Hansten v. DEA, No. 21-2043, 2022 WL 2904151 (D.D.C. July 22, 2022) (Contreras, J.)

Hansten v. DEA, No. 21-2043, 2022 WL 2904151 (D.D.C. July 22, 2022) (Contreras, J.)

Re:  Request for drug purchase order forms (“Form 222s”) that DEA issued on single day in 2011

Disposition:  Granting plaintiff’s motion for summary judgment; denying defendant’s motion for summary judgment without prejudice

• Exemption 7(E):  The court relates that “DEA . . . claim[s] that any responsive records would be categorically exempt under FOIA Exemption 7(E).”  First, the court finds that “DEA has cleared the preliminary hurdle imposed by Exemption 7(E) by establishing that the requested Form 222 information was compiled for law enforcement purposes.”  The court notes that “DEA’s principal function is law enforcement.”  “Thus, the Court views the DEA’s representation that Form 222s are compiled for law enforcement purposes in a deferential light.”  “The DEA’s mission is ‘to regulate the distribution of controlled substances for lawful uses.’”  “According to the DEA, Form 222s serve this mission because [they are] ‘collected in furtherance of DEA's diversion control enforcement.’”  The court finds that “[g]iven Form 222’s function, the ‘nexus’ between it and the DEA’s mission is plainly ‘rational.’”  Second, the court finds that “DEA cannot meet Exemption 7(E)’s second requirement.”  “While the DEA could use Form 222 in a diversion investigation, the entries on this form say nothing about how the DEA would ‘go about investigating’ a diversion case.”  “The DEA does not dispute that Form 222s are required for every entity seeking to purchase and transfer Schedule I or II drugs.”  “Nor does it contest [plaintiff’s] claim that ‘[t]he majority, if not all of the DEA registrants issued DEA Forms 222 on a specific date are legitimate pharmacies, doctors, and state functions.’”  “Given this context, the DEA has not explained how anything in these standard purchase forms would reveal any ‘technique’ or ‘procedure’ regarding the DEA’s diversion enforcement.”  “In short, Form 222 reveals nothing about the agency's law enforcement techniques and procedures, and the type of information collected, as well as the fact that it is collected, is already generally known.”
   
• ​​​​​​​Litigation Considerations, Summary Judgment:  The court holds that “[w]ithin 60 days, the DEA must conduct a search for responsive records and produce to [plaintiff] any non-exempt portions of such records.”  “To the extent that the DEA withholds any responsive information pursuant to FOIA, it shall renew its motion for summary judgment 30 days thereafter.”  “To move the remaining issues forward in this case, the DEA must clarify a few points.”  “First, the DEA has not explained precisely what records it claims are exempt from disclosure.”  “The DEA has treated [plaintiff’s] request as a ‘request for DEA Form 222s.’”  “But [plaintiff’s] request is broader: he seeks ‘[r]ecords sufficient to show the names, addresses, and business activities of all parties that were issued DEA Form 222s.’”  “Accordingly, the DEA must conduct a search for all responsive records.”  “Second, in the event the DEA renews its motion for summary judgment, it must clarify which Form 222 it possesses.”  “When the DEA refers to Form 222 in its briefing, is it referring to the pre-printed form that the DEA sends to registrants?”  “Or is it referring to the completed form that bears the pre-printed entries in addition to the entries that the parties fill out after a drug transaction?”  “Or does the DEA possess both kinds of Form 222s?”  “Moreover, does the DEA possess an electronic database of Form 222 information submitted electronically that can be searched and from which selective information can be extracted?”  “All of these distinctions are important because the type of content on a Form 222 will inform the Court’s analysis of what, if any, exemptions apply and to which portions they might apply.”