What to Do When an Agency Fails to Respond to a FOIA Request

Article by Matt W. Broughton and Investigator Danny C. Brabham

In September of 2025, an article was published here relating to how a person could strengthen their personal injury case through the use of Freedom of Information (FOIA) requests.  We wanted to take the opportunity to offer advice on what to do if an Agency fails to respond to a FOIA request.  The first step is to move into the enforcement and escalation steps. The outline below offers advice on how to navigate through the steps to have Agencies comply with your request(s).

Step One

Verify that the response deadlines have passed.

1. Federal FOIA Requests (5 U.S.C. §552)
   1. The Agency must acknowledge and respond within twenty days.
   2. The Agency can extend up to ten days for “unusual circumstances.”
2. Virginia FOIA Requests (VA Code §2.2-3704)
   1. The Agency must respond within five working days.
   2. The Agency may invoke an extension of seven working days in addition to the initial five days pursuant to this Code section.

If there has been no response at all after these timeframes, this can be considered a constructive denial.

Step Two

It is recommended that a follow-up letter be sent to the Agency’s FOIA Officer via email and/or certified mail. It is further recommended that the following elements be included in the letter:

1. Indicate that this is a follow-up to an unanswered FOIA request.
2. Reference the original request that includes date and description.
3. Indicate that the statutory response period has expired.
4. Request an immediate response. (Usually three to five days.)
5. State your intent to pursue enforcement if request is unresolved.

Step 3

File an Administrative Appeal (Federal Only)

1. An Administrative Appeal can be filed within the Agency.
2. An Administrative Appeal can be filed within ninety days of a denial or non-response.
3. The following should be included with the Administrative Appeal:
   1. The original request.
   2. Proof of submission.
   3. A statement indicating that there has been a “constructive denial due to failure to respond.”

Step Four

Escalate to Oversight Bodies

1. Federal Agencies
   1. Office of Government Information Services (OGIS)
      8601 Adelphi Road (OGIS)
      College Park, MD 20740-6001
      Email ogis@nara.gov
      Telephone 202.741.5770
      Telephone (Toll Free) 1-877-684-6448
      1. Mediation service is available. (Non-binding)
      2. This is useful to force engagement.
   2. Federal Agency FOIA Public Liaison
      1. This is the federal agency’s required contact point for disputes.
2. Virginia (State and Local) — You have two options.
   1. Virginia FOIA Advisory Council
      Pocahontas Building, 10^th Floor
      900 E. Main Street
      Richmond, VA 23219
      Email foiacouncil@dls.virginia.gov
      Telephone 804.698.1810
      1. This Council provides advisory opinions. The Council’s opinion is not binding but is influential.
   2. Attorney for the Commonwealth (This is rare.)
      1. Only in clear violations.

Step Five

Filing of Lawsuit (Primary Enforcement Mechanism) Can be used when the agency still does not respond.

1. Federal FOIA Lawsuit
   1. File in U.S. District Court
   2. No need to exhaust an appeal if the Agency failed to respond (constructive denial).
2. Virginia FOIA Lawsuit
   1. File in Circuit Court or General District Court.
   2. Remedies available
      1. Court Order for Agency to produce requested records.
      2. Civil penalties (in VA)
      3. Attorney’s fees if you win.

Step Six

Strategic pressure is often effective.

1. Send a letter to Agency head, County administrator or City manager.
2. Mention of phrases such as “statutory violation” and/or “petition for mandamus” which is “an extraordinary legal action used to force a government official, agency or lower court to perform a mandatory, non-discretionary duty that they are legally required to do.”
3. Copy the County/City attorney and the Agency’s FOIA officer.

We hope this guide is helpful to you.  During this process, you should keep a paper trail of everything.  You should use certified mail or email with read receipts and track dates, deadlines and responses.