West Virginia Record

Monday, January 20, 2020

Newspapers want federal appeals court to unseal data about opioid crisis


By Kyla Asbury | Jan 28, 2019


CHARLESTON — Two newspaper companies have filed briefs in a federal appellate court in order to obtain information involving the opioid crisis.

The Washington Post filed its brief Jan. 18, while The (Huntington) Herald-Dispatch filed its brief Jan. 22. The newspaper companies argue that the U.S. Drug Enforcement Administration (DEA) wants to keep certain information secret that the newspapers believe would "hinder the public good" if kept secret.

HD Media claims the public disclosure of ARCOS data advanced the public interest while inflicting no injury on the MDL defendants or the DEA.

"It is not surprising then that those who contributed to the opioid epidemic in West Virginia would prefer that disclosure of stale 2006-2014 ARCOS data from other states not be subject to public scrutiny," the HD Media brief states.

In July, Cleveland Federal Judge Dan Polster ruled the ARCOS database would remain under seal.

"To qualify as confidential business information, those claiming confidentiality must carry the burden of showing that they sought to protect the information’s confidentiality and that it is not otherwise available to anyone outside the circle of confidentiality," the HD Media brief states. "In claiming confidentiality, the DEA and MDL defendants do not mention that MDL distributor defendants commonly request three to six months’ dispensing information from new pharmacy customers and can make similar requests from existing drug store customers."

Neither the DEA nor the MDL defendants addressed how the information meets the statutory test to establish ARCOS information is of such confidential nature that it is exempt from disclosure under open records or other laws and regulations.

"Their silence is deafening," the brief states.

The Washington Post argued there is no just cause for a permanent, blanket protective order concealing ARCOS transactional data "totally and forever."

"For all the DEA's emphasis on FOIA and the Pharmaceutical Defendants' emphasis on the aggregated ARCOS Summary Reports, two omissions are glaring," the Washington Post brief states. "Both gave short shrift to the devastation wrought in our communities by the opioid epidemic and to our nation's strong presumption in favor of transparency and openness to court proceedings and governmental records."

Both of the newspapers urged the appellate court to reverse Polster's opinion and order from July.

The Washington Post is represented by Karen C. Lefton, Jonathan Dean and Timothy D. Smith of The Lefton Group in Akron, Ohio. HD Media is represented by West Virginia University College of Law professors Patrick C. McGinley and Suzanne Weise.

U.S. Court of Appeals for the Sixth Circuit Case number:18-3860

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Organizations in this Story

West Virginia UniversityU.S. Drug Enforcement AdministrationThe Washington PostU.S. Court of Appeals for the Sixth CircuitWest Virginia University College of Law

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