Consumers' Checkbook Center v. U.S. Dept. Health

• Decision Date: 30 January 2009
• Docket Number: No. 07-5343.,07-5343.
• Parties: CONSUMERS' CHECKBOOK, CENTER FOR THE STUDY OF SERVICES, Appellee v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., Appellants American Medical Association, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

554 F.3d 1046

CONSUMERS' CHECKBOOK, CENTER FOR THE STUDY OF SERVICES, Appellee v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES et al., Appellants American Medical Association, Intervenor.

No. 07-5343.

United States Court of Appeals, District of Columbia Circuit.

Argued October 8, 2008.

Decided January 30, 2009.

Appeal from the United States District Court for the District of Columbia (No. 06cv02201).

Steve Frank, Attorney, United States Department of Justice, argued the cause for the appellants. Gregory G. Katsas, Assistant Attorney General, Jeffrey A. Taylor, United States Attorney, and Leonard Schaitman, Attorney, were on brief. R. Craig Lawrence, Assistant United States Attorney, entered an appearance.

Jack R. Bierig argued the cause for intervenor American Medical Association in support of the appellants.

Robert M. Portman was on brief for amici curiae American Medical Association et al. in support of the appellants.

Nicole R. Rabner argued the cause for the appellee. Patrick J. Carome and Paul R.Q. Wolfson were on brief.

Stacy J. Canan was on brief for amici curiae American Association of Retired Persons et al. in support of the appellee.

Mark R. Savage was on brief for amicus curiae Consumers Union of United States, Inc. in support of the appellee.

Before: HENDERSON, RANDOLPH and ROGERS, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Separate opinion filed by Circuit Judge ROGERS, concurring in part and dissenting in part.

KAREN LECRAFT HENDERSON, Circuit Judge.

Consumers' Checkbook, Center for the Study of Services (CSS) filed this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., seeking from the United States Department of Health and Human Services (HHS) records for all Medicare claims submitted to HHS by physicians in several localities during 2004. The district court granted summary judgment in CSS's favor, concluding that the records are not exempt from disclosure under FOIA Exemption 6, id. § 552(b)(6). See Consumers' Checkbook, Ctr. for Study of Servs. v. U.S. Dep't of Health & Human Servs., 502 F.Supp.2d 79, 83-86 (D.D.C.2007) (Memorandum Opinion). For the reasons set forth below, we reverse the judgment of the district court.

I.

On March 27, 2006, CSS submitted a FOIA request to the Centers for Medicare and Medicaid Services (CMS), a division within HHS, seeking a subset of data elements from all Medicare claims submitted by certain physicians in 2004. The data elements include the diagnosis, the type and place of service and the Unique Physician Identifying Number (UPIN) of the physician who performed the services. CSS limited its request to physicians in the District of Columbia, Illinois, Maryland, Washington and Virginia. It did not request data that identifies Medicare beneficiaries. At the time of the request, every physician was assigned a UPIN when he enrolled in Medicare.¹ A physician's name, office zip code, medical or surgical specialty and UPIN are publicly available on the internet. The fees a physician receives from Medicare for performing a specific service or procedure are also publicly available on the internet. Combined with the publicly available fee schedule, the data requested by CSS can be used to calculate the total payments Medicare made to any individually identified physician for claims submitted in 2004.

CMS denied the FOIA request and CSS appealed to the CMS Deputy Administrator. On December 26, 2006, CSS filed a complaint in district court under FOIA seeking injunctive relief. Both parties moved for summary judgment. HHS argued that the requested records are exempt from disclosure under FOIA Exemption 6. Alternatively, it argued that a twenty-nine-year-old permanent injunction issued by the United States District Court for the Middle District of Florida bars disclosure of the requested data from physicians who are American Medical Association (AMA) members. See Fla. Med. Ass'n v. Dep't of Health, Educ. & Welfare, 479 F.Supp. 1291 (M.D.Fla.1979). In an opinion and order filed August 22, 2007, the district court granted summary judgment in CSS's favor and this appeal followed.² Memorandum Opinion at 81, 89.

II.

HHS appeals the district court's grant of summary judgment as to the requested Medicare records the court held were not exempt from disclosure under FOIA Exemption 6.³ We review the district court's grant of summary judgment de novo. Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145 (D.C.Cir.2006). FOIA provides that an agency must disclose all records upon request by "any person," 5 U.S.C. § 552(a)(3), unless a statutory exemption applies. Id. § 552(b). FOIA Exemption 6 provides that FOIA "does not apply to matters that are . . . personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6). It is undisputed that the requested Medicare records are personnel, medical, or "similar files." See Memorandum Opinion at 83. Accordingly, we must determine whether "disclosure would compromise a substantial, as opposed to a de minimis, privacy interest." Nat'l Ass'n of Retired Fed. Employees v. Horner, 879 F.2d 873, 874 (D.C.Cir.1989). If a substantial privacy interest is at stake, then we must balance the privacy interest in non-disclosure against the public interest. Id. (citing Ripskis v. HUD, 746 F.2d 1, 3 (D.C.Cir.1984)). Disclosure is not required if it "would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). The agency bears the burden to persuade the court that the exemption applies. Ripskis, 746 F.2d at 3.

A.

We have consistently held that an individual has a substantial privacy interest under FOIA in his financial information, including income. In Multi AG Media v. Department of Agriculture, 515 F.3d 1224 (D.C.Cir.2008), we found that the disclosure of information on "irrigation practices, farm acreage, and the number and width of rows of tobacco and cotton" implicated substantial privacy interests because it would "in some cases allow for an inference to be drawn about the financial situation of an individual farmer" receiving federal subsidies. 515 F.3d at 1226, 1230. In Painting and Drywall Work Preservation Fund, Inc. v. HUD, 936 F.2d 1300 (D.C.Cir.1991), we found that contractors on federal construction projects had a substantial privacy interest in their names, addresses, hourly pay, hours worked and wages. 936 F.2d at 1301-02; see also Sheet Metal Workers Int'l Ass'n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 995, 998 (10th Cir.1995) (government contractors on federal construction projects have substantial privacy interest in payroll records); Painting Indus. of Haw. Market Recovery Fund v. U.S. Dep't of Air Force, 26 F.3d 1479, 1484 (9th Cir.1994) (same); Hopkins v. HUD, 929 F.2d 81, 86-87 (2d Cir.1991) (same). The Congress has also recognized the privacy interest an individual taxpayer has in his tax return information, including the "nature, source, or amount of his income," 26 U.S.C. § 6103(b)(2)(A), and has prohibited the disclosure of tax return information with limited exceptions. Id. § 6103(a).

The information requested by CSS would reveal the total Medicare payments received by a physician for covered services. CSS notes that the information would not reveal a physician's gross revenue because it would not include income from non-Medicare sources. Nor would it reveal a physician's net income because it would not include business operating expenses. But the requested information need not reveal completely an individual's personal finances to implicate substantial privacy concerns. See Multi AG Media, 515 F.3d at 1228-29 (substantial privacy interests implicated because requested information "would necessarily reveal at least a portion of the owner's personal finances") (quoting Nat'l Parks & Conservation Ass'n v. Kleppe, 547 F.2d 673, 685 (D.C.Cir.1976)). CSS also argues that a physician does not have a privacy interest in Medicare payments because the payments relate to business activities and not personal finances. We have, however, recognized substantial privacy interests in business-related financial information for individually owned or closely held businesses because the "financial makeup of the businesses mirrors the financial situation of the individual family members." Multi AG Media, 515 F.3d at 1229 (internal quotations omitted); cf. Wash. Post Co. v. U.S. Dep't of Justice, 863 F.2d 96, 100 (D.C.Cir.1988) (information related to employees' business decisions in developing and marketing medication does not implicate privacy interests under FOIA Exemption 7); Wash. Post Co. v. U.S. Dep't of Health & Human Servs., 690 F.2d 252, 261-62 (D.C.Cir.1982) (no substantial privacy interest in list of organizations in which scientific consultants have financial holdings related to their consulting duties, but not dollar amounts of holdings). Accordingly, we conclude that physicians have a substantial privacy interest in the total payments they receive from Medicare for covered services.

B.

We next examine the public interest in disclosure. The only relevant public interest in disclosure "is the extent to which disclosure would serve the `core purpose of the FOIA,' which is `contribut[ing] significantly to public understanding of the operations or activities of the government.'" U.S. Dep't of Def. v. FLRA, 510 U.S. 487, 495, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 775, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). The requested information must "shed[ ] light on an agency's performance of its statutory duties." Reporters Comm. for Freedom of Press, 489 U.S. at 773, 109 S.Ct. 1468. "[I]nformation about private citizens . . . that reveals little or nothing about an agency's own conduct" does not serve a relevant public interest under FOIA. Id. The requesting ...