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Court Tells Government Sticking FOIA Waivers In Plea Agreements Is Probably A Bad Idea


Criminal defendants entering in plea agreements can waive all sorts of rights, including appeals of sentences and evidence challenges. The government trades rights for years, in the interest of securing convictions. But can someone be asked to sign away their FOIA rights? The government clearly thinks so. This is from a recent D.C. Appeals Court decision [PDF]:

In March 2007, William Price pled guilty in the Western District of Missouri to two offenses involving production and receipt of child pornography. 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. He was sentenced to fifty years’ imprisonment and is currently incarcerated.

[...]

Specifically, Price agreed to

waive[] all of his rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case including, without limitation, any records that may be sought under the Freedom of Information Act, 5 U.S.C. § 552, or the Privacy Act of 1974, 5 U.S.C. § 552a.

The court notes FOIA waivers are neither "common nor unheard of."

A recent study of the various kinds of waivers included in plea agreements found that, in 2009, 25% of robbery plea agreements and 23% of arson plea agreements contained a FOIA waiver.

Price did end up submitting an FOIA in 2011. But it wasn't directly related to the case. He was seeking documents related to his ex-wife, from whom he'd obtained a privacy waiver. The FBI denied the request, claiming Price was attempting to indirectly circumvent his waiver agreement.

The government also claimed the FOIA lawsuit Price filed pro se wasn't actually an FOIA lawsuit. The court disagrees.

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.

The court doesn't have much sympathy for the plaintiff's argument that the FBI's denial creates another FOIA exemption, one that isn't statutorily-supported. The court points out it does nothing of the sort. The FBI is only denying records to Price, but those records can still be accessed by another person. As such, they are not covered by a phantom exemption, but rather Price himself is forbidden from accessing these records via a contract he signed with the government.

As the court points out, allowing Price to access these documents despite his plea agreement with the government would result in FOIA chaos. When FOIA lawsuit settlements are obtained, requesters often agree to the receipt of certain documents, rather than everything they've sought. The agreement states they cannot pursue the denied documents or engage in further litigation over these denied documents. If contracts like these aren't honored, the government would never offer to settle FOIA litigation because plaintiffs could just file new requests for denied documents and engage in further litigation despite having agreed explicitly to refrain from further requests and lawsuits. It's a good point, albeit one that ignores the fact most plaintiffs don't have unlimited funds for FOIA litigation, whereas the government's litigation funding will never dry up, no matter how many litigants it does battle with.

But the court does have a problem with FOIA waivers in general. As the court sees it, the waiver serves no purpose in terms of adjudicating criminal defendants.

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...”

[...]

Indeed, all the government says is that “the public interest in the efficient and effective prosecution and conviction of sex offenders . . . is considerable and outweighs whatever public interest may exist in the [contents of the] investigation and prosecution files of [a] single defendant.” Appellee Br. 36. But how? Certainly litigating FOIA disputes in court can be burdensome for the parties involved, as the government notes, see id. at 46, but in what way do FOIA waivers actually support “efficient and effective prosecution”? The government leaves us to guess.

The government's first reason for securing FOIA waivers? The people we lock up get bored and make us do extra work.

When pressed at oral argument about what legitimate criminal-justice purpose FOIA waivers might serve, the government simply responded: “Prisoners frankly have a lot of time on their hands and they write a lot of FOIA requests, and it is a burden to agencies especially like the FBI . . . .”

The government also claimed a lack of FOIA waivers would undercut the "finality" of agreed-to plea deals. The court finds this argument ridiculous.

[I]n another point gone missing from the government’s brief and raised by its counsel only at oral argument, FOIA waivers may occasionally promote the government’s legitimate interest in finality. But as best we can tell, FOIA waivers promote finality only by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality.

The court also points out the government didn't raise either of these arguments in its brief. In general, appeals courts are extremely uninterested in new legal arguments raised at the last minute, especially when years of litigation have come and gone before they even view the cases.

But it goes further than that. The court says FOIA is a vehicle of government accountability that must remain open to criminal defendants. In some cases, it's the only way for defendants to gain access to documents relevant to their prosecution.

FOIA thus provides an important vehicle for vindicating significant rights—and for keeping prosecutors honest. Indeed, in some cases it provides the only vehicle. And the government, at least in this case, has not told or shown us how taking that tool away from criminal defendants serves the interests of justice compared to the harms those waivers cause.

The court sums up its decision by calling out the government for attempting to further tilt an already-slanted legal playing field.

[T]his uneven power dynamic lurks in the background in cases like these and calls for a careful consideration of Price’s claim. Here Price has shown, through real-world examples, that enforcing a FOIA waiver would make it harder for litigants in his position to discover potentially exculpatory information or material supporting an ineffective-assistance-of-counsel claim. This is especially true given that, “with rare exceptions, only the waivor” in such cases “has the requisite knowledge and interest to lodge a FOIA request in the first place.” Amicus Br. 27. On the other side of the scale, the government has offered us nothing more than the unsupported blanket assertion that FOIA waivers assist in effective and efficient prosecution, without any support or explanation how. Under these particular circumstances, and based on the briefing in this case, we have little trouble in concluding that the public interest in enforcing Price’s waiver is outweighed by the harm to public policy that enforcement would cause.

But even as it strips away the government's blanket assertions, the court reminds readers (and potential litigants) that it's not offering a blanket of its own.

To be clear, we do not hold that FOIA waivers in plea agreements are always unenforceable. We simply hold that the government may not invoke Price’s FOIA waiver as a basis for denying him access to the records he requests because, in this case, the government has given us no adequate rationale for enforcing this waiver in light of the public-policy harms Price has identified. That’s it.

So, FOIA waivers will remain part of plea agreements. But this instructive ruling should give defendants some guidance on how to better challenge these waivers.


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