 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 10, 2017                   Decided August 4, 2017

                        No. 15-5314

                     WILLIAM S. PRICE,
                       APPELLANT

                             v.

  U.S. DEPARTMENT OF JUSTICE ATTORNEY OFFICE, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:14-cv-00847)


    Benjamin G. Barokh, Student Counsel, argued the cause as
amicus curiae in support of appellant. With him on the briefs
were Steven H. Goldblatt, appointed by the court, Shon
Hopwood, Supervisory Attorney, and Jeffrey C. Thalhofer,
Student Counsel.

    Peter C. Pfaffenroth, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were R. Craig
Lawrence and Jane M. Lyons, Assistant U.S. Attorneys.

    Before: TATEL, BROWN, and GRIFFITH, Circuit Judges.

    Opinion for the Court filed by Circuit Judge GRIFFITH.
                                   2

    Dissenting opinion filed by Circuit Judge BROWN.

     GRIFFITH, 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


    1
       Price was convicted under 18 U.S.C. § 2251(a), which
prohibits knowingly attempting to induce a minor to engage in
sexually explicit conduct for the purpose of producing visual
depictions of such conduct, and 18 U.S.C. § 2252(a)(2), which
prohibits knowingly receiving visual depictions of minors engaged
in sexual conduct.
    2
        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
                                 3

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


        Freedom of Information Act, 5 U.S.C. § 552, or the
        Privacy Act of 1974, 5 U.S.C. § 552a.

J.A. 138.

     FOIA waivers in plea agreements are neither common nor
completely 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. See Susan R. Klein et al., Waiving the Criminal Justice
System: An Empirical and Constitutional Analysis, 52 AM. CRIM.
L. REV. 73, 87 (2015).
                                4

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 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.

                                II

     In general, “[c]riminal 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 (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




    3
      Price is not represented by counsel on appeal, and he has not
filed any briefs himself. Rather, we appointed an amicus—the
Georgetown Appellate Litigation Program—to brief and argue his
cause before us.
                                  5

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 (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
(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,

     4
       We note that the district courts to have considered the question
have held that FOIA waivers in plea agreements are enforceable. See,
e.g., Caston v. Exec. Office for U.S. Att’ys, 572 F. Supp. 2d 125, 129
(D.D.C. 2008); Boyce v. United States, Civ. No. 1:08-cv-535, 2010
WL 2691609, at *1 (W.D.N.C. July 6, 2010); Patterson v. FBI, Civ.
No. 3:08-cv-186, 2008 WL 2597656, at *2 (E.D. Va. June 27, 2008).
And the Fourth Circuit, in an unpublished opinion, once referred to
a plea agreement that contained a FOIA waiver as “valid and
binding.” United States v. Lucas, 141 F. App’x 169, 170 (4th Cir.
2005). Those courts, however, did not address the questions posed
here: whether FOIA rights are inherently unwaivable for everyone
or, alternatively, whether public-policy concerns ever require courts
to refrain from enforcing FOIA waivers contained in plea
agreements. We now try our hand at answering those questions.
                                6

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.

     To 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
                                 7

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.’” Amicus
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. Reporters Comm. for
Freedom of Press, 489 U.S. 749, 771 (1989) (explaining that
the government may not deny a person’s FOIA request on the
ground that he lacks a special interest in the records sought),
this case is not about whether a document can be denied under
one of the exemptions; it is simply about whether an agency, as
a general matter, may decline to turn over records to somebody
who has specifically contracted with the government not to
seek them. Nowhere in the statute has Congress forbidden that
practice.

     One additional point: amicus contends that FOIA rights
cannot be waived in the same way that a person cannot give
away his rights to a minimum wage or overtime pay under the
Fair Labor Standards Act. That analogy is misplaced.
Minimum-wage and maximum-hour laws operate by limiting
freedom to contract, see W. Coast Hotel Co. v. Parrish, 300
U.S. 379, 391-92 (1937), so it is easy to see how the statutory
scheme could be frustrated by allowing workers and
management to contract around those laws. Indeed, the entire
point of such laws is to stave off low salaries and wages that
some people would accept if given the choice. By contrast,
                               8

allowing individuals to contract away their personal right to
information under FOIA does not jeopardize the statutory
scheme. The statute’s “sole concern is with what must be made
public or not made public.” Reporters Comm., 489 U.S. at 772
(quoting Kenneth Culp Davis, The Information Act: A
Preliminary Analysis, 34 U. CHI. L. REV. 761, 765 (1967)); see
also North v. Walsh, 881 F.2d 1088, 1096 (D.C. Cir. 1989).
And here, as both Price and the government acknowledge,
almost any other person could get the same records Price has
requested—just not Price himself. The records he seeks remain
readily available to the public, assuming they are not subject to
an exemption.

     The implications of Price’s argument underscore its
weakness. Under his view, FOIA claims would become
practically impossible to settle. Suppose the FBI denies a
person’s request for documents, and the person sues under
FOIA. Because litigation is uncertain and costly, settlement
talks ensue. The FBI offers to give him document X while
continuing to withhold from him documents Y and Z. The
requester accepts the FBI’s offer and voluntarily dismisses his
suit. But a month later, buyer’s remorse sets in and he asks the
FBI for documents Y and Z. Presumably, the FBI would deny
his request on the ground that, just last month, he signed on to
a settlement in which he agreed not to receive those documents.
If Price were correct that the FBI would be barred from denying
his request unless it could invoke one of the statutory
exemptions, the promise made in the settlement would be
meaningless. If that were the law, the agency would never have
settled with him to begin with. Indeed, the agency would never
settle with anybody. FOIA settlements would always be—from
the government’s perspective—meaningless. That outcome is
absurd. FOIA cases settle all the time, and accepting Price’s
                               9

argument would put an end to that longstanding practice. We
decline to take the bait.

                               B

     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,” Town of Newton v. Rumery, 480 U.S. 386,
401 (1981) (O’Connor, J., concurring); see also id. at 397
(majority opinion) (evaluating the degree to which an
agreement in the criminal context “further[ed] legitimate
prosecutorial and public interests”). This set of legitimate
interests places boundaries on the rights that can be bargained
away in plea negotiations.

     For example, waivers of appeal rights are permissible, in
part, because they promote finality: the prosecution avoids
expending time and resources putting the matter to rest. See,
e.g., United States v. Teeter, 257 F.3d 14, 22 & n.5 (1st Cir.
2001). Similarly, when a criminal defendant waives his right to
a trial, prosecutors save the time and resources typically
involved in obtaining a conviction. And when a criminal
defendant waives his right to impeachment evidence under
Giglio v. United States, 405 U.S. 150 (1972), prosecutors can
secure guilty pleas without prematurely disclosing witness
information and trial strategy. Ruiz, 536 U.S. at 631-32. A
criminal defendant can even agree to give up his right to pursue
                                 10

a section 1983 damages action in exchange for dropping a
prosecution, as long as the prosecutor has “an independent,
legitimate reason . . . directly related to his prosecutorial
responsibilities” for seeking such an agreement—for instance,
sparing a victim “the public scrutiny and embarrassment she
would have endured” as a key witness if the case had gone
forward. Rumery, 480 U.S. at 398.

     Here, however, the government has not pointed us to any
legitimate criminal-justice interest served by allowing for
FOIA waivers in plea agreements. 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.

      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 . . . .” Oral Arg.
Rec. at 16:43-17:00. But the government did not clearly make
this argument in its brief, despite amicus having called into
question the weight of interests served by enforcing FOIA
waivers in plea agreements.

     True, in 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
                              11

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. See Guillen, 561 F.3d
at 530 (holding that plea waivers are unenforceable “insofar as
the defendant makes a colorable claim he received ineffective
assistance of counsel in agreeing to the waiver”); see also
Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005)
(noting that “other circuits have barred waivers of [ineffective
assistance of counsel] claims associated with the negotiation of
plea agreements”). Some courts have even suggested that the
right to material exculpatory information under Brady v.
Maryland, 373 U.S. 83 (1963), also cannot be waived. See, e.g.,
McCann v. Mangialardi, 337 F.3d 782, 787-88 (7th Cir. 2003).

     And as amicus observes, FOIA plays a significant role in
uncovering undisclosed Brady material and evidence of
ineffective assistance of counsel, see Amicus Br. 27, and in
practice has led to uncovering records relevant to ineffective-
assistance-of-counsel claims, such as plea offers not
communicated by defense counsel to clients, see Hare v.
United States, 688 F.3d 878, 880 (7th Cir. 2012); Albillo-De
Leon v. Gonzales, 410 F.3d 1090, 1100 (9th Cir. 2005), as well
as evidence of Brady violations, see Monroe v. Angelone, 323
F.3d 286, 294 (4th Cir. 2003); Bagley v. Lumpkin, 798 F.2d
1297, 1299 (9th Cir. 1986); United States v. McDavid, No. 06-
cr-0035, ECF No. 442 (E.D. Cal. July 14, 2014) (describing
Brady materials obtained through FOIA that led to the release
of a man sentenced to 19.5 years’ imprisonment); Ex parte
Miles, Nos. AP-76,488 & AP-76,489 (Tex. Ct. Crim. App. Jan.
                               12

15, 2012) (vacating the conviction of a man sentenced to sixty
years’ imprisonment after a FOIA request uncovered
suppressed police reports and evidence that another person
confessed to the crime); see also Timothy Howard, National
Registry of Exonerations, http://www.law.umich.edu/
special/exoneration/Pages/casedetail.aspx?caseid=3311 (last
visited July 25, 2017) (describing suppressed evidence
uncovered through FOIA that led to the exoneration of two men
who had spent decades on death row). 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.

     In the dissent’s view, our inquiry is unnecessary because
“achieving a guilty plea is the legitimate criminal justice
interest” served by the waiver of any right that helps to secure
the plea in the first place. Dissenting Op. at 8 (emphasis added);
see also id. at 9-10 (reasoning that “no ‘legitimate criminal-
justice’ interest need be satisfied beyond securing a knowing,
voluntary, and intelligent admission of guilt”). But that
principle would allow for the waiver of any right as part of a
plea agreement. For instance, it would allow prosecutors to ask
a criminal defendant to waive his right to collect social security
benefits. Surely, though, we would decline to enforce that
waiver, based on the rule that a prosecutor must have legitimate
criminal-justice interests in mind when negotiating the terms of
a plea agreement.

    At the end of the day, a plea agreement that attempts to
waive a right conferred by a federal statute is, like any other
contract, “unenforceable if the interest in its enforcement is
                               13

outweighed [under] the circumstances by a public policy
harmed by enforcement.” Rumery, 480 U.S. at 392 (citing
RESTATEMENT (SECOND) OF CONTRACTS § 178(1) (1981)).
More specifically, the Supreme Court has instructed us to
consider whether agreements with prosecutors “further
legitimate prosecutorial and public interests” before enforcing
those agreements. Id. at 397. And while “[t]he mere potential
for abuse of prosecutorial bargaining power” does not on its
own invalidate waivers of defendants’ rights, Mezzanatto, 513
U.S. at 210, this 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.

    The dissent, by contrast, views this as a case about the
voluntariness of Price’s waiver and would enforce the waiver
because it was voluntary. But the fact that Price freely chose to
waive his FOIA rights is not at issue here. The question is
simply whether Price’s agreement to waive his FOIA rights
offends public policy and is therefore unenforceable. In
                              14

answering that question, we decline to do the government’s
work for it and supply an argument the government did not
make. 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.

    Because we hold that the district court should have
declined to enforce Price’s FOIA waiver on public-policy
grounds, we do not address Price’s alternative argument that
some of the records he requested fell outside the scope of his
waiver. We express no view as to whether Price’s FOIA
request was otherwise properly made or whether any of FOIA’s
nine categorical exemptions applies to the records he
requested.

                              IV

     For the foregoing reasons, we reverse the order of the
district court and remand for further proceedings consistent
with this opinion.

                                                   So ordered.
     BROWN, Circuit Judge, dissenting: This case presents the
following question: May a criminal defendant, in pleading
guilty, waive his right to FOIA requests pertaining to the
investigation or prosecution underlying his criminal
conviction? Thus far, every court to consider this question has
answered “yes.” We are now the first to say “no.” The Court
suggests its answer is limited only to this case, but no FOIA
guilty-plea waiver could ever meet the standard employed here.
Worse still, the Court’s answer rests on a distortion of the
Supreme Court’s guilty-plea-waiver jurisprudence—a
distortion portending far-reaching, and presumably
unintended, consequences.

     Rather than answer the question presented, the Court crafts
a new guilty-plea-waiver standard. Now, the Government is
burdened with proving a “legitimate criminal-justice” interest
that a court must accept before any guilty-plea waiver is valid.
The nature of the right no longer informs whether it is
waivable; whether the defendant knowingly, voluntarily, and
intelligently waived that right is now beside the point. These
changes are in contrast with half-a-century of Supreme Court
jurisprudence. The majority tap-dances around the Supreme
Court’s well-established standards by calling this a “FOIA
suit,” not a waiver case. Op. 4. Nonsense. No fake label will
turn a rose into a saguaro. The FOIA statute plays no
substantive role in the Court’s novel analysis. This is a case
about guilty-plea waivers. See id. at 9–11.

     Comparing this decision to the Supreme Court’s long-
established guilty-plea-waiver jurisprudence, it is now harder
for a defendant to waive his FOIA right to records underlying
his criminal conviction than it is to waive his constitutional
rights to a jury trial, confronting witnesses, and being
presumptively innocent. “How silly is that?” Cf. DJ Gallo,
Allen Iverson’s ‘Practice’ Rant: 10 Years Later, ESPN (May
7,                                                      2012)
http://www.espn.com/blog/playbook/fandom/post/_/id/2026/a
                               2
llen-iversons-practice-rant-10-years-later (“[W]e’re not even
talking about the game, when it actually matters, we’re talking
about practice.”).

    Rather than revise the law, we should have applied the
Supreme Court’s waiver principles and upheld Price’s FOIA
waiver. Because the Court did not do so, choosing cleverness
over wisdom, I respectfully dissent.

                               I.

     The Court casts the Supreme Court’s guilty-plea-waiver
standards aside while fashioning a newfangled compass from
one of Justice O’Connor’s concurring opinions. Citing Town
of Newton v. Rumery, 480 U.S. 386, 401 (1987) (O’Connor, J.,
concurring), the Court finds Price’s waiver invalid because the
Government failed to show “any legitimate criminal-justice
interest” behind it. Op. 9. But Justice O’Connor’s dicta is not
the law. No other Member of the Supreme Court joined Justice
O’Connor’s concurrence. No party before us argued Justice
O’Connor’s dicta about “legitimate criminal-justice” interests
should control. Indeed, the concurrence has never been used
to invalidate a guilty-plea waiver. This should come as no
surprise, as Rumery is not even about guilty pleas.

    In Rumery, the Supreme Court assessed the acceptability
of a “release-dismissal agreement”—an agreement where a
defendant releases his right to bring a lawsuit under 42 U.S.C.
§ 1983 in exchange for the dismissal of charges against him.
Rumery, 480 U.S. at 393–97. Release-dismissal agreements,
as both the plurality and Justice O’Connor recognized, are not
equivalent to guilty pleas. The “judicial oversight” inherent to
entering a guilty plea separates the two, and gives the guilty
plea an “important check against abuse” lacking in release-
dismissal agreements. See id. at 393 n.3 (majority opinion); id.
                                3
at 400 (O’Connor, J., concurring); see also Cady v. Arenac
Cty., 574 F.3d 334, 348 (6th Cir. 2009) (Martin, J., concurring)
(“Release-dismissals are not like plea bargains: the justification
for plea bargains focuses on the prosecutor’s duties with
respect to his limited institutional role and his concern for often
limited prosecutorial resources.          Release-dismissals, by
contrast, concern only whether the defendant may sue the
officers who apprehended him for constitutional violations . . .
or some extant third-parties in civil court . . . .”).

      Importantly, Rumery acknowledged that the “public
interest” in a guilty plea is the entered plea itself. A knowing,
voluntary, and intelligent guilty plea assures the public that the
crime will be punished and the prosecutor has a factual basis
for his charges. See 480 U.S. at 393 n.3 (majority opinion).
The “public interest” in a release-dismissal agreement is more
tangential. This contrast led Justice O’Connor to conclude that,
in the distinct context of release-dismissal agreements, the
public interest demands that the court “[c]lose[ly] examin[e] .
. . all the factors” affecting a particular agreement. See id. at
402 (O’Connor, J., concurring). The Rumery Court’s reference
to “legitimate prosecutorial and public interests,” id. at 397,
cited by the Court to bolster its reliance on Justice O’Connor’s
concurrence, see Op. 9, is also specifically tied to the distinct
question of whether release-dismissal agreements are generally
invalid. See 480 U.S. at 397 (“Because release-dismissal
agreements may further legitimate prosecutorial and public
interests, we reject the Court of Appeals’ holding that all such
agreements are invalid per se.”). Neither Justice O’Connor’s
concurrence, the Rumery majority opinion, nor the plurality
opinion suggest a case-by-case inquiry into the public interest
is similarly required regarding guilty-plea waivers.

    The Court takes one sentence of Justice O’Connor’s
concurring opinion and turns it into a rule. “[T]he prosecutor
                               4
is permitted to consider only legitimate criminal justice
concerns in striking his [plea] bargain—concerns such as
rehabilitation, allocation of criminal justice resources, the
strength of the evidence against the defendant, and the extent
of his cooperation with the authorities.” Id. at 401 (O’Connor,
J., concurring (emphasis added)). This sentence is dicta within
dicta; Justice O’Connor’s concurring views about what a
prosecutor may consider when striking a plea bargain are raised
solely as part of a contrast with the release-dismissal
agreement at issue in Rumery. This sentence cites no authority.
It is illustrative, not definitive, toward what “criminal justice
concerns” are “legitimate.” It sets forth no basis to conclude
that every waiver within a guilty plea must achieve a specific
criminal justice interest, or any basis to evaluate whether any
waiver does so. And, the plurality opinion dispels any
suggestion that a court need consider public interest concerns
beyond a plea’s voluntariness. See 480 U.S. at 395 (plurality
opinion) (“Thus, we hesitate to elevate more diffused public
interests above Rumery’s considered decision that he would
benefit personally from the agreement.”).

     The Court displays considerable impudence by chiding the
Government for failing to brief a “legitimate-criminal justice”
interest behind Price’s FOIA waiver. See Op. 10. Why would
any litigant brief a standard never applied to guilty-plea
waivers, and one that no party sought to apply? Indeed, at oral
argument, amicus counsel repeatedly acknowledged that the
type of FOIA waiver in Price’s guilty plea satisfied any
“legitimate criminal-justice” interest. Oral Arg. Rec. at 12:18
– 12:22 (“We agree that there is a nexus between FOIA waivers
and the criminal process”); id. at 11:34 – 11:39 (“We’re not
saying that FOIA waivers don’t have a sufficient nexus to the
criminal process”). Amicus counsel went further, disclaiming
any relevancy to Justice O’Connor’s analysis:
                                   5
        Justice O’Connor’s concurring opinion in
        Rumery was about whether the waiver in a plea
        deal has a sufficient nexus to the criminal
        process. We’re not saying that FOIA waivers
        don’t have a sufficient nexus to the criminal
        process. The argument I’m making with the no
        limiting principle point is that it doesn’t stop the
        government from extracting waivers in non-
        criminal contexts. And, whether there is a nexus
        there or not is irrelevant to Rumery’s analysis.

See id. 11:26 – 11:52 (emphasis added). More significantly,
when the Court introduced this issue at oral argument,
Government counsel identified multiple “legitimate criminal-
justice” objectives served by FOIA waivers—including the
safeguarding of both scarce investigative resources and
information within FOIA material that an inmate could use to
harm victims or third-parties. 1 See, e.g., id. at 14:38 – 14:43.
The Court dismissed these concerns as mere make-weight
(even as Price’s ex-wife informed on him and she is the subject


1
  Government counsel also suggested a further “legitimate criminal-
justice” interest: incentivizing a litigant to use the discovery process
if he has questions about the Government’s case against him, rather
than plead first and ask ceaseless questions later. Cf. Antonin Scalia,
The Freedom of Information Act Has No Clothes, REGULATION, 19
(Mar.-Apr.                                                          1982)
https://object.cato.org/sites/cato.org/files/serials/files/regulation/198
2/3/v6n2-3.pdf (“Requests by a litigant for judicially compelled
production of documents from the opposing party’s files . . . can be
kept within reasonable bounds by the court itself. But when the
government is the adversary, there no longer is any need to use the
judicial discovery mechanism. A[] FOIA request can be as wide as
the great outdoors.”).
                                  6
of his FOIA requests) 2 while, at the same time, never
articulating a “legitimate criminal-justice” metric.

      The Justice Department has long been concerned about
cascading FOIA requests. See, e.g., Dep’t of Justice, Office of
Information Policy, Surrogate FOIA Requests Increasing, VII
FOIA         Update       No.      1      (Jan.      1,     1986),
https://www.justice.gov/oip/blog/foia-update-surrogate-foia-
requests-increasing (identifying “surrogate” FOIA requests
from prisoners on behalf of other prisoners, resulting, in some
cases, in “hundreds of FOIA requests on behalf of other
persons to various federal law enforcement agencies” that then
produce FOIA lawsuits). In the distinct release-dismissal
context, where Justice O’Connor’s Rumery concurrence has
actually applied, a general interest in efficiently “allocat[ing] .
. . criminal justice resources” and in “aid[ing] in the disposition
of [the prosecutor’s] heavy case load” “would probably
suffice” as public interests justifying a prosecutor in seeking a
defendant waive his right to bring a civil-rights lawsuit. See,
e.g., Coughlen v. Coots, 5 F.3d 970, 975 (6th Cir. 1993). The
Court’s opinion leaves us with a bizarre conclusion: Efficiently
allocating criminal justice resources and not adding the
possibility of open-ended civil litigation to the prosecutor’s
docket could justify a prosecutor in seeking a release-dismissal
agreement—an agreement that a prosecutor has less discretion
to enter into than a guilty plea. Those same interests, however,
“leave us to guess” whether a prosecutor ever has a “legitimate
criminal-justice” interest in seeking a defendant’s waiver of his



2
 Price’s ex-wife did effectuate a waiver of her privacy rights, though
she may have done so to keep the peace with Price—confident he
could not obtain her records. The Court’s opinion snatches that
assurance away.
                                  7
right to FOIA materials relating to his conviction and the
underlying investigation. 3 See Op. 10.

     More fundamentally, nothing in the Supreme Court’s
guilty-plea-waiver jurisprudence—before or after Rumery—
supports using Justice O’Connor’s formulation to assess guilty
pleas. In the release-dismissal context, Justice O’Connor’s
assessment of “the relevant public interests” is considered
“[t]he least-well defined element of a Rumery analysis.”
Coughlen, 5 F.3d at 975. By importing it into a separate
context, the Court’s opinion only compounds the confusion.
To be sure, supplanting the Supreme Court’s standards with
Justice O’Connor’s is not unprecedented. See, e.g., Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 985 (1992)
(Scalia, J., dissenting). But transmuting the High Court’s
precedent—if it is to be done at all—is not in our job
description.

                                 II.


3
  On the subject of leaving us to guess, the Court’s analysis asks us
to presume its distinction with every other case that has ever
addressed the acceptability of a guilty-plea FOIA waiver possesses a
difference. See Op. 5 n.4. Nothing in the Court’s analysis or in those
opinions explain why those FOIA waivers are not susceptible to the
same “legitimate criminal-justice” attack levied against Price’s.
Perhaps the Court is unbothered by staking out a position in contrast
with district courts outside our circuit and an unpublished decision
of a sister circuit. But when we start abrogating, sub silentio, the
rulings of our circuit’s district court, see, e.g., School v. Various
Agencies of the Federal Government, No. 14-cv-1003, 2016 U.S.
Dist. LEXIS 129421 (D.D.C. Sept. 22, 2016); Thyer v. U.S. Dep’t of
Justice, No. 12-cv-0606, 2013 U.S. Dist. LEXIS 4400 (D.D.C. Jan.
11, 2013); Caston v. Exec. Office of U.S. Attorney’s, 527 F. Supp. 2d
125 (D.D.C. 2008), comity counsels clarity.
                                8
     Because plea bargains are central to the functioning of the
criminal justice system, achieving a guilty plea is the legitimate
criminal justice interest behind a waiver that induces a bargain.
See, e.g., Rumery, 480 U.S. at 393 n.3 (majority opinion)
(“[W]hen the State enters a plea bargain with a criminal
defendant, it receives immediate and tangible benefits, such as
promptly imposed punishment without the expenditure of
prosecutorial resources. Also, the defendant’s agreement to
plead to some crime tends to ensure some satisfaction of the
public’s interest in the prosecution of crime and confirms that
the prosecutor’s charges have a basis in fact.”); Santobello v.
New York, 404 U.S. 257, 260 (1971) (characterizing plea
bargaining as “an essential component of the administration of
justice. Properly administered, it is to be encouraged. If every
criminal charge were subjected to a full-scale trial, the States
and the Federal Government would need to multiply by many
times the number of judges and court facilities.”). To be sure,
courts “presuppose fairness” in plea negotiations. Id. at 261.
But “fairness” in bargaining has never required the
Government to set forth its reasons for pursuing each and every
waiver from a particular defendant. Nor has “fairness” ever
permitted a defendant to collaterally attack a guilty-plea waiver
on the ground that the Government failed to identify a
“legitimate criminal-justice” interest before the plea was
accepted.

    In summarizing the principles articulated at the start of the
Supreme Court’s modern guilty-plea-waiver jurisprudence, the
Court said the following:

       [A] guilty plea represents a break in the chain of
       events which has preceded it in the criminal
       process. When a criminal defendant has
       solemnly admitted in open court that he is in
       fact guilty of the offense with which he is
                               9
       charged, he may not thereafter raise
       independent claims relating to the deprivation
       of constitutional rights that occurred prior to the
       entry of the guilty plea. He may only attack the
       voluntary and intelligent character of the guilty
       plea . . . .

Tollett v. Henderson, 411 U.S. 258, 267 (1973).

     If today’s reasoning applied to Tollett, achieving a guilty
plea is a “legitimate criminal-justice” interest that can justify
waiving the right to challenge unconstitutional conduct
antecedent to the plea—but the same achievement is not a
“legitimate criminal-justice” interest that can justify a limited
FOIA waiver. This is implausible. If the interest in securing a
guilty plea is sufficiently “legitimate” to sanction a blind eye
toward constitutional violations, it must be sufficiently
“legitimate” to allow Price to waive his FOIA right to records
pertaining to his prosecution and the underlying criminal
investigation.      Prohibiting Price from burdening the
Government with having to rifle through such records after he
has knowingly, voluntarily, and intelligently pled guilty serves
the same finality interest as waiving one’s right to challenge
any unconstitutional, antecedent Government conduct. By
pleading guilty, Price has forgone the opportunity to put the
Government to its proof by being presumed innocent,
confronting accusers, or putting on his own evidence. Waiving
his FOIA right to records pertaining to his prosecution and the
underlying investigation is as sensible as waiving all of the
other tools by which Price could have challenged the
Government’s prosecution.

     The judiciary’s permissive attitude toward the content of a
plea bargain only makes sense if no “legitimate criminal-
justice” interest need be satisfied beyond securing a knowing,
                                  10
voluntary, and intelligent admission of guilt.               “[T]he
negotiation of a plea bargain is an act within a prosecutor’s
jurisdiction as a judicial officer,” Doe v. Phillips, 81 F.3d 1204,
1210 (2d Cir. 1996), and, accordingly, “[t]he court must not
participate in [plea agreement] discussions,” FED. R. CRIM. P.
11(c)(1). The Supreme Court has approved of prosecutors
“induc[ing] a guilty plea” by overcharging defendants, either
in the original indictment or by “threaten[ing] to bring
additional charges during plea negotiation[s].” See United
States v. Goodwin, 457 U.S. 368, 378 n.10 (1982) (explaining
Bordenkircher v. Hayes, 434 U.S. 357, 360–65 (1978)); id. at
378 (“The outcome in Bordenkircher was mandated by this
Court’s acceptance of plea negotiation as a legitimate
process.”); see also Mabry v. Johnson, 467 U.S. 504, 508
(1984). A prosecutor’s interest in securing a guilty plea
justifies withholding “material impeachment evidence prior to
entering a plea agreement.” United States v. Ruiz, 536 U.S.
622, 633 (2002). Inducing a guilty plea is an interest of such
importance to the criminal justice system that a plea may be
secured without ensuring a defendant “correctly assess[ed]
every relevant factor entering into his decision” to plead guilty.
Brady v. United States, 397 U.S. 742, 757 (1970). 4

     While anyone is free to disapprove of these tactics, 5 or
plea bargaining in general, our job as judges is to apply the law

4
  The Court is troubled by the prospect that a defendant’s plea
bargain could waive his entitlement to Social Security payments. See
Op. 12. But the Ninth Circuit upheld a plea agreement even when
the defendant was unaware that, by pleading guilty to the offense, he
became ineligible for food stamps and Social Security benefits. See
United States v. Littlejohn, 224 F.3d 960, 970–71 (9th Cir. 2000).
5
  By identifying off-putting ways in which a prosecutor may pursue
a guilty plea, I intend no disparagement of the role of the prosecutor.
Many may look askance at the demands placed on both prosecutors
                                 11
as it stands. When overcharging defendants, withholding
material information, and permitting defendants to misperceive
the evidence against them are all acceptable means to achieve
the “legitimate criminal-justice” objective of a knowing,
voluntary, and intelligent guilty plea, it makes no sense to insist
limited FOIA waivers require satisfying an additional
“legitimate criminal-justice” interest.

     Inducing Price to waive his FOIA right to records
pertaining to his prosecution and its underlying investigation
achieved a knowing, voluntary, and intelligent guilty plea.
This is undisputed. Accordingly, “we [should] hesitate to
elevate more diffused public interests above [Price]’s
considered decision that he would benefit personally from the
agreement.” See Rumery, 480 U.S. at 395 (plurality opinion).

     Of course, as has been remarked in other contexts, “a
federal court is more than a ‘recorder of contracts’ from whom
the parties can purchase [relief].’” Local Number 93, Int’l
Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 525 (1986);
cf. Keepseagle v. Perdue, 856 F.3d 1039, 1065–66 (D.C. Cir.
2017) (Brown, J., dissenting). The “structural protections”
provided by the criminal justice system cannot be
circumvented simply by a defendant agreeing to waive them.
See Peretz v. United States, 501 U.S. 923, 937 (1991); see also
United States v. Mezzanatto, 513 U.S. 196, 204 (1995); cf.
United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985)
(“[I]f the parties stipulated to trial by 12 orangutans the

and defense counsel to ensure the criminal justice system’s integral
components. Cf. United States v. Wade, 388 U.S. 218, 257–58
(1967) (White, Harlan, & Stewart, JJ., concurring in part, dissenting
in part) (explaining that the central role of adversary presentation
within our justice system “countenance[s] or require[s] conduct [of
defense counsel] which in many instances has little, if any, relation
to the search for truth”).
                               12
defendant’s conviction would be invalid notwithstanding his
consent, because some minimum of civilized procedure is
required by community feeling regardless of what the
defendant wants or is willing to accept.”).

     When the nature of the right at issue is one that, if waived,
would put the justice system’s integrity at stake, no waiver—
not even a knowing, voluntary, and intelligent one—is
acceptable. With this principle in mind, we have previously
said that a waiver will not be enforced if, “in agreeing to the
waiver,” the defendant received ineffective assistance of
counsel, or “if the sentencing court’s failure in some material
way to follow a prescribed sentencing procedure results in a
miscarriage of justice,” or if the sentence rested “on some
constitutionally impermissible factor.” United States v.
Guillen, 561 F.3d 527, 530–31 (D.C. Cir. 2009). Similarly, the
Supreme Court has prohibited prospective waiver under the
Speedy Trial Act, see Zedner v. United States, 547 U.S. 489,
502–03 & n.5 (2006), as well as waiving the right to be present
within Federal Rule of Criminal Procedure 43, see Crosby v.
United States, 506 U.S. 255, 259–62 (1993). But, when a right
does not implicate the structural protections of the criminal
justice system, it is susceptible to waiver—and the waiver will
be upheld if it is knowing, voluntary, and intelligent. Cf.
Guillen, 561 F.3d at 530 (explaining why the right to appeal
one’s sentence may be waived; “his waiver relieves neither his
attorney nor the district court of their obligations to satisfy
applicable constitutional requirements”).

     Applying this principle here, Price’s FOIA waiver does not
threaten the legitimacy of the criminal justice system. He had
the benefit of the criminal discovery process, received (and
approved) a detailed factual recitation within his guilty plea,
and he retains the right to FOIA materials outside the
investigation and prosecution of his case. Though Price’s
                                  13
public policy arguments against FOIA waivers make much of
FOIA’s allegedly helpful role in identifying prosecutorial
misconduct, 6 it is hard to believe a miscarriage of justice could
be so subtle that only a FOIA request—one still subject to that
statute’s nine disclosure exceptions, mind you—would reveal
it. Nothing about the criminal justice system’s structural
integrity is risked by this limited waiver of Price’s FOIA rights.

                                 III.

     Today’s opinion will not be cabined by the majority’s
insistence that this is a “FOIA suit.” Nor will the ban on FOIA
waivers only apply to the public policy harms Price has
identified and “[t]hat’s it.” Op. 14. The analytical framework
adopted in place of traditional waiver analysis is too tempting
to ignore. Every criminal defense lawyer worth his salt will
wonder why the Government should not be tasked with
showing a “legitimate criminal-justice” interest served with
each and every right waived by a guilty plea. This will
overhaul the plea process.


6
  The Court belabors FOIA’s alleged help in identifying Brady
violations. But, at least two circuits have suggested a guilty plea may
not be invalidated even when the prosecutor fails to disclose
exculpatory evidence at the guilty-plea stage. See, e.g., United States
v. Moussaoui, 591 F.3d 263, 285–86 (4th Cir. 2010) (declining,
however, to resolve the question); Matthew v. Johnson, 201 F.3d
353, 361 (5th Cir. 2000) (“The Brady rule’s focus on protecting the
integrity of trials suggests that where no trial is to occur, there may
be no constitutional violation.”). To be sure, the great weight of the
circuits do not accept this suggestion. See, e.g,. United States v.
Nelson, 979 F. Supp. 2d 123, 129 (D.D.C. 2013) (collecting cases).
But no court rejecting this suggestion—let alone the courts
embracing it—rely on Justice O’Connor’s “legitimate criminal-
justice” interest language.
                               14
     Federal Rule of Criminal Procedure 11 requires courts to
“consider . . . the public interest” before accepting nolo
contendere pleas—not guilty pleas. See FED. R. CRIM. P.
11(a)(3). This makes sense, as no admission of guilt is secured
in a nolo contendere plea while the defendant is still subjected
to a conviction. Whereas, when a defendant knowingly,
voluntarily, and intelligently admits his guilt under oath, the
public interest in convicting the actually guilty is secured. But
after today, Rule 11’s sensible refusal to impose the same, case-
by-case, “public interest” analysis of guilty pleas will no longer
govern. Now, the “public interest” will be specifically
addressed by considering the “legitimate criminal-justice”
interest behind each and every waiver. This will turn the Rule
11 colloquy into a conference where the Government, not the
defendant, takes center stage. But see FED. R. CRIM. P. 11(b)
(setting forth the colloquy as an exchange between the court
and the defendant regarding material aspects of the plea). Of
course, defendants will want to rebut the Government’s
asserted interests. But how could a meaningful rebuttal occur
without discovery? So much for Rule 11’s command that
“[t]he court must not participate in [plea agreement]
discussions.” FED. R. CRIM P. 11(c)(1). Instead, courts will be
asked to facilitate information-sharing on why the Government
sought certain waivers. Far from keeping the wheels of justice
turning, today’s decision ensures guilty pleas will bring the
system to a screeching halt. And for what? For any of the
rights our Founders deemed so essential that the Constitution
of the United States was conditioned upon their explicit
inclusion within the Bill of Rights? No—for a ‘60’s-era
statutory right that often results in the Government releasing
more black-Sharpie ink than records disclosing investigative
information. I respectfully dissent.
