The FOIA Files

A Celebration of the Freedom of Information

November 29, 2012: EOUSA Transfers Request to DEA

On November 29, 2012 – almost exactly nine months after the Executive Office for U.S. Attorney’s acknowledged receiving my FOIA request on February 28, 2012 – the EOUSA FOIA office informed me “Your request for records under the Freedom of Information Act/Privacy Act has been processed.” Nine months – that’s not so bad, right?

Wrong.

EOUSA FOIA was not actually releasing any materials with this letter, merely informing me that their office was unable to process my request. The reason:

“Pages originated with another government component. These records were found in the U.S. Attorney’s Office files and may or may not be responsive to your request. [Bold type theirs] These records will be sent to the Drug Enforcement Administration. By making a FOIA request, you agreed to pay search and/or copying costs. A $154.00 review fee is being assessed for these records.  We received a check from you in the amount of $1000. We are senging the check back to you and asking that you send a check in the amount of $154.00. The Drug Enforcement Administration will respond directly to you regarding your request. Please send a check or money order for $154.00 payable to the Treasury of the United States. Payment should be mailed to the Freedom of Information Act/Privacy Act Staff, 600 E Street, N.W., Room 7300, Washington D.C. 20530. If payment is not received, any future requests for records will be rejected until payment is received.

So, it took nine months and $154 for the EOUSA FOIA office to determine they were not capable of, and/or legally responsible for, fulfilling my request and that my request was better suited for the Drug Enforcement Administration, where the documents in question “originated.” (Note: I had chosen EOUSA as the place for my request after being instructed to do so by a staff member of the Ohio US Attorney’s office.)

But what about the part of the letter that reads, “We received a check from you in the amount of $1000.” This is true. I had sent them a check for $1,000, as I had been (erroneously) instructed to do over the phone by an EOUSA FOIA employee.

In between the EOUSA’s February 28, 2012 request-receipt-acknowledgement letter and this November 29, 2012 request-transfer-and-fee-notification letter, I had made a number of phone calls to people at the EOUSA FOIA inquiring about the status of my request. (At this point, my request was relatively young, and I believed it would be handled fairly quickly, I would get what I needed, and proceed with a book proposal.)

“It’s four huge boxes; I only got through one,” an EOUSA FOIA employee working on my request told me during one phone call in September of 2012, seven months after the agency acknowledged receiving my request. “I just got the request last month. It’s going to take me probably until the beginning of October.”

During a phone call in November of 2012, this same employee told me – and I’m quoting here from notes I typed during our phone call – “The records are here in my office they look to be fine…There isn’t anything to be referred to DEA.” In this same call, this employee said the people at her office had processed and reviewed the records I requested, eveything looked “legit,” and if I sent $1,000 (the ceiling amount I had agreed to pay in my initial FOIA request letter), “The boxes I have on my desk will be coming your way.” I repeat, she told me that all I needed to do was pay $1,000 and – in a line that haunts me – “The boxes I have on my desk will be coming your way.”

This, of course, turned out not to be the case. And after a few phone more phone calls, during which this woman’s higher-ups explained to me why the request was being sent to the DEA, I received official notification of the EOUSA-to-DEA transfer.

“This is the final action this office will take concerning your request,” reads the last line of that November 29, 2012 letter from EOUSA FOIA. Here is the full PDF of that letter.

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May 22, 2007: The Indictment

Volkman’s indictment was unsealed on May 22, 2007. The 22-count, 35-page document accused the doctor and two others – the mother and daughter duo of Denise Huffman and Alice Huffman Ball – with running a vast prescription drug-dealing operation under the guise of legitimate pain-management clinics in Southern Ohio. The indictment alleged that this operation earned the partners over $3 million in illegal proceeds and led to the overdose deaths of fourteen patients.

Volkman Indictment

The following day – May 23, 2007 – the DEA issued a press release describing these allegations, giving credit to various law enforcement agencies that had contributed to the investigation (“Scioto County Sheriff’s Office, Scioto County Coroner’s Office…Pipeline 23 Drug Task Force…Drug Enforcement Administration offices in Columbus; Cincinnati; Louisville; London, Kentucky; Cleveland; Detroit, and Chicago, and the FBI office in Portsmouth…”), and, at the end of the document, reminding readers that:

An indictment is merely an accusation. The burden of proof is on the government to show that the defendants actually committed the crimes with which they are charged.

DEA Press Release Three Indicted… 5.23.07

March 6, 2012: The Exec. Office of U.S. Attorneys Denies the Third-Party Half of My Request

On March 6, 2012  (the date is faintly visible in the upper right hand corner of the letter attached below; it’s clearer in the original) I received a letter from the FOIA division of the Executive Office of the United States Attorneys informing me that one half of my request, “Request Number: 2012-484,” had been denied.

The explanation:

You have requested records concerning a third party (or third parties). Records pertaining to a third party generally cannot be released absent express authorization and consent of the third party, proof that the subject of your request is deceased, or a clear demonstration that the public interest in disclosure outweighs the personal privacy interest and that significant public benefit would result from the disclosure of the requested records. Since you have not furnished a release, death certificate, or public justification for release, the release of records concerning a third party would result in an unwarranted invasion of personal privacy and would be in violation of the Privacy Act, 5 U.S.C. [sec.] 552a. These records are also generally exempt from disclosure pursuant to sections (b) (6) and (b)(7)(C) of the Freedom of Information Act, 5 U.S.C. [sec.] 552.

I decided to not to contest this ruling for the time being and to wait to see what my other request — “12-485: U.S. v. Paul Volkman (public records only)/OHS” — would yield. And, anyway, the letter hadn’t identified who the ” third party (or third parties)” concerned in request “2012-484” were. So how could I request their permission?

US Attorneys FOIA Partial Denial 3.6.12

February 28, 2012: The Exec. Office of U.S. Attorneys Acknowledges Receipt of My Request

On February 28, 2012, I received a letter from the FOIA division of the Executive Office for the U.S. Attorneys in Washington acknowledging that they had received my request. They split my request into two separate files: “12-484: U.S. v. Paul Volkman” and “12-485: U.S. v. Paul Volkman (public records only)/OHS.”

The letter read:

EOUSA makes every effort to process most requests within a month (20 working days). There are some exceptions; for example, Project Requests usually take approximately nine months to process. Requests for “all information about myself in criminal case files” are usually Project Requests. If you have made such a request, you may either write us and narrow your request for specific items, or you may expect that the processing of your request may take nine months from the date of this letter.

There was no indication from this letter (which I have included below), that my request had been deemed a “Project Request.”

US Attorneys FOIA Receipt Notice 2.28.12

August 18, 2011: The List of Exhibits

The list of exhibits admitted into evidence during the trial is sixteen pages long. It was filed with the court — and published on the case’s public docket (accessible for a modest pay-per-page rate via PACER, Public Access to Electronic Court Records) — on August 18, 2011.

Volkman Exhibit List

While this exhibit list was publicly viewable/downloadable, none of the exhibits, themselves, were available. This list was the basis for my long list of specifically requested items (“…pharmacy and DEA drug logs, letters, PowerPoint presentations, videos, prescriptions, pain medication releases, pain management service agreements…”) in my FOIA request letter.

February 1, 2012: The FOIA Request

On February 1, 2012 I sent a FOIA request to Office of the U.S. Attorneys in Washington, D.C.

February 1, 2012

FOIA Staff, BICN Building
600 E Street, N.W., Room 7300
Washington, D.C. 20530-0001

ATTN: Freedom of Information and Privacy Act Officer

Dear FOIA Officer,

Under the Freedom of Information Act, I am requesting access to all exhibits presented in federal case 1:07-cr-00060-SSB-3, “United States of America vs. Paul H. Volkman,” which took place at the U.S. District Courthouse, in Cincinnati, between March 1, 2011 and May 10, 2011. These exhibits were admitted without objection and shown to members of the jury (and observers in the courtroom) during the trial. The case was presented by the office of U.S. Attorney Carter M. Stewart, Southern District of Ohio.

Specifically, I am requesting access to all materials listed in the Exhibit List filed by the government on August 18, 2011 (Doc. # 375), which include applications, inspection reports, licenses to distribute medication, dispensary logs, narcotic and poison record books, pharmacy and DEA drug logs, letters, PowerPoint presentations, videos, prescriptions, pain medication releases, pain management service agreements, physical examination records, medical records, photographs, death certificates, evidence labels, sketches and schematics of the Tri-State office, journal logs, controlled substances logs, emails, lab reports, sign-in sheets, plastic prescription containers, receipts, employee files, signs and notices from the Tri-State clinic, tax forms, patient history questionnaires, insurance reports, autopsy reports, complaints, impounding forms, toxicology reports, patient files, patient sign-in sheets, faxes, items found at patients’ residences, property leases, progress charts, handouts from yoga classes, pain medication explanation forms, and pain diaries. A complete list of exhibits is attached to this letter.

I am an author writing a book about the case. I seek the opportunity to inspect physical items, such as prescription bottles, and receive copies of all other materials (papers, photographs, DVDs, etc.) that can be re-produced. Please notify me if the fees for producing these records exceed $1,000. I agree to pay any fees up to that amount.

If you deny any part of this request, please cite each specific reason justifying your refusal to release the information. Please notify me of appeal procedures available under the law. If you have any questions processing this request, please contact me at [phone number] or philip.edward.eil@gmail.com.

Thank you,

Philip Eil