CINCINNATI (CN) – The Washington Post argued before a Sixth Circuit panel Thursday for the release of drug distribution data provided by the federal government in a multidistrict litigation against the manufacturers, distributors and retailers of prescription opioid medications.
The newspaper, along with West Virginia-based HD Media, seeks access to documents created by the Drug Enforcement Agency and the Department of Justice through the use of their Automation of Reports and Consolidated Orders System, or ARCOS, database.
According to court documents, ARCOS “is ‘an automated comprehensive drug reporting system which monitors the flow’ of certain controlled substances … so that ‘[f]ederal and state government agencies’ can ‘identify the diversion of controlled substances into illicit channels of distribution.’”
The federal agencies provided the drug distribution information to several parties involved in the multidistrict opioid litigation, including several state attorneys general and county governments.
The Post and HD Media sought access to the information via public records requests to the county governments, but were stonewalled after a protective order was issued by the district court.
U.S. District Judge Dan Polster denied the Post’s request in July 2018, and pointed out that ARCOS data is exempt from Freedom of Information Act, or FOIA, requests, because it is considered “confidential commercial information.”
“Plaintiffs have gained the ARCOS data solely by virtue of the court’s discovery processes,” the judge wrote. “The data does not transmogrify into a public record merely because it has been disclosed privately to the parties in this civil litigation.”
Polster also told the media organizations that the data was used primarily to identify defendants in the litigation and to facilitate “global settlement negotiations.”
“Allowing the ARCOS data to be disclosed to the media pursuant to public records requests to the counties would eviscerate the court’s protective order and contradict the bedrock principle that discovery is a private process, the sole purpose of which is to assist trial preparation and, in this case, global settlement discussions,” Polster concluded.
Attorney Karen Lefton from the Ohio-based Lefton Group argued on behalf of The Washington Post in the Sixth Circuit on Thursday and attacked Judge Polster’s decision, saying that “nowhere … does it address good cause” for the protective order.
She cited the 1984 U.S. Supreme Court case Seattle Times Co. v. Rhinehart, in which the nation’s high court held that a protective order during civil litigation that prevented the release of personal information did not violate the First Amendment.
Lefton told the panel the business records sought by her client do not enjoy the same protections as personal information protected by the Seattle Times decision.
“This court’s business is done in public,” Lefton said. “The value of transparency here is great.”
Attorney Patrick McGinley argued on behalf of HD Media, a company that publishes several daily and weekly newspapers in West Virginia.
McGinley argued the DEA’s defense that release of the ARCOS data could affect pending criminal cases is suspect, as the data being sought runs only through 2014. The attorney said a five-year statute of limitations means the data is stale.
He quoted from several documents in which the numbers of pills sold or distributed to certain companies had been redacted, and asked the panel, “What’s the rationale for keeping that secret?”
U.S. Circuit Judge Richard Allen Griffin circled back to the good cause argument, and asked whether the media groups were implying that Judge Polster was attempting to pressure the parties into a settlement.
“Yes, your honor,” McGinley replied. “It’s in the judge’s opinion.”
“I don’t think that’s good cause,” Judge Griffin said.
Attorney Sarah Carroll from the U.S. Department of Justice argued on behalf of the federal government, and pushed back against the notion of the protective order being used as a tool for settlement negotiations.
She told the panel that Judge Polster did not use the order as a “sword hanging over the heads of the parties.”
“The government,” Carroll said, “had many serious concerns about releasing this data. Period.”
Judge Griffin questioned the need for secrecy, saying he was a “little troubled” by the idea that the government wants to hide the data.
He also questioned the breadth of the protective order, and asked Carroll what would happen if the panel ruled the order was overly broad.
“It would tip [potential criminal] defendants off,” Carroll said, reminding the panel that “good cause is not a very demanding standard.”
U.S. Circuit Judge Eric L. Clay latched on to Griffin’s line of thought, and lamented the order as being “not tailored at all to anything.”
Attorney Ashley Hardin, a partner at the Washington, D.C. firm Williams & Connolly, argued on behalf of the pharmaceutical defendants, and cited the 1988 Sixth Circuit case Wagar v. DOJ.
Hardin argued that because the confidential information was only handed over to county and city governments as the result of civil litigation, the court – and not the litigants – controls the sensitive documents.
Senior U.S. Circuit Judge Ralph Guy Jr. joined Clay and Griffin on the panel. No timetable has been set for the court’s decision.