Brown v. Perez, No. 13-01722, 2014 WL 7336788 (D. Colo. Dec. 23, 2014) (Moore, J.)

Brown v. Perez, No. 13-01722, 2014 WL 7336788 (D. Colo. Dec. 23, 2014) (Moore, J.)

Re: Request for records concerning referee physician selection process

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 4:  "The Court finds that the information [requested] is confidential, and that Exemption 4 applies."  First, the court finds "that the information sought in this context is clearly commercial in nature."  The court agrees with Defendants that, "though [the Office of Workers Compensation Programs] accesses the data [at issue] using its own software, the data that Plaintiffs seek actually comes from a private business entity, thus meeting the Exemption 4 requirement that the information be 'obtained from a person.'"  Second, the court relates that "[t]he data at issue is part of a database provided by [a third party] under a commercial license agreement with the government."  "[T]he Court finds it less than clear whether National Parks should apply versus Critical Mass."  "No matter which test is applied, however, the Court finds that Defendants prevail."  "Under Critical Mass, the Court concludes that the information sought by Plaintiffs, specifically, the names and identifiers for physicians in various contexts, would not customarily be released to the public by a private company."  "Under National Parks, the Court concludes that disclosure would impair the government's ability to obtain necessary information in the future" because "companies in the business of licensing commercial data to the government would be less likely to do so if their confidential data could be accessed by anyone simply by making a FOIA request."
   
• Waiver:  The court holds that "[t]he public nature of the names, addresses and phone numbers of physicians does not mean that the information is not confidential when it is given in the context of documents that reveal a physician's activities, referrals, clients, etc."
   

• Exemption 6:  "[T]he Court will not require disclosure of the redacted identifiers."  "In the Court's view, the bottom line with regard to Exemption 6 is that the physicians and private individuals appearing in case files have a clear privacy interest in their personal and business information."  "This privacy interest is not outweighed by any public interest that has been articulated by Plaintiffs."

• Procedural Requirements, "Agency Records":  "The Court agrees with Defendants that FOIA 'does not oblige agencies to create or retain records; it only obliges them to provide access to those which it in fact has created or retained.'"  Therefore, the court holds that "[d]efendants will not be required to create and then produce printouts of computer screenshots as requested by Plaintiffs."  At issue was plaintiff's request for "printouts of screenshots showing pull down menus, which [plaintiffs] say are 'needed to show the functions that the referee physician software system the PDS can perform.'"