Employing a “de novo” standard of review at the administrative appeal level helps ensure that the agency is making a fully considered decision on appeal. § 552(a)(4)(B),-meaning that for most matters the court will review the agency’s actions afresh-it is beneficial for agencies to use this same standard of review at the administrative appeal level as well. Moreover, given that FOIA decisions are generally reviewed under the “de novo” standard in court, see 5 U.S.C. To maximize the effectiveness of this responsibility, agencies should ensure that administrative review is conducted by an appeal authority that is separate and distinct from the office or official that made the initial determination on the request. The administrative appeal process serves an important screening function by providing agencies with "an opportunity to exercise discretion and expertise on the matter" and “to correct mistakes made at lower levels and thereby obviate unnecessary judicial review.” Oglesby v. See OIP Guidance: Notifying Requesters of the Mediation Services Offered by OGIS (posted ).Ĭonducting an Independent, “De Novo” Review on Appeal OIP guidance instructs agencies to also include in their appeal determinations notification of the availability of mediation services offered by the Office of Government Information Services (OGIS), at NARA, as a non-exclusive alternative to litigation. If a denial of the request for records is upheld either in whole or in part on appeal, the FOIA requires the agency to notify the requester of the FOIA's provisions for judicial review. It is helpful, for example, to include in agency FOIA regulations a statement advising the public that an appeal ordinarily is required before a requester can seek judicial review, and conversely, that an appeal ordinarily will not be adjudicated if the request becomes the subject of litigation.Ībsent “unusual circumstances,” the FOIA provides that agencies should make a determination with respect to an appeal within twenty working-days of its receipt by the agency. OIP's template for agency FOIA regulations includes suggested language for administrative appeal procedures that address the mechanics of submitting an appeal, delineate what is required in an agency response on appeal, and address customer service. As to the amount of time within which to file an appeal, the statute specifies that agencies must afford requesters a minimum of 90 days after the date of an adverse determination to file an administrative appeal. See OIP Guidance for Agency FOIA Regulations (posted 2016, updated ). Nevertheless, OIP's guidance on agency FOIA regulations stresses that including appeal procedures in agency FOIA regulations ensures that both agency personnel and requesters understand how and where to make their appeal and what to expect from the appeal process. § 552(a)(6)(A)(i), the statute does not explicitly require agencies to set out in their FOIA regulations specific procedures for the filing and handling of administrative appeals. While the FOIA requires agencies to give requesters an opportunity to administratively appeal adverse determinations made on their requests, 5 U.S.C. Setting Out Appeal Procedures in FOIA Regulations This guidance outlines key considerations for agencies to employ in implementing a strong and effective administrative appeal process. The process offers the agency an opportunity to reevaluate its initial response to a request and identify any potential legal errors, and it increases requesters’ confidence in the FOIA process by providing a second opportunity for the request to be reviewed. The administrative appeal process affords benefits to agencies as well as to requesters. See, e.g., Department of Justice FOIA Regulations, 28 C.F.R. Adverse determinations can also encompass procedural matters associated with a request, such as decisions on fee waiver or expedited processing, or the form or format of the requested records. Adverse determinations, or denials of requests, include agency decisions that the requested records are exempt, in whole or in part, as well as determinations that the requested record does not exist or cannot be located. The Freedom of Information Act (FOIA) provides requesters with a statutory right to administratively appeal an “adverse determination” an agency makes on a FOIA request. OIP Guidance: Adjudicating Administrative Appeals Under the FOIA
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