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Price v. U.S. Department of Justice Attorney Office

United States Court of Appeals, District of Columbia Circuit

August 4, 2017

William S. Price, Appellant
v.
U.S. Department of Justice Attorney Office, et al., Appellees

          Argued May 10, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00847)

          Benjamin G. Barokh, Student Counsel, argued the cause as amicus curiae in support of appellant. With him on the briefs were Steven H. Goldblatt, appointed by the court, Shon Hopwood, Supervisory Attorney, and Jeffrey C. Thalhofer, Student Counsel.

          Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were R. Craig Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.

          Before: Tatel, Brown, and Griffith, Circuit Judges.

          OPINION

          Griffith, Circuit Judge.

         In this appeal, we are asked to decide whether the government may deny a criminal defendant's request under the Freedom of Information Act for records related to his case on the ground that he waived his right to seek that information as part of a plea agreement. In this case the answer is no, because the government has failed to identify any legitimate criminal-justice interest served by the waiver.

         I

         In March 2007, William Price pled guilty in the Western District of Missouri to two offenses involving production and receipt of child pornography.[1] In exchange for a favorable sentencing recommendation from the government, Price entered into a plea agreement that included a waiver of his rights under FOIA to records connected to his case.[2] He was sentenced to fifty years' imprisonment and is currently incarcerated.

         In October 2011, Price submitted a FOIA request to the FBI for all records pertaining to his ex-wife, accompanied by a privacy waiver she had signed. The FBI denied his request, claiming that the records Price sought related to his case and that he had waived his right to them. In May 2014, Price challenged the denial in a pro se suit in district court, arguing that FOIA rights cannot be waived. In the alternative, he argued that the waiver did not cover all of the records he sought. In August 2014, the district court granted the government summary judgment, concluding that the FBI had lawfully denied Price's requests. According to the district court, it would be anomalous to forbid the waiver of a statutory right under FOIA when the Supreme Court has allowed the waiver of important constitutional rights. The district court did not address Price's argument that some of the information he requested was not covered by his waiver. Price timely filed a notice of appeal from the district court's order, and we have jurisdiction pursuant to 28 U.S.C. § 1291.[3] We review de novo a district court's "decision granting summary judgment to an agency claiming to have complied with" its obligations under FOIA. Schrecker v. U.S. Dep't of Justice, 349 F.3d 657, 661-62 (D.C. Cir. 2003).

         The government argues that this suit is an attempt by Price to challenge his conviction or sentence that turns on whether his waiver was knowing, voluntary, and intelligent. We see it differently. This is a FOIA suit in which we are asked to determine de novo whether the FBI lawfully withheld records that Price requested.

         II

         In general, "[c]riminal defendants may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver." United States v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008) (citations omitted); accord United States v. Guillen, 561 F.3d 527, 530 (D.C. Cir. 2009); see also United States v. Ruiz, 536 U.S. 622, 629-30 (2002) ("A defendant, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel . . . ."). Amicus contends that the district court should have declined to enforce the waiver, first because FOIA rights are never waivable, and, in the alternative, because waivers of FOIA rights in plea agreements contravene public policy.[4]

         A

         Amicus argues primarily that no person may ever waive his right to seek records under FOIA. Statutory rights are generally waivable unless Congress affirmatively provides they are not, see United States v. Mezzanatto, 513 U.S. 196, 200-01 (1995), and amicus suggests two ways in which Congress has shown that FOIA rights may not be waived. First, Price observes that FOIA requires the disclosure of all records except those specifically exempted from its coverage. As amicus notes, these exemptions are "explicitly made exclusive." Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976); see also 5 U.S.C. § 552(d) (FOIA "does not authorize withholding of information or limit the availability of records to the public except as specifically stated in this section."). There are nine categories of records exempted from disclosure, including, for example, records that are classified pursuant to Executive Order, relate solely to internal agency policies or procedures, are specifically exempted from disclosure by other statutes, or would constitute an unwarranted invasion of personal privacy if disclosed. See id.

         As amicus sees it, a waiver of FOIA rights would "operate[] as a tenth exemption, " and would therefore be unenforceable, "because Congress expressly prohibited agencies from creating additional FOIA exemptions." Amicus Br. 9-10. We disagree. Such a waiver does not function as a tenth FOIA exemption. Amicus confuses the question of whether an exemption keeps a document out of the public's reach with the question presented here: whether a particular person may access that document. But an individual's waiver of his FOIA rights does not limit the public's right to the document.

         To understand why, consider that when FOIA "does not apply" to a category of documents, 5 U.S.C. § 552(b), those records are exempt from all public disclosure. See DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015). The agency is under no obligation to turn over those documents-to anybody. Things are altogether different when an agency denies someone a document he has promised not to seek. In that circumstance, the agency is not saying that FOIA "does not apply" to the document. Indeed, the document is still subject to FOIA and remains available to other requesters-just not to the person who waived his right to it. That result is perfectly compatible with the text of FOIA, which requires the agency to invoke one of the nine exemptions if it wishes to place records off limits to "the public." 5 U.S.C. § 552(d) (emphasis added). In short, Congress restricted agencies' ability to remove books from the library, but said nothing about an individual's freedom to give up his library card, if he so chooses.

         Next, amicus argues that the intent of Congress to protect FOIA rights from waiver is inherent in the "'fundamental principle' . . . [that] 'the identity of the requesting party has no bearing on the merits of his or her FOIA request.'" Amicus Reply Br. 8 (quoting Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1183 (D.C. Cir. 2011)) (discussing FOIA's command that records be made promptly available "to any person" who requests them, 5 U.S.C. § 552(a)(3)(A)). Although the identity of a requester is generally irrelevant to whether an exemption applies, see U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 771 (1989) (explaining that the government may not deny a person's FOIA request on the ground that he lacks a special interest in the records sought), this case is not about whether a document can be denied under one of the exemptions; it is simply about whether an agency, as a general matter, may decline to turn over records to somebody who has specifically contracted with the government not to seek them. Nowhere in the statute has Congress forbidden that practice.

         One additional point: amicus contends that FOIA rights cannot be waived in the same way that a person cannot give away his rights to a minimum wage or overtime pay under the Fair Labor Standards Act. That analogy is misplaced. Minimum-wage and maximum-hour laws operate by limiting freedom to contract, see W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391-92 (1937), so it is easy to see how the statutory scheme could be frustrated by allowing workers and management to contract around those laws. Indeed, the entire point of such laws is to stave off low salaries and wages that some people would accept if given the choice. By contrast, allowing individuals to contract away their personal right to information under FOIA does not jeopardize the statutory scheme. The statute's "sole concern is with what must be made public or not made public." Reporters Comm., 489 U.S. at 772 (quoting Kenneth Culp Davis, The Information Act: A Preliminary Analysis, 34 U. Chi. L. Rev. 761, 765 (1967)); see also North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989). And here, as both Price and the government acknowledge, almost any other person could get the same records Price has requested-just not Price himself. The records he seeks remain readily available to the public, assuming they are not subject to an exemption.

         The implications of Price's argument underscore its weakness. Under his view, FOIA claims would become practically impossible to settle. Suppose the FBI denies a person's request for documents, and the person sues under FOIA. Because litigation is uncertain and costly, settlement talks ensue. The FBI offers to give him document X while continuing to withhold from him documents Y and Z. The requester accepts the FBI's offer and voluntarily dismisses his suit. But a month later, buyer's remorse sets in and he asks the FBI for documents Y and Z. Presumably, the FBI would deny his request on the ground that, just last month, he signed on to a settlement in which he agreed not to receive those documents. If Price were correct that the FBI would be barred from denying his request unless it could invoke one of the statutory exemptions, the promise made in the settlement would be meaningless. If that were the law, the agency would never have settled with him to begin with. Indeed, the agency would never settle with anybody. FOIA settlements would always be-from the government's perspective-meaningless. That outcome is absurd. FOIA cases settle all the time, and accepting Price's argument would put an end to that longstanding practice. We decline to take the bait.

         B

         More fundamentally, in responding to Price's public-policy-based challenge, the government has not pointed us to any legitimate criminal-justice interest served by including a waiver of FOIA rights in Price's plea agreement. Amicus argues, and all parties agree, that a "prosecutor is permitted to consider only legitimate criminal justice concerns in striking [a plea] bargain-concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of [a defendant's] cooperation with the authorities, " Town of Newton v. Rumery, 480 U.S. 386, 401 (1981) (O'Connor, J., concurring); see also id. at 397 (majority opinion) (evaluating the degree to which an agreement in the criminal context "further[ed] legitimate prosecutorial and public interests"). This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.

         For example, waivers of appeal rights are permissible, in part, because they promote finality: the prosecution avoids expending time and resources putting the matter to rest. See, e.g., United States v. Teeter, 257 F.3d 14, 22 & n.5 (1st Cir. 2001). Similarly, when a criminal defendant waives his right to a trial, prosecutors save the time and resources typically involved in obtaining a conviction. And when a criminal defendant waives his right to impeachment evidence under Giglio v. United States, 405 U.S. 150 (1972), prosecutors can secure guilty pleas without prematurely disclosing witness information and trial strategy. Ruiz, 536 U.S. at 631-32. A criminal defendant can even agree to give up his right to pursue a section 1983 damages action in exchange for dropping a prosecution, as long as the prosecutor has "an independent, legitimate reason . . . directly related to his prosecutorial ...


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