Madel v. United States Department of Justice et al

Filing 33

ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Summary Judgment 22 is DENIED. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 7/15/2020. (LLM)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Christopher W. Madel,

Civ. No. 18-487 (PAM/BRT)
Plaintiff,

v.

MEMORANDUM AND ORDER

United States Department of
Justice, and Drug Enforcement
Administration,
Defendants.

This matter is before the Court on Defendants’ Motion for Summary Judgment.
For the following reasons, the Motion is denied.
BACKGROUND
Plaintiff Christopher Madel has been attempting to secure Defendants’ response to
his Freedom of Information Act (“FOIA”) requests since 2013. This is the second case
before this Court regarding those efforts. The previous case, Madel v. U.S. Dep’t of
Justice, No. 13cv2832 (D. Minn.), involved Madel’s 2012 and 2013 requests for
information about monthly or quarterly sales and distribution of oxycodone in the state of
Georgia by five entities.

The requests underlying this lawsuit are for oxycodone-

distribution information in Georgia from 2012 to May 2017, and in Michigan from 2006
to May 2017, for three of these entities: Cardinal Health, Inc., CVS Caremark, and
Walgreen Company. This request, like the previous request, also seeks specific reports

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from the ARCOS 1 database.
Defendants claim that they have no responsive information for CVS Caremark, and
that they have provided Madel with all responsive information for the other two entities,
save information protected from disclosure by FOIA Exemption 4, which applies to “trade
secrets and commercial or financial information obtained from a person and privileged or
confidential.” 5 U.S.C. § 552(b)(4). Defendants have produced all relevant information
for Walgreens up to 2013, when it stopped distributing oxycodone in Georgia and
Michigan, and for Cardinal Health up to January 2015. The parties agree that the only
remaining dispute is whether some information about Cardinal Health’s distribution
activities between January 1, 2015, and May 29, 2017, must be disclosed. Cardinal Health
has objected to the production of the information Madel seeks. Defendants now ask the
Court to determine that the information is subject to Exemption 4 and need not be disclosed.
DISCUSSION
In ruling on a request for summary judgment in a FOIA matter, 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).

1

ARCOS stands for “Automation of Reports and Consolidated Orders System.”
2

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The Court has previously noted that Defendants’ claims of competitive harm from
the release of certain information were not credible, given that the information Madel
sought in the earlier lawsuit was at least five and sometimes as much as 11 years old.
Madel v. U.S. Dep’t of Justice, No. 13cv2832, 2017 WL 111302, at *3 (D. Minn. Jan. 11,
2017) (“Madel I”). Defendants have inexplicably taken this comment to form a standard
by which they evaluate Madel’s FOIA requests. Thus, Defendants have decided that any
information more recent than five years old is not subject to disclosure. But the previous
Order did not set forth a time-limit standard for disclosure of potentially confidential
business information, it merely commented on the facts of that case.

The Court’s

comments in Madel I cannot justify Defendants’ refusal to disclose information that is less
than five years old.
The parties disagree as to what standard should be applied to determine whether the
information Madel seeks is subject to Exemption 4. Defendants argue that the recent
Supreme Court decision in Food Marketing Institute v. Argus Leader Media, 139 S. Ct.
2356, 2363 (2019), requires only that they establish that the information is confidential,
that is, “customarily kept private.” Id. Madel argues that Argus Leader involved a
previous version of Exemption 4 and that Congress updated FOIA in 2016 to explicitly
require the agencies invoking Exemption 4 to establish competitive harm, not merely
confidentiality, as pre-Argus Leader caselaw held.
But even if Defendants are correct that Argus Leader changed the standard for
reviewing Exemption 4 claims, they have failed to meet their burden to establish even that
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less-strict standard here. Information subject to Exemption 4 is “commercial or financial
information [that] is both customarily and actually treated as private by its owner and
provided to the government under an assurance of privacy.”

Id. at 2366.

It is

Defendants’ burden to establish that the information is confidential under this standard:
To claim an exemption, an agency must “provide affidavits which justify the
claimed exclusion of each document by correlating the purpose for
exemption with the actual portion of the document which is alleged to be
exempt.” Miller v. U.S. Dep’t of State, 779 F.2d 1378, 1387 (8th Cir. 1985).
While agency affidavits receive “substantial weight,” they must include more
than “barren assertions” that a document is exempt. Id. (internal quotation
marks omitted). See also Missouri Coal. for Env’t Found. v. U.S. Army
Corps of Eng’rs, 542 F.3d 1204, 1210 (8th Cir. 2008) (“Boilerplate or
conclusory affidavits, standing alone, are insufficient to show that no genuine
issue of fact exists as to the applicability of a FOIA exemption.”); Quiñon v.
FBI, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (“The affidavits will not suffice if
the agency’s claims are conclusory, merely reciting statutory standards, or if
they are too vague or sweeping.”).
Madel v. U.S. Dep’t of Justice, 784 F.3d 448, 452 (8th Cir. 2015)
The declaration of Angela Hertel, the Acting Unit Chief for the DEA’s FOIA unit
is as devoid of specificity as the declarations that the Court of Appeals held insufficient in
Madel I. She relies in whole on Cardinal Health’s response to the DEA’s notice about the
FOIA request, which itself summarily asserts that the information “could reveal the identity
of customers and market share at the state and three-digit zip code level.” (Docket No.
26-10.) Ms. Hertel then concludes, “It is my assessment that Cardinal Health provided
the withheld information to DEA under an assurance of privacy.” (Docket No. 26, ¶¶ 2728.) As Madel notes, this establishes nothing. It is DEA’s burden to demonstrate that
Exemption 4 applies and, moreover, that the temporal limitation DEA has placed on the
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ostensibly exempt information here is necessary to protect Cardinal Health’s general
confidentiality interests. The declaration offers precisely the type of “barren assertions”
that the Court of Appeals previously rejected.

It is patently insufficient to carry

Defendants’ burden here.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Judgment (Docket No. 22) is DENIED.

Dated: July 15, 2020

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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