§ 1401.27 Appeals.

(a) Requirements for making an appeal. A requester may appeal any adverse determinations to the Agency's Deputy Director, FOIA Appeal, Federal Mediation and Conciliation Service, 250 E Street SW, Washington, DC 20427; foia@fmcs.gov. Requesters can submit appeals by mail, email, or via the online portal at www.fmcs.gov/foia. The requester must make the appeal in writing, clearly identifying the grounds therefore and providing any supporting documentation. 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 response. The appeal should clearly identify the determination that is being appealed and the assigned request number, if known. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”

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

(c) Decisions on appeals. The Deputy Director of the FMCS or designee will provide a decision on an appeal. A decision that upholds the FMCS'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 the requester with notification of the statutory right to file a lawsuit and will inform the requester of the dispute resolution services offered by the OGIS as a non-exclusive alternative to litigation. If the decision is remanded or modified on appeal, the Deputy Director will notify the requester of that determination in writing. The Office of General Counsel will then further process the request in accordance with that appeal determination and will respond directly to the requester. Alternatively, the Deputy Director may decide to modify the decision and decide the appeal on its merits in a single step.

(d) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If the Agency agrees to participate in the dispute resolution services provided by OGIS, the Deputy Director or designee will participate on behalf of the FMCS.

(e) When appeal is required. Before seeking review by a court of the Agency's adverse determination, a requester generally must first submit a timely administrative appeal.