United States Court of Appeals 

For the First Circuit 

No. 16-2359 

PHILIP EIL, 

Plaintiff, Appellee, 

v. 

U.S. DRUG ENFORCEMENT ADMINISTRATION, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF RHODE ISLAND 

[Hon. John J. McConnell, Jr., U.S. District Judge] 

Before 

Howard, Chief Judge, 

Torruella and Lynch, Circuit Judges. 

Jaynie Lilley, Attorney, Appellate Staff, Civil Division, 

U.S. Department of Justice, with whom Chad A. Readler, Acting 

Assistant Attorney General, Stephen G. Dambruch, Acting United 

States Attorney, and Matthew M. Collette, Attorney, Appellate 

Staff, Civil Division, were on brief, for appellant. 

Jessica S. Jewell, with whom Neal J. McNamara and Nixon 

Peabody LLP were on brief, for appellee. 

December 22, 2017 
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LYNCH, Circuit Judge. In 2011, Dr. Paul Volkman was 

tried and convicted of a number of drug-related charges for 

illegally prescribing pain medication leading to the deaths of at 

least fourteen individuals. Philip Eil, a journalist writing a 

book on Dr. Volkman's case, attended portions of that public trial. 

In 2012, Eil submitted a Freedom of Information Act 

("FOIA") request for the exhibits introduced by the government at 

Dr. Volkman's criminal trial. The U.S. Drug Enforcement 

Administration ("DEA") provided thousands of pages of responsive 

documents, some of which were redacted, but withheld the medical 

records of Dr. Volkman's living former patients and the deathrelated records of his deceased former patients. 

Eil sued the DEA in the U.S. District Court for the 

District of Rhode Island to compel disclosure of the withheld 

records. On cross-motions for summary judgment, the court entered 

summary judgment for Eil and ordered the DEA to release the records 

with certain redactions. Eil v. U.S. Drug Enf't Admin., 209 F. 

Supp. 3d. 480, 489 (D.R.I. 2016). On appeal, the DEA argues that 

the district court erred in finding that FOIA Exemption 7(C) does 

not permit the government to withhold the medical and death-related 

records in their entirety. 

We conclude that the district court's balancing of the 

public interest in disclosure against the relevant privacy 

interests was flawed because the court applied the wrong standard. 
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Applying the correct standard, we reverse, for several reasons. 

First, the release of the requested records is unlikely to advance 

a valid public interest, given the amount of relevant information 

that Eil already has access to. And second, the substantial 

privacy interests implicated by the records would outweigh any 

public interest in disclosure. 

I. Background 

A. Facts 

In 2011, Dr. Volkman was tried and convicted of a number 

of drug-related charges for unlawfully disbursing pain medication 

resulting in the deaths of at least fourteen people. The U.S. 

District Court for the Southern District of Ohio sentenced Dr. 

Volkman to four consecutive life terms of imprisonment. At trial, 

the government presented seventy witnesses and introduced over 220 

exhibits, most of which consisted of medical records of Dr. 

Volkman's former patients. The government did not seek to have 

these records sealed and did not redact the names and other 

personally identifiable information of the former patients. Nor 

did the trial court, on its own, seal the records or require any 

redaction. The transcript from the criminal trial, which includes 

witness and expert testimony, as well as a list describing each 

trial exhibit, is available on the district court's Public Access 

to Court Electronic Records ("PACER") system, which is "an 

electronic public access service that allows users to obtain case 
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and docket information online," Public Access to Court Electronic 

Records, United States Courts, https://www.pacer.gov/ (last 

visited Oct. 13, 2017). Also publicly available are the parties' 

appellate briefing, the appellate decision, and portions of trial 

exhibits that were part of the appellate record, including portions 

of certain medical records. 

In 2012, Eil requested access to the criminal trial 

exhibits from the Clerk of the U.S. District Court for the Southern 

District of Ohio, the Clerk of the U.S. Court of Appeals for the 

Sixth Circuit, the U.S. Attorney's Office, and the district court 

judge who presided over Dr. Volkman's trial. All four denied his 

request. The U.S. Attorney's Office and the district court judge 

instructed Eil to request the materials he sought through FOIA. 

Eil filed a FOIA request on February 1, 2012 with the Executive 

Office of the United States Attorneys ("EOUSA"), seeking all 220 

exhibits introduced by the government at Dr. Volkman's trial. Nine 

months later, the EOUSA transferred the request to the DEA. 

Since receiving Eil's request, the DEA has released over 

19,500 pages of responsive records, some of which have been 

redacted to exclude identifying information and personally 

sensitive information. At issue on appeal is the DEA's decision 

to withhold two types of records in their entirety: (1) medical 

records of approximately twenty-seven living former patients who 
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were named in the trial transcript, and (2) records relating to 

the circumstances of death of deceased former patients. 

The withheld medical records, large portions of which 

were created by other medical providers before the patients sought 

treatment from Dr. Volkman, contain sensitive medical history and 

other information, including about mental illnesses, learning 

disabilities, birth defects, illicit drug use, pregnancy 

terminations, domestic-violence history, impairment of bodily 

functions, sexual activity, and the patients' family members. The 

withheld death-related records include autopsy reports, postmortem 

reports, toxicology reports, and photographs of the deceased 

patients. The DEA withheld the medical records to protect the 

privacy interests of the living individuals to whom the records 

pertain, and it withheld the death-related records to protect the 

privacy interests of both the deceased and their relatives.1 

B. District Court Proceedings 

Dissatisfied with the DEA's disclosures, Eil filed suit 

against the DEA in the U.S. District Court for the District of 

Rhode Island to obtain access to the withheld records. After 

considering the parties' cross-motions for summary judgment, the 

district court entered summary judgment for Eil and ordered the 

 1 The DEA did, however, release the medical records of the 

deceased patients as well as the medical records of living patients 

who cannot be readily identified from the trial transcript. 
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government to disclose all of the exhibits admitted into evidence 

during Dr. Volkman's trial, including the withheld medical and 

death-related records. Eil, 209 F. Supp. 3d at 489. However, the 

district court permitted the DEA to redact from the exhibits 

identifying information of criminal investigators, DEA numbers, 

trial exhibit numbers, and "highly personal information of no 

consequence to the trial or conviction of Dr. Volkman," including 

the "names, social security numbers, addresses, telephone numbers, 

dates of birth, medical and tax record numbers, and insurance 

numbers" of former patients. Id. The DEA protests on appeal that 

these redactions are inadequate to protect the privacy interests 

of those involved and that records of particular patients may still 

be readily identified.

II. Analysis 

A district court's grant of summary judgment in a FOIA 

case is subject to de novo review. Stalcup v. CIA, 768 F.3d 65, 

69 (1st Cir. 2014) (citing Moffat v. U.S. Dep't of Justice, 716 

F.3d 244, 250 (1st Cir. 2013)). 

A. FOIA Exemption 7(C) Balancing Test 

As the Supreme Court has noted, "[t]he statute known as 

the FOIA is actually a part of the Administrative Procedure Act 

(APA)." U.S. Dep’t of Justice v. Reporters Comm. for Freedom of 

the Press, 489 U.S. 749, 754 (1989). In particular, the APA 

requires "each agency, upon any request for records which . . . 
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reasonably describes such records" to "make the records promptly 

available to any person." 5 U.S.C. § 552(a)(3)(A). FOIA thus 

applies only to "agenc[ies]," which the APA expressly defines to 

exclude "the courts of the United States." Id. § 551(1)(B); see 

also Union Leader Corp. v. U.S. Dep't of Homeland Sec., 749 F.3d 

45, 56 n.8 (1st Cir. 2014) (noting that FOIA "applies only to 

federal executive branch agencies" (quoting Philip Morris, Inc. v. 

Harshbarger, 122 F.3d 58, 83 (1st Cir. 1997))). 

FOIA includes a number of exemptions that allow agencies 

to withhold certain documents from release. The relevant exemption 

here is Exemption 7(C), which enables the government to withhold 

information "compiled for law enforcement purposes" to the extent 

that the production of such information "could reasonably be 

expected to constitute an unwarranted invasion of personal 

privacy."2 5 U.S.C. § 552(b)(7)(C). Because FOIA's purpose is 

to "expose the operations of federal agencies 'to the light of 

public scrutiny,'" Moffat, 716 F.3d at 250 (quoting Dep't of the 

Air Force v. Rose, 425 U.S. 352, 361 (1976)), its exemptions are 

 2 Another FOIA exemption, Exemption 6, allows the 

government to withhold "personnel and medical files and similar 

files the disclosure of which would constitute a clearly 

unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).

We limit our analysis to Exemption 7(C) because "all information 

that would fall within the scope of Exemption 6 would also be 

immune from disclosure under Exemption 7(C)." Moffatt, 716 F.3d 

at 250 n.4 (quoting Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 

1173 (D.C. Cir. 2011)). 
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"construed narrowly, with all doubts resolved in favor of 

disclosure," id. (citing Carpenter v. U.S. Dep't of Justice, 470 

F.3d 434, 438 (1st Cir. 2006)). 

To determine whether the government may rely on 

Exemption 7(C) to withhold documents, we "balance the privacy 

interest at stake in revealing the materials with the public 

interest in their release." Carpenter, 470 F.3d at 438 (citing 

Reporters Comm., 489 U.S. at 762; Maynard v. CIA, 986 F.2d 547, 

566 (1st Cir. 1993)). Where, as here, the subject of the FOIA 

request involves "private citizen[s] and . . . the information is 

in the Government's control as a compilation," the privacy interest 

is at its "apex" while the public interest in disclosure is at its 

"nadir." Reporters Comm., 489 U.S. at 780. And when a legitimate 

privacy interest is implicated, the party seeking disclosure must 

show (1) that there is a "significant" public interest in 

disclosure, and (2) that the requested information is "likely to 

advance that interest." Nat'l Archives & Records Admin. v. Favish, 

541 U.S. 157, 172 (2004). 

In balancing the public interest in disclosure with the 

privacy interests implicated by the requested records, the 

district court applied the wrong standard. In particular, it 

stated that "[o]nly the most compelling showing can justify posttrial restriction on disclosure of testimony or documents actually 

introduced at trial," Eil, 209 F. Supp. 3d at 487 (quoting Poliquin 
- 9 - 

v. Garden Way, Inc., 989 F.2d 527, 533 (1st Cir. 1993)), and that 

"it falls to the courts to weigh the presumptively paramount right 

of the public to know against the competing private interests at 

stake," id. at 488 (quoting FTC v. Standard Fin. Mgmt. Corp., 830 

F.2d 404, 410 (1st Cir. 1987)). To support its application of 

these standards, the district court cited cases that concern the 

public's right to access judicial records but not FOIA cases. See 

Poliquin, 989 F.2d at 532-33 (analyzing district court's 

protective order restricting disclosure of testimony and documents 

introduced at trial); Standard Fin., 830 F.2d at 410 (dealing with 

a district court's order unsealing defendants' financial records). 

Public access to judicial records is a "common law 

presumption" rooted in a desire to "allow[] the citizenry to 

'monitor the functioning of our courts, thereby insuring quality, 

honesty and respect for our legal system,'" Standard Fin., 830 

F.2d at 410 (quoting In the Matter of Cont'l Illinois Sec. Litig., 

732 F.2d 1302, 1308 (7th Cir. 1984)). However, the only public 

interests recognized by FOIA are those "guided by FOIA's basic 

purpose, which is 'to open agency action to the light of public 

scrutiny,'" Moffat, 716 F.3d at 251 (emphasis added) (quoting 

Reporters Comm., 489 U.S. at 772), and the judiciary is not an 

agency, see 5 U.S.C. § 551(1)(B). Moreover, the question of 

whether Exemption 7(C) allows an agency to withhold documents is 

a statutory one, and the Supreme Court has expressly recognized 
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that the privacy interests protected by FOIA "go[] beyond the 

common law and the Constitution." Favish, 541 U.S. at 170 (citing 

Reporters Comm., 489 U.S. at 762 n.13). It was thus inappropriate 

for the district court, in conducting the requisite balancing of 

interests, to invoke a disclosure-favoring standard based on a 

common law presumption divorced from the FOIA statutory framework. 

FOIA does not require agencies seeking to withhold 

documents under Exemption 7(C) to provide a "most compelling" 

reason for doing so. Nor does the statute recognize a 

"presumptively paramount" public right to know. Rather, it 

authorizes the DEA to withhold documents as long as their release 

"could reasonably be expected to constitute an unwarranted 

invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). Neither 

party disputes that there were legitimate privacy interests at 

stake. The burden was thus on Eil, as the FOIA requester, to show 

that disclosure would be likely to further a "significant" public 

interest. Favish, 541 U.S. at 172. 

B. Public Interest in Disclosure 

The district court also erred in evaluating the public 

interest in the disclosure of the requested documents. The court 

stated that "the public has a strong interest in staying apprised 

of the government’s investigation and the judicial proceedings 

that led to the conviction of Dr. Volkman." Eil, 209 F. Supp. 3d 

at 487. To the extent that this statement conflates the public 
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interest in disclosure under FOIA with a public interest in 

accessing judicial records, it is erroneous because FOIA does not 

recognize public interests unrelated to agency functions. See 

Moffat, 716 F.3d at 251. 

The district court erred by sua sponte raising a concern 

regarding the functioning of the courts in disregard of the fact 

that Eil made no such claim. Eil has never asserted that the 

relevant public interest is an interest in monitoring the 

judiciary. Rather, his focus has always been on the DEA. 

Specifically, he argued to the district court, and continues to 

argue on appeal, that the public has a significant interest in 

finding out how the DEA investigates -- and the federal government 

prosecutes -- doctors who illegally prescribe pain medication. He 

also claims that because it is unclear what constitutes an 

"illegitimate" purpose for prescribing pain medication under the 

Controlled Substances Act ("CSA"), the public can only understand 

how the DEA carries out its statutory functions by examining how 

it applies the provisions of the CSA in a real case. According to 

Eil, the withheld records contain the very information that the 

public needs to properly understand the prosecution and conviction 

of Dr. Volkman, and the potential prosecution of other doctors, 

because the jury convicted Dr. Volkman on some counts but not 

others. Citing Union Leader, 749 F.3d at 156, Eil also argues 

that the DEA acknowledged the public interest in "knowing what it 
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is up to" by issuing a press release and touting the significance 

of the case. 

On the facts of this case, where there has been 

substantial disclosure of pertinent information, Eil's arguments 

are unconvincing. To evaluate whether disclosure is "likely" to 

further a "significant" public interest, Favish, 541 U.S. at 172, 

a court must consider whether providing the requested materials 

"would yield any new information," Stalcup, 768 F.3d at 74 

(emphasis added). Voluminous information about Dr. Volkman's 

trial is already publicly available on PACER and in the appellate 

record. In addition, the government has released inspection 

reports, inventory and dispensing logs, correspondence between Dr. 

Volkman and the government, and video of a physical search of Dr. 

Volkman’s clinic. There is also substantial information available 

online about the DEA's policies regarding the legitimate medical 

purposes for issuing prescriptions. See, e.g., Drug Enforcement 

Admin., Practitioner's Manual: An Informational Outline of the 

Controlled Substances Act 18-22 (2006) (detailing valid 

prescription requirements for physicians), 

https://www.deadiversion.usdoj.gov/pubs/manuals/pract/pract_manu

al012508.pdf. Perhaps most importantly, the government has 

already released the medical records of deceased patients and of 
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living patients who cannot be readily identified from the trial 

transcript.3

Given the wealth of information that he already has 

access to, Eil fails to satisfy his burden of showing that the 

withheld medical and death-related records -- which relate only to 

the subset of patients that the government believes can be 

identified using the trial testimony -- would shed any additional 

light on either the DEA's investigatory conduct in Dr. Volkman's 

case or the DEA's execution of its statutory mandate more 

generally. 

C. Privacy Interests 

1. Health and Death-Related Records 

It is uncontested that Dr. Volkman's living former 

patients have significant privacy interests in their medical 

records, which we have described as "highly personal" and "intimate 

in nature." Kurzon v. Dep't of Health & Human Servs., 649 F.2d 

65, 68 (1st Cir. 1981). And it is undisputed that the prior 

disclosure of these records as trial exhibits does not diminish 

the privacy interests of the former patients in the records.4 As 

 3 The dissent appears to ignore these already-disclosed 

medical records when discussing the incremental informational 

value of the withheld records. 

4 Trial exhibits are generally either returned to the 

parties or destroyed after trial. In the Southern District of 

Ohio, where Dr. Volkman was tried, the applicable local rule states 

that "[u]nless otherwise ordered by the Court, counsel shall 
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the district court explicitly acknowledged, and Eil concedes, 

"[p]rior revelations of exempt information do not destroy an 

individual's privacy interest," and "[t]he privacy interests the 

government seeks to uphold remain as strong now as they were 

before." Eil, 209 F. Supp. 3d at 487-88 (quoting Moffat, 716 F.3d 

at 251); see also Stalcup, 768 F.3d at 73 (noting that individuals 

have an "inherent privacy interest irrespective of any government 

intervention"); Carpenter, 470 F.3d at 440 ("That information has 

been released to the public domain, especially where the release 

is limited, has little bearing on the privacy interest." (citing 

Reporters Comm., 489 U.S. at 763-64)). 

However, both Eil and the district court failed to 

acknowledge the distinct privacy interests of the relatives of Dr. 

Volkman's deceased patients in the deceased patients' deathrelated records.5 In Favish, the Supreme Court held that family 

members have significant privacy interests in their close 

relatives' "death-scene images" and the "graphic details" 

 

retrieve exhibits . . . filed in an action or offered into evidence 

within six months after final termination of the action. The Clerk 

shall dispose of all such material at the expiration of the 

retrieval period." S.D. Ohio Civ. R. 79.2; see also S.D. Ohio 

Crim. R. 1.2, 1.3 (indicating that S.D. Ohio Civ. R. 79.2 applies 

to both civil and criminal actions). 

5 Contrary to Eil's assertions, the DEA did not waive its 

argument that the deceased patients' family members have distinct 

privacy interests in the death-related records. The DEA 

highlighted these privacy interests in its motion for summary 

judgment and Eil argued that there is "no privacy interest in 

autopsy reports" in his motion for summary judgment. 
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surrounding their relatives' deaths. 541 U.S. at 170-71. The 

Court also implicitly recognized that family members have privacy 

interests in their deceased relatives' autopsy records. See id. 

at 168-70 (noting that the common law recognizes the privacy 

interests of a decedent's immediate relatives in the decedent's 

autopsy records, and that FOIA provides broader protection for 

privacy interests than the common law (citing Reid v. Pierce 

County, 961 P.2d 333, 342 (Wash. 1998))). Given the Supreme 

Court's recognition of these interests, the district court erred 

when it failed to address them and instead focused exclusively on 

the privacy interests of the living former patients whose medical 

records are the subject of Eil's request. See Eil, 209 F. Supp. 

3d at 487-88. 

2. The District Court's Redaction Order 

The district court attempted to protect the privacy 

interests implicated by Eil's request by allowing the government 

to redact exhibit numbers and personally identifiable information 

from the requested records. See id. at 489. The court 

acknowledged that these redactions could not completely safeguard 

the privacy interests of the former patients because personally 

identifiable information can be found in the criminal trial 

transcript and exhibits in the appellate record, all of which are 

publicly available. See id. at 488. Nonetheless, the district 

court stated that the redactions would "minimize[] the privacy 
- 16 - 

interests implicated" because they would prevent the identities of 

the former patients from being "easily discerned." Id. at 489. 

The permitted redactions do not adequately protect the 

privacy interests implicated by Eil's request. Because the trial 

transcript contains the names of Dr. Volkman's former patients 

along with significant information about their medical histories 

and their interactions with Dr. Volkman, any interested party could 

readily identify the individuals associated with the records by 

connecting the trial testimony to the exhibits. And there may be 

a significant number of parties interested in making these 

connections, given that Eil is writing a book about the trial and 

presumably filed his FOIA request because he intends to include 

detailed information about the former patients in that book. 

As the dissent acknowledges, Eil represented to the 

district court that the case should be decided on cross-motions 

for summary judgment, indicating Eil's own recognition that there 

were no material facts in dispute. Nonetheless, the dissent makes 

the argument that Eil declined to make by claiming that there is 

a dispute of material fact regarding whether the district court's 

redaction order "would create a sufficient obstacle to putting 

names to the medical records Eil seeks." 

Eil notes in his brief that the district court's 

redactions were meant to "prevent the public from easily matching 

up the records to names." But he provides no relevant support for 
- 17 - 

the assertion that the redactions in fact accomplished this goal. 

The dissent highlights two points that Eil made at oral argument: 

(1) there were many exhibits in the Volkman trial but little trial 

testimony about those records, and (2) the trial exhibits include 

medical records of patients who did not testify. Both of these 

points are red herrings. The DEA has already made available 

medical records associated with patients who it believes cannot be 

readily identified from the trial transcript, along with the 

medical records of deceased patients. The medical records that 

have been withheld are only the ones that can be associated with 

the trial testimony. 

Not only did Eil fail to contest the government's 

argument that any interested party can use information from the 

trial transcript -- including patient names, patient medical 

histories, and information about patient interactions with Dr. 

Volkman -- to identify the individuals associated with the medical 

records at issue, but he also failed to put into evidence any 

portion of the trial transcript in support of any possible 

objection to the government's contention. And it was his burden 

to do so. See Favish, 541 U.S. at 172. 

III. Conclusion 

For the reasons stated above, we reverse the judgment of 

the district court and hold that FOIA Exemption 7(C) permits the 

DEA to withhold the medical and death-related records at issue in 
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their entirety. We direct the district court to enter summary 

judgment in the DEA's favor. 

-Dissenting Opinion Follows- 
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TORRUELLA, Circuit Judge (Dissenting). I share in the 

panel's conclusion that the district court applied the incorrect 

standard, and that it improperly awarded summary judgment to Eil. 

I respectfully dissent, however, from its conclusion that summary 

judgment in favor of the DEA is proper. The parties differ as to 

whether the redactions that the district court ordered would create 

a sufficient obstacle to putting names to the medical records Eil 

seeks. That amounts to a dispute of material fact rendering 

summary judgment inappropriate. 

I am concerned that the panel majority has accepted too 

readily the government's assertion that an interested party, with 

the trial transcript in hand, could put names to the redacted 

medical and death-related records "with only a little effort." 

That, of course, sounds reasonable, and is certainly plausible. 

But it is also a factual question inappropriate for us to resolve 

at this procedural juncture.6 This, after all, is an appeal from 

the district court's ruling on cross-motions for summary judgment. 

And, summary judgment is improper when there exists a genuine 

dispute of material fact. Fed. R. Civ. P. 56. 

Eil contended in his brief that the redaction order would 

"prevent the public from easily matching up the records to names." 

 6 Additionally, as we have neither the trial transcript 

nor the redacted records before us, it is also factually impossible 

for us to answer this question with any certainty. 
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At oral argument, he further explained that the sheer volume of 

the records that the government entered as exhibits in the Volkman 

trial, combined with the relative paucity of trial testimony about 

those records, would make connecting the redacted records to 

specific names a difficult task. Eil also highlighted that the 

exhibits in question also included the medical records of patients 

who did not testify. As a result, putting names to records would 

require more than simply matching witnesses' names to documents in 

a one-to-one fashion. 

It is true that Eil -- who only asked us to affirm the 

district court's grant of summary judgment in his favor -- did not 

indicate that this factual dispute would make summary judgment 

improper. Rather, the parties agreed that it was appropriate for 

the district court to dispose of this case on summary judgment, 

and then filed cross-motions for summary judgment. But, that 

should not bind our hands here. "Cross-motions for summary judgment 

do not alter the basic Rule 56 standard, but rather simply require 

us to determine whether either of the parties deserves judgment as 

a matter of law on facts that are not disputed." Adria Int'l Grp. 

v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001); see also 

United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 

1978) ("[T]he filing of cross-motions for summary judgment, both 

parties asserting that there are no uncontested issues of material 

fact, does not vitiate the court's responsibility to determine 
- 21 - 

whether disputed issues of material fact are present."); Newark 

Morning Ledger Co. v. United States, 539 F.2d 929, 932 (3d Cir. 

1976) ("[T]he general rule is that cross-motions for summary 

judgment do not constitute an agreement that if one is rejected 

the other is warranted."). Thus, the parties' agreement below 

should not preclude us from holding that summary judgment is 

unwarranted for both Eil and the DEA. 

And to be clear, I see this fact -- the difficulty with 

which one could identify the records' subjects -- as highly 

material. In my view, it has the potential to tip Exemption 7(C)'s 

balancing test in either direction. For example, in the 

theoretically possible event that identifying the records' 

subjects turned out to be exceedingly difficult -- perhaps even 

bordering on impossible -- that would substantially minimize the 

privacy interests here. Conversely, if -- as the government 

contends, and the panel majority accepts -- doing so turned out to 

be relatively straightforward, the privacy interest would indeed 

be at its "apex." See U.S. Dep't of Justice v. Reporters Comm. 

for Freedom of the Press, 489 U.S. 749, 780 (1989). Depending on 

the extent to which disclosing the redacted records implicates the 

privacy interest of their subjects, that interest could 

potentially come up short against the public interest in disclosing 

those records. 
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This is particularly so because the public interest here 

is perhaps not quite as insubstantial as the panel majority 

suggests. The majority correctly recognizes that the operative 

inquiry is not the public interest in the Volkman trial generally. 

Rather, it is the marginal benefit to that interest that would 

result from disclosing these records. See Nat'l Archives & Records 

Admin. v. Favish, 541 U.S. 157, 172 (2004) (information sought 

must be likely to advance a significant public interest); Stalcup 

v. CIA, 768 F.3d 65, 74 (1st Cir. 2014) (disclosure unwarranted 

when it would not "yield any new information"). 

The panel majority is also right that extensive 

information about the Volkman trial is already available. But, it 

fails to satisfactorily address Eil's arguments as to why 

disclosure of the records at issue here would further advance the 

public interest in "shed[ding] light on [the DEA's] performance of 

its statutory duties." Carpenter v. U.S. Dep't of Justice, 470 

F.3d 434, 440 (1st Cir. 2006). Eil emphasizes that the Volkman 

trial concerned the application of the Controlled Substances Act 

("CSA"), see 21 U.S.C. § 841, to Dr. Volkman's activities in his 

capacity as a doctor. It is crucial, he stresses, to look to 

actual prosecutions to understand where the DEA, as Eil puts it, 

"draws the line between being a doctor and being a drug dealer," 

because the CSA does not indicate where that boundary lies. Eil 

further submits that the DEA selected the subset of documents it 
- 23 - 

included in trial exhibits from a much larger set of documents. 

Therefore, those exhibits are particularly probative of the DEA's 

views as to the distinction between legitimate and illegitimate 

prescription-writing. 

In light of these observations, it appears highly likely 

that the exhibits themselves would yield at least some new 

information, see Stalcup, 768 F.3d at 74, not contained in the 

publicly available trial transcript and exhibit list from the 

Volkman trial, the parties' briefs in the ensuing appeals, or the 

records that the DEA has provided to Eil.7 And, in illustrating 

what the DEA found probative of Volkman's having engaged in 

criminal behavior, those exhibits necessarily pertain to the 

public interest in elucidating the DEA's discharge of its statutory 

duties. To be sure, the DEA's publically available documents 

outlining its policies regarding prescription-writing are 

certainly also informative in this respect. However, FOIA's 

purpose is to allow citizens to know "what their government is up 

to," not merely what their government says it is up to. Union 

Leader Corp., v. U.S. Dep't of Homeland Sec., 749 F.3d 45, 50 (1st 

 7 The majority paints the dissent as ignoring the records 

that the DEA has disclosed. To be sure, the DEA has assured us 

that it has disclosed those records whose subjects are not readily 

identifiable, and retained only those records whose subjects risk 

identification. The disclosure of the former category of records, 

however, has little, if any, bearing on the disputed factual 

question of how easily one could identify the subjects of the 

undisclosed records. 
- 24 - 

Cir. 2014) (quoting Reporters Comm., 489 U.S. at 773). The notion 

that an agency's representations about its activities and policies 

can supplant the disclosure of documents is rather incongruous 

with FOIA's purpose. 

Now, all of this is not to say that disclosure of the 

records in question would necessarily advance the public interest 

so far as to overcome the significant privacy interests at stake. 

I wish only to underscore that the public interest in disclosure 

here is greater than a de minimis interest. 

Ultimately though, it is futile to attempt to balance 

these interests with such a large piece of the puzzle missing. I 

cannot join in the panel majority's assessment that "[o]n the facts 

of this case, where there has been substantial disclosure of 

pertinent information, Eil's arguments are unconvincing," when 

this case's precise facts remain uncertain. I disagree that we 

should order the district court to enter summary judgment in favor 

of the DEA when we cannot be sure of the extent to which the 

documents Eil seeks implicate their subjects' privacy. I therefore 

respectfully dissent.