Hansten v. Drug Enforcement Administration

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PHILIP HANSTEN, : : Plaintiff, : Civil Action No.: 21-2043 (RC) : v. : Re Document Nos.: 11, 12 : DRUG ENFORCEMENT : ADMINISTRATION, : : Defendant. : MEMORANDUM OPINION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT WITHOUT PREJUDICE I. INTRODUCTION This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiff Philip Hansten and Defendant Drug Enforcement Administration (“DEA”). Mr. Hansten asked the DEA to produce certain information concerning drug purchase order forms (“Form 222s”) that it issued on a single day in 2011. The DEA refused, claiming that any responsive records would be categorically exempt under FOIA Exemption 7(E). But the DEA’s position lacks merit. For the reasons described below, the Court finds that release of the requested Form 222 information would not reveal any law enforcement technique or procedure. The Court will therefore order the DEA to conduct a search and produce all responsive non-exempt information, and, to the extent that the DEA withholds any responsive information pursuant to FOIA, renew its motion for summary judgment thereafter. II. FACTUAL AND PROCEDURAL BACKGROUND The DEA is a federal agency whose mission is to enforce the controlled substance laws and regulations of the United States. Hertel Decl. ¶ 5, ECF No. 12-5. The DEA administers the Controlled Substances Act, which established a closed system of distribution that allows the DEA to trace drugs from initial manufacture to final dispensing. Id. ¶ 10; 21 U.S.C. § 828. These drugs are classified into five schedules, which are published annually. Hertel Decl. ¶ 10. The closed system of distribution allows the DEA to prevent, investigate, and prosecute “diversion,” or drug transactions that occur outside the system. Def. Mot. Summ. J. (“Def. MSJ”) at 3, ECF No. 12-1. Under the system, anyone who handles Schedule I or II drugs must register with the DEA. See 28 U.S.C. § 823 (registration requirements). In addition, to order and transfer such drugs, a registrant must complete a standard purchase order form called Form 222. Hertel Decl. ¶ 10. This process begins when a registrant requests a Form 222 from the DEA. Def.’s Opp’n Pl.’s Mot. Summ. J. (“Def. Opp’n”) at 3, ECF No. 14 (citing 21 C.F.R. § 1305.11(b) (2019)). The DEA then sends a Form 222 to the registrant that contains pre-printed information, as required by regulation, including [1] an order form number bearing the [2] name, [3] address, and [4] registration number of the registrant, [5] the authorized activity, and [6] drug schedules of the registrant. 21 C.F.R. § 1305.11(d) (2019); Hertel Decl. ¶ 10; see Ex. 5 to Def. MSJ (“Sample Form 222”), ECF No. 12-8 (entries for “No. of this Order Form”; “Name and Address of Registrant”; “DEA Registration No.”; “Registered as a”; and “Schedules”). Once the parties involved in a drug transaction fill out the remaining entries in the Form 222 (such as drug name, code, and package number/size), the DEA stores the completed …

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