When a federal agency returns a Freedom of Information Act response full of black boxes, you have three escalating ways to challenge FOIA redactions: an administrative appeal to the agency within 90 days, free mediation through the Office of Government Information Services, and a lawsuit in federal district court where the burden falls on the government to justify every deletion. Each step is available to any requester, and the law is structured so that agencies cannot hide behind exemption labels without proving the labels fit.
Read the Redactions Before You Appeal
Every redaction on your response should carry a specific exemption code, placed at or near the withheld text. The statute requires agencies to indicate the amount of information deleted and the exemption justifying each deletion directly on the released portion of the record.1U.S. Department of Justice. The Freedom of Information Act, 5 USC 552 You will typically see boxes over the withheld text with labels like “(b)(6)” or “(b)(7)(C).”2Office of Information Policy. Segregating and Marking Documents for Release in Accordance With the Open Government Act If a response comes back with unmarked redactions or vague notations that do not identify a specific exemption, that alone is a basis for appeal.
Two legal standards give you leverage before you even look at the specific exemption. First, since 2016 the statute has required “foreseeable harm”: an agency can only withhold information if it reasonably foresees that release would harm an interest the exemption protects, or if another law flatly prohibits disclosure.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings Fitting a category is not enough; embarrassment is not harm.4Department of Justice. OIP Guidance: Applying a Presumption of Openness and the Foreseeable Harm Standard
Second, agencies must release any “reasonably segregable” portion of a record after removing exempt material.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings An entire ten-page memo cannot be withheld because one paragraph is sensitive. Segregability is where agencies most often cut corners, and appeals gain traction here regularly.
Know Which Exemption You Are Fighting
The nine categories in 5 U.S.C. § 552(b) each have known weak spots. Identifying yours sharpens the appeal.
Exemption 1 covers information “properly classified” under an executive order for national defense or foreign policy. If a document was never formally classified or its classification has expired, the exemption does not apply.5Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings
Exemption 2 covers records that relate solely to internal personnel rules and practices. A 2012 Supreme Court decision narrowed it significantly, and it now covers only genuinely mundane administrative matters.6eCFR. 32 CFR 1662.19 – The FOIA Exemption 2: Internal Personnel Rules and Practices
Exemption 3 is a gateway for other statutes that independently require secrecy, such as tax return provisions in the Internal Revenue Code. The referenced statute has to leave the agency no discretion or set specific withholding criteria.7eCFR. 32 CFR 1662.20 – The FOIA Exemption 3: Records Exempted by Other Statutes
Exemption 4 protects trade secrets and confidential commercial or financial information.8eCFR. 32 CFR 1662.21 – The FOIA Exemption 4: Trade Secrets and Confidential Commercial or Financial Information A 2019 Supreme Court decision requires that qualifying information be both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.9Supreme Court of the United States. Food Marketing Institute v. Argus Leader Media If the company routinely shares the same data publicly, confidentiality fails.
Exemption 5 shields internal communications that would be privileged in civil litigation, most often deliberative process and attorney-client. The deliberative process privilege cannot be applied to records created 25 or more years before the request.10FOIA.gov. Freedom of Information Act: Frequently Asked Questions That sunset is worth checking on historical policy requests.11eCFR. 32 CFR 1662.22 – The FOIA Exemption 5: Internal Documents
Exemption 6 covers personnel, medical, and similar files where disclosure would be a clearly unwarranted invasion of personal privacy.12eCFR. 20 CFR 402.140 – The FOIA Exemption 6: Clearly Unwarranted Invasion of Personal Privacy Agencies must balance privacy against public interest, and senior officials performing public duties get far less protection than rank-and-file employees.
Exemption 7 is the most heavily litigated, with six sub-parts covering law enforcement records. Each sub-part requires a specific harm: 7(A) interference with ongoing proceedings, 7(B) unfair trial, 7(C) unwarranted privacy invasion, 7(D) confidential source identity, 7(E) investigative techniques that could help evade the law, and 7(F) physical safety.13eCFR. 32 CFR 1662.24 – The FOIA Exemption 7: Law Enforcement Agencies frequently invoke 7(A) to withhold entire files tied to investigations that may have closed years ago. If you suspect an investigation is no longer active, challenging a 7(A) redaction is often worthwhile.
Exemptions 8 and 9 cover records on the regulation of financial institutions and geological data about wells. Both are narrow and rarely encountered.14eCFR. 32 CFR 1662.25 – The FOIA Exemptions 8 and 9: Records on Financial Institutions; Records on Wells
Glomar Responses Can Be Appealed Too
Sometimes an agency will not redact a document but refuse to say whether responsive records exist at all. This is a “Glomar” response, and its legal basis is that even confirming or denying the records’ existence would itself reveal exempt information. Third-party requests for someone else’s law enforcement records are the typical setting.15Department of Justice. FOIA Update: OIP Guidance: Privacy Glomarization
A Glomar response is not the end of the road. It can be appealed like any other adverse determination, and the agency cannot maintain it if the subject is deceased, has waived their privacy rights in writing, or has already been publicly identified as a subject of a federal investigation through an indictment or similar official action.15Department of Justice. FOIA Update: OIP Guidance: Privacy Glomarization
Filing the Administrative Appeal
The first formal challenge is a written appeal to the head of the agency or its designated FOIA appeals officer. The statute guarantees at least 90 days from the date of the adverse determination to file.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings
The appeal does not need to read like a legal brief. Be specific. Identify which redactions you are challenging. Explain why the claimed exemption does not fit the context of the record. Point out failures in marking or segregability. If a redaction is tagged with Exemption 5 on a record more than 25 years old, say so. If a document about public spending was redacted under Exemption 6, explain why the public interest in the information outweighs the privacy claim. If an agency invoked 7(A) but the underlying investigation appears closed, name that.
Agencies must respond within 20 working days of receiving the appeal.16U.S. Department of Labor. Guide to Submitting Requests Under the Freedom of Information Act That deadline can be extended only under “unusual circumstances,” which the statute defines narrowly: records at a separate facility, a massive volume of records, or consultation required with another agency that has a substantial interest.17Legal Information Institute. Definition: Unusual Circumstances From 5 USC 552(a)(6) Being busy does not qualify.
Free Mediation Through OGIS
If the administrative appeal does not resolve the dispute, the Office of Government Information Services offers free mediation. Congress created OGIS within the National Archives to serve as a FOIA ombudsman, review agency compliance, mediate disputes, and issue advisory opinions.18Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings The statute describes OGIS as a “nonexclusive alternative to litigation,” so mediation does not foreclose going to court later.19eCFR. 22 CFR 212.12 – Mediation and Dispute Services
Before contacting OGIS, try to resolve the issue directly with the agency by reaching its FOIA Public Liaison. To request OGIS assistance, provide your FOIA tracking number, a description of the problem, copies of your request and the agency’s response, and a signed privacy consent form. Submissions go to ogis@nara.gov or by mail to the OGIS office in College Park, Maryland.20National Archives. Request OGIS Assistance
Mediation is informal and voluntary for both sides. OGIS cannot force an agency to release records, but its involvement often prompts a fresh review that produces better results than the original appeal.
Federal Court: Where the Government Has to Prove Its Case
After exhausting the administrative appeal, you can file suit in U.S. district court. Venue options include where you live, where you have your principal place of business, where the records are located, or the District of Columbia.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings You can also sue if the agency simply fails to respond to your initial request or appeal within the statutory deadlines.16U.S. Department of Labor. Guide to Submitting Requests Under the Freedom of Information Act
Two features of FOIA litigation strongly favor requesters. The court reviews the case de novo, deciding the question fresh without deferring to the agency’s judgment. And the burden of proof falls entirely on the agency; the government must prove that its redactions were justified.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings The judge can also examine the disputed records privately in chambers, so an agency cannot expect the court to take its word for it.
The Vaughn Index
In most FOIA lawsuits, the court requires the agency to produce a Vaughn index: a detailed document identifying each record or redaction being withheld and explaining, item by item, which exemption applies and why. The index lets the judge decide without necessarily reviewing every withheld page, creates a record for appeal, and gives you enough information to argue the case.21Department of Justice. Advanced FOIA Litigation A vague or categorical Vaughn index is often a sign the agency is struggling to justify its redactions, and courts regularly reject them.
Attorney Fees
If you “substantially prevail,” the court can order the government to pay your reasonable attorney fees and litigation costs. You substantially prevail if you obtain a court order requiring disclosure, secure an enforceable settlement, or if the agency voluntarily releases the records after you file suit, as long as your underlying claim was not frivolous.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings
Meeting the eligibility threshold does not guarantee an award. Courts weigh the public benefit of the case, any commercial benefit to you, your interest in the records, and whether the agency had a reasonable legal basis for withholding. Cases that expose government wrongdoing or inform public debate tend to fare better than requests driven by private business interests. One caveat: if you represent yourself and are not an attorney, you are not eligible for a fee award.
One Boundary: Exclusions Are Not Redactions
Separate from the nine exemptions, the statute contains three narrow “exclusions” that allow agencies to treat certain records as if they are not subject to FOIA at all: active criminal investigations where the target is unaware, confidential informant records requested by a third party, and classified FBI records tied to foreign intelligence or counterintelligence.3Office of the Law Revision Counsel. 5 USC 552 – Public Information; Agency Rules, Opinions, Orders, Records, and Proceedings Unlike an exemption, an exclusion is invisible: the agency responds as though the records do not exist. If a “no responsive records” answer strikes you as implausible in one of these areas, the redaction-challenge process does not apply, but the same appeal and litigation channels remain open to test the response.