Home
gpo.gov
govinfo.gov

e-CFR Navigation Aids

Browse

Simple Search

Advanced Search

 — Boolean

 — Proximity

 

Search History

Search Tips

Corrections

Latest Updates

User Info

FAQs

Agency List

Incorporation By Reference

eCFR logo

Related Resources

Electronic Code of Federal Regulations

We invite you to try out our new beta eCFR site at https://ecfr.federalregister.gov. We have made big changes to make the eCFR easier to use. Be sure to leave feedback using the Feedback button on the bottom right of each page!

e-CFR data is current as of March 4, 2021

Title 45Subtitle BChapter XXIPart 2105 → Subpart H


Title 45: Public Welfare
PART 2105—REQUIREMENTS FOR COMPLIANCE WITH THE FREEDOM OF INFORMATION ACT


Subpart H—Administrative Appeals


Contents
§2105.54   When may you file an appeal?
§2105.55   How long do you have to file an appeal?
§2105.56   How do you file an appeal?
§2105.57   Who makes decisions on appeals?
§2105.58   How are decisions on appeals issued?
§2105.59   When can you expect a decision on your appeal?
§2105.60   Can you receive expedited processing of appeals?
§2105.61   Must you submit an appeal before seeking judicial review?

return arrow Back to Top

§2105.54   When may you file an appeal?

(a) You may file an appeal when:

(1) The Agency withholds records, or parts of records;

(2) The Agency informs you that your request has not adequately described the records sought;

(3) The Agency informs you that it does not possess or cannot locate responsive records and you have reason to believe this is incorrect or that the search was inadequate;

(4) The Agency did not address all aspects of the request for records;

(5) You believe there is a procedural deficiency (for example, fees are improperly calculated or you have been placed in the wrong fee category);

(6) The Agency denied your request for a fee waiver;

(7) The Agency did not make a decision within the time limits in §2105.15 or, if applicable, §2105.16; or

(8) The Agency denied, or was late in responding to, a request for expedited processing filed under the procedures in §2105.18.

(b) An appeal under paragraph (a)(8) of this section relates only to the request for expedited processing and does not constitute an appeal of the underlying request for records. Special procedures apply to requests for expedited processing of an appeal (see §2105.60).

(c) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response, the Agency's FOIA Officer, and/or the FOIA Public Liaison to see if the issue can be resolved informally. However, appeals must be received by the FOIA Appeals Officer within the time limits in §2105.55 or they will not be processed.

return arrow Back to Top

§2105.55   How long do you have to file an appeal?

(a) Appeals covered by §2105.54(a)(1) through (5) must be received by the FOIA Appeals Officer no later than 90 days from the date of the final response.

(b) Appeals covered by §2105.54(a)(6) must be received by the FOIA Appeals Officer no later than 90 days from the date of the letter denying the fee waiver.

(c) Appeals covered by §2105.54(a)(7) may be filed any time after the time limit for responding to the request has passed.

(d) Appeals covered by §2105.54(a)(8) should be filed as soon as possible.

(e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday through Friday, will be deemed received on the next workday.

return arrow Back to Top

§2105.56   How do you file an appeal?

(a) You must submit the appeal in writing by mail, fax or email to the FOIA Appeals Officer (using the address available at https://www.cfa.gov/foia/). Your failure to send an appeal directly to the FOIA Appeals Officer may delay processing.

(b) The appeal must include:

(1) Copies of all correspondence between you and the Agency concerning the FOIA request, including the request and the Agency's response (if there is one); and

(2) An explanation of why you believe the Agency's response was in error.

(c) The appeal should include your name, mailing address, daytime telephone number (or the name and telephone number of an appropriate contact), email address, and fax number (if available) in case the Agency needs additional information or clarification.

(d) An appeal concerning a denial of expedited processing or a fee waiver denial should also demonstrate fully how the criteria in §2105.18 or §§2105.43 and 2105.46 are met.

(e) All communications concerning an appeal should be clearly marked with the words: “FREEDOM OF INFORMATION APPEAL.”

(f) The Agency will reject an appeal that does not attach all correspondence required by paragraph (b)(1) of this section, unless the FOIA Appeals Officer determines, in his or her sole discretion, that good cause exists to accept the defective appeal. The time limits for responding to an appeal will not begin to run until the correspondence is received.

return arrow Back to Top

§2105.57   Who makes decisions on appeals?

(a) The FOIA Appeals Officer is the deciding official for FOIA appeals.

(b) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including legal counsel, for denials of records and fee waivers.

(c) The deciding official for FOIA appeals normally will not make a decision on an appeal if the request becomes a matter of FOIA litigation.

return arrow Back to Top

§2105.58   How are decisions on appeals issued?

(a) A decision on an appeal must be made in writing.

(b) A decision that upholds the Agency's determination in whole or in part must contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must provide you with notification of the statutory right to file a lawsuit and will inform you of the dispute resolution services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration as a non-exclusive alternative to litigation. If the Agency's decision is remanded or modified on appeal, the Agency will notify you of that determination in writing. The Agency will then further process the request in accordance with that appeal determination and will respond directly to you.

(c) Dispute resolution is a voluntary process. If the Agency agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

return arrow Back to Top

§2105.59   When can you expect a decision on your appeal?

(a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of §2105.56.

(b) If the Agency is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court.

return arrow Back to Top

§2105.60   Can you receive expedited processing of appeals?

(a) To receive expedited processing of an appeal, you must demonstrate to the Agency's satisfaction that the appeal meets one of the criteria under §2105.18 and include a statement that the need for expedited processing is true and correct to the best of your knowledge and belief.

(b) The appropriate deciding official for FOIA appeals will advise you whether the Agency will grant expedited processing within 10 calendar days of receiving the appeal.

(c) If the appropriate deciding official for FOIA appeals decides to grant expedited processing, he or she will give the appeal priority over other pending appeals and process it as soon as practicable.

return arrow Back to Top

§2105.61   Must you submit an appeal before seeking judicial review?

Before seeking review by a court of the Agency's adverse determination, you generally must first submit a timely administrative appeal.

return arrow Back to Top

Need assistance?