Defendant's Attorney: 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.
Description: 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 deathrelated
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.
- 3 -
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.
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
- 4 -
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
- 5 -
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
1 The DEA did, however, release the medical records of the
deceased patients as well as the medical records of living patients
who cannot be readily identified from the trial transcript.
- 6 -
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.
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 (1989). In particular, the APA
requires "each agency, upon any request for records which . . .
- 7 -
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 (1976)), its exemptions are
2 Another FOIA exemption, Exemption 6, allows the
government to withhold "personnel and medical files and similar
files the disclosure of which would constitute a clearly
unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
We limit our analysis to Exemption 7(C) because "all information
that would fall within the scope of Exemption 6 would also be
immune from disclosure under Exemption 7(C)." Moffatt, 716 F.3d
at 250 n.4 (quoting Roth v. U.S. Dep't of Justice, 642 F.3d 1161,
1173 (D.C. Cir. 2011)).
- 8 -
"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; 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. 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 (2004).
In balancing the public interest in disclosure with the
privacy interests implicated by the requested records, the
district court applied the wrong standard. In particular, it
stated that "[o]nly the most compelling showing can justify posttrial
restriction on disclosure of testimony or documents actually
introduced at trial," Eil, 209 F. Supp. 3d at 487 (quoting Poliquin
- 9 -
v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993)), and that
"it falls to the courts to weigh the presumptively paramount right
of the public to know against the competing private interests at
stake," id. at 488 (quoting FTC v. Standard Fin. Mgmt. Corp., 830
F.2d 404, 410 (1st Cir. 1987)). To support its application of
these standards, the district court cited cases that concern the
public's right to access judicial records but not FOIA cases. See
Poliquin, 989 F.2d at 532-33 (analyzing district court's
protective order restricting disclosure of testimony and documents
introduced at trial); Standard Fin., 830 F.2d at 410 (dealing with
a district court's order unsealing defendants' financial records).
Public access to judicial records is a "common law
presumption" rooted in a desire to "allow the citizenry to
'monitor the functioning of our courts, thereby insuring quality,
honesty and respect for our legal system,'" Standard Fin., 830
F.2d at 410 (quoting In the Matter of Cont'l Illinois Sec. Litig.,
732 F.2d 1302, 1308 (7th Cir. 1984)). However, the only public
interests recognized by FOIA are those "guided by FOIA's basic
purpose, which is 'to open agency action to the light of public
scrutiny,'" Moffat, 716 F.3d at 251 (emphasis added) (quoting
Reporters Comm., 489 U.S. at 772), and the judiciary is not an
agency, see 5 U.S.C. § 551(1)(B). Moreover, the question of
whether Exemption 7(C) allows an agency to withhold documents is
a statutory one, and the Supreme Court has expressly recognized
- 10 -
that the privacy interests protected by FOIA "go beyond the
common law and the Constitution." Favish, 541 U.S. at 170 (citing
Reporters Comm., 489 U.S. at 762 n.13). It was thus inappropriate
for the district court, in conducting the requisite balancing of
interests, to invoke a disclosure-favoring standard based on a
common law presumption divorced from the FOIA statutory framework.
FOIA does not require agencies seeking to withhold
documents under Exemption 7(C) to provide a "most compelling"
reason for doing so. Nor does the statute recognize a
"presumptively paramount" public right to know. Rather, it
authorizes the DEA to withhold documents as long as their release
"could reasonably be expected to constitute an unwarranted
invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Neither
party disputes that there were legitimate privacy interests at
stake. The burden was thus on Eil, as the FOIA requester, to show
that disclosure would be likely to further a "significant" public
interest. Favish, 541 U.S. at 172.
B. Public Interest in Disclosure
The district court also erred in evaluating the public
interest in the disclosure of the requested documents. The court
stated that "the public has a strong interest in staying apprised
of the government’s investigation and the judicial proceedings
that led to the conviction of Dr. Volkman." Eil, 209 F. Supp. 3d
at 487. To the extent that this statement conflates the public
- 11 -
interest in disclosure under FOIA with a public interest in
accessing judicial records, it is erroneous because FOIA does not
recognize public interests unrelated to agency functions. See
Moffat, 716 F.3d at 251.
The district court erred by sua sponte raising a concern
regarding the functioning of the courts in disregard of the fact
that Eil made no such claim. Eil has never asserted that the
relevant public interest is an interest in monitoring the
judiciary. Rather, his focus has always been on the DEA.
Specifically, he argued to the district court, and continues to
argue on appeal, that the public has a significant interest in
finding out how the DEA investigates -- and the federal government
prosecutes -- doctors who illegally prescribe pain medication. He
also claims that because it is unclear what constitutes an
"illegitimate" purpose for prescribing pain medication under the
Controlled Substances Act ("CSA"), the public can only understand
how the DEA carries out its statutory functions by examining how
it applies the provisions of the CSA in a real case. According to
Eil, the withheld records contain the very information that the
public needs to properly understand the prosecution and conviction
of Dr. Volkman, and the potential prosecution of other doctors,
because the jury convicted Dr. Volkman on some counts but not
others. Citing Union Leader, 749 F.3d at 156, Eil also argues
that the DEA acknowledged the public interest in "knowing what it
- 12 -
is up to" by issuing a press release and touting the significance
of the case.
On the facts of this case, where there has been
substantial disclosure of pertinent information, Eil's arguments
are unconvincing. To evaluate whether disclosure is "likely" to
further a "significant" public interest, Favish, 541 U.S. at 172,
a court must consider whether providing the requested materials
"would yield any new information," Stalcup, 768 F.3d at 74
(emphasis added). Voluminous information about Dr. Volkman's
trial is already publicly available on PACER and in the appellate
record. In addition, the government has released inspection
reports, inventory and dispensing logs, correspondence between Dr.
Volkman and the government, and video of a physical search of Dr.
Volkman’s clinic. There is also substantial information available
online about the DEA's policies regarding the legitimate medical
purposes for issuing prescriptions. See, e.g., Drug Enforcement
Admin., Practitioner's Manual: An Informational Outline of the
Controlled Substances Act 18-22 (2006) (detailing valid
prescription requirements for physicians),
al012508.pdf. Perhaps most importantly, the government has
already released the medical records of deceased patients and of
- 13 -
living patients who cannot be readily identified from the trial
Given the wealth of information that he already has
access to, Eil fails to satisfy his burden of showing that the
withheld medical and death-related records -- which relate only to
the subset of patients that the government believes can be
identified using the trial testimony -- would shed any additional
light on either the DEA's investigatory conduct in Dr. Volkman's
case or the DEA's execution of its statutory mandate more
C. Privacy Interests
1. Health and Death-Related Records
It is uncontested that Dr. Volkman's living former
patients have significant privacy interests in their medical
records, which we have described as "highly personal" and "intimate
in nature." Kurzon v. Dep't of Health & Human Servs., 649 F.2d
65, 68 (1st Cir. 1981). And it is undisputed that the prior
disclosure of these records as trial exhibits does not diminish
the privacy interests of the former patients in the records.4 As
3 The dissent appears to ignore these already-disclosed
medical records when discussing the incremental informational
value of the withheld records.
4 Trial exhibits are generally either returned to the
parties or destroyed after trial. In the Southern District of
Ohio, where Dr. Volkman was tried, the applicable local rule states
that "[u]nless otherwise ordered by the Court, counsel shall
- 14 -
the district court explicitly acknowledged, and Eil concedes,
"[p]rior revelations of exempt information do not destroy an
individual's privacy interest," and "[t]he privacy interests the
government seeks to uphold remain as strong now as they were
before." Eil, 209 F. Supp. 3d at 487-88 (quoting Moffat, 716 F.3d
at 251); see also Stalcup, 768 F.3d at 73 (noting that individuals
have an "inherent privacy interest irrespective of any government
intervention"); Carpenter, 470 F.3d at 440 ("That information has
been released to the public domain, especially where the release
is limited, has little bearing on the privacy interest." (citing
Reporters Comm., 489 U.S. at 763-64)).
However, both Eil and the district court failed to
acknowledge the distinct privacy interests of the relatives of Dr.
Volkman's deceased patients in the deceased patients' deathrelated
records.5 In Favish, the Supreme Court held that family
members have significant privacy interests in their close
relatives' "death-scene images" and the "graphic details"
retrieve exhibits . . . filed in an action or offered into evidence
within six months after final termination of the action. The Clerk
shall dispose of all such material at the expiration of the
retrieval period." S.D. Ohio Civ. R. 79.2; see also S.D. Ohio
Crim. R. 1.2, 1.3 (indicating that S.D. Ohio Civ. R. 79.2 applies
to both civil and criminal actions).
5 Contrary to Eil's assertions, the DEA did not waive its
argument that the deceased patients' family members have distinct
privacy interests in the death-related records. The DEA
highlighted these privacy interests in its motion for summary
judgment and Eil argued that there is "no privacy interest in
autopsy reports" in his motion for summary judgment.
- 15 -
surrounding their relatives' deaths. 541 U.S. at 170-71. The
Court also implicitly recognized that family members have privacy
interests in their deceased relatives' autopsy records. See id.
at 168-70 (noting that the common law recognizes the privacy
interests of a decedent's immediate relatives in the decedent's
autopsy records, and that FOIA provides broader protection for
privacy interests than the common law (citing Reid v. Pierce
County, 961 P.2d 333, 342 (Wash. 1998))). Given the Supreme
Court's recognition of these interests, the district court erred
when it failed to address them and instead focused exclusively on
the privacy interests of the living former patients whose medical
records are the subject of Eil's request. See Eil, 209 F. Supp.
3d at 487-88.
2. The District Court's Redaction Order
The district court attempted to protect the privacy
interests implicated by Eil's request by allowing the government
to redact exhibit numbers and personally identifiable information
from the requested records. See id. at 489. The court
acknowledged that these redactions could not completely safeguard
the privacy interests of the former patients because personally
identifiable information can be found in the criminal trial
transcript and exhibits in the appellate record, all of which are
publicly available. See id. at 488. Nonetheless, the district
court stated that the redactions would "minimize the privacy
- 16 -
interests implicated" because they would prevent the identities of
the former patients from being "easily discerned." Id. at 489.
The permitted redactions do not adequately protect the
privacy interests implicated by Eil's request. Because the trial
transcript contains the names of Dr. Volkman's former patients
along with significant information about their medical histories
and their interactions with Dr. Volkman, any interested party could
readily identify the individuals associated with the records by
connecting the trial testimony to the exhibits. And there may be
a significant number of parties interested in making these
connections, given that Eil is writing a book about the trial and
presumably filed his FOIA request because he intends to include
detailed information about the former patients in that book.
As the dissent acknowledges, Eil represented to the
district court that the case should be decided on cross-motions
for summary judgment, indicating Eil's own recognition that there
were no material facts in dispute. Nonetheless, the dissent makes
the argument that Eil declined to make by claiming that there is
a dispute of material fact regarding whether the district court's
redaction order "would create a sufficient obstacle to putting
names to the medical records Eil seeks."
Eil notes in his brief that the district court's
redactions were meant to "prevent the public from easily matching
up the records to names." But he provides no relevant support for
- 17 -
the assertion that the redactions in fact accomplished this goal.
The dissent highlights two points that Eil made at oral argument:
(1) there were many exhibits in the Volkman trial but little trial
testimony about those records, and (2) the trial exhibits include
medical records of patients who did not testify. Both of these
points are red herrings. The DEA has already made available
medical records associated with patients who it believes cannot be
readily identified from the trial transcript, along with the
medical records of deceased patients. The medical records that
have been withheld are only the ones that can be associated with
the trial testimony.
Not only did Eil fail to contest the government's
argument that any interested party can use information from the
trial transcript -- including patient names, patient medical
histories, and information about patient interactions with Dr.
Volkman -- to identify the individuals associated with the medical
records at issue, but he also failed to put into evidence any
portion of the trial transcript in support of any possible
objection to the government's contention. And it was his burden
to do so. See Favish, 541 U.S. at 172.
For the reasons stated above, we reverse the judgment of
the district court and hold that FOIA Exemption 7(C) permits the
DEA to withhold the medical and death-related records at issue in
- 18 -
their entirety. We direct the district court to enter summary
judgment in the DEA's favor.
-Dissenting Opinion Follows-
TORRUELLA, Circuit Judge (Dissenting). I share in the
panel's conclusion that the district court applied the incorrect
standard, and that it improperly awarded summary judgment to Eil.
I respectfully dissent, however, from its conclusion that summary
judgment in favor of the DEA is proper. The parties differ as to
whether the redactions that the district court ordered would create
a sufficient obstacle to putting names to the medical records Eil
seeks. That amounts to a dispute of material fact rendering
summary judgment inappropriate.
I am concerned that the panel majority has accepted too
readily the government's assertion that an interested party, with
the trial transcript in hand, could put names to the redacted
medical and death-related records "with only a little effort."
That, of course, sounds reasonable, and is certainly plausible.
But it is also a factual question inappropriate for us to resolve
at this procedural juncture.6 This, after all, is an appeal from
the district court's ruling on cross-motions for summary judgment.
And, summary judgment is improper when there exists a genuine
dispute of material fact. Fed. R. Civ. P. 56.
Eil contended in his brief that the redaction order would
"prevent the public from easily matching up the records to names."
6 Additionally, as we have neither the trial transcript
nor the redacted records before us, it is also factually impossible
for us to answer this question with any certainty.
- 20 -
At oral argument, he further explained that the sheer volume of
the records that the government entered as exhibits in the Volkman
trial, combined with the relative paucity of trial testimony about
those records, would make connecting the redacted records to
specific names a difficult task. Eil also highlighted that the
exhibits in question also included the medical records of patients
who did not testify. As a result, putting names to records would
require more than simply matching witnesses' names to documents in
a one-to-one fashion.
It is true that Eil -- who only asked us to affirm the
district court's grant of summary judgment in his favor -- did not
indicate that this factual dispute would make summary judgment
improper. Rather, the parties agreed that it was appropriate for
the district court to dispose of this case on summary judgment,
and then filed cross-motions for summary judgment. But, that
should not bind our hands here. "Cross-motions for summary judgment
do not alter the basic Rule 56 standard, but rather simply require
us to determine whether either of the parties deserves judgment as
a matter of law on facts that are not disputed." Adria Int'l Grp.
v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001); see also
United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir.
1978) ("[T]he filing of cross-motions for summary judgment, both
parties asserting that there are no uncontested issues of material
fact, does not vitiate the court's responsibility to determine
- 21 -
whether disputed issues of material fact are present."); Newark
Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir.
1976) ("[T]he general rule is that cross-motions for summary
judgment do not constitute an agreement that if one is rejected
the other is warranted."). Thus, the parties' agreement below
should not preclude us from holding that summary judgment is
unwarranted for both Eil and the DEA.
And to be clear, I see this fact -- the difficulty with
which one could identify the records' subjects -- as highly
material. In my view, it has the potential to tip Exemption 7(C)'s
balancing test in either direction. For example, in the
theoretically possible event that identifying the records'
subjects turned out to be exceedingly difficult -- perhaps even
bordering on impossible -- that would substantially minimize the
privacy interests here. Conversely, if -- as the government
contends, and the panel majority accepts -- doing so turned out to
be relatively straightforward, the privacy interest would indeed
be at its "apex." See U.S. Dep't of Justice v. Reporters Comm.
for Freedom of the Press, 489 U.S. 749, 780 (1989). Depending on
the extent to which disclosing the redacted records implicates the
privacy interest of their subjects, that interest could
potentially come up short against the public interest in disclosing
- 22 -
This is particularly so because the public interest here
is perhaps not quite as insubstantial as the panel majority
suggests. The majority correctly recognizes that the operative
inquiry is not the public interest in the Volkman trial generally.
Rather, it is the marginal benefit to that interest that would
result from disclosing these records. See Nat'l Archives & Records
Admin. v. Favish, 541 U.S. 157, 172 (2004) (information sought
must be likely to advance a significant public interest); Stalcup
v. CIA, 768 F.3d 65, 74 (1st Cir. 2014) (disclosure unwarranted
when it would not "yield any new information").
The panel majority is also right that extensive
information about the Volkman trial is already available. But, it
fails to satisfactorily address Eil's arguments as to why
disclosure of the records at issue here would further advance the
public interest in "shed[ding] light on [the DEA's] performance of
its statutory duties." Carpenter v. U.S. Dep't of Justice, 470
F.3d 434, 440 (1st Cir. 2006). Eil emphasizes that the Volkman
trial concerned the application of the Controlled Substances Act
("CSA"), see 21 U.S.C. § 841, to Dr. Volkman's activities in his
capacity as a doctor. It is crucial, he stresses, to look to
actual prosecutions to understand where the DEA, as Eil puts it,
"draws the line between being a doctor and being a drug dealer,"
because the CSA does not indicate where that boundary lies. Eil
further submits that the DEA selected the subset of documents it
- 23 -
included in trial exhibits from a much larger set of documents.
Therefore, those exhibits are particularly probative of the DEA's
views as to the distinction between legitimate and illegitimate
In light of these observations, it appears highly likely
that the exhibits themselves would yield at least some new
information, see Stalcup, 768 F.3d at 74, not contained in the
publicly available trial transcript and exhibit list from the
Volkman trial, the parties' briefs in the ensuing appeals, or the
records that the DEA has provided to Eil.7 And, in illustrating
what the DEA found probative of Volkman's having engaged in
criminal behavior, those exhibits necessarily pertain to the
public interest in elucidating the DEA's discharge of its statutory
duties. To be sure, the DEA's publically available documents
outlining its policies regarding prescription-writing are
certainly also informative in this respect. However, FOIA's
purpose is to allow citizens to know "what their government is up
to," not merely what their government says it is up to. Union
Leader Corp., v. U.S. Dep't of Homeland Sec., 749 F.3d 45, 50 (1st
7 The majority paints the dissent as ignoring the records
that the DEA has disclosed. To be sure, the DEA has assured us
that it has disclosed those records whose subjects are not readily
identifiable, and retained only those records whose subjects risk
identification. The disclosure of the former category of records,
however, has little, if any, bearing on the disputed factual
question of how easily one could identify the subjects of the
- 24 -
Cir. 2014) (quoting Reporters Comm., 489 U.S. at 773). The notion
that an agency's representations about its activities and policies
can supplant the disclosure of documents is rather incongruous
with FOIA's purpose.
Now, all of this is not to say that disclosure of the
records in question would necessarily advance the public interest
so far as to overcome the significant privacy interests at stake.
I wish only to underscore that the public interest in disclosure
here is greater than a de minimis interest.
Ultimately though, it is futile to attempt to balance
these interests with such a large piece of the puzzle missing. I
cannot join in the panel majority's assessment that "[o]n the facts
of this case, where there has been substantial disclosure of
pertinent information, Eil's arguments are unconvincing," when
this case's precise facts remain uncertain. I disagree that we
should order the district court to enter summary judgment in favor
of the DEA when we cannot be sure of the extent to which the
documents Eil seeks implicate their subjects' privacy. I therefore