by David Reutter

The U.S. Court of Appeals for the D.C. Circuit held that a Freedom of Information Act (“FOIA”) waiver as part of a plea agreement is unenforceable on public policy grounds. The Court emphasized it was not holding that FOIA waivers in plea agreements are always unenforceable, but in this case, the Government failed to identify any legitimate criminal justice interest served by the specific waiver.

William Price pled guilty in March 2007 to two federal 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 50 years in prison.

Price submitted a FOIA request in October 2011 to the FBI to obtain all records pertaining to his ex-wife, who provided a privacy waiver. The FBI denied the request, citing the plea agreement and stating the records were related to his criminal case. Price filed a FOIA suit in federal court, and the district court granted summary judgment in favor of the FBI.

Price asserted a public policy-based challenge to the denial of his FOIA request. The parties agreed 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 authorities.” That, the Court said, “places boundaries on the rights that can be bargained away in plea negotiations.”

The Government argued that FOIA waivers in plea agreements promote the government’s legitimate interest in finality. However, the Court rejected that argument, noting that “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.”

Importantly, “FOIA plays a significant role in uncovering Brady material,” which is any evidence favorable to the defendant. In addition, the Court observed that “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 concluded that “FOIA thus provides an important vehicle for vindicating significant rights—and for keeping prosecutors honest. Indeed, in some cases it provides the only vehicle.”  

The Court of Appeals held “that the district court should have declined to enforce Price’s waiver on public-policy grounds….” Accordingly, the Court reversed the district court’s decision and remanded the case for further proceedings consistent with its opinion. See: Price v. United States DOJ Atty. Office, 865 F.3d 676 (D.C. Cir. 2017). 

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