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US appeals court says judge went too far on drug data order

By DAN SEWELLJune 20, 2019 GMT

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FILE - In this Aug. 17, 2018 file photo, family and friends who lost loved ones to opioid overdoses protest outside the headquarters of Purdue Pharma, maker of the maker of painkiller OxyContin, in Stamford, Conn. The World Health Organization notified U.S. lawmakers Wednesday, June 19, 2019, that it will discontinue two publications on opioid painkiller prescribing, in response to allegations that the pharmaceutical industry influenced the reports. The pledge to remove the guidelines - viewed around the world as best practices in public health - comes a month after U.S. Reps. Katherine Clark and Hal Rogers accused the WHO of being influenced by Purdue. The lawmakers’ report claimed the guidelines were crafted by organizations with financial ties to the company, who worked to downplay risks addiction and overstate the benefits of opioids. Purdue has denied the allegations. (AP Photo/Jessica Hill, File)

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CINCINNATI (AP) — A federal appeals court ruled Thursday that a judge went too far in blocking release of federal data about how prescription opioids were distributed.

A 6th U.S. Circuit Court of Appeals three-judge panel on Thursday vacated an order by Cleveland-based U.S. District Judge Dan Polster to keep the Drug Enforcement Administration database and other case information sealed from the public. The panel wrote that Polster should follow proper legal standards in deciding what information could be withheld and why it would be harmful to release it.

“However, the district court shall not enter a blanket wholesale ban on disclosure,” wrote Judge Eric L. Clay. He was joined by Judge Richard Allen Griffin. Judge Ralph B. Guy Jr. agreed with their ruling against sealing court filings, but not on the order protecting the drug database.

The judges heard arguments May 2 in Cincinnati from news media attorneys who said the information was important to understanding a national public health crisis.

“I’m very encouraged that the 6th Circuit is protecting ... the public’s interest in knowing about how this opioid epidemic came to be,” attorney Karen Lefton, representing The Washington Post, said Thursday.

A U.S. government attorney had countered in court that making the data public could compromise ongoing DEA investigations. The Justice Department declined comment Thursday.

Polster is overseeing more than 1,500 lawsuits filed by municipalities against companies that make and distribute prescription painkillers. Guy wrote that the judge is trying to get the sides to negotiate a settlement and he didn’t see the harm in leaving Polster’s protective order in place for now.

Clay’s opinion stated that the judge might have been trying “to use the threat of publicly disclosing the data (in a public trial) as a bargaining chip in settlement discussions.” But he wrote that would be an improper reason for his protective order.

HD Media, which owns newspapers in West Virginia including the Charleston Gazette-Mail, also argued in court for the database’s release.

Some of the data was made public in 2016 when the Gazette-Mail obtained it from the West Virginia attorney general’s office. The Gazette-Mail used that information in a Pulitzer Prize-winning investigation that found that 780 million pills flowed into the state of 1.8 million people from 2007-2012, a period when more than 1,700 West Virginians died from opioid overdoses.

Opioids are a category of drugs including prescription pills, such as OxyContin, as well as illegal ones, such as heroin and illicitly-made fentanyl.

The Associated Press has also filed public records requests seeking the information from governments that have received it. It’s among three dozen news and free press advocacy organizations that have filed legal papers supporting the information’s release.

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This story has been updated to correct that West Virginia data came from state attorney general’s office, not judge.