RI Journalist Wins Landmark FOIA Case Against DEA, Justice Department

RHODE ISLAND — All journalist Phil Eil ever wanted was to look at some court documents used to convict and send a doctor to prison for four life terms.

On Friday, Eil, the former editor of the defunct alt-weekly Providence Phoenix and an award-winning freelance journalist, finally will get that chance.

All it took was years of struggle with a convoluted Freedom of Information Act process, a court battle, lost time, money and intimidation by the DEA and the U.S. Attorney's Office in Ohio.

U.S. District Court Judge John McConnell on Friday ordered the DEA to release thousands of pages of documents that had been withheld in violation of the spirit of the FIOA and the very essence of a democratic and fair system of criminal justice.

In the ruling, McConnell said that Eil's requests to view trial materials used to convict Dr. Paul Volkman in 2011 were valid and legitimate despite the DEA's insistence that the release would compromise the privacy of numerous people, including trial witnesses.

Volkman was convicted of numerous counts of drug trafficking for prescribing drugs that caused the overdose of at least four patients after an eight-week trial.

Volkman happened to be the college roommate of Eil's father, and his interest in the case was the natural result of a journalist and writer seeing a story worth writing about. The Department of Justice referred to Volkman as the "largest dispenser of Oxycodone in the United States from 2003 to 2005," and Eil was intrigued not just by the personal connection, but also how a man who graduated from the University of Chicago to become a doctor could become a "prodigious drug dealer and medical mass-murderer," Eil said in an affidavit.

Simply as a crime story, it seemed significant, and Eil, an aspiring freelancer, got to work in 2009 after he learned about the indictment. He interviewed the doctor and others with the thought that it might someday result in a book.

In 2010, seven months before the trial, Eil was approached by a DEA agent who asked him "whether I was aware of the potential harm of speaking with potential witnesses and he mentioned the possibility I could be charged with witness tampering."

It's unclear whether the DEA and the authorities involved in the case were paranoid or just confused, but what followed was a harrowing experience for Eil, as it became clear that he was being perceived as a meddler, or worse, an agent working on behalf of Volkman.

It was surprising, since Eil was merely following his journalistic instincts and wanted to dig into a case and cover a trial like any other writer mining for a good story.

He was soon thrown out of court just days after the trial started when the U.S. Attorney's office realized he was there. He was subpoenaed and told he would be forced to testify in the trial. Feeling bullied, Eil complied with the court order but then was told to leave and barred from covering the trial, despite the government's chest-thumping press release issued after the conviction.

The ensuing FIOA battle began after Eil requested access to the documents post-conviction. Over the next several years, he was met with resistance and delays as well as copying and reproduction fees. He petitioned state officials, U.S. Sen. Sheldon Whitehouse, legal experts and others to help him.

Eventually, Eil got the support of the state chapter of the American Civil Liberties Union, who filed suit on his behalf last year.

McConnell ruled that the DEA's assertion that the documents contained personal information that should not be released was overly broad and general at the expense of the public's interest.

While there are exemptions to prevent the release of personal information in response to FIOA requests, McConnell said the court must balance those privacy interests against the public interest, and in this case, "the public has an interest in the court records from Dr. Volkman's trial because it allows the public to know 'what their government is up to' in carrying out its investigative and judicial functions.'"

Specifically, "disclosing the court exhibits allows the public to know what evidence the government had that it caused it to tout the indictment of Dr. Volkman as a 'warning to all medical professionals that if [they] illegally prescribe medications for personal gain [they] will be prosecuted to the fullest extent of the law,'" McConnell wrote.

Because Eil sought the "very information" used to convict, "the public interest in this information cannot be served in any other way than by releasing the court exhibits."

Details, such as who was prescribed what and how much, are of legitimate interest because "the medical record exhibits shed light on whether patients died because of Dr. Volkman's unlawful prescribing," McConnell wrote.

"This question was at the very heart of the trial because expert witnesses disagreed about the implications of these medical records," the judge wrote. "The government couldn't prove the crimes and the jury couldn't convict without those records."

The judge did rule that the government can redact some information not critical to the overall meaning of the case, such as Social Security numbers and phone numbers.

At the same time, the judge stressed the importance of enabling journalists to engage in the delicate balance at play whenever they cover legal matters, whether it's not reporting the names of children released in police reports or victims of sexual assault during a rape trial.

The decision is an acknowledgement the government can't fully protect privacy interest for all third parties because that very information already was released in transcripts and court documents easily accessible in the PACER court system by anyone.

In a statement, Eil said that “Courtroom transparency is a pillar of American democracy. And, from my very first requests for these exhibits after the Volkman trial ended in 2011, I had a simple goal in mind: make this historically significant trial as accessible to the public as possible. After all, Dr. Paul Volkman was prosecuted and convicted in our name, and with our tax dollars. We, the people, have a right to see who we are sending to prison for life, and the evidence that led the jury to that decision. I am overwhelmingly grateful to Judge McConnell for making this decision, and to the Rhode Island ACLU and my attorneys, Neal McNamara and Jessica Jewell from Nixon/Peabody, for their invaluable help with this fight for transparency. Today is a long-overdue victory for journalism, transparency, and government accountability.”

ACLU of Rhode Island Executive Director Steven Brown said: “Judge McConnell’s decision is a ringing endorsement of the public’s right to know and the importance of an open judicial process. We can only hope that federal agencies like the DEA will take more seriously their obligations under FOIA in the future.”

The decision is available here: http://riaclu.org/documents/Decision.pdf.

Background information about the case can be found here: http://www.riaclu.org/court-cases/case-details/eil-v.-dea

Related Documents

• Complaint
• Case Exhibits: Examples of Documents Mr. Eil has Received
• Motion for Summary Judgment
• Mr. Eil's Affidavit
• Response to DEA's Motion to Dismiss
• Judge's Decision