FOIA Advisor

FOIA Commentary: FOIA at any price?

Commentary (2017)Allan BlutsteinComment

In a 2-1 decision issued last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Department of Justice could not deny a criminal defendant's FOIA request about his case even though he had expressly waived his FOIA rights in a plea agreement.  The majority reasoned that such a waiver provision serves "no legitimate criminal-justice interest" and was therefore unenforceable.  The dissent argued that the waiver should have been upheld because the requester had agreed to it knowingly, voluntarily, and intelligently. Moreover, the dissent viewed the majority's "legitimate criminal-justice" standard as a distortion of Supreme Court precedent. The staff of FOIA Advisor -- Allan Blutstein (A), Ryan Mulvey (R), and Kevin Schmidt (K) -- weighs in.

A.   I was persuaded by the dissent -- a shocking conclusion from a law-and-order conservative, I know.  The Department of Justice should be able to rely upon plea bargains to prevent criminals from endlessly trying re-litigate their cases through infinite FOIA requests -- a burden that the FBI in this case apparently failed to fully explain.  Other FOIA requesters who settle their cases in litigation also should be precluded from requesting once-disputed records if the joint stipulation of dismissal includes an express waiver of FOIA rights.  If the stipulation is silent on the matter (which is typically the case), however, I would permit the requester to make a subsequent request for the same records.

R.  I agree with you, Allan.  In the end, this seems like a straight-forward case.  Even if we accept the Court's standard--namely, that a criminal defendant's waiver of any particular right must serve a "legitimate criminal-justice interest"--the result here seems to foreclose a FOIA waiver ever being included in a plea agreement, despite the Court's claims to the contrary.  The Court (correctly, I think) held that Congress has never affirmatively prohibited the waiver of FOIA rights and that the structural purpose of the statutes isn't frustrated by waiver as such.  But the analysis of the public policy concerns leaves little room for factual distinction.  What criminal defendant isn't capable or interested in using the FOIA as a means of discovery of exculpatory evidence or to prove ineffective assistance of counsel?  And remember that the requester in this case only agreed to a limited waiver.  I don't think it is coincidental that every other court to address this issue has come to a different result.

As for requesters who stipulate dismissal of FOIA claims as part of a "settlement," I agree that they should be held to the terms of the agreement.  But I do wonder whether there are any changes in legal standards or factual circumstance that render those stipulation agreements unenforceable.  That's certainly the case with res judicata and collateral estoppel in instances where a court enters final judgment.

K.  I'll leave the legal analysis to my more qualified colleagues, but I don't see any great injustice in an agreement that includes waiving rights under FOIA. Shouldn't a defendant be able to use that option to leverage a better settlement? And by my reading, this decision only decided whether or not the defendant waived his rights to requesting the records. In other words (and please correct me if I missed this), what's stopping an associate or friend of the defendant from requesting these records? I don't see anything prohibiting the defendant from using records obtained in that fashion. 

A.   I agree with Kevin that a criminal defendant should be able to use FOIA as a bargaining chip in plea negotiations. To Kevin's point about the scope of the waiver, it is true that a third party may submit a request and then provide any disclosed records to the criminal defendant.  But keep in mind that in response to a third party request, DOJ would be compelled to withhold certain records, or to refuse to confirm or deny their existence, on privacy grounds.  Thus, the waiver does have some teeth.   

R.  Kevin's insight brings us back to one of the dissent's major points: Price knowingly, voluntarily, and intelligently consented to the terms of his plea agreement.  Any criminal defendant should be able to do the same in negotiating the terms of his agreement.  Kevin's comments also reminded me of Judge Brown's reference to "surrogate" requesters.  I think Allan is right that DOJ would withhold records, or issue a Glomar, on privacy grounds.  Moreover, if a request contained a Privacy Act waiver, I bet DOJ would refuse to accept it as valid.  It would instead treat the request as a creative attempt to get around the terms of the plea agreement.  The burden would then be on the requester to prove otherwise.

K.  Re-reading the decision and what sticks out is how the government apparently left this key point out of their briefs but discussed it at oral arguments: "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."  That would seem to be a key, if crude, point in the government's favor. Considering the court left in place the arbitrary "criminal justice interest" standard, I suspect the government won't hesitate to include some of the missed points from this case the next time around.