searching.

See The Nine FOIA Exemptions Explained for the substantive limits on each exemption.

Step 3: File an Administrative Appeal

The appeal goes to the agency's FOIA appeals office, not the office that made the original decision. It must be filed within the deadline set in the denial letter (typically 90 days). A strong appeal:

Identifies each specific defect in the denial (exemption misapplication, no foreseeable-harm showing, no segregation, inadequate search)
Cites the FOIA Improvement Act's foreseeable-harm standard
Cites relevant case law (particularly the D.C. Circuit's FOIA decisions)
Proposes a narrowed or alternative request as a fallback
Requests a Vaughn index if the case is likely to be litigated

Agencies must respond to appeals within 20 working days. In practice, many take longer — but a missed appeal deadline is itself grounds to sue.

Step 4: Negotiate

Sometimes the fastest path to records is a conversation with the FOIA officer. Offer to:

Narrow the request to a specific date range or custodian
Accept a subset of records now while the rest are processed
Withdraw a portion in exchange for expedited processing on the rest

Step 5: Sue in Federal District Court

If the appeal fails or the agency is silent, file a FOIA suit in the U.S. District Court for the District of Columbia or the district where you live. Suits are typically resolved on cross-motions for summary judgment, with the agency required to justify each withholding through a Vaughn index (item-by-item explanations).

What often happens once a suit is filed:

The agency releases records it had been withholding, to moot the case and avoid fee exposure
Withholdings are narrowed dramatically once the agency has to defend each one line by line
The court orders a phased production schedule

Step 6: Recover Attorney Fees

If you "substantially prevail" — which includes getting records released after suing — the court can order the agency to pay your reasonable attorney fees and costs. That fee-shifting provision is the reason many agencies capitulate quickly.

Common Mistakes

Missing the appeal deadline (usually fatal)
Filing suit without exhausting the administrative appeal (jurisdictional problem in most cases)
Accepting agency "no records" responses without probing the search methodology
Not preserving evidence of the initial request and confirmation

Talk to a FOIA Attorney

Because federal FOIA includes fee-shifting, many meritorious cases can be litigated with fees recovered from the agency. Learn about our FOIA practice or contact us for a free consultation.

FAQ

Can I appeal a FOIA denial?

Yes. Every FOIA denial must include appeal instructions. Administrative appeals are free and usually decided within 20 business days.

How long do I have to sue after a FOIA denial?

Federal FOIA claims must be filed within six years of the final denial. State laws vary — California's CPRA has shorter timelines.

Are attorneys' fees available in FOIA litigation?

Yes. Prevailing FOIA requesters can recover fees and costs, which makes attorney representation feasible on important requests.