Q. Federal agencies often take many years to issue a determination letter in response to FOIA requests. Is protracted delay a viable basis for appeal, and are such appeals ever advisable?

A. When an agency fails to respond to a FOIA request within the statutory deadline (whether the delay is one day or several years), the requester is entitled to file a lawsuit in federal court. No administrative appeal is necessary. In response to an appeal disputing a delay, agencies typically close the appeal without issuing a decision—at most, notifying agency officials handling the request that an appeal was received. This is because the statute authorizes administrative appeals only in response to an “adverse determination,” and most agencies do not consider delay to be a “determination.” In sum, appealing an agency’s delay might spur the agency’s processing staff to respond, but it has no legal effect.