Eil v. U.S. Drug Enforcement Admin.

• Decision Date: 22 December 2017
• Docket Number: No. 16-2359,16-2359
• Parties: Philip EIL, Plaintiff, Appellee, v. U.S. DRUG ENFORCEMENT ADMINISTRATION, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

878 F.3d 392

Philip EIL, Plaintiff, Appellee,

v.U.S. DRUG ENFORCEMENT ADMINISTRATION, Defendant, Appellant.

No. 16-2359

United States Court of Appeals, First Circuit.

December 22, 2017

Jaynie Lilley, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Stephen G. Dambruch, Acting United States Attorney, and Matthew M. Collette, Attorney, Appellate Staff, Civil Division, were on brief, for appellant.

Jessica S. Jewell, with whom Neal J. McNamara and Nixon Peabody LLP were on brief, for appellee.

Before Howard, Chief Judge, Torruella and Lynch, Circuit Judges.

LYNCH, Circuit Judge.

In 2011, Dr. Paul Volkman was tried and convicted of a number of drug-related charges for illegally prescribing pain medication leading to the deaths of at least fourteen individuals. Philip Eil, a journalist writing a book on Dr. Volkman's case, attended portions of that public trial.

In 2012, Eil submitted a Freedom of Information Act ("FOIA") request for the exhibits introduced by the government at Dr. Volkman's criminal trial. The U.S. Drug Enforcement Administration ("DEA") provided thousands of pages of responsive documents, some of which were redacted, but withheld the medical records of Dr. Volkman's living former patients and the death-related records of his deceased former patients.

Eil sued the DEA in the U.S. District Court for the District of Rhode Island to compel disclosure of the withheld records. On cross-motions for summary judgment, the court entered summary judgment for Eil and ordered the DEA to release the records with certain redactions. Eil v. U.S. Drug Enf't Admin., 209 F.Supp.3d 480, 489 (D.R.I. 2016). On appeal, the DEA argues that the district court erred in finding that FOIA Exemption 7(C) does not permit the government to withhold the medical and death-related records in their entirety.

We conclude that the district court's balancing of the public interest in disclosure against the relevant privacy interests was flawed because the court applied the wrong standard. Applying the correct standard, we reverse, for several reasons. First, the release of the requested records is unlikely to advance a valid public interest, given the amount of relevant information that Eil already has access to. And second, the substantial privacy interests implicated by the records would outweigh any public interest in disclosure.

I. Background

A. Facts

In 2011, Dr. Volkman was tried and convicted of a number of drug-related charges for unlawfully disbursing pain medication resulting in the deaths of at least fourteen people. The U.S. District Court for the Southern District of Ohio sentenced Dr. Volkman to four consecutive life terms of imprisonment. At trial, the government presented seventy witnesses and introduced over 220 exhibits, most of which consisted of medical records of Dr. Volkman's former patients. The government did not seek to have these records sealed and did not redact the names and other personally identifiable information of the former patients. Nor did the trial court, on its own, seal the records or require any redaction. The transcript from the criminal trial, which includes witness and expert testimony, as well as a list describing each trial exhibit, is available on the district court's Public Access to Court Electronic Records ("PACER") system, which is "an electronic public access service that allows users to obtain case and docket information online," Public Access to Court Electronic Records, United States Courts, https://www.pacer.gov/ (last visited Oct. 13, 2017). Also publicly available are the parties' appellate briefing, the appellate decision, and portions of trial exhibits that were part of the appellate record, including portions of certain medical records.

In 2012, Eil requested access to the criminal trial exhibits from the Clerk of the U.S. District Court for the Southern District of Ohio, the Clerk of the U.S. Court of Appeals for the Sixth Circuit, the U.S. Attorney's Office, and the district court judge who presided over Dr. Volkman's trial. All four denied his request. The U.S. Attorney's Office and the district court judge instructed Eil to request the materials he sought through FOIA. Eil filed a FOIA request on February 1, 2012 with the Executive Office of the United States Attorneys ("EOUSA"), seeking all 220 exhibits introduced by the government at Dr. Volkman's trial. Nine months later, the EOUSA transferred the request to the DEA.

Since receiving Eil's request, the DEA has released over 19,500 pages of responsive records, some of which have been redacted to exclude identifying information and personally sensitive information. At issue on appeal is the DEA's decision to withhold two types of records in their entirety: (1) medical records of approximately twenty-seven living former patients who were named in the trial transcript, and (2) records relating to the circumstances of death of deceased former patients.

The withheld medical records, large portions of which were created by other medical providers before the patients sought treatment from Dr. Volkman, contain sensitive medical history and other information, including about mental illnesses, learning disabilities, birth defects

, illicit drug use, pregnancy terminations, domestic-violence history, impairment of bodily functions, sexual activity, and the patients' family members. The withheld death-related records include autopsy reports, postmortem reports, toxicology reports, and photographs of the deceased patients. The DEA withheld the medical records to protect the privacy interests of the living individuals to whom the records pertain, and it withheld the death-related records to protect the privacy interests of both the deceased and their relatives.¹

B. District Court Proceedings

Dissatisfied with the DEA's disclosures, Eil filed suit against the DEA in the U.S. District Court for the District of Rhode Island to obtain access to the withheld records. After considering the parties' cross-motions for summary judgment, the district court entered summary judgment for Eil and ordered the government to disclose all of the exhibits admitted into evidence during Dr. Volkman's trial, including the withheld medical and death-related records. Eil, 209 F.Supp.3d at 489. However, the district court permitted the DEA to redact from the exhibits identifying information of criminal investigators, DEA numbers, trial exhibit numbers, and "highly personal information of no consequence to the trial or conviction of Dr. Volkman," including the "names, social security numbers, addresses, telephone numbers, dates of birth, medical and tax record numbers, and insurance numbers" of former patients. Id. The DEA protests on appeal that these redactions are inadequate to protect the privacy interests of those involved and that records of particular patients may still be readily identified.

II. Analysis

A district court's grant of summary judgment in a FOIA case is subject to de novo review. Stalcup v. CIA, 768 F.3d 65, 69 (1st Cir. 2014) (citing Moffat v. U.S. Dep't of Justice, 716 F.3d 244, 250 (1st Cir. 2013) ).

A. FOIA Exemption 7(C) Balancing Test

As the Supreme Court has noted, "[t]he statute known as the FOIA is actually a part of the Administrative Procedure Act (APA)." U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). In particular, the APA requires "each agency, upon any request for records which ... reasonably describes such records" to "make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). FOIA thus applies only to "agenc[ies]," which the APA expressly defines to exclude "the courts of the United States." Id. § 551(1)(B); see also Union Leader Corp. v. U.S. Dep't of Homeland Sec., 749 F.3d 45, 56 n.8 (1st Cir. 2014) (noting that FOIA "applies only to federal executive branch agencies" (quoting Philip Morris, Inc. v. Harshbarger, 122 F.3d 58, 83 (1st Cir. 1997) )).

FOIA includes a number of exemptions that allow agencies to withhold certain documents from release. The relevant exemption here is Exemption 7(C), which enables the government to withhold information "compiled for law enforcement purposes" to the extent that the production of such information "could reasonably be expected to constitute an unwarranted invasion of personal privacy."² 5 U.S.C. § 552(b)(7)(C). Because FOIA's purpose is to "expose the operations of federal agencies 'to the light of public scrutiny,'" Moffat, 716 F.3d at 250 (quoting Dep't of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) ), its exemptions are "construed narrowly, with all doubts resolved in favor of disclosure," id. (citing Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 438 (1st Cir. 2006) ).

To determine whether the government may rely on Exemption 7(C) to withhold documents, we "balance the privacy interest at stake in revealing the materials with the public interest in their release." Carpenter, 470 F.3d at 438 (citing Reporters Comm., 489 U.S. at 762, 109 S.Ct. 1468 ; Maynard v. CIA, 986 F.2d 547, 566 (1st Cir. 1993) ). Where, as here, the subject of the FOIA request involves "private citizen[s] and ... the information is in the Government's control as a compilation," the privacy interest is at its "apex" while the public interest in disclosure is at its "nadir." Reporters Comm., 489 U.S. at 780, 109 S.Ct. 1468. And when a legitimate privacy interest is implicated, the party seeking disclosure must show (1) that there is a "significant" public interest in disclosure, and (2) that the requested information is "likely to advance that interest." Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 172, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004).

In balancing the public interest in disclosure with the privacy interests implicated by the requested records, the district court applied the wrong...