Rich Jones

I have literally no idea how to mount a successful appeal.

What are the steps?

Shawn Musgrave

Is this request with regard to a particular request? It’s hard to paint broad suggestions on drafting appeals. 

-Shawn, MuckRock

Rich Jones

I basically want to just start appealing everything, if there’s a standard way to do it. Currently, MuckRock just gives you an empty box and no instructions.. I need somebody to hold my hand, like with the original submission.

Shawn Musgrave

People have different strategies for appeals, particularly depending on why a request was rejected, or if the agency claimed not to have found any documents. 

Also, you can submit particular requests to the Q&A board for more targeted troubleshooting around a specific FOIA.

In the meantime, anyone have general FOIA appeal tips?

-Shawn

Rich Jones

Even just the boilerplate like:

This is an appeal under blah blah blah.

Sincerely, Blah.

That kind of thing would be useful.

Rich Jones

Re: specific questions though, I’d love your help on this one: https://www.muckrock.com/questions/rejected-by-the-cia-as-too-broad-how-can-i-be-more-specific-101

Kevin Schmidt

For that specific you request you mentioned, you may want to consider giving the FBI a list of search terms to go along with the name. I would suggest going that route before appealing. 

As for general advice on an appeal, this example may help you get started:

http://causeofaction.org/cause-action-appeals-usda-redactions-related-white-house-equities/

Amy Bennett

Reporters Committee has a variety of appeal letters on different topics posted here: http://www.rcfp.org/federal-foia-appeals-guide/sample-appeal-letters-and-templates

Rich Jones

Amy that is fucking awesome, thank you! Bookmarked.

Cheryl E

Every situation will vary, but typical appeal issues are that the agency did not perform an adequate search that was reasonably calculated to uncover all relevant documents, that the agency did not properly segregate exempt and non-exemption material and its redactions were overbroad, that the agency’s Vaughn Index is deficient as it does not identify the withheld records with the appropriate detail and does not describe how disclosure would foreseeably harm the interests protected by the exemption, and that the agency is improperly using an exemption.

Exemption 5 tends to be used a lot. This exemption requires that the document is an inter-agency or intra-agency document. So, if the document was addressed to or came from someone outside the agency, it generally must be disclosed (exceptions for consultant type arrangements).

Under Exemption 5, the agency can claim attorney-client privilege, attorney work product privilege, and deliberative process privilege. Those can be attacked if an attorney-client relationship was not involved, if the document was disclosed to a third party, if the document was not prepared in anticipation of litigation, or if the document was a post-decisional document (among other reasons).

Under FOIA, the agency bears the burden of proof. So if they, for example, merely claim that no records were found after a comprehensive search–that response does not satisfy the burden of proving that an appropriate search was performed. The “who/what/where/why” details are needed. The agency may very well have conducted a comprehensive search. But the agency hasn’t proven that it did until it describes the details.

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