(a) Discretionary review. The Commission (on its own initiative) may review any decision of the Chief FOIA Officer or the individual's designee within 90 calendar days.

(b) Requirements for making an appeal. A requester may appeal an adverse decision on their FOIA request rendered by the Commission by submitting a hard copy to the Commission's office (901 New York Avenue NW, Suite 200, Washington, DC 20268-0001) or by emailing [email protected]. The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the Commission's response. To facilitate handling, the requester must mark both the appeal letter and envelope or the subject line of the electronic transmission “Freedom of Information Act Appeal.” The appeal must include, as applicable:

(1) A copy of the request, of any notification of denial or other action, and of any other related correspondence;

(2) The FOIA tracking number assigned to the request;

(3) A description of the action (or failure to act) which is being challenged;

(4) If challenging specific redactions made to responsive records, a statement identifying the specific redactions being challenged;

(5) A statement of the relief sought; and

(6) A statement of the reasons why the requester believes the action or failure to act is erroneous.

(c) Adjudication of appeals. (1) The decision of the Commission constitutes the final decision on the issue being appealed. The Commission will give prompt consideration to an appeal for expedited processing of a request. All other decisions normally will be made within 20 days (excluding Saturdays, Sundays, and legal holidays) from the time of the receipt by the Commission. The 20-business day response period may be extended by the Commission for a period not to exceed an additional 10 business days when reasonably necessary to permit the proper consideration of an appeal, under one or more of the “unusual circumstances”, as defined in 5 U.S.C. 552(a)(6)(B)(iii). The aggregate number of additional business days used, however, may not exceed 10 business days.

(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.

(3) On receipt of any appeal involving classified information, the Commission must take appropriate action to ensure compliance with applicable classification rules.

(d) Decisions on appeals. A decision on an appeal must be made in writing. A decision that upholds the adverse determination in whole or in part will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration as a non-exclusive alternative to litigation. If the adverse determination is remanded or modified on appeal, the requester will be notified in writing and the Chief FOIA Officer or the individual's designee will further process the request in accordance with that appellate decision and respond directly to the requester. If not prohibited by or under law, the Commission may direct the disclosure of a record even though its disclosure is not required by law or regulation.

(e) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If the Commission 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.

(f) When an appeal is required. Before seeking judicial review of an adverse determination rendered by the Commission on a FOIA request, a requester generally must first submit a timely administrative appeal.