Opioid data should be disclosed in public health lawsuit, media coalition argues

Update: On June 20, the Sixth Circuit vacated the district court’s protective order and held that it had abused its discretion in finding that good cause existed for permanently and categorically denying public records requests for county-level data on pharmaceutical companies’ opiate sales. On remand, the district court can consider any specific redactions pertaining to ongoing investigations that are proposed, but cannot issue a blanket ban on disclosing the data. The Sixth Circuit also ordered the district court to reconsider each document filed under seal, require the party seeking sealing to give a “compelling reason” and “narrowly tailor” its request, and to explain its specific findings and conclusions justifying any sealing (which the 6th Circuit held the district court had previously failed to do).

The Reporters Committee for Freedom of the Press and a coalition of 36 media organizations are supporting HD Media and The Washington Post’s fight for the release of key data related to the ongoing opioid crisis.

Approximately 1,300 mostly governmental bodies have sued pharmaceutical companies for their involvement in the opioid epidemic — the deadliest drug crisis in U.S. history. This case could result in billions of dollars in payouts and could impact the lives of millions of Americans. As part of the case, the Drug Enforcement Administration produced information in discovery about the number of opiate doses sold in each county by pharmaceutical companies from 2006-2014. HD Media and The Washington Post have sought release of this data, which was provided to the state and local government plaintiffs in the case, under state public records laws. However, a district court order has barred its release, citing a protective order in the litigation. The media coalition is urging the U.S. Court of Appeals for the Sixth Circuit to reverse the district court’s ruling that would prevent the data’s release.

Previously, a West Virginia court ordered the release of much of the DEA’s information on the number of opiate doses sold in that state. As a result, it became clear this type of data was important for the public to have access to, the coalition argued in a friend-of-the-court brief filed November 13, 2018. The data “illuminates the depth and magnitude of the prescription drug crisis; indeed, if the West Virginia data is any indication, this data could show a dramatic increase in opioid prescriptions [from 2006-2014],” the coalition writes.

The information also could shed light on the government’s failure to adequately address the opioid epidemic, the coalition explains, and its release would give the public the necessary information to hold those in elected offices accountable.

In addition, a lack of access to the data might result in less confidence in judicial processes. In the brief, the coalition explains that the Supreme Court has recognized secrecy breeds distrust of the judicial system and its ability to adjudicate matters fairly. It also “insulates the participants, mask[s] impropriety, obscur[es] incompetence and conceal[s] corruption.”

The Sixth Circuit and other courts have repeatedly recognized that public interest cannot be discounted when protective orders are issued, especially in matters involving the government and public health. Past legal decisions have also held that court documents produced to parties under protective orders can’t be automatically sealed when they are filed in court — once a document is filed with a court, it cannot be sealed unless the common law and First Amendment presumptions of access are overcome.

“In short, a protective order does not justify sealing ‘from public view materials that the parties have chosen to place in the court record,‘” the coalition notes.

Read the full brief here.