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

from the stripping-vehicles-of-accountability-one-perp-at-a-time dept

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.


Reader Comments

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  1. icon
    That Anonymous Coward (profile), 11 Aug 2017 @ 7:52pm

    Yeah because a FOIA request has never lead to finding Brady material.
    We need to make sure we close the door on people we ushered into jail, so that no one can question if the case was actually based on facts.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 11 Aug 2017 @ 8:43pm

    Methinks they protest too much

    I bet that somewhere deep in his FIOAable records, are illegal taps, other other fruit that cannot ever be used and probably set off the entire investigation. Everything else was made up to pretend that they came upon the case in a legal and moral way.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, 11 Aug 2017 @ 8:47pm

    You shouldn't be allowed to waive rights. If you can waive it via the coercion of the threat of a worse sentence, it's not much of a right . If you can be negotiated out of it, the one negotiating the waiver is willfully violating your rights. Securing convictions shouldn't be the focus of the prosecutors, but rather justice.

    reply to this | link to this | view in thread ]

  4. identicon
    Daydream, 11 Aug 2017 @ 9:26pm

    Re:

    I was thinking along similar lines.
    'We'll reduce your prison sentence if you waive this right' is little different from 'if you try to exercise this right, we'll put you in jail'.


    I was also thinking stuff about the US government lying and breaking laws and agreements all the time, and how all the police and prosecutors should be shot, but I'm not particularly sure how to say that eloquently.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, 12 Aug 2017 @ 1:25am

    Most of us will be in trouble in the next realmm because we were unable to control ourselves.. what makes these people believe they arent going to be in such deep trouble for treating us so devilishly?

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 12 Aug 2017 @ 1:37am

    Re: Re:

    Most of those people deep down don't think they are being watched and go on as if they at some point in eternity they will never be held accountble for actions they participate in against the peaceful sovereignty of people they were meant to rule as they would have wanted to be ruled.

    reply to this | link to this | view in thread ]

  7. icon
    Aaron Walkhouse (profile), 12 Aug 2017 @ 2:07am

    Sin is unbelief…

    …and these types don't believe there are consequences or
    that there is a next realm or that a God exists at all.

    The few who claim they do and that they are churchgoers
    prove otherwise. ‌ By their fruits you shall know them. ‌ ;]

    reply to this | link to this | view in thread ]

  8. icon
    Advocate (profile), 12 Aug 2017 @ 4:42am

    Re: Sin is unbelief…

    "By your fruits you shall know them." By that standard the average atheist is a better person than the average Christian.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 12 Aug 2017 @ 4:44am

    Re:

    We need to make sure we close the door on people we ushered into jail, so that no one can question if the case was actually based on facts.

    If it was about "protecting" public safety, they would just shoot them.

    This is about making sure that once you are in jail, the private prisons get their full paycheck, politicians get to be tough on "crime", and that prospective prosecutors get another "solid slam dunk" case under their belt for their next promotion. It's all about the power and has nothing to do with justice, except it's perversion in the name of greed.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous Coward, 12 Aug 2017 @ 4:49am

    Re: Re: Sin is unbelief…

    I've said the same thing for years. The christian heaven is going to be packed with Buddhists and atheists who were the best people they knew how to be.

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous Coward, 12 Aug 2017 @ 4:57am

    Re: Re:

    "...how all the police and prosecutors should be shot..."

    Sometimes eloquence lies in straightforward brevity.

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 12 Aug 2017 @ 5:06am

    Thanks for the Tip

    Prosecutor: Waive your {fill in the blank} right(s) in exchange for a lesser sentence.

    Convict: No, but thanks for letting me know what to tell my attorney to do next.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous Coward, 12 Aug 2017 @ 6:01am

    Waiver of Rights

    It should not be possible for a person to waive their rights. If you can waive them, then it seems to me that they are more like "privileges" rather than rights.

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 12 Aug 2017 @ 6:07am

    Re:

    They either don't believe in an afterlife or think they will rule it, like they do this one.

    reply to this | link to this | view in thread ]

  15. icon
    Johan (profile), 12 Aug 2017 @ 6:07am

    Pro Se victory

    I could be wrong but this seems to be one of the rare Pro Se cases that have a positive impact.

    reply to this | link to this | view in thread ]

  16. identicon
    Anonymous Coward, 12 Aug 2017 @ 6:27am

    Re: Waiver of Rights

    That's why a person cannot sell themselves into slavery, even voluntarily (supposedly).

    reply to this | link to this | view in thread ]

  17. identicon
    4767, 12 Aug 2017 @ 7:13am

    Plea Bargainig is Corrupt Practice

    ---- "it's not much of a right . If you can be negotiated out of it..."


    Correct. And the routine practice of "Plea Bargaining" in American courts is outrageously unjust. It should be abolished entirely.

    Defendants should be indicted & adjudicated with precisely the charges required by written law. Nothing more, nothing less.

    Why bother with written law when Prosecutors are free to ignore and manipulate it at their personal discretion on each case ?

    Court decisions should be based only upon the honest facts of the case. Prosecutors should have no "carrots & sticks" to coerce defendants into "Guilty" pleas of any sort... nor to waive any rights.

    Jury trials are a rarity in America exactly because Prosecutors have huge, unjust power to railroad defendants to conviction... leaving even innocent defendants to plead guilty to lesser (negotiated) charges.

    reply to this | link to this | view in thread ]

  18. identicon
    CJ, 12 Aug 2017 @ 9:51am

    Re: Methinks they protest too much

    That quote in Hamlet was uttered when Hamlet's mother wasn't protesting, it was sarcasm. He was accusing his mother of disloyalty, of being a slut, essentially, who rushed into a new marriage before his father's body was even cold.

    You can use the quote however you like of course, it's a free country and you have the freedom to tell everyone how little attention you paid in English. But while you can do it, you're still wrong.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, 12 Aug 2017 @ 11:06am

    Re: Re: Methinks they protest too much

    That quote in Hamlet was uttered when Hamlet's mother wasn't protesting, it was sarcasm.

    It was actually uttered by Hamlet's mother, in reference to a character in a play within the play who was protesting.

    you have the freedom to tell everyone how little attention you paid in English.

    Indeed, you do.

    reply to this | link to this | view in thread ]

  20. icon
    Bergman (profile), 12 Aug 2017 @ 3:17pm

    Re: Re: Waiver of Rights

    Well, being sentenced to slavery is still legal Constitutionally, so in a way you actually could 'voluntarily' sell yourself into slavery, you just have to be charged with a crime and take a plea deal first.

    reply to this | link to this | view in thread ]

  21. identicon
    Anonymous Coward, 12 Aug 2017 @ 3:22pm

    Re: Re: Re: Waiver of Rights

    We're all slaves

    reply to this | link to this | view in thread ]

  22. identicon
    Anonymous Coward, 12 Aug 2017 @ 3:34pm

    Re: Re: Re: Waiver of Rights

    I guess the US just couldn't bring itself to *completely* abolish slavery.

    reply to this | link to this | view in thread ]

  23. identicon
    tin-foil-hat, 12 Aug 2017 @ 4:17pm

    Waiving Rights

    Some countries make it much harder for people to waive their rights so powerful people can't coerce those at a disadvantage into bad faith contracts, like plea bargains, for example. A jury is the only place where ordinary people have direct control so it's no wonder they've almost eliminated that last vestige of oversight.

    reply to this | link to this | view in thread ]

  24. identicon
    tin-foil-hat, 12 Aug 2017 @ 4:39pm

    Re: Re: Sin is unbelief…

    Sometimes the religious excuse their crimes in the name of furthering god's plan. Like the case Kitzmiller v. Dover Area School District. It was heard by a conservative, Christan judge. He found for the plaintiffs. The defendents had no problem committing perjury. After his ruling the judge received death threats and required federal protection. Because when you ask yourself "what would jesus do?" Threating a judge and his family is the first thing that comes to mind.

    reply to this | link to this | view in thread ]

  25. icon
    Aaron Walkhouse (profile), 12 Aug 2017 @ 6:19pm

    "By your fruits you shall know them." By that standard the average atheist is a better person than the average Christian.

    Precisely. ‌ To those churchgoers the bible's message is simple:


    Rev 3:15-22 I know thy works, that thou art neither cold nor hot: I would thou wert cold or hot.

    So then because thou art lukewarm, and neither cold nor hot, I will spue thee out of my mouth.

    Because thou sayest, I am rich, and increased with goods, and have need of nothing; and knowest not that thou art wretched, and miserable, and poor, and blind, and naked:

    I counsel thee to buy of me gold tried in the fire, that thou mayest be rich; and white raiment, that thou mayest be clothed, and that the shame of thy nakedness do not appear; and anoint thine eyes with eyesalve, that thou mayest see.

    As many as I love, I rebuke and chasten: be zealous therefore, and repent.

    Behold, I stand at the door, and knock: if any man hear my voice, and open the door, I will come in to him, and will sup with him, and he with me.

    To him that overcometh will I grant to sit with me in my throne, even as I also overcame, and am set down with my Father in his throne.

    He that hath an ear, let him hear what the Spirit saith unto the churches.


    Athiests are cold to the idea of a god; but because they value truth over religion they are closer to God than the churches, who kicked Him out and closed their doors long ago. ‌ ;]

    reply to this | link to this | view in thread ]

  26. identicon
    For this to work..., 12 Aug 2017 @ 10:18pm

    Re: Plea Bargainig is Corrupt Practice

    They'll need to add a few more zeros on the end of the budgets for the entire judiciary, including public defenders, the courts themselves and probably even the prosecutors. Justice in our courts has been deemed too expensive, so they've twisted the idea of a fair trial in the name of efficiency. And the public defenders accept this because they are the mot poorly financed part of the whole system and anything that saves time on cases where a life is not at stake or the guilt is clear even to the defense is time they can spend on cases where the defendant has more at stake.

    reply to this | link to this | view in thread ]

  27. icon
    GySgtDad (profile), 13 Aug 2017 @ 1:31pm

    Re: Re: Methinks they protest too much

    Hamlet:
    Madam, how like you this play?

    Queen:
    The lady doth protest too much, methinks.

    Hamlet, III, 2, 222-?

    reply to this | link to this | view in thread ]

  28. icon
    GySgtDad (profile), 13 Aug 2017 @ 1:39pm

    Re: Plea Bargainig is Corrupt Practice

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

    Berger v. United States
    295 U.S. 78 (1935)

    reply to this | link to this | view in thread ]

  29. icon
    GySgtDad (profile), 13 Aug 2017 @ 1:42pm

    Re: Plea Bargainig is Corrupt Practice

    Berger v. United States 295 U.S. 78 (1935)

    The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

    reply to this | link to this | view in thread ]

  30. identicon
    tin-foil-hat, 13 Aug 2017 @ 11:07pm

    Re: Re: Plea Bargainig is Corrupt Practice

    There are too many laws and far too many opportunities to expand those laws to cover absolutely any act. So if they make a mistake they can manipulate the law and pin something onto somebody they've done wrong to. The US creates criminals out of thin air and uses propaganda to justify it. If more discretion was used and priority given to public safety and not just to winning or stealing the need for efficiency wouldn't be as critical. I keep hoping that one day everybody rejects the plea bargain and forces the US legal system to do what it was supposed to and not what corruption has made it into.

    reply to this | link to this | view in thread ]

  31. identicon
    Anonymous Coward, 14 Aug 2017 @ 7:25am

    Re: Re: Plea Bargainig is Corrupt Practice

    That's part of the problem. The high costs. Why is that?

    reply to this | link to this | view in thread ]

  32. identicon
    Anonymous Coward, 14 Aug 2017 @ 10:03am

    Are plea agreements public?

    If the agreements are public, some organization could scan them for FOIA waivers, file FOIA requests for the "banned" documents, and publish them online. It would be an easy way to find interesting documents.

    Even if they're not public, maybe someone can file a FOIA request for a list of plea agreements that contain FOIA waivers...

    reply to this | link to this | view in thread ]

  33. icon
    The Wanderer (profile), 15 Aug 2017 @ 6:21am

    Re: Sin is unbelief…

    Actually, if you look at the history of it, "sin" is "missing the mark" - essentially, focusing your attention and energy on the wrong thing(s), whether from lack of willpower or from lack of self-discipline or simply from misunderstanding what the "target" is supposed to be. The word comes from an archery term, used to refer to not hitting the target you're aiming for.

    reply to this | link to this | view in thread ]

  34. icon
    Aaron Walkhouse (profile), 15 Aug 2017 @ 6:26pm

    In other words, unbelief causes one to "miss the mark"; because
    genuine faith cuts through distractions and helps one to
    overcome personal weaknesses.

    The result of sin is the result of unbelief, hence
    "by their fruits you shall know them."

    Note that every time someone is declared sinless in the bible,
    it is when they first believed, not when they performed a ritual
    or carried out tasks that God or any church imposed upon them.

    That proves (by the Word itself, no less) that sin is unbelief.
    History books and reasonings of theologians are not needed when
    it's in the bible, plain as day; so clear a child can understand it.

    reply to this | link to this | view in thread ]


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