WaPo Wins Fight for Release of Federal Opioid Data

CINCINNATI (CN) – Siding with the Washington Post, a Sixth Circuit panel ruled Thursday that the Drug Enforcement Agency cannot file court records about the distribution of prescription opioids under seal.

(AP Photo/Toby Talbot, File)

The appeal filed by the Post and West Virginia-based HD Media was argued last month. They seek access to distribution data collected as part of an ongoing, multidistrict litigation against manufacturers and distributors of prescription opioids.

The underlying multidistrict litigation was filed by over 1,300 public entities against opioid manufacturers, and the Post’s appeal was filed on an interlocutory basis.

The public entities and drug manufacturers stipulated to a protective order shielding data created by the DEA’s Automation of Reports and Consolidated Orders System, or ARCOS, database.

The order required the information to remain confidential, unless it was being used in connection with law enforcement efforts.

U.S. Circuit Judge Eric Clay wrote the Sixth Circuit’s majority opinion issued Thursday, and used the district court’s own language against it when determining whether good cause existed to prevent disclosure of the data.

“In ordering the DEA to disclose the ARCOS data to plaintiffs,” Clay wrote, “the district court specifically held that the DEA did not meet its burden of showing ‘good cause’ not to comply with plaintiffs’ subpoena for the ARCOS data…The district court, comparing the opioid crisis to a plague, even stated that because it is possible to ‘discover how and where the virus grew’ by studying the ARCOS data, disclosure of the ARCOS data ‘is a reasonable step toward defeating the disease.’”

Clay criticized the lower court’s “about-face” regarding the usefulness of the ARCOS data, even though he acknowledged the “different interests at stake” when comparing the plaintiffs in the case to the intervening media companies.

“The district court repeatedly expressed its desire that the underlying litigation settle before proceeding to trial,” the judge wrote. “The court also warned the parties when it was considering a protective order that if the case went to trial, the ARCOS data would likely become public.”

He added, “These statements suggest that at least part of the reason for the district court’s about-face on what interests defendants and the DEA have in nondisclosure of the ARCOS data might have been a desire to use the threat of publicly disclosing the data as a bargaining chip in settlement discussions. If this was a motivation for its holding, then the district court abused its discretion by considering an improper factor.”

Clay noted the value of the ARCOS data to the media and public at large, specifically mentioning HD Media’s use of such data in reporting on the opioid crisis that eventually garnered the company’s Charleston Gazette-Mail a Pulitzer Prize.

The government previously argued that disclosure of the ARCOS data could threaten ongoing criminal investigations, but Clay was not convinced.

He cited several statements made by DEA Assistant Administrator John J. Martin, specifically one in which Martin claimed an administrative action involving the revocation of a distributor’s license would be threatened by the release of ARCOS data.

“It is not clear what this statement means or what we are supposed to take from it. Martin does not attempt to explain what the ARCOS data in the action will evidence or the nature of the testimony about the data,” the judge wrote. “Martin’s declaration is simply too vague in its evaluation of the law enforcement interests at issue to demonstrate ‘good cause’ for a blanket, permanent protective order.”

The appeals court gave specific instructions to the district court on remand to “reconsider each pleading filed under seal or with redactions,” and required it to determine which of the documents should remain under seal, if any.

Senior U.S. Circuit Judge Ralph Guy Jr. dissented in part from the majority ruling, and criticized the newspapers for intervening when they could have filed Freedom of Information Act requests to get the ARCOS data.

Guy cited the exhaustive negotiations that led to the protective order as the showing of “good cause” required for the court to authorize the order.

“The district court balanced different interests, under different circumstances, and at different times,” he wrote. “The newspapers are not parties and thus are not entitled to the material. The bar for keeping discovery materials out of their hands is thus considerably lower. In my view, the court did not abuse its discretion in striking those balances.”

U.S. Circuit Judge Richard Griffin joined Clay in the majority.

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