United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2021 Decided June 3, 2022

No. 20-5139

JIHAD IBN BARNES,

APPELLANT

v.

FEDERAL BUREAU OF INVESTIGATION,

APPELLEE

Consolidated with 20-5167

Appeals from the United States District Court

for the District of Columbia

(No. 1:16-cv-00205)

Evan D. Miller argued the cause for appellant. With him 

on the briefs was Joshua S. Johnson.

Diana Valdivia, Assistant U.S. Attorney, argued the cause 

for appellee. With her on the brief was R. Craig Lawrence, 

Assistant U.S. Attorney.
2

Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge, 

and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: This appeal turns on when a 

criminal defendant, as part of a plea agreement, may waive the 

right under the Freedom of Information Act to seek 

government records related to his case. In Price v. U.S. 

Department of Justice Attorney Office, 865 F.3d 676 (D.C. Cir. 

2017), we held that such waivers must serve a legitimate 

criminal-justice interest to be enforceable. In this case, we hold 

that the waiver at issue is enforceable because it advances an 

interest in protecting the safety of a confidential informant. We 

further hold that the waiver extends to all the disputed records.

I

Upon receiving information that appellant Jihad Barnes 

posed a threat to national security, the Federal Bureau of 

Investigation opened a terrorism investigation against him. 

During the investigation, Barnes proposed to a confidential 

informant that they rob and possibly murder a diamond dealer 

in Northern Virginia. After Barnes provided two loaded 

semiautomatic handguns for use in the robbery, the FBI 

arrested him. At that time, Barnes had already been convicted 

of manslaughter and two armed robberies. A grand jury 

charged him with possessing a firearm as a felon.

While in pretrial detention, Barnes orchestrated a plot to 

prevent the informant from testifying against him. According 

to the government, Barnes told Rasheda Savoy, his commonlaw wife, that an informant was responsible for his arrest. 

Through Savoy and other associates, Barnes sought to persuade 

or coerce the informant to testify falsely at his trial. At 
3

Barnes’s direction, Savoy used an online tracing service to 

connect the informant’s phone number to a name and city. On 

Facebook, she also discovered that the informant had a son and 

daughter. Barnes and Savoy planned to obtain the informant’s 

home address by reaching out to his family through a 

fraudulent Facebook account. Savoy showed Barnes a 

photograph of the person she had identified. After Barnes 

confirmed that this individual was the informant, they asked 

various confederates to hunt him down. The FBI uncovered 

the plot before Barnes learned of his address.

A grand jury issued a superseding indictment against 

Barnes, which set forth these allegations and added charges for 

conspiracy to commit witness tampering and attempt to 

obstruct an official proceeding. The government produced 

extensive discovery to Barnes, including over 200 pages of 

redacted FBI reports, cell-phone subscriber records, and audio 

recordings from meetings between Barnes and the informant.

Barnes eventually pleaded guilty to the felon-inpossession count, and the government agreed to drop the 

tampering and obstruction charges. As part of the plea deal, 

Barnes waived all rights “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.” J.A. 542–43. For her 

part, Savoy pleaded guilty to conspiring with Barnes to tamper 

with a witness, and she signed a statement admitting the 

government’s various allegations about her plot with Barnes to 

intimidate or threaten the informant.

In 2015, Barnes filed a FOIA request for all FBI records

containing his name, as well as FBI records containing 
4

allegations of terrorism by him or by a particular mosque. The 

FBI declined to provide the requested documents. 

Barnes sued, and the FBI moved for summary judgment

based on the waiver in Barnes’s plea bargain. The district court 

granted the motion as to documents relating to the terrorism 

investigation into Barnes. The court concluded that the waiver 

was enforceable because it served the government’s legitimate 

interest in protecting the informant. After Barnes voluntarily 

dismissed his claims for the other documents, the district court 

closed the case. Barnes appealed, and we have jurisdiction 

under 28 U.S.C. § 1291.

II

In FOIA cases, we review de novo summary judgments for 

the government. Schrecker v. DOJ, 349 F.3d 657, 661–62

(D.C. Cir. 2003). We also interpret the terms of a plea 

agreement de novo. United States v. Moreno-Membache, 995 

F.3d 249, 254 (D.C. Cir. 2021).

A

As a general matter, plea bargains may waive the “most 

basic rights of criminal defendants,” including a wide range of 

Fourth, Fifth, and Sixth Amendment rights. Peretz v. United 

States, 501 U.S. 923, 936 (1991); see United States v. Ruiz, 536 

U.S. 622, 629–30 (2002). Likewise, statutory rights are 

waivable absent some affirmative indication to the contrary. 

United States v. Mezzanatto, 513 U.S. 196, 201 (1995). 

Despite these background principles, and despite FOIA’s 

silence about waiver, Price took a more exacting approach to 

plea bargains that waive a defendant’s right to seek records 

related to his case. In FOIA, we perceived a “public policy” to 

facilitate the disclosure of exculpatory evidence and the 

development of ineffective-assistance claims. 865 F.3d at 682–
5

83. We therefore held that plea-bargain waivers of a FOIA 

right to seek records about the case must advance a “legitimate 

criminal-justice interest” to be enforceable. Id. at 681. On 

Price’s facts, we found this standard not met because the 

government had failed to identify any such interest served by 

the waiver at issue. Id. at 678. Instead, the government had 

merely asserted an interest in “efficient and effective 

prosecution,” but failed to explain how a FOIA waiver served 

that interest. Id. at 681–82. The government further asserted 

an interest in avoiding FOIA litigation by prisoners with “a lot 

of time on their hands,” but we found that argument 

unpreserved. Id. at 682.

In this case, the FBI asserts an interest in protecting the life 

and safety of its confidential informant. That is obviously a 

legitimate criminal-justice interest. FOIA itself recognizes the 

importance of protecting informants, in exempting from 

disclosure records that “could reasonably be expected to 

disclose the identity of a confidential source,” 5 U.S.C. 

§ 552(b)(7)(D), or “could reasonably be expected to endanger 

the life or physical safety of any individual,” id. § 552(b)(7)(F). 

The Witness Security Reform Act of 1984 requires the Justice 

Department to protect potential witnesses and their families, 

such as by helping them establish a new identity, find housing 

and employment, and meet basic living needs. 18 U.S.C. 

§ 3521(b). Likewise, the Department’s prosecution manual 

states that “[t]he safety/security of an informant assisting in an 

investigation is the responsibility of the investigative agency 

utilizing the informant.” U.S. Dep’t of Justice, Justice Manual, 

§ 9-21.110 (2018), https://www.justice.gov/jm/jm-9-21000-

witness-security. And in many contexts, the Supreme Court 

has recognized the importance of protecting informants. See, 

e.g., CIA v. Sims, 471 U.S. 159, 172 (1985) (intelligence 

informants will “close up like a clam” unless government can 

protect their identities (cleaned up)); Roviaro v. United States, 
6

353 U.S. 53, 59 (1957) (recognizing “Government’s privilege 

to withhold from disclosure the identity of persons who furnish 

information of violations of law to officers charged with 

enforcement of that law”).

The FOIA waiver in Barnes’s plea agreement furthers the 

government’s interest in witness security, so it is enforceable. 

Before the FBI even began its investigation, Barnes had served 

long sentences for manslaughter and two armed robberies. In 

preparing for another robbery, he procured semiautomatic 

weapons and contemplated killing or harming the intended 

victim. The government also reasonably feared that Barnes 

posed a threat to the informant, as reflected in Barnes’s 

superseding indictment and Savoy’s admissions. Specifically, 

the government believed that Barnes, based on only a phone 

number, had used online resources to discover the name of the 

informant, a photograph of him, and the identity of his family 

members. It believed that Barnes wished to “confront” the 

informant to secure perjured testimony. J.A. 334. And it 

believed he was able to accomplish all of this from prison. In 

short, the government had good reason to insist on a FOIA 

waiver to make it harder for Barnes to learn more sensitive 

information about the informant.

Despite all of this, Barnes responds that the waiver was 

unnecessary because FOIA itself already protects informants. 

Barnes invokes Exemptions 7(D) and 7(F), which permit the 

government to withhold documents if their release “could

reasonably be expected to disclose the identity of a confidential 

source” or “to endanger the life or physical safety of any 

individual.” 5 U.S.C. § 552(b)(7)(D), (F). But FOIA 

processors are hardly infallible in determining whether these 

provisions apply to specific records. Moreover, Barnes himself 

has unique knowledge about the informant from their 

interactions, which Barnes augmented through criminal 
7

discovery and the tampering conspiracy. For these reasons, the 

FBI could worry that disclosing some nugget of information 

might not seem to put its informant at greater risk, but that 

Barnes nonetheless could exploit the information for that 

purpose. And given that concern, the FBI had a legitimate 

interest in seeking a waiver despite the protection afforded by 

the exemptions.

The FBI documented its concerns in this case. A section 

chief in its Information Management Division noted that 

release of information provided by informants often may reveal 

their identities. J.A. 384. An attorney involved in Barnes’s

prosecution explained that Barnes’s “intimate knowledge of his 

own conduct” makes him “uniquely positioned” to deduce 

from any released records the location of the informant, and 

that FOIA staff, “who necessarily do not share Barnes’ 

personal knowledge of the circumstances giving rise to the 

prosecution,” could not be expected to spot all potentially 

revealing information. J.A. 336. The Bureau provided at least 

one example where an inmate with a history of witness 

intimidation managed to piece together facially innocuous 

information provided under FOIA to determine an informant’s 

identity. See United States v. White, No. 08-cr-0054 (W.D. Va. 

Oct. 5, 2020), ECF No. 411-1. And it noted that, over a recent 

three-year period, close to 700 government witnesses and 

informants have been threatened, while over 60 have been 

murdered. Gershman, Why Life for ‘Snitches’ Has Never Been 

More Dangerous, Wall St. J. (June 20, 2017). For these 

reasons, we conclude that the FOIA waiver advances the 

government’s legitimate interest in protecting an informant.

Barnes further responds that we must weigh that interest

against the harms of enforcing the waiver. He objects that the

waiver disables him from gathering hypothetical evidence of 

law-enforcement misconduct. We are hard-pressed to imagine 
8

what that might be, given the vague and unsupported nature of 

Barnes’s misconduct allegations. In any event, although Price

recognized the reduced ability to gather evidence as a harm, we 

declined to enforce a FOIA waiver only because the 

government had “failed to identify any legitimate criminaljustice interest served by the waiver.” 865 F.3d at 678 

(emphasis added); see also id. at 681 (“the government has not 

pointed us to any legitimate criminal-justice interest served by 

allowing for FOIA waivers in plea agreements”). Here, by 

contrast, the FBI has explained that this waiver advances its 

interest in protecting the safety of a confidential informant. 

Nothing more is required for us to enforce it.1

B

Barnes finally contends that the waiver does not cover all 

the records that he requested. In his plea agreement, Barnes 

waived the right to make a FOIA request for “any records 

pertaining to the investigation or prosecution of this case.” J.A. 

542–43. In Barnes’s view, this waiver covers only documents 

that pertain to the firearms, tampering, and obstruction charges 

ultimately filed against him. And since the government never 

filed any terrorism charges, Barnes believes that the waiver 

does not apply to the FBI’s terrorism investigation into him.

We disagree. By its terms, the waiver covers all records 

pertaining to the FBI’s “investigation” of the “case” against 

Barnes. The terrorism investigation was part of this 

investigation because it culminated in the charges filed against 

Barnes. The investigation began as one focused on terrorism, 

1 Given our disposition, we need not consider the FBI’s 

additional argument that the waiver is enforceable because it furthers 

efficient prosecutions and protects information about how the FBI 

conducts investigations into national security.
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but it developed into a firearms case when the FBI arrested 

Barnes for possessing two loaded handguns. The investigation 

further developed into a tampering and obstruction case when 

Barnes, while detained on the firearms charge, sought to 

prevent an informant from testifying against him. During this 

time, the FBI viewed itself as conducting “one coherent 

investigation” against Barnes, so it organized all its records 

about Barnes into “a single investigatory file.” J.A. 385. 

Because the investigation of the case against Barnes 

encompassed the terrorism investigation, the FOIA waiver 

covers records relating to it.

2

III

The district court correctly granted summary judgment to 

the FBI. 

Affirmed.

2

 The parties dispute whether Virginia contract law or general 

principles of contract law govern the interpretation of the plea 

agreement. We need not decide that issue because both bodies of 

law would instruct us to begin with the plain text of the agreement, 

which is decisive in this case. Compare PMA Capital Ins. Co. v. US 

Airways, Inc., 626 S.E.2d 369, 372 (Va. 2006), with MorenoMembache, 995 F.3d at 257.