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The Freedom of Information Act (FOIA) gives the public access to federal agency records, but it does not require agencies to release everything they possess. Nine statutory exemptions protect defined interests, and three narrow law-enforcement or national-security exclusions operate separately from those exemptions. Even when part of a record is protected, the agency should release all reasonably segregable nonexempt material. If an agency withholds records or makes another adverse determination, you can file an administrative appeal; FOIA guarantees at least 90 days to do so. Your determination letter controls the exact deadline, destination and submission method.
FOIA’s withholding standard
FOIA is a disclosure law, not a general confidentiality law. The Department of Justice (DOJ) explains that agencies should withhold information only when they reasonably foresee that disclosure would harm an interest protected by an exemption, or when another law prohibits disclosure. Read the full DOJ standard in its FOIA request guidance.
An agency must also consider partial disclosure. If a page contains both protected and releasable material, it should delete only the protected portions and provide the remainder. The exemption relied on is ordinarily marked next to each redaction. If an entire page is withheld, the agency ordinarily provides a count or reasonable estimate of the withheld pages, subject to limited exceptions. These practices are described in the DOJ Freedom of Information Act Reference Guide and the DOJ model regulations at Template for Agency FOIA Regulations.
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The nine FOIA exemptions
The exemptions are specific categories. An agency cannot invoke one merely because release would be inconvenient or embarrassing.
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| Exemption | Protected material | What the agency must connect to the record |
|---|---|---|
| 1 | Classified national-defense and foreign-relations information. | The material is properly classified under the applicable national-security rules. |
| 2 | Internal personnel rules and practices. | The information concerns agency personnel rules or internal practices covered by the exemption. |
| 3 | Information that another federal statute prohibits from disclosing. | A separate federal statute specifically requires or authorizes withholding. |
| 4 | Trade secrets and confidential or privileged commercial or financial information. | The record contains qualifying commercial or financial information protected by the exemption. |
| 5 | Inter-agency or intra-agency communications protected by recognized legal privileges. | The communication falls within a privilege covered by the exemption, such as a deliberative or attorney-related privilege. |
| 6 | Information whose disclosure would implicate personal privacy. | The privacy interest and the applicable balancing required by FOIA support withholding. |
| 7 | Records compiled for law-enforcement purposes when disclosure could cause a statutory harm. | The agency must identify a qualifying law-enforcement purpose and a foreseeable harm, such as interference with proceedings, an unfair-trial concern, an unwarranted privacy invasion, disclosure of a confidential source or investigative technique, or danger to someone’s life or physical safety. |
| 8 | Information relating to supervision of financial institutions. | The records concern the covered supervisory activity. |
| 9 | Geological information on wells. | The information is geological well data within the exemption’s scope. |
The DOJ Reference Guide explains these categories and the related appeal process in detail: https://www.justice.gov/oip/department-justice-freedom-information-act-reference-guide.
Three exclusions that are different from exemptions
FOIA also contains three narrow exclusions. An exclusion removes certain records from the ordinary FOIA response framework; it is not simply another exemption and should not be treated as permission to hide every law-enforcement record.
- Ongoing criminal investigations: certain records tied to an active criminal investigation may be excluded.
- Unconfirmed confidential informants: records that would reveal the existence of an unconfirmed confidential informant can fall within an exclusion.
- Classified FBI intelligence records: certain classified FBI foreign-intelligence, counterintelligence or international-terrorism records may be excluded.
Because exclusions are handled differently from ordinary exemptions, a requester may receive less detail about the records or the reason they were not processed under normal response requirements.
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An appeal is not limited to a letter that says “Exemption 1” or “Exemption 7.” A determination can be adverse whenever the agency does not provide the access, format or processing you requested. Examples include:
- withholding records in whole or in part under one or more exemptions;
- reporting that no responsive records were found or cannot be located;
- deciding that your description is not sufficiently specific to search;
- concluding that the requested material is not a FOIA record;
- declining to reproduce records in the requested format;
- assessing fees or denying a fee waiver; and
- denying expedited processing.
A proper determination letter should identify the decision-maker by name or title, explain the reasons and exemptions, estimate the volume withheld when applicable, tell you how to appeal, and provide information about the agency’s FOIA Public Liaison and the Office of Government Information Services (OGIS). DOJ’s model requirements are at https://www.justice.gov/oip/template-agency-foia-regulations.
How to appeal a FOIA denial
Use the agency’s letter as your procedural roadmap. The following sequence works for a DOJ appeal and provides a sound checklist for other federal agencies, while recognizing that each agency may prescribe a different portal or mailing address.
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- Read every page of the determination. Identify the component that handled the request, the action being challenged, each exemption or procedural ground, the request number, the date of the decision and the stated appeal instructions. If the letter omits an item, use the agency’s FOIA regulations or contact its FOIA Public Liaison for clarification.
- Calendar the deadline immediately. FOIA guarantees a minimum of 90 days after an adverse determination to appeal. For DOJ requests, the Office of Information Policy (OIP) says an appeal must be postmarked or electronically transmitted within 90 calendar days. Other departments can specify different filing mechanics, so follow the deadline and time zone stated in the letter. DOJ’s current submission instructions are at https://www.justice.gov/oip/submit-and-track-request-or-appeal.
- Use the required channel. DOJ’s portal, email route or mailing address is not automatically the correct destination for another department. Send the appeal to the component and address or portal named in your determination. Keep the electronic confirmation, postal receipt or other proof of timely transmission.
- Identify the request and the challenged action. State the component, FOIA request number and original request date. If no number was assigned, attach the determination letter and provide enough information for the agency to locate the file. DOJ says there is no prescribed form or special wording.
- Explain what you want reviewed. Separate each issue: an exemption claim, the adequacy of the search, a no-records finding, a format decision, a fee or fee-waiver decision, or expedited-processing treatment. You do not have to provide a legal brief, but a focused explanation and relevant facts can help the independent reviewer.
- Ask for a specific remedy. Request release of the withheld portions, a new search, a narrower redaction, the requested format, a corrected fee decision or reconsideration of expedited processing. Point to particular pages or categories instead of asking generally for “everything.”
- Attach supporting material. Include the determination letter, your original request, any clarification exchanged with the agency, and documents that show why your description identifies the records or why the claimed harm is not reasonably foreseeable. Remove unnecessary personal information from attachments.
- Submit and retain a complete copy. Save the appeal, attachments, transmission record and the date sent. If the portal gives a tracking number, preserve it with the request file.
Arguments that can make an appeal persuasive
Challenge the exemption’s fit
Explain why the cited exemption does not match the record or why the agency has not shown the required harm. For example, an Exemption 7 claim should address both the law-enforcement purpose and the particular statutory harm the agency predicts. A generalized statement that disclosure could be “sensitive” is not the same as connecting the redaction to a protected interest.
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Request segregable portions
Ask the reviewer to examine each withheld page for reasonably segregable nonexempt material. If the agency released pages with unexplained blank sections, identify those pages and request a line-by-line segregability review and the exemption marking for each deletion.
Address search adequacy
For a no-records or cannot-locate decision, describe why the agency’s search terms, custodians, systems, date range or component selection may have missed responsive records. Provide distinctive names, file numbers, subject terms or date limits that can support a focused supplemental search.
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Correct an overly broad or unclear request
If the agency found the description insufficient, clarify the record type, office, subject, date range and preferred format. A narrower, better-defined request can resolve the problem faster than an appeal that repeats the original wording.
Separate procedural issues
Fee, fee-waiver, format and expedited-processing decisions involve different criteria from an exemption dispute. State the facts relevant to that particular decision and the relief you seek instead of relying on an argument about disclosure interests alone.
What happens after you file
An administrative appeal should be reviewed by an authority separate from the original decision-maker. Under DOJ guidance, the reviewer may affirm the decision, reverse it, or remand some or all of the issues for further action. A remand can lead to another search, a new segregability review or a revised determination.
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If the appeal does not resolve the matter, ask the agency’s FOIA Public Liaison for assistance with communication or status questions. OGIS may offer mediation. Mediation is a voluntary problem-solving process; it does not replace the agency’s legal decision.
You may also seek judicial review in federal court. DOJ states that an administrative appeal ordinarily must come first, so preserve the request, determination, appeal and response records. Court litigation has its own jurisdictional, filing and evidence requirements and may warrant advice from a lawyer experienced in FOIA.
A practical review checklist
Before sending an appeal, compare the determination with these questions:
| Review point | Question to answer in your appeal |
|---|---|
| Legal basis | Which exemption or procedural ground did the agency state, and why does it apply—or fail to apply—to the requested records? |
| Scope of withholding | Were all records withheld, or only particular pages, fields or passages? |
| Segregability | Did the agency release reasonably segregable material and mark the redactions? |
| Search or description | Is the dispute about where or how the agency searched, or about whether the request adequately describes records? |
| Deadline and channel | What date, portal, email address or mailing address does the determination letter require? |
| Remedy | Are you asking for release, an additional search, reconsideration, a different format, a fee decision or clarification? |
Common mistakes and how to avoid them
- Waiting past the deadline: the statutory minimum is 90 days, but calculate from the adverse determination and follow the agency’s stated transmission rule.
- Sending a DOJ appeal to another agency’s portal: DOJ’s process is component-specific. Use the destination in the letter for the department that handled your request.
- Arguing only that the subject is important: public interest alone does not defeat an exemption. Address the exemption’s elements, foreseeable harm and segregability.
- Ignoring partial release: challenge unexplained full-page deletions and request nonexempt portions, not just total disclosure.
- Failing to identify the request: include the request number, date, component and determination letter so the reviewer can match the appeal to the correct file.
- Treating every law-enforcement record as exempt: Exemption 7 requires a qualifying law-enforcement purpose and one of the listed harms; the three exclusions are separate and narrow.
- Assuming an appeal is the only next step: a Public Liaison, OGIS mediation and, after the administrative process, federal court review may each serve different purposes.
The DOJ’s guidance on appeals, review standards and available assistance is collected in Adjudicating Administrative Appeals Under the FOIA and Make a FOIA Request to DOJ. This article provides general information, not legal advice for a particular request or lawsuit.
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