Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 31, 2012, I issued a Decision and Final Order (hereinafter, Order) revoking the DEA Certificates of Registration issued to Holiday CVS, L.L.C., d/b/a CVS/Pharmacy Nos. 219 and 5195 (hereinafter, Respondents). Prior to publication, counsel for Respondents contacted my staff to request a delay in the publication of the Order in the
Respondents' proposed redactions involve various portions of the Order and the ALJ's R.D. that discuss the manner in which information was obtained for Respondents' pharmacy information management system. Respondents maintain that this information contains "trade secret[s] and confidential business information regarding Respondents' business practices," which "is exempt from disclosure under the Freedom of Information Act (FOIA) and [that] its publication will cause significant, and irreparable, harm to their business operations."
Opposing the redactions, the Government argues that Respondents have not established that the information at issue involves trade secrets or confidential business information. Gov. Resp. at 1. The Government further argues that the information at issue "is essential to an understanding of the ALJ's Recommended Decision and the Administrator's Final Order."
As noted above, Respondents' first contention is that the proposed redactions involve trade secrets
Respondents point to no other provision of law which bars the Agency from disclosing the information in the Decision and Order.
By contrast, this matter involves an enforcement proceeding brought to protect the public interest pursuant to 21 U.S.C. 824(a). It is manifest that in such a proceeding, the Government has a substantial, if not a compelling interest, in ensuring that both the public and the regulated industry fully understand the basis for the Agency's action.
This is not to say that the redaction of bona fide trade secrets and confidential business information will never be warranted in an enforcement proceeding brought under 21 U.S.C. 824. But Respondents' proposed standard, which focuses entirely on whether the information is of the type which they customarily release to the public and requires no showing of how the disclosure will result in competitive harm, clearly ill-serves the public interest.
In any event, here, the Government demonstrated that much of the information regarding the operation of Respondents' pharmacy management information system (as well as its use of a third-party data aggregator) is publicly available through a Google search.
To be sure, the evidence that local stores were previously allowed to input prescriber information into the database; that the database formerly displayed
Moreover, Respondents offer absolutely
Nor do Respondents' remaining contentions support their proposed redactions. While the ALJ's protective order did protect against the disclosure of "commercially sensitive information,"
Contrary to Respondents' contention, the ALJ's explanation for closing the hearing during the testimony of the CVS Vice President does not support the proposed redactions. While the ALJ explained that "[a] party will be seeking to introduce evidence that is likely to compromise a trade secret and/or commercially sensitive information," he also explained that this ruling was based on "information represented by counsel for the Respondent." Tr. 1225-26. The ALJ's ruling does not constitute a finding that Respondents had satisfied their burden of showing that disclosure of the information would cause competitive harm, and while the ALJ appropriately proceeded with caution given the representation of Respondents' counsel, ultimately, no such evidence was forthcoming. I thus reject this contention.
Finally, Respondents' contend that the "publication and dissemination to non-covered individuals of the unredacted Final Order is inconsistent with the Protective Order because it is a transmittal of information to any person `not entitled to access pursuant to [the] Protective Order,' " which remains in effect even after the termination of the proceeding. Resp. Req., at 4 (quoting ALJ Ex. 20, at PP7 and 9). However, the Protective Order does not (and cannot) bind the Administrator, and indeed, it expressly provides that after the ALJ transmits the record, the Order may be modified by the Administrator. ALJ Ex. 20, at P 7.
In any event, as explained above, Respondents have not established that any of the information which they seek to redact is confidential. Nor have they established that publication of the information will cause them any competitive harm. Accordingly, I reject their request for redactions. I also conclude that modification of the protective order is warranted and will direct that the ALJ remove the confidential and protected designation from those portions of the record which are marked as such based on Respondents' assertion that they include trade secrets or confidential business information.