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Madel v. United States Department of Justice

United States District Court, D. Minnesota

January 11, 2017

Christopher W. Madel, Plaintiff,
United States Department of Justice, and Drug Enforcement Administration, Defendants.


          Paul A. Magnuson United States District Court Judge

         This matter is before the Court on Defendants' Motion for Summary Judgment. For the reasons that follow, the Motion is denied.


         In late 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 ARCOS[1]database.

         After 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.[2]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.

         Madel 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.)

         Madel 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)).

         The 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 November 2016.

         Because 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.


         To 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).

         Defendants 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 ...

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