Attorneys for news companies argue opioid distribution data should be public

May 3, 2019

CINCINNATI - The U.S. Drug Enforcement Administration and the nation’s largest drug distributors teamed up Thursday to block the public release of information that would show the number of opioid painkillers the companies delivered to pharmacies across America.

At the U.S. 6th Circuit Court of Appeals, in Cincinnati, a Justice Department lawyer told a three-judge panel that revealing the pill numbers would compromise ongoing investigations, even though the records date back at least five years.

“It’s investigatory data that spans a number of years,” said Sarah Carroll, a government lawyer. “This is an issue of really critical importance to the United States and the DEA.”

Lawyers for The Washington Post and HD Media, which owns the Charleston Gazette-Mail and The Herald-Dispatch, argued that the distributors and DEA have other motives for wanting to keep the information secret: The disclosures could embarrass companies that shipped massive quantities of prescription pain pills like OxyContin to states, cities and towns with populations that couldn’t possibly have needed so many painkillers. And the DEA doesn’t want to have to explain why it didn’t stop the deluge of pills.

The oversupply of opioid pain medications - triggered by doctors writing too many prescriptions - is widely believed to have started the opioid epidemic and led to a record number of fatal overdoses.

“The value of transparency here is great,” said Karen Lefton, the Post’s lawyer.

The DEA and drug distribution companies want the appeals court to uphold Cleveland federal Judge Dan Polster’s decision last year that has kept the pill numbers hidden from the public. HD Media and The Washington Post are appealing. The appellate judges are expected to rule later this year.

The companies’ lawyers argue that the release of the DEA data, which details daily, monthly and yearly opioid shipments, would be bad for business and tip off competitors seeking to steal customers.

Lawyers representing states, cities and towns suing the companies already have the pill data, which stretches from 2006 to 2014. They’ve had it for more than a year. They’ve selectively disclosed some of the totals in lawsuits, but redacted more specific numbers or filed the complaints under seal.

HD Media requested DEA data from the Cabell County Commission, which sued the distributors in 2017. The commission said it wanted to release the information, but a federal judge in Cleveland, where thousands of cases against opioid makers and shippers have been filed, stopped the release. The Washington Post asked for the same pill data in Ohio and was blocked.

The DEA has argued that the media should have requested the information directly from the DEA under federal records law. But the agency has rejected such requests in the past. The DEA also has suggested the newspapers could get similar data on its website, where the agency lists drug distributions by ZIP code areas and by weight instead of by tablet numbers.

The data sought by the newspapers lists the types of opioid pills shipped, the number of pills, the names of the distributors that shipped them and the pharmacies that ordered them.

The DEA and distributors say the shipment numbers likely will be made public when the lawsuits go to trial. But it’s more likely the companies will agree to settle and the pill data will remain forever hidden, according to the newspapers’ attorneys.

At the hearing Thursday, appellate Judge Richard Allen Griffin said it was troubling that the DEA would want to keep a lid on data “paid for by taxpayers” that the “public has the right to know about.”

Judge Eric Clay suggested in his questions that keeping so many records secret in the opioid lawsuits under Polster’s watch might have “gone overboard.” He said the DEA “just saying” the release of the pill numbers would jeopardize investigations wasn’t a sufficient reason to keep the data shielded from the public.

The judges asked why the DEA refuses to identify the shipment data that would interfere with particular inquiries and release the rest. The DOJ lawyer said that would “tip off” companies being investigated.

In 2016, the Gazette-Mail obtained the drug firms’ shipping numbers in West Virginia after persuading a Boone County judge to unseal court records and filing a public records request with West Virginia Attorney General Patrick Morrisey’s office. The data showed that distributors showered small towns across Southern West Virginia with powerful painkillers, while the region was ravaged by an unprecedented number of overdoses.

“That didn’t impede any investigation,” said Pat McGinley, a Morgantown lawyer who’s representing the West Virginia newspapers. “What is the rationale for keeping that secret?”

The Gazette-Mail’s reports sparked a congressional investigation. A U.S. House committee blasted drug distributors for “pill dumping.” The panel also sharply criticized the DEA for turning a blind eye to the massive opioid shipments.