In split decision, appeals court denies journalist access to court documents in major drug trial

In a ruling that the ACLU of Rhode Island called a blow to an open judicial process, the United States Court of Appeals for the First Circuit today held, by a 2-1 vote, that the United States Drug Enforcement Administration (DEA) can keep secret thousands of pages of documents it had submitted in a major prescription drug-dealing criminal trial. At the same time, the plaintiff in the case, local journalist Philip Eil, said the suit still had a positive effect, prompting the DEA to release thousands of other documents it would not have otherwise disclosed in the absence of the lawsuit.

The ACLU of Rhode Island had filed a Freedom of Information Act (FOIA) lawsuit in support of releasing the records on behalf of Eil, who had been stymied for years in his efforts to obtain the documents. Today’s ruling overturned an earlier district court ruling that had authorized release of the records in redacted form. The case was handled by ACLU volunteer attorneys Neal McNamara and Jessica Jewell from the law firm of Nixon Peabody LLP.

Eil’s FOIA request involved some of the evidence used to convict Dr Paul Volkman, whom the Department of Justice called the “largest physician dispenser of oxycodone in the United States from 2003 to 2005.” Volkman was indicted on 22 drug trafficking-related counts and, in 2011, after an eight-week federal court trial in Ohio that included 70 witnesses and more than 220 exhibits, he was convicted of prescribing medications that caused the overdose deaths of four patients. Volkman was sentenced to four consecutive life terms in federal prison — one of the lengthiest criminal sentences for a physician in United States history.

Volkman attended college and medical school with Eil’s father, and, in 2009, Eil began conducting research for a book about the case. After Volkman’s trial ended, Eil requested access to the trial evidence from the clerk of the United States District Court in Cincinnati. The request was denied, as were Eil’s subsequent requests to various other court officials. He then filed his FOIA request in February 2012, but did not receive a final response until more than three years had passed. Even so, the DEA withheld more than 85 p of the pages it processed, and many of the pages released were significantly redacted.

In seeking the court documents, Eil argued that access to various medical records that had served as trial exhibits was important to better understand where the DEA “draws the line between being a doctor and being a drug dealer.” However, the court majority in today’s decision held that in light of the “voluminous information” that was already publicly available about the trial, Eil failed to demonstrate that the withheld records “would shed any additional light on either the DEA’s investigatory conduct” or the execution of its statutory authority. In a dissent, however, appeals court judge Juan Torruella argued that the records being sought were “particularly probative of the DEA’s views as to the distinction between legitimate and illegitimate prescription writing.” Rather than overturn the lower court’s decision, as the court majority did, Torruella argued that the district court should be given an opportunity to consider further whether the public interest in disclosure of the records outweighed the privacy interests at stake in releasing the records even in redacted form.

While expressing disappointment with the ruling, Eil said that the lawsuit still had had a very beneficial impact, leading to the release of numerous documents that had initially been denied him. He stated: “My FOIA request and this lawsuit have always had a simple objective: to allow the public to gain access to evidence that sent a man to prison for four consecutive life terms. Any ruling that hinders the full release of that evidence is disappointing. At the same time, it is worth noting that since we filed this lawsuit, the DEA has produced thousands of additional documents they had not released in response to my original request, plus two lengthy video exhibits from the Volkman trial. Despite today’s setback, therefore, I very much consider this lawsuit to have been enormously successful. My aim was to get the government to present more information than my additional request yielded, and this has happened many times over since the filing of the lawsuit.”

ACLU of Rhode Island executive director Steven Brown said: “We are disappointed in today’s court ruling. As Judge McConnell noted last year in holding that the documents should be released, ‘Public scrutiny of the workings of government – including the judiciary – is vitally important to the proper functioning of our democracy.’ Today’s decision is a setback to that very critical principle, even as we recognize that this lawsuit has had the positive effect of shaking loose from the DEA many other important documents for Mr Eil’s research.”

The appellate court’s decision is available here.

Background information about the case can be found here.

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The American Civil Liberties Union is a non-profit, non-partisan organization dedicated to upholding and protecting the rights and freedoms guaranteed by the United States Constitution and the Bill of Rights. Founded in the 1920s by a small group of devoted civil libertarians, today the ACLU is comprised of more than 500,000 members and more than fifty affiliates and chapters nationwide.

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