A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT
AND THE PRIVACY ACT OF 1974 TO REQUEST GOVERNMENT RECORDS
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VII. H. ADMINISTRATIVE APPEAL PROCEDURES FOR DENIAL OF ACCESS
Unlike the FOIA, the Privacy Act does not provide for an administrative appeal of the denial of access. However, many agencies have established procedures that will allow Privacy Act requesters to appeal a denial of access without going to court. An administrative appeal is often allowed under the Privacy Act, even though it is not required, because many individuals cite both the FOIA and Privacy Act when making a request. The FOIA provides specifically for an administrative appeal, and agencies are required to consider an appeal under the FOIA.
When a Privacy Act request for access is denied, agencies usually inform the requester of any appeal rights that are available. If no information on appeal rights is included in the denial letter, the requester should ask the Privacy Act/ FOIA officer. Unless an agency has established an alternative procedure, it is possible that an appeal filed directly with the head of the agency will be considered by the agency.
When a request for access is denied under the Privacy Act, the agency explains the reason for the denial. The explanation must name the system of records and explain which exemption is applicable to the system. An appeal may be made on the basis that the record is not exempt, that the system of records has not been properly exempted, or that the record is exempt but no harm to an important interest will result if the record is disclosed.
There are three basic elements to a Privacy Act appeal letter. First, the letter should state that the appeal is being made under the Privacy Act of 1974. If the FOIA was cited when the request for access was made, the letter should state that the appeal is also being made under the FOIA. This is important because the FOIA grants requesters statutory appeal rights.
Second, a Privacy Act appeal letter should identify the denial that is being appealed and the records that were withheld. The appeal letter should also explain why the denial of access was improper or unnecessary.
Third, the appeal should include the requester's name and address. It is a good practice for a requester to also include a telephone number when making an appeal.
Appendix 1 includes a sample letter of appeal.