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Court Rejects Competitive Harm Argument in Pain Pill Database Release: FRINFORMSUM 7/18/2019

July 18, 2019

DEA’s Pain Pill Database Released

The Drug Enforcement Administration’s controlled substances database – otherwise known as the Automation of Reports and Consolidated Orders System, or ARCOS – is a comprehensive index of every pain pill sold in the United States. And now data collected between 2006 and 2012 is public and searchable – thanks in part to the efforts of the Washington Post and West Virginia’s Pulitzer Prize-winning HD Media. During the 7-year stretch of data obtained by court order, a period that saw 100,000 deaths from opioid overdoses, ARCOS tracked 380 million transactions, pinpointing where each of the country’s 76 billion oxycodone and hydrocodone pills were shipped.

The ARCOS database joins the Consumer Financial Protection Bureau’s Consumer Complaint Database (which then-acting director Mick Mulvaney tried to take offline) as among the most significant databases to be made public by the federal government.

The news organizations won access to the database in a ruling from the Sixth Circuit Court of Appeals as part of a mammoth multi-district litigation effort on behalf of 1,300 plaintiffs against manufacturers, distributors, and retailers of prescription drugs – whose transactions the DEA monitored through its ARCOS database. Over the course of the years-long litigation, the DEA and defendants argued that release of the database would threaten ongoing law enforcement efforts and that “producing the data would cause Defendants ‘substantial competitive harm’ by revealing ‘details regarding the scope and breadth of [each manufacturer’s and distributor’s] market share.’”

The Sixth Circuit disagreed, and U.S. Circuit Judge Eric Clay wrote for the majority that, “In ordering the DEA to disclose the ARCOS data to plaintiffs, the district court specifically held that the DEA did not meet its burden of showing ‘good cause’ not to comply with plaintiffs’ subpoena for the ARCOS data…The district court, comparing the opioid crisis to a plague, even stated that because it is possible to ‘discover how and where the virus grew’ by studying the ARCOS data, disclosure of the ARCOS data ‘is a reasonable step toward defeating the disease.’”

The Sixth Circuit ruled in this matter (which was not a FOIA case) four days before the Supreme Court broadened FOIA’s Exemption 4, which protects privileged or confidential trade secrets and commercial or financial information, in a 6-3 decision in the case of Food Marketing Institute v. Argus Leader Media. The case, which was the first the justices heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP).

USDA Squashes Climate Change Report

Top officials at the Agriculture Department killed the release of a 33-page draft report on how the department could help agriculture understand, adapt to, and minimize the impact of climate change. Politico obtained a copy of the September 14, 2017, report, entitled “USDA Climate Resilience Science Plan,” which was intended to update a 2010 plan released during the Obama administration and hoped to make climate change “an explicit and functional component” of all USDA work. Politico’s Helena Bottemiller Evich summarizes the 2017 plan as setting “ambitious goals for addressing a broad range of climate change effects. It proposes ‘moving agriculture and natural resource systems to carbon neutral and beyond’ by reducing greenhouse gas emissions through practices such as increasing carbon storage in crops and soils. It also notes the importance of studying the ‘human dimensions’ of climate change — such as how it affects production, trade, pricing, and producer and consumer behavior.”

Interior Department Official’s Cozy Relationship with Koch-Funded Think Tank

Documents released through a FOIA lawsuit are showing the close connection between a Department of Interior official – Assistant Secretary of the Interior for Insular Areas Doug Domenech – and his former employer, the Koch-funded Texas Public Policy Foundation. The documents, which come at the same time the Interior Department’s inspector general is investigating Domenech and five other senior officials for alleged federal ethics rules violations, focus on lawsuits TPPF filed against the Interior Department prior to the Trump administration (one suit involved a property dispute with the Bureau of Land Management and the other “centered on TPPF’s efforts to remove Endangered Species Act protections from an imperiled arachnid called the Bone Cave harvestman, a species that resides in Texas”).

The FOIA-released documents also show Domenech helping TPPF’s general counsel, Robert Henneke, skirt the department’s FOIA queue. In June 2017 Henneke filed a FOIA request for a list of lawsuits filed against the department since President Trump’s inauguration, and writes to Domenech for help “sorting out the apparent miscommunication” with the FOIA office, which seems to have labeled the request for records voluminous; Domenech quickly put Henneke in touch with DOI’s top lawyer, Daniel Jorjani.

“Atoms for Peace” Was Actually a “Threat to Peace

The latest addition to the award-winning publications series The Digital National Security Archive provides a trove of important historical documentation on global nuclear proliferation, including numerous new details and insights into the clandestine programs of India, China, Israel, and other would-be nuclear states. U.S. Nuclear Nonproliferation Policy, 1954-1968: From Atoms for Peace to the NPT, compiled and edited by National Security Archive nuclear expert William Burr, explores a crucial period in the nuclear era when many of the problems and challenges facing today’s nonproliferation regime began to emerge.

The new collection, totaling over 2,300 documents and 12,645 pages and distributed by the academic publisher ProQuest, fills significant research gaps for historians and offers a variety of document-based cases to help inform public debate as well as government decision-making about curbing the spread of nuclear weapons.

Cyber Vault – GPS Wars

This week’s National Security Archive Cyber Brief focuses on military considerations for global navigation satellite systems, such as the U.S.’s Global Positioning System (GPS), Europe’s Galileo, and Russia’s GLONASS. As Cyber fellow Michael Martelle notes, “Military operations are particularly reliant on GNSS for navigation systems on aircraft, vessels, vehicles, and unmanned vehicles including drones and missiles; synchronizing operations; and pinpointing targets. The Persian Gulf War has become the exemplification of how readily-available PNT information boosts military effectiveness. Beyond the use of GPS for navigation, network-centric warfare relies on precise timing information to enable secure real-time communications.” The posting includes 11 documents covering topics such as navigation warfare and the need for resiliency measures.

TBT Pick – Apollo 11 and Covert Lunar Programs

This week’s #TBT pick is chosen with the 50th anniversary of the Apollo 11 mission in mind. The 2014 posting from our intelligence project highlights the covert side of the United States’ lunar programs and focuses on three topics — early U.S. military plans, including the possibility of conducting nuclear tests in space, the use of the moon to reflect signals for military or intelligence purposes, and U.S. intelligence analyses and estimates of Soviet missions and their intentions to land a man on the lunar surface.

The posting includes:

  • Army and Air Force studies from 1959 – 1961 on the creation of a military lunar base, with possible uses as a surveillance platform (for targets on earth and space) and the Lunar Based Earth Bombardment System);
  • A study on the detonation of a nuclear device on or in the vicinity of the moon; and
  • the U.S. theft and return of a Soviet space capsule during an exhibition tour.

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