How to Appeal a FOIA Denial for National Security-Related Records
Aug. 2, 2025
The Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, is a federal law that grants the public access to records held by federal agencies, promoting transparency and accountability.
Individuals seeking access to national security-related records often face unique challenges due to the sensitive nature of the information. When a FOIA request for such records is denied, the requester has the right to appeal the decision.
Successfully appealing a FOIA denial requires a thorough understanding of federal and New York-specific procedures, exemptions, and legal strategies.
Michael Kuzma, Attorney at Law can explain the process of appealing a FOIA denial for national security-related records in New York, covering the laws, grounds for denial, the appeal process, and practical steps to strengthen your case.
By following these steps, requesters can traverse the intricate structure of FOIA appeals and maximize their chances of obtaining the desired records.
A Breakdown of FOIA and National Security Records
FOIA applies exclusively to federal agencies, such as the Department of Defense, FBI, CIA, or the Department of Homeland Security, and doesn’t cover state or local agencies in New York. For state records, New York’s equivalent law, the Freedom of Information Law (FOIL), governs access (N.Y. Pub. Off. Law § 84–90).
However, since we are focused on national security-related records, which are typically held by federal agencies, FOIA is relevant, even for New York residents.
National security-related records include documents concerning intelligence activities, military operations, counterterrorism efforts, surveillance programs, or classified information. These records are often subject to heightened scrutiny and are more likely to be withheld under specific FOIA exemptions, particularly those related to national security.
FOIA Exemptions for National Security Records
FOIA provides nine exemptions that agencies may invoke to deny requests. For national security-related records, the most relevant exemptions are:
Exemption 1 (national security): Protects classified information under an executive order (e.g., Executive Order 13526), such as records that, if disclosed, could harm national defense or foreign policy. Examples include intelligence reports, military plans, or diplomatic cables.
Exemption 3 (other statutes): Covers information protected by other federal statutes, such as the National Security Act (50 U.S.C. § 3024(i)), which shields intelligence sources and methods.
Exemption 7 (law enforcement): Applies to records compiled for law enforcement purposes, including counterterrorism or surveillance, if disclosure could endanger lives, reveal investigative techniques, or interfere with ongoing investigations.
When an agency denies a FOIA request, it must specify the exemption(s) applied and provide a justification, though details may be limited for national security records due to their sensitivity.
Grounds for Appealing a FOIA Denial
A FOIA denial can be appealed if the requester believes the agency’s decision was incorrect or improperly applied. Common grounds for appeal include:
Improper application of exemptions: The agency misapplied or overly broadly interpreted an exemption (e.g., classifying non-sensitive information under Exemption 1).
Inadequate search: The agency failed to conduct a reasonable search for the requested records.
Improper withholding: The agency withheld non-exempt portions of records without segregating releasable material, as required by FOIA (5 U.S.C. § 552(b)).
Glomar response: The agency issued a “Glomar” response, refusing to confirm or deny the existence of records (often used for national security records). An appeal can challenge whether this response was justified.
Procedural errors: The agency failed to follow FOIA’s procedural requirements, such as providing a timely response (within 20 business days, per 5 U.S.C. § 552(a)(6)) or a detailed denial letter.
Public interest: The requester can argue that the public interest in disclosure outweighs the agency’s justification for withholding, especially for records with historical or policy significance.
A well-crafted appeal addressing these grounds can increase the likelihood of overturning an improper FOIA denial.
The FOIA Appeal Process in New York
Appealing a FOIA denial for national security-related records involves a structured process governed by federal regulations. Since FOIA is a federal law, the process is the same for New York residents as for others, but local resources and legal expertise can be leveraged. Below are the critical steps:
Step 1: Review the Denial Letter
Upon receiving a FOIA denial, carefully review the agency’s denial letter, which should include:
The specific exemption(s) cited.
A brief explanation of why the records were withheld.
Instructions for filing an appeal, including the deadline (typically 90 days from the date of the denial letter).
The contact information for the agency’s FOIA Appeals Officer or office.
Note any procedural errors, vague justifications, or failure to address segregable portions of the records. For national security records, agencies may provide minimal detail due to classification concerns, but they must still comply with FOIA’s requirement to justify withholding.
Step 2: Gather Supporting Information
Before drafting the appeal, collect relevant information to strengthen your case:
Original FOIA request: Review your initial request to make sure it was clear, specific, and reasonable in scope. Vague or overly broad requests (e.g., “all records on national security”) are more likely to be denied.
Denial letter: Identify the exemptions cited and any deficiencies in the agency’s response.
Relevant case law: Research FOIA case law, particularly cases involving national security exemptions. For example, ACLU v. CIA (2014) clarified that agencies must justify Glomar responses with sufficient detail.
Public interest evidence: If applicable, gather evidence (e.g., news articles, academic studies) demonstrating the public’s interest in the records, such as their relevance to government transparency or historical events.
Declassification requests: For classified records, consider requesting a Mandatory Declassification Review (MDR) under Executive Order 13526, which can run concurrently with a FOIA appeal. MDRs require agencies to review records for potential declassification.
Thoroughly gathering and organizing supporting information is critical to building a compelling FOIA appeal that effectively challenges the agency's denial.
Step 3: Draft the Appeal Letter
The appeal letter is the cornerstone of your case and must be clear, concise, and legally persuasive. Key components include:
Header Information:
Your name, address, and contact information.
The FOIA request number (provided in the denial letter).
The date of the denial letter.
The agency’s FOIA Appeals Officer or office address (e.g., for the FBI: Office of Information Policy, U.S. Department of Justice, 6th Floor, 441 G St. NW, Washington, DC 20530).
Statement of Appeal:
Clearly state that you are appealing the denial of your FOIA request.
Reference the specific request and denial letter by date and number.
Grounds for Appeal:
Challenge the exemptions cited, arguing that they were misapplied or overly broad. For example, if Exemption 1 were used, request a detailed explanation of how disclosure would harm national security.
Argue that the agency failed to conduct a reasonable search or to segregate non-exempt material.
If a Glomar response was issued, assert that the existence of records is already publicly acknowledged (e.g., through declassified documents or media reports).
Emphasize the public interest in disclosure, citing specific examples (e.g., informing public debate on surveillance policies).
Request for Specific Relief:
Ask for the release of all non-exempt records or portions thereof.
Request a more thorough search if the agency’s efforts were inadequate.
If applicable, request an MDR for classified records.
Supporting Evidence:
Attach copies of the original request, denial letter, and any supporting documents (e.g., news articles proving public knowledge of the records).
Tone and Format:
Use a professional, respectful tone.
Keep the letter concise (1–3 pages) but comprehensive.
Number paragraphs for clarity and reference.
Submit the appeal via the agency’s preferred method (e.g., mail, email, or online portal). For example, the FBI accepts appeals through its eFOIA portal. Retain proof of submission, such as a certified mail receipt or email confirmation.
Step 4: Monitor the Appeal Timeline
Agencies must respond to FOIA appeals within 20 business days (5 U.S.C. § 552(a)(6)(A)(ii)), though extensions are common for complicated cases involving national security records. If the agency fails to respond, you may treat this as a “constructive denial” and proceed to litigation.
Track the appeal status using the agency’s online portal or by contacting the FOIA Appeals Officer.
Step 5: Evaluate the Appeal Decision
The agency may issue one of several outcomes:
Full grant: The agency releases all requested records.
Partial grant: The agency releases some records or portions thereof, often with redactions.
Denial upheld: The agency affirms the original denial, providing additional justification.
Remand: The agency returns the request to the FOIA office for further processing or a new search.
If the appeal is partially or fully denied, the decision letter will outline your right to seek judicial review in federal court.
Step 6: Consider Litigation
If the appeal is unsuccessful, you can file a lawsuit in the U.S. District Court where you reside, maintain a principal place of business, where the agency records are located, or the District of Columbia. Key steps include:
Consult an attorney: Hire a FOIA attorney with experience in national security cases, such as the Law Office of Michael Kuzma. An attorney can assess the merits of your case and traverse intricate litigation.
File a complaint: Within six years of the agency’s final decision (28 U.S.C. § 2401), file a complaint alleging that the agency violated FOIA by improperly withholding records. Include the original request, denial letter, appeal, and appeal decision as exhibits.
Seek in camera review: Request that the court review withheld records in camera to determine if exemptions were properly applied.
Vaughn index: Ask the court to require the agency to produce a Vaughn Index, a detailed list describing each withheld document and the justification for withholding (Vaughn v. Rosen, 1973).
Attorney’s fees: If successful, you may recover attorney’s fees and litigation costs under 5 U.S.C. § 552(a)(4)(E).
FOIA litigation is costly and time-consuming, so weigh the potential benefits against the resources required. An experienced FOIA attorney like Michael Kuzma may assist with meritorious cases.
Contact an Attorney Today
Appealing a FOIA denial for national security-related records in New York is an intricate but achievable process. By understanding the laws, carefully analyzing the denial, crafting a persuasive appeal, and leveraging New York’s legal resources, requesters can challenge improper withholdings and seek disclosure. I serve Buffalo, New York, and individuals throughout the United States with FOIA related issues. Reach out today!