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

865 F.3d 676, 2017 U.S. App. LEXIS 14338
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 4, 2017
Docket15-5314
StatusPublished
Cited by16 cases

This text of 865 F.3d 676 (Price v. U.S. Department of Justice Attorney Office) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Price v. U.S. Department of Justice Attorney Office, 865 F.3d 676, 2017 U.S. App. LEXIS 14338 (D.C. Cir. 2017).

Opinions

[678]*678GRIFFITH, 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 [679]*679intelligent. 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, “[cjriminal 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, 122 S.Ct. 2450, 153 L.Ed.2d 586 (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, 115 S.Ct. 797, 130 L.Ed.2d 697 (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, 96 S.Ct. 1592, 48 L.Ed.2d 11 (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.

[680]*680To 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.’ ” Ami-cus 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.

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865 F.3d 676, 2017 U.S. App. LEXIS 14338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/price-v-us-department-of-justice-attorney-office-cadc-2017.