Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 1 of 25 PageID #: 793

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

PHILIP EIL,
Plaintiff,
v.
U.S. DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.

)
)
)
)
)
)
)
)

C.A. No. 15-99M

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Defendant United States Drug Enforcement Administration, by and through its attorney,
Peter F. Neronha, United States Attorney for the District of Rhode Island, hereby moves for
summary judgment and dismissal of Plaintiff’s Complaint. In accordance with Local Rule 7 of
the District of Rhode Island, Defendant is filing simultaneously herewith a separate
memorandum of law containing the authorities and reasoning supporting its position.

Respectfully submitted,
U.S. DRUG ENFORCEMENT
ADMINISTRATION
By Its Attorneys,
PETER F. NERONHA
United States Attorney
/s/ Bethany N. Wong
BETHANY N. WONG
RICHARD B. MYRUS
Assistant U.S. Attorneys
United States Attorney’s Office
50 Kennedy Plaza, 8th Floor
Providence, RI 02903
(401) 709-5000
(401) 709-5017 (fax)
Email: bethany.wong@usdoj.gov

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 2 of 25 PageID #: 794

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

PHILIP EIL,
Plaintiff,
v.
U.S. DRUG ENFORCEMENT
ADMINISTRATION,
Defendant.

)
)
)
)
)
)
)
)

C.A. No. 15-99M

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Defendant submits this Memorandum of Law in Support of its Motion for Summary
Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment, as there is no genuine
dispute as to any material fact and Defendant is entitled to judgment as a matter of law.
I.

Introduction
The Freedom of Information Act (“FOIA”) provides for broad disclosure of information that

reveals government action. However, such information is not at issue in this litigation. This
case concerns personal medical and tax records that do not shed any new light on the
government’s performance of its duties.
As the Supreme Court has explained, “FOIA’s central purpose is to ensure that the
Government’s activities be opened to the sharp eye of public scrutiny, not that information about
private citizens that happens to be in the warehouse of the Government be so disclosed.” Dep’t
of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 774 (1989) (emphasis
in original). The purpose of FOIA “is not fostered by disclosure of information about private
citizens that is accumulated in various governmental files but that reveals little or nothing about
an agency’s own conduct.” Id. at 773.

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 3 of 25 PageID #: 795

Here, Plaintiff has requested trial exhibits from a criminal trial in the Southern District of
Ohio. Many of the requested exhibits have already been released to the Plaintiff; what has not
been released is limited to personally-identifying information of third parties and government
investigators; medical records of the victims, including death-related records and photographs;
and the tax record of the criminal defendant, none of which Plaintiff argues is public.
In any FOIA litigation that implicates privacy concerns, the first question is whether a
privacy interest exists. The First Circuit, following the Supreme Court’s lead, only requires that
some privacy interest be at stake before demanding a significant public interest in the requested
disclosure. See Stalcup v. CIA, 768 F.3d 65, 74 (1st Cir. 2014). Given the clear privacy
concerns at issue here, the second question, then, is whether the requester has articulated a
significant public interest that outweighs that privacy interest. “[T]he only relevant public
interest in the FOIA balancing analysis is the extent to which disclosure of the information
sought would shed light on an agency’s performance of its statutory duties or otherwise let
citizens know what their government is up to.” Bibles v. Oregon Natural Desert Ass’n, 519 U.S.
355, 355-56 (1997) (per curiam) (internal citations omitted) (emphasis in original).
To the extent that Plaintiff disputes that a privacy interest exists in personally-identifying and
medical information, such an assertion is not supported by the law or common sense. Further,
Plaintiff has not established how the records at issue in this case reveal anything about
government action. The documents that arguably do show what the government “was up to”
have been released or are publicly available. For example, the Defendant has released, among
many other documents, inspection reports, evidence logs, correspondence between the criminal
defendant and the government, and video of a physical search of the criminal defendant’s clinic.
Defendant has also provided to Plaintiff copies of the portions of exhibits that the government
placed on the public docket as part of the case appeal. Plaintiff has access to all trial testimony
2

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 4 of 25 PageID #: 796

by government agents and other witnesses, as the entire trial transcript is publicly available.
And, although the requested medical records do not show governmental action, Defendant has
released medical records where the identifying information of the individual could be kept
confidential through redactions.
Plaintiff has provided no indication that individuals have waived their privacy rights to the
personal records and identifying information being withheld. Further, without articulating how
disclosure would reveal governmental action, Plaintiff has not described a public interest in the
release of this specific information. Indeed, it is apparent that the Plaintiff seeks the personal
information in these exhibits so that he can contact victims and their families and use their
medical histories for his literary pursuits. In short, Plaintiff has not explained why the public
interest here is “more specific than having the information for its own sake” as the Supreme
Court requires. Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004). Thus,
this information is protected and the law does not permit its release by the government.
II.

Factual and Procedural History
Plaintiff has sought, through a Freedom of Information Act request, the release of

voluminous records from the 2011 criminal trial of Paul Volkman. (See Complaint for
Injunctive and Declaratory Relief, Dkt. No. 1, (“Complaint”).) The complete transcript of the
criminal trial and a listing of the trial exhibits, with descriptions, are publicly available. (See
Docket, United States v. Paul H. Volkman, No. 1:07-cr-00060-SSB, (S.D.O.H., filed May 16,
2007); Complaint at Exhibit A (“Exhibit List”).) According to the trial transcript, many of the
exhibits were admitted en masse without further use or discussion.
On or about February 1, 2012, Plaintiff sent a FOIA Request to the Executive Office of U.S.
Attorneys. (See Complaint, Exhibit A.) Plaintiff’s FOIA request sought all documents admitted

3

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 5 of 25 PageID #: 797

into evidence in the criminal trial of Paul Volkman.1 (See Complaint, Exhibit A.) The
documents that Plaintiff sought included the medical and tax records of private individuals. (See
Exhibit List.) The Defendant received a transfer of Plaintiff’s FOIA request on or about
December 19, 2012. (See Complaint at ¶ 16.) After a number of partial releases by the
Defendant, Plaintiff believed that the Defendant wrongly withheld documents in response to his
request, and filed this action on March 18, 2015. (See Complaint ¶ 54.)
On June 30, 2015, the parties filed a joint stipulation for an extension of time, as the parties
were exploring options to resolve Plaintiff’s claims without the need to resort to further
litigation. (See June 30, 2015 Joint Stipulation, Dkt. No. 7.) Specifically, after an additional
internal review of the matter, on July 29, 2015, the Defendant produced to the Plaintiff 69
exhibits (2,033 pages of documents) with redactions to remove identifying information of third
parties. (See July 29, 2015 Letter from B. Wong to J. Jewell (“July Disclosure Letter”), attached
hereto as Exhibit A.) The released items included inspection reports (Exhibits 2, 10); licensing
paperwork (Exhibits 1, 5); narcotics dispensing logs and charts from the criminal defendant’s
practice (Exhibits 6a-9d); correspondence between the criminal defendant and the government
(Exhibit 11); prescriptions (Exhibits 17c-f); a presentation analyzing the criminal defendant’s
purchasing behavior (Exhibit 18); photographs (Exhibits 21a-o); an impounding form (Exhibit
34c), and the medical record of an individual who was unidentified at trial (Exhibits 36). (See
July Disclosure Letter; Exhibit List (containing descriptions of exhibits).) Pursuant to FOIA
Plaintiff’s request seeks “all exhibits presented in [Paul H. Volkman’s criminal trial]….These exhibits
were admitted without objection and shown to members of the jury (and observers in the courtroom)
during the trial….Specifically, I am requesting access to all materials listed in the Exhibit List filed by the
government on August 18, 2011….” (See Complaint, Exhibit A). The first page of the Exhibit List
attached to Plaintiff’s request provides a “Summary of Exhibits Admitted.” (Id.) Plaintiff’s Motion for
Summary Judgment states that he wants to “see what the jury saw.” (See Memorandum in Support of
Plaintiff’s Motion for Summary Judgment at 4). Defendant has reviewed the admitted exhibits in its
possession, and has informed Plaintiff which of the admitted exhibits are not in the possession of the
Defendant, including, for example, medication bottles. (See August 31, 2015 Letter from B. Wong to J.
Jewell; Exhibit List).
1

4

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 6 of 25 PageID #: 798

Exemptions (6) and (7)(C), the Defendant withheld the medical records of victims who were
identified at trial, including records related to the death of certain victims, such as autopsy,
toxicology, and post-mortem exam reports and photographs of the deceased. (See July
Disclosure Letter.) The records withheld totaled 6,016 pages. (Id.) The Defendant listed for the
Plaintiff the exhibit numbers that were produced, as well as those that were withheld, and
directed the Plaintiff to the publicly-available trial transcript and Exhibit List, which was
attached to Plaintiff’s Complaint, for further descriptions of each exhibit. (Id.) Defendant stated
that if the Plaintiff had any questions or concerns regarding any of the documents or was unsure
as to the basis of any of the redactions, that his counsel could contact counsel for the Defendant.
(Id.)
On August 31, 2015, the Defendant produced an additional 66 exhibits (1,780 pages and one
video recording) to the Plaintiff. (See August 31, 2015 Letter from B. Wong to J. Jewell
(“August Disclosure Letter”), attached hereto as Exhibit B.) Again, these items were redacted to
remove identifying information of third parties. (Id.) The items released included a video
recording of a search of the criminal defendant’s clinic (Exhibit 20); a sketch of the criminal
defendant’s clinic (Exhibit 45); inventory and dispensing logs (Exhibits 48a-l, 49a-j, 53, 54);
correspondence involving the criminal defendant (Exhibits 51, 52, 98); the medical record of an
unidentified individual (Exhibits 57a-c); photographs (Exhibits 102, E, G, H); the criminal
defendant’s clinic property lease (Exhibit 73); patient appointment calendars and sign-in sheets
(Exhibits 72, 78, 80, 96a-b), signs from the criminal defendant’s clinic (Exhibit 94), and patient
prescriptions and receipts (Exhibits 83a-e, 90a-b, 97a-b). (See August Disclosure Letter; Exhibit
List (containing descriptions of exhibits).) The Defendant again indicated that certain medical
and death-related records, including photographs and a video of a medical visit, as well as a tax

5

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 7 of 25 PageID #: 799

record, were being withheld, totaling 4,927 pages.2 (Id.) The Defendant again listed for the
Plaintiff which trial exhibits were being released and which were being withheld, and directed
the Plaintiff to the public trial transcript and Exhibit List for further guidance as to the content of
the documents. (Id.) Defendant indicated that this release included the remaining documents in
the Defendant’s possession responsive to Plaintiff’s request that could be disclosed. (Id.)
Defendant filed an Answer to the Complaint on October 19, 2015. (See Answer, Dkt. No.
10.) On December 10, 2015, Defendant alerted the Plaintiff to a small portion of the exhibits at
issue that had been placed on the public docket for purposes of the appeal of the criminal case.
(See December 10, 2015 Letter from B. Wong to J. Jewell, (“December Disclosure Letter”)
attached hereto as Exhibit C.) Defendant’s letter directed the Plaintiff to the docket and also
enclosed a copy of these documents to the Plaintiff. (See Id.)
Defendant files this Motion for Summary Judgment and Opposition to Plaintiff’s Motion for
Summary Judgment as this matter involves a basic legal question: whether the identifying
information and personal records of third parties in some way show what the government is up to
such that there is a substantial public interest in their release that outweighs personal privacy
protections. Such records are inherently private, triggering FOIA’s protection from disclosure,
and further, Plaintiff has not articulated a significant public interest in this disclosure that
overcomes the fundamental privacy interests at issue. As such, the law does not allow the
Defendant to release this information.
III.

Legal Standard

Summary judgment is appropriate when there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). FOIA

2

The vast majority of withheld documents are medical records, including death-related records and
photographs of the deceased before and after death. The tax record referenced in this memorandum,
Exhibit 55, consists of 3 pages. (See Exhibit List at 9, 16).

6

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 8 of 25 PageID #: 800

actions in particular are typically resolved through summary judgment, and summary judgment
in favor of the defendant is appropriate if the defendant has fully discharged its obligations under
FOIA, that is, the defendant has conducted an adequate search for the requested documents, any
withheld documents fall within one of FOIA’s exemptions, and the defendant has disclosed all
reasonably segregable nonexempt material. Reliant Energy Power Generation, Inc. v. FERC,
520 F.Supp.2d 194, 200 (D.D.C. 2007).3
IV.

Argument
A. FOIA Protects Against the Disclosure of Private Information.
FOIA, 5 U.S.C. § 552, provides a mechanism for the public to request the disclosure of

documents from the government, and generally sets forth a policy of broad disclosure “to ensure
an informed citizenry.” FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting NLRB v. Robbins
Tire & Rubber Co., 437 U.S. 214, 242 (1978)). In crafting FOIA, Congress recognized and the
Supreme Court has confirmed “that legitimate governmental and private interests could be
harmed by release of certain types of information....” Id. Thus, although FOIA is broadly
conceived, the statutory exemptions “are intended to have meaningful reach and application.”
John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989). By including meaningful
exemptions, “FOIA represents a balance struck by Congress between the public’s right to know
and the government’s legitimate interest in keeping certain information confidential.” Ctr. for
Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 925 (D.C. Cir. 2003) (citing John Doe
Agency, 493 U.S. at 152). Thus, while FOIA requires agency disclosure under certain
circumstances, the statute recognizes, and the Supreme Court has confirmed, that “public
disclosure is not always in the public interest.” CIA v. Sims, 471 U.S. 159, 166-67 (1985);

3

Typically, a FOIA case will involve declarations from the agency regarding the searches performed in
order to produce the documents requested. Such a declaration is not necessary here, where the request
involves a specific set of documents and there is no challenge to any search for documents.

7

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 9 of 25 PageID #: 801

Baldrige v. Shapiro, 455 U.S. 345, 352 (1982).
Relevant to this litigation, FOIA exempts from disclosure “records or information
compiled for law enforcement purposes, but only to the extent that production of such law
enforcement records or information ... could reasonably be expected to constitute an unwarranted
invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C) (“Exemption 7(C)”).4 As a threshold
matter, withholdings pursuant to Exemption 7(C) must be of records compiled for law
enforcement purposes, which includes files in connection with investigations that focus directly
on specific alleged illegal acts that could result in civil or criminal sanctions. See Jefferson v.
Dep’t of Justice, Office of Professional Responsibility, 284 F.3d 172, 176-77 (D.C. Cir. 2002).
As the files in this matter were collected as part of a criminal investigation, they fall squarely
within the law enforcement category, and Plaintiff has not challenged this categorization.
Exemption 7(C) does not require that the production of information will invade personal
privacy, only that it could. Id. Thus, where a privacy interest is potentially implicated, the court
must consider whether the possible invasion of that interest would be unwarranted by balancing
the privacy interest against any public interest. The First Circuit has required that where “some
privacy interest is at stake, a significant public interest must be present to nevertheless warrant
disclosure….” Stalcup v. CIA, 768 F.3d 65, 74 (1st Cir. 2014). As summarized in a case cited
numerous times by the Plaintiff, “where Exemption 7(C) privacy concerns are implicated, the
requesting party must show first, that the public interest sought to be advanced is a significant
one, an interest more specific than having the information for its own sake, and second that the
4

The information in question is exempt from disclosure pursuant to both Exemption 7(C) as well as
Exemption 6, which protects information in “personnel and medical files and similar files” if it “would
constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). Because the
standard for withholding documents under Exemption 6 is more stringent than the standard under
Exemption 7(C), although both exemptions protect the information at issue, the Defendant focuses its
argument here on Exemption 7(C).

8

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 10 of 25 PageID #: 802

information is likely to advance that interest. Otherwise the invasion of privacy is unwarranted.”
Union Leader Corp. v. Dep’t of Homeland Sec., 749 F.3d 45, 54 (1st Cir. 2014) (quoting Nat’l
Archives and Records Admin. v. Favish, 541 U.S. 157, 172, 174 (2004)). This principle is in
keeping with the First Circuit’s recognition that “[t]he central purpose of the FOIA is to reveal
government action, not to expose the actions of private third parties and their participation in law
enforcement to the public.” Carpenter v. Dep’t of Justice, 470 F.3d 434, 439 (1st Cir. 2006).
Thus, while it is the government’s burden to establish that the withheld information falls within
the exemptions it invokes, 5 U.S.C. § 522(a)(4)(b), when a privacy interest is implicated, it is the
plaintiff who must establish a significant public interest that would be advanced by disclosure.
Whitehouse v. Dep’t of Labor, 997 F.Supp. 172 (D. Mass. 1998) (citing Carter v. Dep’t of
Commerce, 830 F.2d 388, 390 n. 8, 391 n. 13 (D.C. Cir. 1987). Plaintiff has not done so here.
B. The Records at Issue Implicate a Privacy Interest.
The first question is whether a privacy interest is implicated by the request. Both the
Supreme Court and the First Circuit have expressly rejected conceiving of the privacy interest
protected by Exemption 7(C) as a “cramped” or limited notion of personal privacy. See Dep’t of
Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 763 (1989); Carpenter v.
Dep’t of Justice, 470 F.3d 434, 438 (1st Cir. 2006). The Supreme Court explained that
information is private if it is “not freely available to the public,” Reporters Committee, 489 U.S.
at 764 (quoting Webster’s Third New International Dictionary 1804 (1976)), noting that privacy
is defined to include “the rightful claim of the individual to determine the extent to which he
wishes to share of himself with others. It is also the individuals’ right to control dissemination of
information about himself….Privacy is the claim of individuals to determine for themselves
when, how, and to what extent information about them is communicated to others.” Id. at 764 n.
16. (quoting A. Breckenridge, The Right to Privacy 1 (1970); A. Westin, Privacy and Freedom 7
9

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 11 of 25 PageID #: 803

(1967)). In other words, it is the individual, not the government, who holds the right to privacy
with respect to individual information, which “includes the prosaic (e.g., place of birth and date
of marriage) as well as the intimate and potentially embarrassing.” Painting & Drywall Work
Preservation Fund, Inc. v. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991). Privacy is of particular
importance in the FOIA context, because a disclosure allowed by FOIA is a disclosure to the
public at large. See Id. (finding that if information “must be released to one requester, it must be
released to all, regardless of the uses to which it might be put”).
i. Individuals Have a Basic Privacy Interest in Their Personal Records.
Under a FOIA analysis, the government is not required to identify exactly how a release
would harm an individual’s privacy rights – the standard under Exemption 7(C) is simply that a
release of information could reasonably result in an unwarranted invasion of privacy. 5 U.S.C. §
552(b)(7)(C); Halloran v. Veterans Admin., 874 F.2d 315, 320 (5th Cir. 1989) (“We thus do not
require that the government detail the precise harm which disclosure would inflict upon the
privacy interests of each individual….”). However, contrary to Plaintiff’s assertion that the
Defendant has not articulated a privacy interest, (Memorandum in Support of Plaintiff’s Motion
for Summary Judgment (“Plaintiff’s MSJ”) at 9), Defendant has repeatedly pointed to the
fundamental privacy interest individuals hold in their personal medical files, particularly when
the files, as here, essentially include a history of substance abuse addiction. This privacy interest
in one’s medical information has been recognized by numerous courts as a legitimate privacy
interest under FOIA. See, e.g., Yonemoto v. Veterans Admin., 686 F.3d 681, 696 (9th Cir.
2012) (amended op.) (upholding withholding information about an employee's illness under the
stricter Exemption 6, stating, “[i]nformation regarding illness or health is personal, and falls
under the scope of Exemption 6” (citation omitted)); Halloran v. Veterans Admin, 874 F.2d 315,
320, 324 (5th Cir. 1989) (finding that medical information was properly withheld when the
10

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 12 of 25 PageID #: 804

identity of the individual was known); Marzen v. Dep’t of Health and Human Serv., 825 F.2d
1148, 1154 (7th Cir. 1987) (finding that the medical records of a deceased infant were properly
withheld under FOIA Exemptions 6 and 7(C), stating that “whatever public interest can be
gained from disclosure of the intimate details contained in the medical records cannot justify the
invasion of the parents’ right to privacy”); Blast v. Dep’t of Justice, 665 F.2d 1251, 1254 (D.C.
Cir. 1981) (stating that the privacy interest in “medical information of a personal nature” is “well
recognized, even under the stringent standard of exemption 6”); Nat'l Sec. News Serv. v. Dep't of
Navy, 584 F. Supp. 2d 94, 97 (D.D.C. 2008) (upholding nondisclosure of hospital patient
admission records and stating, “[r]ecords, such as the ones Plaintiffs seek here, indicating that
individuals sought medical treatment at a hospital are particularly sensitive”). For example, in
Whitehouse v. Dep’t of Labor, 997 F.Supp. 172 (D. Mass. 1998), the court found that the
medical records at issue, which contained numerous references that would directly or indirectly
allow the subject to be identified by a knowledgeable reader, were properly withheld, as
redactions were impracticable. The court “[did] not doubt that the public interest would be
served in some degree” if the records were released and used for the purpose requested, but the
“intrusion on patient privacy that would result from disclosure is a near certainty….” Id. at 175.
ii. In Addition to General Privacy Protections, Release of These Personal
Records Risks Subjecting These Individuals to Harassment.
In addition to the general, broadly-recognized basic right that an individual has in the
privacy of his or her own records, there is an additional concern of harassment that comes from
the release of private information, which is a concern recognized by FOIA’s privacy protections.
See, e.g., Forest Service Employees for Environmental Ethics v. U.S. Forest Service, 524 F.3d
1021, 1026, 1028 (9th Cir. 2008) (stating that the avoidance of harassment is a cognizable
privacy interest under Exemption 6, and finding that such an interest was not outweighed when
11

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 13 of 25 PageID #: 805

disclosure would shed no new light on the government agency’s performance of its duties
beyond that which was already publicly known). As noted above, once a record is released
pursuant to FOIA, it is free to be released to the general public as broadly as desired by the
requesting party. See Painting & Drywall Work Preservation Fund, Inc. v. HUD, 936 F.2d 1300,
1302 (D.C. Cir. 1991).
The Supreme Court has specifically acknowledged that even if intimate records have
previously been disclosed in some way, harassment stemming from their re-disclosure through
FOIA remains a legitimate concern, including harassment of a decedent’s family. See Nat’l
Archives and Records Admin. v. Favish, 541 U.S. 157, 166-68 (2004) (finding that where a
photograph of a death scene had been leaked to the media, that did not detract from the weighty
privacy interests of the surviving relatives to be secure from intrusions by a “sensation-seeking
culture”); see also Prison Legal News v. EOUSA, 2009 WL 2982841, *7 (D. Colo. Sep. 16,
2009) (“[T]he release of [the requested material] through FOIA is absolute, unrestrained, and
perpetual. Once released, the information can be publicly displayed, by multiple persons, in
multiple venues, and on multiple occasions. A decedent’s family would have no expectation that
the exposure would necessarily end.”).
Plaintiff has emphasized his attempts to contact individual witnesses in this matter. (See
Plaintiff’s MSJ at 25.) Thus, the concern of individuals or their families being contacted
regarding information in their private records if these records are released is particularly notable
in the present litigation.

See also Dkt. No.15-8 at 6 ([AUSA]: “…We know that [Plaintiff] has been talking to witnesses in the
Portsmouth area….We also were concerned that the one juror that he found to speak to in the venire was
also a reporter….”); and at 8 ([Defense Counsel]: “…I had sent an e-mail to [Plaintiff], after I had
discovered that he had been in Portsmouth asking questions about this case, that he not do so, that he had
no permission on behalf of Dr. Volkman or anybody on the defense team, at least, and that we asked him
not to do that.”)
5

12

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 14 of 25 PageID #: 806

iii. The Cases Cited by Plaintiff Allow for Release When Individuals Are
Unknown or Unidentifiable.
The two district court cases cited by the Plaintiff with respect to privacy interests support the
Defendant’s position. As described by the Plaintiff, both courts held that privacy interests were
not implicated where the identity of the individual whose records were sought was not revealed
and could not easily be determined. (See Plaintiff’s MSJ at 9.)6 In this case, in an effort to
disclose as much as could be disclosed under the law, the Defendant has already released records
where the identity of the individual could be sufficiently redacted. See, e.g., July Disclosure
Letter (indicating that Exhibit 36 is released, with redactions) and Exhibit List at 4 (indicating
that Exhibit 36 is a “Medical Record”).) However, for the records withheld, the names of the
individuals are disclosed in the trial transcript and/or Exhibit List, and thus redactions would not
sufficiently protect their identity. (See July Disclosure Letter.) For example, Exhibit 23 is
described in the trial Exhibit List as “Medical Record of Phil Smith.” (See Exhibit List at 3.)
Therefore, even if the government were to fully redact identifying information from Exhibit 23,
this would be of no use, because Phil Smith’s identity is already known. As such, the Defendant
withheld Exhibit 23, as the Plaintiff has not indicated that Phil Smith has waived his privacy
interest in his medical record. (See July Disclosure Letter.) Thus, the records at issue have not
been withheld based on speculative concerns. Instead, they fall exactly within the category of
privacy invasions described in the cases cited by the Plaintiff: situations where any member of
the public would be able to see exactly whose medical records were released.

6

Further, the court in Charles v. Office of the Armed Forces Medical Examiner, 935 F.Supp.2d 86, 99
(D.D.C. 2013) analyzed only the privacy protections of Exemption 6, noting that where an individual
cannot be identified, there is only a possibility of an invasion of personal privacy, which is insufficient
under Exemption 6’s “clearly unwarranted” standard. Exemption 7(C), however, prohibits disclosure
even where, as here, there “could reasonably” be an unwarranted invasion of privacy.

13

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 15 of 25 PageID #: 807

iv. Limited Prior Disclosure by the Government Does Not Waive an
Individual’s Privacy Rights.
On pages 13-14 of his memorandum, Plaintiff discusses certain documents that were
placed in the public record for purposes of the appeal of the criminal conviction in this matter,
and he appears to make a waiver argument with respect to the privacy interests of these
documents. As described above, Defendant has provided these documents to the Plaintiff as they
appear in the public record. (See December Disclosure Letter). Any suggestion that these
records are being withheld is false. If Plaintiff is attempting to say that because certain portions
of medical information (60 pages out of several thousand) were made public for purposes of the
appeal, an individual has waived his or her privacy interest with respect to the entirety of his or
her individual medical record, Plaintiff cannot provide any legal support for such an argument.
Instead, as Plaintiff has conceded, the fact that information has been partially disclosed as part of
a criminal trial does not mean that an individual has waived his privacy interest in that
information. See Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489 U.S.
749, 767-69 (1989) (“[O]ur cases have also recognized the privacy interest inherent in the
nondisclosure of certain information even where the information may have been at one time
public”); Stacup v. CIA, 768 F.3d 65, 73 (1st Cir. 2014) (stating that even testifying at trial does
not necessarily mean that an individual has voluntarily abdicated his or her privacy); Carpenter
v. Dep’t of Justice, 470 F.3d 434, 440 (1st Cir. 2006) (“That information has been released to the
public domain, especially where the release is limited, has little bearing on the privacy interest.
Indeed, in modern society there is little information that has not been released to another.”
(internal citations omitted)); Prison Legal News v. EOUSA, 2009 WL 2982841, *7 (D. Colo.
Sep. 16, 2009) (finding that disclosure of records at a criminal trial does not remove an
individual’s privacy interests). As another district court within the First Circuit has explained,
14

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 16 of 25 PageID #: 808

“prior revelations of exempt information do not destroy an individual’s privacy interest.” Moffat
v. Dep’t of Justice, 716 F.3d 244, 251 (D. Mass. 2013). In this case, it is exactly the fact that the
identity of certain individuals is known to the public that makes it impossible to release their full
medical records with redactions, as such redactions would be pointless. Plaintiff argues that
“FOIA exemptions cloak the information,” (Plaintiff’s MSJ at 14), and here, the detailed medical
records of the victims in a criminal case remain cloaked; sample prescriptions or notes of
medical visits do not somehow remove this cloak from the remaining information that continues
to be protected from public view.
C. Plaintiff Has Not Articulated a Public Interest That Outweighs the
Fundamental Privacy Interests at Issue Here.
i. The Only Relevant Public Interest Is in Knowing “What the
Government Is Up To,” Which These Records Do Not Show.
Where, as here, a privacy interest is implicated with respect to a FOIA request, the
requester must show both 1) that the public interest sought to be advanced is significant, and 2)
that the information is likely to advance that interest. Union Leader Corp. v. Dep’t of Homeland
Sec., 749 F.3d 45, 54 (1st Cir. 2014). “[T]he only relevant public interest in the FOIA balancing
analysis is the extent to which disclosure of the information sought would shed light on an
agency’s performance of its statutory duties or otherwise let citizens know what their
government is up to.” Bibles v. Oregon Natural Desert Ass’n, 519 U.S. 355, 355-56 (1997) (per
curiam) (emphasis in original) (quoting Dep’t of Defense v. Fed. Labor Relations Auth., 510
U.S. 487, 495, 497 (1994) (requiring that disclosure “contribut[e] significantly to public
understanding of the operations or activities of the government.”) (emphasis in original)). Thus,
“no public interest is served” when the information sought “tells the public nothing about the
actions of the government.” Carpenter v. Dep’t of Justice, 470 F.3d 434, 441 (1st Cir. 2006).

15

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 17 of 25 PageID #: 809

This public interest analysis is specific to the information requested; the requester must
show that “the public interest in disclosing the particular information requested outweigh [the
relevant] privacy interests.” Yonemoto v. Dep’t of Veterans Affairs, 686 F.3d 681, 694 (9th Cir.
2011) (emphasis in original). For example, as the First Circuit explained, the “innocence or guilt
of a particular defendant tells the Court ‘nothing about matters of substantive law enforcement
policy that are properly the subject of public concern.’” Carpenter at 441. With respect to
medical records specifically, another court reasoned, “Disclosure of the requested patient
admission records only would reveal who was admitted to the Naval Medical Center; it would
reveal nothing about the Navy’s own conduct….[S]omething, even a modest privacy interest,
outweighs nothing every time.” Nat’l Sec. News Service v. Dep’t of Navy, 584 F.Supp.2d 94, 97
(D.D.C. 2008) (quoting Nat’l Ass’n of Retired Fed. Employees v. Horner, 879 F.2d 873, 879
(D.C. Cir. 1989)). Where, as here, information about private citizens “is in the Government’s
control as a compilation, rather than as a record of ‘what the Government is up to,’ the privacy
interest protected by Exemption 7(C) is in fact at its apex while the FOIA-based public interest in
disclosure is at its nadir.” Dep’t of Justice v. Reporters Committee for Freedom of the Press, 489
U.S. 749, 780 (1989).
Here, Plaintiff has not pointed to what government activity could possibly be revealed by
the release of individual identifying information or personal records, and as such, Plaintiff has
failed to articulate any public interest in the undisclosed records. Plaintiff argues that “[t]he
general public clearly has an interest in knowing how Volkman was investigated and
prosecuted,” emphasizing the “significance” of the investigation. (See Plaintiff’s MSJ at 11.)
However, in a similar case, a requestor’s statement that identifying information would “reveal a
method of federal law enforcement that is not readily apparent” was found to be “nothing more
than speculation.” Moffat v. Dep’t of Justice, 716 F.3d 244, 252 (D. Mass. 2014). The fact that
16

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 18 of 25 PageID #: 810

a document was part of an investigation, without more, is fundamentally insufficient as a basis
for release under Exemption 7(C).
In addition, the “significance” of the government’s investigation and prosecution is
irrelevant – the question before the Court is whether these specific records reveal government
activity to such a degree that the unquestionable privacy rights of individuals is overcome. See
Marzen v. Dep’t of Health and Human Serv., 825 F.2d 1148, 1154 (7th Cir. 1987) (finding that
even where there was substantial public interest in an individual’s death, the individual’s medical
records were still properly withheld). Under Plaintiff’s theory, any medical record of a victim of
an “important” crime should be released through FOIA, regardless of what the record actually
shows about government activity. This theory does not reflect the stated purpose of FOIA. As
Plaintiff’s request is for records that do not detail agency activity, it is precisely the type of
request for “information for its own sake” that the Supreme Court has rejected. See Nat’l
Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004).
ii. Plaintiff Has Not Shown How the Requested Records Would Show
Any Government Misconduct.
Finally, Plaintiff appears to argue that there is a public interest in the requested records by
adding an accusation of government misconduct. (See Plaintiff’s MSJ at 12.) However, again,
Plaintiff’s argument fails primarily because it does not actually address what the requested
records show regarding any government activity, proper or allegedly improper, which is the
central question of a FOIA analysis. Plaintiff instead focuses his attention on what he considers
to be improper conduct directed at him by the Assistant U.S. Attorney during the criminal trial of
Paul Volkman. (See Plaintiff’s MSJ at 12.) The interactions between the Plaintiff and the
prosecutor, which are largely detailed in the trial transcript attached to Plaintiff’s brief, are not
relevant here. When the FOIA balancing test takes into account accusations of misconduct by
17

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 19 of 25 PageID #: 811

the government, the analysis remains focused on whether the documents at issue would reveal
some type of impropriety. As the First Circuit has explained:
Even assuming that [plaintiff] could show a scintilla of support for
his claim [of government misconduct], he still fails to connect the
requested materials to the alleged government misconduct. Courts
that have adopted such a waiver in the FOIA milieu also require a
party to establish a nexus between the misconduct and the
requested documents. This is a sound way to avoid a litigant’s
mere fishing expedition into government action. [Plaintiff’s]
silence as to how the requested documents would shed any new
light on the alleged misconduct is fatal to his claim.
Stalcup v. CIA, 768 F.3d 65, 72 (1st Cir. 2014) (internal citations omitted) (analyzing plaintiff’s
argument for a misconduct waiver under Exemptions 5 and 7(C)).
Plaintiff has not articulated how a medical or tax record from Paul Volkman’s trial could
possibly speak to the government’s decision to issue a trial subpoena for Plaintiff’s testimony
regarding conversations he had with witnesses – an issue that was discussed before the trial
court, in the presence of and with the agreement of defense counsel. Further, any harm that
could conceivably have been done by keeping Plaintiff from hearing trial testimony firsthand is
rendered moot by the Plaintiff’s access to the transcript from the trial.7

Plaintiff’s accusations of impropriety are without merit. However, given that they have been made, the
Defendant notes that that the prosecutor, defense counsel, and the court in the criminal trial all expressed
concerns regarding Plaintiff’s behavior. (See Dkt. No. 15-8.) The transcript shows that defense counsel
had asked Plaintiff to stop contacting the witnesses, just as the prosecution had. (See Id. at 8.) The
prosecution stated, and the court acknowledged as legitimate, the possibility that by speaking with
witnesses, Plaintiff could have knowledge that would make him a rebuttal witness, and the court, sua
sponte, suggested that Plaintiff should be first questioned under oath outside the presence of the jury, and
then possibly as part of the trial. (See Id. at 7, 11.) Any implication of impropriety by the government in
attempting to interview the Plaintiff or issuing a subpoena regarding his conversations with witnesses is
completely baseless. Plaintiff’s discussion of his presence at the criminal trial, his letters to various
legislators, and his personal media campaign regarding this litigation have no bearing on the legal
analysis in this case. If anything, the fact that the Plaintiff is eager to publicize information about this
matter only heightens the careful scrutiny that must be given to the release of individual records.
7

18

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 20 of 25 PageID #: 812

iii. Defendant’s Position Is Consistent with First Circuit Precedent.
Plaintiff relies heavily on Union Leader Corp. v. Dep’t of Homeland Sec., 749 F.3d 45
(1st Cir. 2014) in arguing for the disclosure of the requested records. However, Union Leader
involved, as the First Circuit specifically noted, a request for the identities of individuals who
had been arrested – information that was actually public and did not include personal records.8
749 F.3d at 53. Further, the plaintiff in Union Leader had specifically represented that it was not
seeking to contact any of the individuals whose identities were being “revealed” by the requested
disclosure. Id. at 55. The First Circuit highlighted both facts and stated that the privacy interest
at issue was “attenuated both by the status of their underlying convictions and arrests as matters
of public record and by the limited nature of the Union Leader’s proposed investigation.” Id. In
addition, Union Leader presented the unique case where the identity of certain individuals (but
not additional personal information) was necessary to reveal alleged governmental misconduct
related to the detentions of those individuals. Id. at 56.
Six months after Union Leader, the First Circuit confirmed that the identities of those
involved in law enforcement investigations, including witnesses and informants, have been “long
protected” by the court, and continue to be protected through Exemption 7(C). See Stalcup v.
CIA, 768 F.3d 65, 73 (1st Cir. 2014). In Stalcup, the requestor sought the identity of
eyewitnesses to the highly-publicized crash of TWA Flight 800, which was investigated by the
National Transportation Safety Board (“NTSB”), the FBI and the CIA. 768 F.3d at 68. The
investigation was the “largest and most expensive” in NTSB history. Id. The CIA withheld the
requested witness identities pursuant to Exemption 7(C) and, in addition to other arguments, the
requestor alleged government misconduct as a relevant public interest in their disclosure. Id. at
73-74. The First Circuit noted that revelations of exempt information through trial testimony
8

In Union Leader, the plaintiff had initially sought individuals’ addresses, as well as their names, but
appealed only the withholding of names.

19

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 21 of 25 PageID #: 813

does not necessarily destroy an individual’s privacy interest, and found that without a showing of
how the requested disclosure would provide new information regarding the alleged misconduct,
the withholdings were proper. Id. The court concluded, “given the presence of a privacy
interest, and the complete absence of any public benefit, the balance between the two
unquestionably banks against release.” Id. at 74.
As in Stalcup, the identity and records of third party witnesses and victims in the
government’s investigation of Paul Volkman remain protected. None of the factors that led to
release in Union Leader are present in this case. The withheld records are individual medical
and tax records, including photographs, and they are not public. Further, the Plaintiff here has
already contacted witnesses from the criminal trial and has made no promises to refrain from
further contact. Finally, as discussed above, Plaintiff has made no accusation of governmental
misconduct that could be revealed in any way by the release of these records. Here, as in
Stalcup, there is no basis for their release.
D. The Exhibits to Plaintiff’s Motion Show that Defendant’s Redactions Are
Reasonable and Narrowly Tailored.
The cross motions for summary judgment in this matter can be resolved as a matter of law
without review of specific documents that have been produced in this matter. However, given
the exhibits attached to Plaintiff’s motion, the Defendant briefly addresses specific documents
mentioned by the Plaintiff.
Plaintiff attaches two sets of released documents to his court filings. First, Plaintiff attaches
a 20-page compilation of documents disclosed to the Plaintiff by the Defendant prior to this
litigation. (See Dkt. No. 15-31 (characterized as Exhibit V9).) After this litigation commenced,

The exhibits to Plaintiff’s MSJ do not appear to be lettered or filed in order of appearance. Defendant
has attempted to match the exhibits to their descriptions in Plaintiff’s briefing, and refers to them here by
docket number in order to avoid confusion.
9

20

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 22 of 25 PageID #: 814

Defendant re-reviewed all of the requested material and made disclosures as described in Section
II, supra, and the attached disclosure letters. Dkt. No. 15-31 contains only versions of
documents released prior to this litigation and is not updated to reflect the new releases or the
versions of documents that are currently in Plaintiff’s possession, and thus is not relevant to the
current dispute between the parties.10
Second, Plaintiff attaches a 21-page compilation of documents that was released by the
Defendant as part of this litigation. (See Dkt. No. 15-33 (characterized as Exhibit X).) These
documents were redacted to remove identifying information of patients. (See July and August
Disclosure Letters.) For example, on the first page of the compilation, a drug log, the redacted
portion of the exhibit is a column entitled, “Patient Name.” (See Dkt. No. 15-33 at 1.) The rest
of the chart, including the date, the quantity, and the strength, all remain un-redacted. On its
face, the document makes obvious that the only information removed is the patient name. The
remaining pages of Dkt. No. 15-33 are similar and can be categorized as follows:


Pages 1, 3-10, 12-14, 16, 17, and 20 show, on their face, that redactions were made
to remove (a) patient names and signatures or (b) DEA numbers, which Plaintiff has
stated he is not seeking. (See Plaintiff’s MSJ at 7 n. 11.)



Pages 2, 15, and 19 appear to contain no redactions.



Page 11 is part of a larger medical record released to the Plaintiff and, on its face,
shows that redactions were made to remove information from a Southern Ohio
Medical Center chart labeled “patient information.” The admission date, admitting
diagnosis, and name of Paul Volkman as referring physician remain unredacted.



Page 18 is a low quality photocopy of a document that was redacted to keep as
confidential part of a medical record where the identity of the individual is identified
in the trial transcript. As this page is part of a larger exhibit where certain
information could be released, this page was redacted rather than withheld.

10

For example, pages 1-5 of Dkt. No. 15-31 were re-released to the Plaintiff with limited redactions to
remove third party identifying information. The versions of these pages that were released pursuant to
this litigation are attached hereto as Exhibit D, DEA-01688, DEA-01692, DEA-01754, DEA-01826, and
DEA-01828.

21

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 23 of 25 PageID #: 815



Page 21 is recognizable as a driver’s license, with redactions to remove a patient’s
identifying information.

These redactions are narrowly tailored and the Defendant’s disclosure letters, the trial
Exhibit List, and the trial transcript all give the Plaintiff sufficient information to know what is
being redacted in instances where it is not self-evident from the face of the document. Further,
the Plaintiff’s ability to understand the documents is not relevant to the FOIA analysis. See
Halloran v. Veterans Admin, 874 F.2d 315, 324 (5th Cir. 1989) (“For [the requestor’s] private
purposes…the redacted [documents] may indeed be ‘incomprehensible’; for the purposes of the
FOIA, however, release of the redacted [documents] both adequately conveys the information in
which the public has a legitimate interest and ensures that the relevant privacy interests are
respected.”).
In sum, the private information being withheld in these and the other documents at issue
cannot be released under the legal standard for disclosure set forth by Congress, the Supreme
Court, and the First Circuit. Disclosing such personal information – where Plaintiff has not
articulated what government activity would be revealed – would be the type of “cramped”
interpretation of individual privacy that has been expressly rejected by the Supreme Court and
the First Circuit. It simply is not the law that the identity of a witness or the medical record of an
individual that was seized by the government as part of a criminal investigation, just because it
was seized, becomes available for public viewing and intrigue.

22

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 24 of 25 PageID #: 816

V.

Conclusion
For all the above reasons, there is no genuine dispute of material fact in this matter and the

Defendant requests that the Court, as a matter of law, grant summary judgment in favor of the
Defendant, deny Plaintiff’s motion for summary judgment, and dismiss Plaintiff’s complaint.
Pursuant to Local Rule 7 of the District of Rhode Island, Defendant requests oral argument in
this matter and estimates that it would require approximately one hour of the Court’s time.
Respectfully submitted,
U.S. DRUG ENFORCEMENT
ADMINISTRATION
By Its Attorneys,
PETER F. NERONHA
United States Attorney
/s/ Bethany N. Wong
BETHANY N. WONG
RICHARD B. MYRUS
Assistant U.S. Attorneys
United States Attorney’s Office
50 Kennedy Plaza, 8th Floor
Providence, RI 02903
(401) 709-5000
(401) 709-5017 (fax)
Email: bethany.wong@usdoj.gov

23

 Case 1:15-cv-00099-M-LDA Document 16 Filed 05/04/16 Page 25 of 25 PageID #: 817

CERTIFICATE OF SERVICE
I hereby certify that on the 4th day of May, 2016, I electronically filed the within Motion
for Summary Judgment with the Clerk of the United States District Court for the District of
Rhode Island using the CM/ECF System. The following participant has received notice
electronically:
Neal J. McNamara
Jessica Schachter Jewell
Nixon Peabody LLP
One Citizens Plaza, 5th Floor
Providence, RI 02903
nmcnamara@nixonpeabody.com
jsjewell@nixonpeabody.com

/s/ Bethany N. Wong
BETHANY N. WONG
Assistant U.S. Attorney

24

 Case Document 16-1 Filed 05/04/16 Page 1 of 3 PageID 818

Exhibit A

Case Document 16-1 Filed 05/04/16 Page 2 of 3 PageID 819
 . - US. Department of Justice

  

Peter F. Neronha

 

United States Attorney

District of Rhode Island

50 Kennedy Plaza, Floor (401) 709-5000
Providence, Rhode Island 02903 FAX (401) 1709-5001

July 29, 2015

Jessica Jewell, Esq.

Neal McNamara, Esq.

Nixon Peabody LLP

One Citizens Plaza, Suite 500
Providence, RI 02903-1345 

RE: Eil v. lS-cv?99

Dear Jessica and Neal:

Enclosed please ?nd documents hates-stamped DEA-00001 DEA-02033 in the above-
referenced matter. As we have discussed, these documents are being produced in response to
your client?s February 1, 2012 request for documents under the Freedom of Information Act
5 U.S.C. 552, which requests exhibits admitted into evidence in the matter of United
States v. Paul H. Volkman.

As discussed, the enclosed documents contain redactions to protect the privacy of third
party individuals, which is exempt from disclosure under FOIA Exemptions and 
and under the Privacy Act, 5 U.S.C. 552a. Speci?cally, these redactions were made to remove
identifying information for third parties, which includes, for example, names, social security
numbers, addresses, telephone numbers, dates of birth or death, medical and tax record numbers,
insurance information, and employment information. In a few instances, the information
redacted includes the identifying information of a criminal investigator, which, in addition to
raising general privacy concerns, also raises issues of individual safety under Exemption
Finally, DEA numbers are not disclosed under Exemption The redactions
made in these documents are accompanied by a notation indicating which speci?c exemption
applies to that redaction, which appears either within or next to the redaction box. If there is
confusion regarding which notations apply to which redactions, feel free to contact me. The
following admitted exhibits are being released, subject to the above redactions, in this
production: Exhibits 1, 2, 4, S, 6a?m, 7, Sa-h, 9a?d, 10, 11, 12, 17c?f, 18, 21a-o, 22b-h,
32a, 34a (as admitted), 34c, 35a, 36, 39a, 40a, 42a, and 43a.

As I explained in our earlier correspondence, there are certain exhibits in the possession

of the Defendant that are responsive to the above-referenced FOLA request that contain the
medical records of an individual who is named in the transcript of the trial of United States v.

Case Document 16-1 Filed 05/04/16 Page 3 of 3 PageID 820

Paul H. Volkman such that the individual is associated with that speci?c exhibit number. These
exhibits consist entirely of the individuals? medical records. In these instances, redactions
cannot protect the privacy interests of the individual, as they are already identi?ed in the trial 
transcript. As such, these exhibits are being Withheld from production pursuant to OIA
Exemptions and as well as the Privacy Act. Relatedly, several exhibits pertain to
individuals who have passed away, including detailed autopsy and toxology reports, reports of
post-mortem exams, and photographs of the deceased. These Speci?c items are also being
withheld in their entirety to protect the continuing privacy interests of the deceased as well as
their relatives under the same statutory requirements. The exhibit list accompanying the
Complaint ?led in this matter, as well as the publicly-available trial transcript, should provide
any additional detail that is needed regarding the contents of these documents. The following
exhibits, which consist of 6,016 pages, are being withheld for the reasons described: Exhibits
17a, 23, 24, 25a?c, 26, 27, 28a?b, 29a?e, 30a, 31, 32b-d, 33a-b, 34b, 34d, 35b~e, 35g-h, 37a-d,
38a?c, 39b-d, 40b-d, 41c, 42b, and 43b-c.

As I am sure you appreciate, the Defendant takes its obligations to protect individual
privacy interests very seriously. Given the volume of materials involved, there has been
extensive effort to expedite and respond to this matter as ef?ciently as possible, while also
ful?lling these obligations. At this time, we anticipate being able to make further production of
documents in keeping with the tentative schedule discussed previously. If you have any
questions or concerns regarding this matter, please feel free to contact me.

Sincerely,

ethany N. Wong

Assistant U.S. Attorney

Enclosures

Case Document 16-2 Filed 05/04/16 Page 1 of 3 PageID 821

Exhibit 

Case 1:15-cv-00099-M-LDA Document 16-2 Filed 05/04/16 Page 2 of 3 PageID #: 822
U.S. Department of Justice
Peler F. Neronha
United States Attorney
District of Rhode Island
50 Kcnncdy Plazへ

8th「 loor

Providcncc,Rhodc lsiand 02903

(401)709‐ 5000
FAX(401)709‐ 5001

August 31,2015
Jessica Jewell, Esq.

Neal McNamara, Esq.
Nixon Peabody LLP
One Citizens Plaza, Suite 500

Providence, RI 02903- 1 345

RE: Eil v. DEA: Civ. No. l5-cv-99
Dear Jessica and Neal:
Enclosed please find documents bates-stamped DEA-02034

DEA-03813 in the abovereferenced matter. Also enclosed is a disc containing DEA-03814, which is a video recording.
As we have discussed. these documents are being produced in response to your client's February
1,2012 request for documents under the Freedom of Infbrmation Act ("FOIA"), 5 U.S.C. $ 552,
which requests exhibits admitted into evidence in the matter of United States v. Paul H.
Volkman. This production includes the remaining documents in the Defendant's possession that
are being released in response to your client's request, subject to the redactions described below.
Thus, this is the final production of documents in this matter. In keeping with our previous
communication, our understanding is that this production will obviate the need for any further
litigation.
As with the previous production, the enclosed documents contain redactions to protect
the privacy of third party individuals, which is exempt from disclosure under FOIA Exemptions
(bX6) and (b)(7)(c) and under the Privacy Act, 5 U.S.C. $ 552a. Specifically, these redactions
were made to remove identifying information for third parties, which includes, for example,
names, social security numbers, addresses, telephone numbers, dates of birth or death, medical
and tax record numbers, insurance information, employment information, and particularly unique
and sensitive personal and medical information that could be used to identify an individual. In a
few instances, the information redacted includes the identifying information of those assisting
with a criminal investigation, which, in addition to raising general privacy concems, also raises
issues of individual safety under Exemption (bX7X0. Finally. DEA numbers are not disclosed
under Exemption (b)(7)(e). The redactions made in these documents are accompanied by a
notation indicating which specific exemption applies to that redaction, which appears either
within or next to the redaction box. If there is confusion regarding which notations apply to

-

 Case 1:15-cv-00099-M-LDA Document 16-2 Filed 05/04/16 Page 3 of 3 PageID #: 823

which redactions, feel free to contact me. The following admitted exhibits are being released.
subject to the above redactions, in this production: Exhibits 20,44a,45,48a-1,49a-j,51.52.53,
54,56a,57a-c,66a,67a.69c,711102,72,73,75a,759,78, 80, 83a-e, 89a-b, 90a-b. 91b-d,94.
96a-b,97a-b,98. E. G, H, M and R.
As I explained in our earlier correspondence, there are certain exhibits in the possession
of the Defendant that are responsive to the above-referenced FOIA request that contain the
medical records of an individual who is named in the transcript of the trial of United States v.
Paul H. Volkman such that the individual could be associated with that specific exhibit. These
exhibits consist entirely of the individuals' medical records. In these instances, redactions
cannot protect the privacy interests of the individual, as they are already identifled in the trial
transcript. As such, these exhibits are being withheld tiom production pursuant to FOIA
Exemptions (bX7Xc) and (b)(6) as well as the Privacy Act. One such exhibit is a video
recording of a medical visit by a patient. Relatedly, several exhibits pertain to individuals who
have passed away, including detailed autopsy and toxicology reports, reports of post-mortem
exams, and photographs of the deceased. These specific items are also being withheld in their
entirety to protect the continuing privacy interests of the deceased as well as their relatives under
the same statutory requirements. Finally. at least one exhibit contains tax records of an
individual, which cannot be disclosed pursuant to Exemption (b)(7)(c). The exhibit list
accompanying the Complaint tiled in this matter, as well as the publicly-available trial transcript,
should provide any additional detail that is needed regarding the contents of these documents.
The following exhibits, which consist of 4,927 pages, are being withheld for the reasons
described: Exhibits l7b,44b-g,55. 56b. 5Sa-c. 59a-c. 60a-b, 61a-d,62a-c,63b.64a,64c-d,65ad, 66b-c, 66e-l 67b-d, 67 t, 67h,68d, 69a-b, 69d,7 5b.7 5e, 84a-c, 85. 86a-d, 87 a-c,88c, 89c,
9la, 9l g, 92a-b, 93, and 95.
Finally, as we have discussed. the docketed trial exhibit list in the criminal matter appears
to include certain exhibits that were admitted into evidence but that are not in the possession of
the Defendant. These exhibits appear to include Exhibits 75h,77.82, 89d, 99,100,103, 106,
107, I08, 109, 1IO, I-1, S, U, V, X, Y, AA, BB, CC, DD, EE-I -2, ANd FF-1-9.
As stated above, it is our understanding that this production removes the need for any
further litigation in this matter, making the withdrawal of the Complaint appropriate at this time.
If you have any questions or concerns regarding this matter. please feel free to contact me.

Sincerely,

ethany N. Wong
Assistant U.S. Attomey

Enclosures

 Case Document 16-3 Filed 05/04/16 Page 1 of 2 PageID 824

Exhibit 

Case 1:15-cv-00099-M-LDA Document 16-3 Filed 05/04/16 Page 2 of 2 PageID #: 825
U.S. Department of Justice
Peler F. Neronha
United States Attorney
District of Rhode Island
50 Kcnncdy Plazへ 8th Floor

Providcncc,Rhodc lsiand 02903

(401)709‐ 5000
FAX(401)709‐ 5001

Dccember 10,2015
Jessica Jewell, Esq.

Neal McNamara, Esq.
Nixon Peabody LLP
One Citizens Plaza, Suite 500

Providence, RI 02903-l 345

RE: Eil v. DEA: Civ. No. 15-cv:99
Dear Jessica and Neal:

As you know, the Defendant in this matter has produced numerous documents pursuant
to your client's February 1,2012 request for documents under the Freedom of Information Act
("FOIA"). Since the time of our last production, our office has become aware of an entry on the
docket in the matter of United States v. Paul H. Volkman that includes, fbr appeal purposes,
portions of exhibits that were admitted in the trial of Paul H. Volkman. This filing is currently
publicly available through the PACER system. Although these documents are likely already in
the possession of your client, in keeping with the Defendant's effort to provide all of the
requested documents that may properly be released under f'ederal law, enclosed is a copy of the
public filing and attached documents. These documents are identified by exhibit number, and
the PACER identification information fbr accessing these documents electronically is printed on
the documents. If you have any questions or concerns regarding this matter, please feel free to
contact me.

Sincerely,

:
Assistant U.S. Attorney

Enclosure

 Case Document 16-4 Filed 05/04/16 Page 1 of 6 PageID 826

Exhibit 

Case Document 16-4 Filed 05/04/16 Page 2 of 6 PageID 827

2003*-? 2005** Purchases
of Oxycodone by Paul Volkman, MD

250,000 -

200,000 -- - - - - - a - 1 - 1

  
 
 
 
 

150,000 -- - - -- 1

100,000 

50,000
Jul-Sep Oct Dec Jan-Mar Apr-Jun Jul-Sep Oct-Dec 0 Mar Jul Sep
2003 2004 2005

07/01/2003 - 12/31/2003 

 

01/01/2005 - 09/30/2005 1
. .l

 

 

D?vers1o Control E?Commeroe Sect/on Targeting

DEA-01688

DOSAGE UNITS

Case 1:15-cv-00099-M-LDA Document 16-4 Filed 05/04/16 Page 3 of 6 PageID #: 828

(b)(7)c, (b)(7)e

DEA-01692

(b)(7)c,
(b)(7)e

 Case 1:15-cv-00099-M-LDA Document 16-4 Filed 05/04/16 Page 4 of 6 PageID #: 829

(b)(7)e

DEA-01754

(b)(7)e

 Case 1:15-cv-00099-M-LDA Document 16-4 Filed 05/04/16 Page 5 of 6 PageID #: 830

(b)(7)c; (b)(6)

(b)(7)c; (b)(6)
(b)(7)c; (b)(6)

DEA-01826

 Case 1:15-cv-00099-M-LDA Document 16-4 Filed 05/04/16 Page 6 of 6 PageID #: 831

(b)(7)c; (b)(6)

(b)(7)c; (b)(6)

(b)(7)c; (b)(6)

DEA-01828