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What Are My Options if My FOIA Request Is Denied?

Michael Kuzma Attorney at Law July 21, 2023

The Freedom of Information Act (FOIA) written on a pageThe federal government and the State of New York have laws that allow citizens to request information relating to any laws, regulations, decisions, and other records that an agency may possess. On the federal level, you may request information through the Freedom of Information Act (FOIA). To request New York state information, you will utilize the Freedom of Information Law (FOIL). 

FOIA applies only to agencies of the Executive Branch of government. Cases filed by the news media or its members totaled 697 between 2001 and 2020. The average citizen can also file a request under FOIA. 

Though FOIA requests should be honored, the agencies may withhold the requested documents or information if they claim it is part of an ongoing criminal investigation or if the release would harm national security. There are nine exemptions allowed under the FOIA, including criminal investigations, national security, trade secrets, personnel or medical files, classified documents, and more.  

You may wonder why a request for information under the FOIA or FOIL is denied. Some of these cases have gone on for years with the relevant agency stonewalling or denying the request. If you have submitted a FOIA or FOIL request or appeal, contact Michael Kuzma, Attorney at Law, to assist you.  

Mike has decades of experience dealing with information requests, denials, and subsequent appeals. He knows how to navigate the system to secure the information you are seeking. Attorney Michael Kuzma proudly represent clients on FOI matters throughout the United States. 

Laws Governing Information Requests

FOIA, the federal statute for requesting governmental information, was originally part of the Administrative Procedures Act (APA) but was made a standalone law in 1966 to implement “a general philosophy of full agency disclosure.” Though, it is generally associated with news media requests, FOIA is actually used more often by businesses, law firms, and individuals.   

FOIL, the New York State counterpart – since FOIA applies only to federal agencies – declares it as: “The people's right to know the process of government decision making and the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.” 

Reasons a FOIA Request May Be Denied

Generally speaking, a FOIA request may only be denied, wholly or in part, because it is exempt under the nine categories set forth in the statute or because the record or document cannot be located or does not exist. The nine exemptions are:  

  • Information classified by Executive Order in the interest of national security.  

  • Information relating to personnel rules and practices of the agency.  

  • Information that is prohibited from disclosure by federal or state law.   

  • Trade secrets or other confidential information, such as financial.  

  • Intra- or inter-agency communications.  

  • Medical and personnel information that would be an invasion of privacy.  

  • Specific information and records that are compiled for law enforcement purposes.   

  • Information pertaining to the supervision of financial institutions.

  • Geological information on wells.   

The information requested can also be “excluded” if it involves an ongoing criminal investigation or if it involves foreign intelligence, counterintelligence, or international terrorism records that are classified. 

The FOIA Appeals Process

The Department of Justice (DOJ) and its Office of Information Policy (OIP) note that the FOIA statute “does not explicitly require agencies to set out in their FOIA regulations specific procedures for the filing and handling of administrative appeals.”   

Each agency, in other words, can establish its own appeals process. However, the statute does require that agencies give requesters at least 90 days to file an appeal. It is important to check the timeline and procedures outlined when you receive your FOIA request-reply and denial. Appeals can be based not only on exemptions, but also on a “no records” or fee waiver decision.  

The FOIA statute gives the agency 20 working days to make a determination on any appeal, with the only exception being “unusual circumstances.” Also, the OIP memorandum on FOIA appeals notes that the appeal determination should be undertaken by an office or official that was not responsible for the original denial, which is called a “de novo” review. The agency should also offer mediation as an alternative to legal action.  

Of course, taking the case to court is often the final and ultimate step in the appeals process. Although, the OIP encourages the appealing agent to resolve or narrow the appeal in hopes of averting a FOIA lawsuit. 

Get a FOIA Attorney on Your Side

FOIA or FOIL requests can be challenging and frustrating. Government agencies tend to stall or deny requests for a variety of reasons. If you are making a request and are getting the runaround or a flat-out denial, contact, Michael Kuzma. Attorney at Law, for strong legal assistance. Mike will help you navigate the appeals process in order to pry loose the information you are requesting.