Brown v. Perez, No. 15-1023, 2016 WL 6595896 (10th Cir. Nov. 8, 2016) (per curiam)

Brown v. Perez, No. 15-1023, 2016 WL 6595896 (10th Cir. Nov. 8, 2016) (per curiam)

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

Disposition: Granting panel rehearing and revising earlier opinion

• Procedural Requirements, Responding to FOIA Requests: The Court of Appeals for the Tenth Circuit amends an earlier August 29, 2016 opinion. The court explains that "[t]he original decision was issued under the mistaken impression that . . . requested screenshots were preserved and recoverable from electronic storage, and did not require the agency to recreate a document or record." "On reconsideration, however, [the court] conclude[s] that [the requester's] FOIA request actually requires the agency to recreate images that do not exist in storage for electronic recovery." "That was the interpretation of the district court, and that conclusion is supported in the record below[.]" "Because FOIA does not require agencies to create records in response to a request, [the court] now affirm[s] the district court's grant of summary judgment on that issue."