Brown v. Perez, No. 15-1023, 2016 WL 4501821 (10th Cir. Aug. 29, 2016) (Ebel, J.)

Brown v. Perez, No. 15-1023, 2016 WL 4501821 (10th Cir. Aug. 29, 2016) (Ebel, J.)

Re: Request for records concerning "referee" physician selection process

Disposition: Reversing district court's grant of defendant's motion for summary judgment and remanding

• Exemption 4: The Court of Appeals for the Tenth Circuit holds that "summary judgment in the agency’s favor on Exemption 4 was improper." The court first finds that physician names and addresses are commercial under Exemption 4. The court finds that "[b]ecause the redacted information is part of . . . data . . . compile[d], maintain[ed], and ultimately [sold] as a product, it is safe to say that [the submitter] has a 'commercial interest' in that information." Second, the court "conclude[s] that genuine disputes of material fact regarding the public availability of the redacted data and potential commercial harm to [the submitter] remain outstanding." The court notes that "the parties agree that the submission at hand was an involuntary one." The court then finds that there has been no showing of commercial harm because "[the submitter's] letter is hearsay" and "the agency neglects to show that it could put the substance of the letter into an admissible form." "No representative of [the submitter] has filed an affidavit in this case, and the agency's affidavit does not suggest that a representative of [the submitter] would testify to the letter's competitive injury assertions at trial."
   
• Exemption 6: The Court of Appeals for the Tenth Circuit "conclude[s] that, on this record, and given the meaningful differences between the context of this appeal and our previous Exemption 6 cases, genuine disputes of material fact regarding the scope of that referees' privacy interest in their business addresses and referee history remain outstanding." The court finds that "[i]t is not intuitive to us that the referee physicians possess a cognizable privacy interest in their business addresses – after all, it is in their economic interests to make their office locations generally available to the public, so that patients can visit for evaluation and treatment." Additionally, "[t]he agency identifies no risk of harassment, embarrassment, or other consequence that could ensue from disclosure of the referee physicians' identities and business addresses."
   
• Procedural Requirements, Responding to FOIA Requests: Regarding plaintiff's request for screenshots, the court holds that "technical feasibility appears to be undisputed[,] [b]ut the agency puts forth no evidence concerning the burden that reproducing the menu screens as printouts would cause." "Therefore, the agency failed to carry its burden to show that no genuine issue of material facts remains."