United States District Court, D. Minnesota
Christopher W. Madel, Plaintiff,
United States Department of Justice, and Drug Enforcement Administration, Defendants.
MEMORANDUM AND ORDER
A. Magnuson United States District Court Judge
matter is before the Court on Defendants' Motion for
Summary Judgment. For the reasons that follow, the Motion is
2012 and early 2013, Plaintiff Christopher Madel sent
requests under the Freedom of Information Act to the U.S.
Department of Justice and the Drug Enforcement
Administration. These requests sought information regarding
the sales and distribution of oxycodone in the state of
Georgia by five different entities: Cardinal Health, Inc.,
CVS Caremark, Walgreen Company, AmerisourceBergen Corp., and
McKesson Corp. In particular, Madel sought, for each month or
quarter since January 1, 2006, the identity of each
person/pharmacy to whom each company had distributed
oxycodone and the quantity distributed. Madel's requests
also sought specific reports from the DEA's
months of delays in responding to his requests, Madel filed
this lawsuit seeking to force a response on October 15, 2013.
On December 20, 2013, Defendants finally produced some
records-reports 2, 3, 4, 5 and 7 from the ARCOS
database.Defendants eventually also told Madel that
they found nothing in ARCOS report 6, and that CVS does not
do business in Georgia. Defendants did not produce either
ARCOS report 1, which lists quarterly retail drug
distribution by zip code, or specific sales/distribution
records for the other four entities. After briefing on the
original cross-motions for summary judgment had begun,
Defendants denied the remaining portions of his requests
under FOIA exemption (b)(4), which exempts from disclosure
“trade secrets and commercial or financial information
obtained from a person and privileged or confidential.”
5 U.S.C. § 552(b)(4). In particular, Defendants
contended that the information in report 1 “contains
information traceable to individual manufacturers and
distributors, such as market shares in specific geographic
areas, estimates of inventories, and sales.” Madel
v. U.S. Dep't of Justice, 784 F.3d 448, 452 (8th
Cir. 2015). The companies objected to the disclosure of the
company-specific spreadsheets, arguing that the information
“could be used to determine the companies' market
shares, inventory levels, and sales trends in particular
areas.” Id. at 453.
challenged the application of exemption (b)(4), and this
Court granted summary judgment to Defendants, finding that
Defendants had met their burden to establish that the
information Madel sought was subject to exemption (b)(4).
(Docket No. 44.)
appealed, and the Eighth Circuit Court of Appeals reversed on
a narrow issue: whether the reports contain any information
not subject to exemption (b)(4) that is reasonably segregable
from exempt information. Madel, 784 F.3d at 453-54.
The court of appeals did not overturn this Court's
finding that Defendants had established that the spreadsheets
in general were exempt from disclosure under (b)(4), see
id. at 453 (“DEA shows substantial competitive
harm is likely.”), but instead determined that, because
no finding on segregability had been made, a reversal and
remand was required so that this Court could determine
segregability. In particular, it noted that it was
Defendants' burden to show “with reasonable
specificity why documents withheld pursuant to a valid
exemption cannot be further segregated.” Id.
at 454 (quoting Juarez v. U.S. Dept' of Justice,
518 F.3d 54, 61 (D.C. Cir. 2008)).
parties then attempted to resolve their differences without
Court involvement. In the fall of 2015, Defendants informed
Madel that none of the information he sought was segregable,
including any information from ARCOS report 1. However, in
February 2016, the DEA publicly released ARCOS report 1 in
its entirety. See
Report 1 contains quarterly drug-distribution totals by zip
code for every drug and every state in the United States, for
the period 2006 to 2015. Id. Madel's FOIA
requests sought information only for 2006 to 2012. The
Government did not inform Madel that report 1 was publicly
available until days before filing the instant Motion in
report 1 is now publicly available, the only information
still at issue between the parties is oxycodone distribution
information specific to the four companies from 2006 to 2012.
determine whether summary judgment in favor of a FOIA
defendant is appropriate, the Court must construe the facts
in the light most favorable to the FOIA requester. Miller
v. U.S. Dep't of State, 779 F.2d 1378, 1382 (8th
Cir. 1985). The agency “must prove that each document
that falls within the class requested either has been
produced, is unidentifiable, or is wholly exempt from the
Act's inspection requirements.” Nat'l Cable
Television Ass'n, Inc., v. Fed. Commc'ns
Comm'n, 479 F.2d 183, 186 (D.C. Cir. 1973).
An agency may not automatically withhold an entire document
when some information is exempt, but rather must provide
“‘[a]ny reasonably segregable
portion.'” Missouri Coal. for Env't Found.
v. U.S. Army Corps of Eng'rs, 542 F.3d 1204, 1212
(8th Cir. 2008), quoting 5 U.S.C. § 552(b).
Non-exempt portions must be disclosed unless they are
“inextricably intertwined” with exempt portions.
Id. (internal quotation marks omitted). The agency
has the burden to show that exempt portions are not
segregable from non-exempt portions. Id. (noting
court may require a more specific affidavit if agency
justification is inadequate).
Madel, 784 F.3d 448, 453 (8th Cir. 2015).
claim an exemption from disclosure for spreadsheets that list
oxycodone distribution levels for each of the four companies
at issue. Each spreadsheet's headings include the name,
county, city, state, zip code and business activity for
suppliers, similar information for buyers, the drug type, the
transaction date, total dosage units, and total grams.
(Myrick Decl. I (Docket No. 23) ¶ 35.) The spreadsheets
at issue are very large, containing anywhere from nearly 250,
000 lines of data for one company to more than 690, 000 lines
of data for another. (Id.) However, although
Defendants rely in part on the large amount of information in
each spreadsheet for their segregability arguments, they do
not supply the Court with any information about how many
lines of data contain information that is relevant to
Madel's specific FOIA requests in each spreadsheet.
Moreover, on appeal Madel attempted to compromise with
Defendants and limited his ...