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1Clear out junk files and repair common Windows errors2Scan for outdated or missing drivers - takes under a minute3Repair Windows errors before they cause bigger problemsFederal agencies may withhold records only under the nine exemptions and three narrow exclusions in the Freedom of Information Act (FOIA), not simply because disclosure is inconvenient. Even when an exemption applies, the agency should release all reasonably segregable, nonexempt material. If an agency withholds records, says it found none, rejects your description, denies a fee waiver, cannot provide the requested format, or denies expedited processing, you can file an administrative appeal. FOIA guarantees at least 90 days after an adverse determination to appeal; the determination letter controls the exact deadline and submission method.
What FOIA allows an agency to withhold
FOIA creates a presumption of disclosure for federal agency records. The U.S. Department of Justice (DOJ) explains the nine exemptions and the separate exclusions in its Freedom of Information Act Reference Guide. An agency must identify the legal basis for withholding and should not use an exemption more broadly than necessary.
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The governing standard is whether disclosure would harm an interest protected by an exemption or is prohibited by law. DOJ states: “FOIA provides that when processing requests, agencies should withhold information only if they reasonably foresee that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law.” That standard appears in DOJ’s FOIA request guidance.
The nine statutory exemptions
| Exemption | What it protects | What a requester should look for |
|---|---|---|
| 1 | Classified national-defense and foreign-relations information | The agency must rely on classification rules and explain the exemption. Unclassified material is not automatically covered by Exemption 1. |
| 2 | Internal personnel rules and practices | This is limited to internal personnel matters; it is not a general exemption for every internal agency document. |
| 3 | Information barred from disclosure by another federal statute | The agency must identify the separate statute that prohibits release. FOIA itself is not the additional withholding statute. |
| 4 | Trade secrets and confidential or privileged commercial or financial information | Business information may be protected when it meets the exemption’s requirements. A company’s preference for secrecy alone is not enough. |
| 5 | Privileged inter-agency or intra-agency communications | Examples include material covered by deliberative-process, attorney-client, or attorney-work-product privileges. Purely factual, reasonably separable material may still be releasable. |
| 6 | Information involving personal privacy | The agency balances the individual’s privacy interest against the public interest in disclosure. Names and identifying details may be redacted while other content is released. |
| 7 | Records compiled for law-enforcement purposes when disclosure would cause a listed harm | The agency must connect the record to a statutory harm, such as interference with proceedings, unfair-trial concerns, an unwarranted privacy invasion, exposure of a confidential source or investigative technique, or danger to someone’s life or physical safety. |
| 8 | Information about the supervision of financial institutions | This protects certain examination and supervisory information held by financial regulators. |
| 9 | Geological information about wells | Well-location and related geological data can be withheld to protect sensitive resource information. |
Exemption 7 does not make every law-enforcement record secret. The agency must show that the record was compiled for a law-enforcement purpose and that releasing it could produce one of the harms specified in the statute. A bare reference to an investigation, without a supported harm, is a useful issue to raise on appeal.
Three exclusions are different from exemptions
FOIA also contains three narrow exclusions. DOJ describes them as outside the statute’s ordinary response requirements rather than as ordinary exemption-based redactions. They concern certain records tied to an ongoing criminal investigation, records that would reveal an unconfirmed confidential informant, and classified FBI foreign-intelligence, counterintelligence, or international-terrorism records. Because an exclusion and an exemption use different legal mechanisms, an agency’s use of an exclusion does not mean that every related law-enforcement record can be hidden.
Partial disclosure and redaction requirements
FOIA requires agencies to consider whether nonexempt portions can be separated from exempt material. The agency should release reasonably segregable portions instead of withholding an entire page or document merely because one passage is protected. DOJ’s model denial-letter regulations describe how agencies should explain this process.
On a partly withheld page, the deleted text ordinarily should be marked with the exemption relied on. If an entire page is withheld, the agency ordinarily should provide a count or reasonable estimate of the number of withheld pages, subject to recognized exceptions. A redaction that is not labeled, or a full-page withholding with no explanation, gives you a concrete procedural point to raise.
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What counts as an adverse FOIA determination
You do not have to wait for a document-by-document exemption denial before appealing. An adverse determination can include:
- Withholding all or part of a record under one or more exemptions.
- A finding that the agency has no responsive records or cannot locate records after its search.
- A conclusion that your request is not described well enough to search.
- A determination that the material is not an agency record subject to FOIA.
- An inability or refusal to reproduce records in the requested format.
- A fee assessment, denial of a fee waiver, or other fee decision.
- A denial of expedited processing.
Read the determination letter before drafting an appeal. DOJ’s model requirements call for the decision-maker’s name and title, the reasons and exemptions, a withheld-volume estimate when applicable, appeal instructions, and information about the agency’s FOIA Public Liaison and the Office of Government Information Services (OGIS). The letter should also tell you where and how to submit the appeal.
How long you have to appeal
FOIA guarantees a minimum of 90 days after an adverse determination to file an administrative appeal. For DOJ requests, the Office of Information Policy (OIP) says an appeal must be postmarked or electronically transmitted within 90 calendar days. Use the deadline and channel stated in your own letter for any other department or agency; agencies can publish different procedural details so long as they provide at least the statutory minimum period.
Do not calculate the deadline from the date you first submitted the request. Use the date of the adverse determination, preserve proof of electronic transmission or mailing, and submit early enough to account for weekends, holidays, portal outages, or an agency’s time-zone cutoff.
Step-by-step: filing an administrative appeal
- Identify the agency component. Determine which bureau or office issued the determination. An appeal sent to the wrong component can be delayed or treated as incomplete.
- Read every stated ground. List each exemption, search conclusion, fee decision, format issue, or expedited-processing ruling you are challenging. The appeal should address the actual determination rather than restating the original request.
- Confirm the deadline and channel. Follow the letter’s mailing address, email address, or portal instructions. DOJ’s current submission and tracking instructions are at Submit and Track a Request or Appeal.
- Put the identifying information at the top. DOJ says there is no prescribed form or special wording. Identify the component and challenged action, include the request number and request date, and attach the determination letter when no request number appears.
- State the remedy you want. Ask for release of the withheld material, a new search, a clarification, a fee-waiver decision, the requested format, expedited processing, or a combination of these remedies.
- Explain the strongest reasons. Address why the cited exemption does not fit, why foreseeable harm has not been shown, why segregable material should be released, or why the search was inadequate. DOJ does not require an explanation for disagreement, but a focused argument and relevant facts can help the reviewer.
- Attach useful evidence. Include the determination letter, a copy of the request, clarifications exchanged with the agency, examples showing where responsive records should exist, and any facts that narrow the dispute. Keep confidential information out of the appeal unless it is necessary and the agency provides a secure method.
- Submit and preserve proof. Save the portal confirmation, sent email with attachments, or certified-mail receipt. Keep a complete copy of what you filed.
Arguments that can change the result
The exemption does not fit the information
Match your argument to the exemption’s elements. For Exemption 1, ask whether the classification basis and level are identified. For Exemption 3, ask which separate statute prohibits disclosure. For Exemption 7, ask both whether the records were compiled for law-enforcement purposes and which specific harm disclosure would cause. For Exemptions 5 and 6, distinguish factual material and public-interest information from privileged deliberation or personal identifiers.
The agency has not shown reasonably foreseeable harm
An agency should explain how disclosure would harm a protected interest, not merely recite an exemption label. Point out where the determination uses conclusory language, relies on an old or completed event, or fails to distinguish harmless portions from sensitive passages. Ask the reviewer to reassess foreseeable harm document by document or page by page.
Segregable material was overlooked
Request a line-by-line review for nonexempt text, names of agency offices, dates, purely factual descriptions, and other portions that can be separated from protected material. If redactions are unmarked or an entire page is withheld without a page count or explanation, identify that defect specifically.
The search was inadequate
For a no-records or cannot-locate response, describe the offices, custodians, databases, date ranges, spellings, or file types that should have been searched. Explain why the agency’s description does not cover likely locations, and request a supplemental search. You do not need to prove that a particular document exists; credible facts showing where responsive records may be found can justify a broader search.
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The dispute is procedural rather than substantive
Appeals can challenge an insufficient request description, a fee or fee-waiver decision, a refusal to provide the requested format, or a denial of expedited processing. State what you can clarify, why the fee category or waiver standard was misapplied, how the format is reasonably reproducible, or why the facts meet the agency’s expedited-processing criteria.
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What happens after you appeal
An administrative reviewer should be separate from the original decision-maker. DOJ’s guidance on adjudicating FOIA administrative appeals explains that the reviewer may affirm the decision, reverse it in whole or in part, or remand the matter for additional action. A remand can require a new search, a fresh segregability analysis, or a revised explanation.
If the appeal is delayed or you need help understanding the process, contact the agency’s FOIA Public Liaison. OGIS can offer mediation between a requester and an agency, although it does not replace the agency’s decision-making authority. DOJ’s request guidance also identifies federal court review as an option. An administrative appeal ordinarily must be pursued first, so do not skip the agency’s appeal route unless a qualified attorney advises that a specific exception applies.
How to evaluate the determination before you write
| Question | Why it matters on appeal |
|---|---|
| What legal basis did the agency state? | It tells you which exemption, exclusion, or procedural ground must be answered. |
| Is the withholding complete or partial? | Partial withholding requires a segregability review; full-page withholding generally calls for a count or reasonable estimate and an explanation. |
| Were redactions marked? | Unmarked deletions can make it impossible to understand what was withheld and under which exemption. |
| Does the search explanation make sense? | A no-records response can be challenged when likely offices, systems, custodians, or date ranges were omitted. |
| What deadline and submission channel apply? | The statutory minimum is 90 days, but the letter supplies the operative instructions for that agency. |
| What remedy is realistic? | Choose release, a supplemental search, reconsideration, clarification, a fee decision, a format change, expedited processing, or several specific remedies. |
Common mistakes to avoid
- Appealing after the stated deadline or sending the appeal without proof of timely transmission.
- Arguing that FOIA has a general “public interest” override for every exemption. The statute’s exemptions remain specific legal protections, although some require balancing or a showing of harm.
- Treating an exclusion as if it were an ordinary redaction and assuming the agency can conceal every related record.
- Requesting only “all records” again instead of explaining why the search, exemption analysis, or segregability review was deficient.
- Ignoring non-exemption issues such as fees, format, request description, or expedited processing.
- Assuming that an agency’s failure to find records proves that no records exist. The appeal should test the adequacy of the search.
- Relying on DOJ portal instructions for a non-DOJ agency. Use that agency’s determination letter and published procedures.
FOIA’s structure gives agencies defined reasons to protect classified information, privacy, privileged communications, commercial secrets, law-enforcement interests, and other limited categories. It also gives requesters a defined way to challenge overbroad withholdings and defective searches. A timely, issue-specific appeal that asks for segregable material and the correct procedural remedy is the practical path from a denial to a better-supported decision.
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