Step 1: Read the Denial Letter Carefully
When a public records request is denied, the agency must send a written denial that includes:
- Which records are being withheld (or that no responsive records exist)
- The specific statutory exemption(s) cited for each withheld record
- Your right to appeal and the process for doing so
- Contact information for the agency's records custodian
If the denial letter lacks any of these elements, that itself may be grounds for a successful appeal.
Step 2: Evaluate the Exemption Claimed
Not all exemptions are created equal. Some common ones, and how to assess them:
"Ongoing Investigation" Exemption
This is the most common — and most abused — exemption. It is temporary. Once the investigation is closed, this exemption no longer applies. Ask the agency in writing when the investigation is expected to conclude and re-submit after closure. If an agency claims this exemption on records from years ago, that is worth challenging directly.
"Deliberative Process" or "Pre-Decisional" Exemption
This protects internal drafts and back-and-forth discussions while a decision is being made. It does not apply to: final decisions, policies that have been adopted, or records about past actions. If the agency has made a final decision on the matter, deliberative process no longer covers the relevant communications.
"Personal Privacy" Exemption
Agencies can redact personal identifying information (SSNs, home addresses of private individuals, medical information) but cannot withhold entire records because they contain some personal information. The proper response is to provide the record with the protected information redacted — not to withhold the entire document.
"Attorney-Client Privilege" Exemption
Covers actual legal advice between an agency and its attorneys. It does not cover all communications that go through the legal office, and it does not cover factual investigations (as opposed to legal strategy).
Step 3: Request a Vaughn Index / Exemption Log
If multiple records are withheld, ask the agency to provide a "Vaughn index" (the federal term) or exemption log — a list of each document withheld, a general description of its contents, and the specific exemption claimed for each. This is a recognized right in many states and gives you the information needed to challenge specific withholdings rather than the denial as a whole.
Step 4: File an Administrative Appeal
Every state and the federal government provide an administrative appeal process. This is typically free and the most effective first step before going to court.
| State | Appeal Body | Decision Timeline |
|---|---|---|
| Pennsylvania | Office of Open Records (OOR) | 30 days — binding |
| Illinois | Public Access Counselor (AG) | Varies — binding recommendations |
| New Jersey | Government Records Council (GRC) | Varies — binding |
| Virginia | FOIA Council (advisory) / Circuit Court | Advisory opinions; court is binding |
| Texas | Attorney General FOIA Division | 45 business days — binding on agency |
| Connecticut | Freedom of Information Commission | Varies — binding |
| Tennessee | Office of Open Records Counsel | Advisory only; circuit court for binding |
| Federal | Agency FOIA Appeals Office → OGIS mediation → Federal Court | 20 business days for appeal response |
| All other states | Circuit/Superior Court | Varies |
Your Appeal Letter: What to Include
An effective appeal letter includes:
- Reference to your original request — date submitted, agency, and description of records requested
- Reference to the denial — date of denial letter and exemption(s) cited
- Your specific challenge — why the exemption does not apply to these specific records
- Citation of the applicable open records law — and any relevant court decisions if available
- Requested relief — disclosure of the withheld records