Brown v. Perez

• Citation: 835 F.3d 1223
• Decision Date: 29 August 2016
• Docket Number: No. 15–1023,15–1023
• Parties: Blake Brown; Dean Biggs; Jacqueline Deherrera; Ruth Ann Head; Marlene Mason; Roxanne McFall; Richard Medlock; Bernadette Smith, Plaintiffs–Appellants, v. Thomas E. Perez, Secretary of Labor; United States Department of Labor, an agency of the United States; Office of Workers Compensation, an agency of the United States Department of Labor, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

835 F.3d 1223

Blake Brown; Dean Biggs; Jacqueline Deherrera; Ruth Ann Head; Marlene Mason; Roxanne McFall; Richard Medlock; Bernadette Smith, Plaintiffs–Appellants,

v.Thomas E. Perez, Secretary of Labor; United States Department of Labor, an agency of the United States; Office of Workers Compensation, an agency of the United States Department of Labor, Defendants–Appellees.

No. 15–1023

United States Court of Appeals, Tenth Circuit.

Filed August 29, 2016

As Amended on Rehearing November 8, 2016

John S. Evangelisti (Karen Larson, with him on the brief), Denver, Colorado, for Plaintiffs–Appellants.

Steve Frank, Attorney, Appellate Staff (Benjamin Mizer, Principal Deputy Assistant Attorney General, John F. Walsh, United States Attorney, Office of the United States Attorney, Denver, Colorado, and Leonard Schaitman, Attorney, Appellate Staff, U.S. Department of Justice, with him on the brief), U.S. Department of Justice, Washington, D.C., for Defendants–Appellees.

Before TYMKOVICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.

EBEL

, Circuit Judge.

Plaintiffs–Appellants Blake Brown, Dean Biggs, Jacqueline Deherrera, Ruth Ann Head, Marlene Mason, Roxanne McFall, Richard Medlock, and Bernadette Smith (“Plaintiffs”) appeal a summary judgment order upholding Defendants–Appellees Thomas E. Perez, Secretary of Labor, United States Department of Labor, and the Office of Workers Compensation's (“OWC”) (collectively, “the agency”) redactions to documents they provided to Plaintiffs pursuant to the Freedom of Information Act, (“FOIA”), 5 U.S.C. § 552

. Because FOIA does not require an agency to recreate records, we affirm in part, pertaining to the denial of relief to Appellants on the claimed screenshots. But because we also find that the FOIA exemptions invoked by the agency raise genuine disputes of material fact, we reverse in part and remand for further proceedings.

I. BACKGROUND

Plaintiffs are former federal civilian employees eligible to receive federal workers compensation benefits. See Federal Employees' Compensation Act, (“FECA”), 5 U.S.C. §§ 8102(a)

, 8103(a), 8133. The relevant federal workers compensation program is administered by the OWC, a subdivision of the Department of Labor. To receive benefits under that program, an injured worker must show a qualifying medical condition supported by a physician's opinion. If there is a disagreement between a worker's treating physician and the second-opinion physician hired by the OWC, an impartial “referee” physician is selected to resolve the conflict. 5 U.S.C. § 8123(a) ; see also 20 C.F.R. § 10.321. The referee's opinion is frequently dispositive of the benefits decision.

To ensure impartiality, it is the OWC's official policy to use a software program to schedule referee appointments on a rotational basis from a list of Board-certified physicians. Div. of Fed. Emp. Comp., Dep't of Labor, FECA Pro. Man. ch. 3-500 §§ 4–6. When an appointment is needed, the software program searches that list for physicians who practice within twenty-five miles of the injured worker's zip code. Id. If, upon inquiry, every nearby physician proves unwilling or unable to accept the appointment, the scheduling program expands its geographic search radius and continues to search until an available referee is found.¹ Id.

Plaintiffs, however, suspect that the OWC does not adhere to its official policy, but instead always hires the same “select few” referee physicians, who are accordingly financially beholden—and presumably sympathetic—to the agency. Aplt. Br. 7. In support of that contention, Plaintiffs point to evidence that a certain orthopedic physician has repeatedly been selected to evaluate workers in distant zip codes, despite the presence of closer physicians of the same specialty.

To investigate their suspicions, Plaintiffs filed FOIA requests for agency records pertaining to the referee selection process. Although the Plaintiffs' individual requests differed slightly, they generally focused on the statistics for referee appointments for orthopedic physicians in Colorado over the previous ten years. In order to target future FOIA requests more effectively, Plaintiffs also requested screenshot printouts showing how the menus of the OWC's scheduling software would appear on a user's computer screen.

In response, the agency released various redacted reports generated by its scheduling software. As relevant to this appeal, the reports contain information regarding the total number of times physicians in the identified specialties have served as referees or have been bypassed, as well as lists showing the patient and date of each referee evaluation performed by the selected physicians within certain timeframes. In general, the physicians' and injured workers' names, addresses, and other identifiers are redacted, although the injured workers' zip codes remain visible. The agency declined to provide printouts of the scheduling program's on-screen menus.

Dissatisfied with that response, Plaintiffs filed this suit challenging the agency's redactions of the doctors' names and addresses from four specific types of reports,² as well as the agency's withholding of screen printouts. Plaintiffs contend that they cannot verify their suspicions about the OWC's scheduling practices unless they know how often each physician has been assigned to examine patients outside his or her zip code. For its part, the agency argues that the doctors' names and addresses are exempt from release under FOIA Exemptions 4 and 6, and that it cannot be required under FOIA to create records—such as the requested screen printouts—that it does not already maintain. On cross motions for summary judgment, the district court found in favor of the OWC on all grounds. Plaintiffs now appeal.

II. DISCUSSION

A. FOIA Standard of Review

FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep't of Navy, 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011)

. “FOIA is to be broadly construed in favor of disclosure, and its exemptions are to be narrowly construed.” Audubon Soc'y v. U.S. Forest Serv., 104 F.3d 1201, 1203 (10th Cir. 1997). “The government bears the burden of demonstrating the requested records fall within one of FOIA's enumerated exemptions....”

Prison Legal News v. Executive Office for U.S. Attorneys, 628 F.3d 1243, 1247 (10th Cir. 2011)

. The agency redactions at issue in this appeal implicate two exemptions: Exemption 4, which applies to confidential commercial information, and Exemption 6, which applies to personnel, medical, and similar files whose disclosure would constitute a clearly unwarranted invasion of personal privacy. See 5 U.S.C. § 552(b)(4), (6).

“Whether a FOIA exemption justifies withholding a record is a question of law that we review de novo.” Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007)

; 5 U.S.C. § 552. “Because this appeal arises from a grant of summary judgment in favor of the [the agency], we review the record and all reasonable inferences to be drawn therefrom in the light most favorable to [Plaintiffs].” Id. As always, summary judgment is only appropriate “if the [agency] shows that there is no genuine dispute as to any material fact and the [agency] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).³

B. Exemption 4 (Confidential Commercial Information)

Exemption 4 protects “trade secrets and commercial or financial information [that is] obtained from a person and [is] privileged or confidential.” 5 U.S.C. § 552(b)(4)

. “If not a trade secret, for Exemption 4 to apply the information must be ‘(a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential.’ ” Anderson v. U.S. Dep't of Health & Human Servs., 907 F.2d 936, 944 (10th Cir. 1990) (quoting Nat'l Parks and Conserv. Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974) ). The agency invokes this exemption on behalf of Elsevier, Inc. (“Elsevier”), the company that licenses to the agency the list of Board-certified physicians referenced by the agency's scheduling software. Plaintiffs challenge whether the referees' redacted names and business addresses are (1) commercial and (2) confidential.

1. Commercial

“FOIA does not define the term ‘commercial,’ so courts have given the term its ordinary meaning.” New Hampshire Right to Life v. U.S. Dep't of Health & Human Servs., 778 F.3d 43, 49 (1st Cir. 2015)

; see also Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1194 (9th Cir. 2011) (same). Consequently, “[t]he exemption reaches ... broadly and applies (among other situations) when the provider of the information has a commercial interest in the information submitted to the agency.” Baker & Hostetler LLP v. U.S. Dep't of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006) ; see also Am. Airlines, Inc. v. Nat'l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978) (“ ‘Commercial’ surely means pertaining or relating to or dealing with commerce.”).

Here, the information at issue—namely, the physicians' names and addresses—is provided to the agency by Elsevier as a component of a database that Elsevier licenses to the agency for an annual fee. Because the redacted information is part of the data that Elsevier compiles, maintains, and ultimately sells as a product, it is safe to say that Elsevier has a “commercial interest” in that information. See Baker & Hostetler, 473 F.3d at 319

.

2. Confidential

“The first step in an Exemption Four [confidentiality] analysis is determining whether the information submitted to the government agency was given voluntarily or involuntarily.” Utah v. U.S. Dep't of Interior, 256 F.3d 967, 969 (10th Cir. 2001)

(citing Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 878-79 (D.C. Cir. 1992) ). In this case, the parties agree that the submission at hand was an involuntary one.⁴ “Since the submission was involuntary, the information...