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Brown v. United States Department of Labor

United States District Court, D. Colorado

August 31, 2018

BLAKE BROWN, et al., Plaintiffs,



         Plaintiffs, various individuals who allegedly suffered on-the-job injuries while working for the U.S. government, started this case on July 1, 2013. At the beginning, plaintiffs alleged that defendants violated the Freedom of Information Act (“FOIA”) by failing to fully release information related to referee physicians and claimants involved in workers compensation cases. Plaintiffs wanted this information because they strongly suspected (and still do) that defendants were not randomly selecting referee physicians, but instead were using selected physicians over and over again because those physicians produced decisions adverse to claimants-a result that is purportedly good for defendants.

         By the time the parties arrived at the beachhead of summary judgment, the matters in dispute had crystallized to a degree. Plaintiffs wanted defendants to release referee physicians' names and zip codes, claimants' partial case numbers and zip codes, and screen shots of the physician directory system (“PDS”) and/or the medical management application (“MMA'). Except in one instance, [1]defendants insisted that they were not required to release any further information, citing Exemption 4 and Exemption 6 to FOIA, and that they were not required under FOIA to create screen shots. This Court agreed with defendant on all fronts.

         Plaintiffs then appealed this Court's decision.[2] The Tenth Circuit Court of Appeals agreed with plaintiffs that disputed facts existed over whether Exemption 4 and Exemption 6 applied to referee physicians' names and addresses. The Tenth Circuit, though, affirmed the grant of summary judgment in favor of defendant as to the screen shots plaintiffs had requested.

         The case then came back to this Court for resolution of the factual disputes surrounding Exemption 4 and Exemption 6 as applied to referee physicians. From the return of this case, the legal issues as well as the information defendants refuse to release have continued to narrow. Notably, defendants dropped Exemption 6 as a basis for withholding referee physicians' names and addresses. As for the information in dispute, plaintiffs and defendants have rowed back and forth between, respectively, what they want and what they are willing to give. Suffice to say, by the time the bench trial for this case commenced, defendants had released all information originally redacted for what defendants asserted was 75% of the referee physicians. For the remaining 25%, totaling 21 doctors, defendants decided to release various mixtures of information, none of which, though, provided everything that had originally been redacted. In doing so, defendants dropped Exemption 4 as a basis for withholding information for the 75% of referee physicians for whom all information had been released.

         In other words, when the bench trial began, defendants had chosen to defend their actions solely under Exemption 4, solely with respect to 21 referee physicians, and solely with respect to certain information about those remaining physicians. Then, the parties gave openings. Upon questioning from the Court, plaintiffs' counsel asserted that plaintiffs were only looking for the release of referee physicians' cities, states, and zip codes. Fast forward an hour or so after a morning break in the trial, and defendants' counsel announced that defendants were willing to turn over the zip codes (because cities and states had already been released) for 17 of the remaining 21 referee physicians. The zip codes for the other 4 physicians had already been released.

         If only all things could end so happily after five years of litigation. Plaintiffs, though, do not believe that the defendants' slow release of information is an end, let alone a happy one. Plaintiffs still want this Court to declare that Exemption 4 and Exemption 6 did not apply to the information originally redacted. In contrast, defendants believe this case is now moot. The Court will address that issue first.

         I. Is This Case Moot?

         A. Findings of Fact

         1. In their Complaint, plaintiffs alleged that they requested documents from defendants that included the names, addresses, and zip codes of all referee physicians used in the ten-year period before their requests.

         2. Plaintiffs further alleged that they needed physicians' names and zip codes in order to make “intelligible” information about how physicians were selected as referees.

         3. Plaintiffs sought declaratory relief that defendants had violated FOIA, and injunctive relief directing defendants to turn over withheld information and enjoining defendants from relying on unlawful practices in future FOIA cases.

         4. In their motion for summary judgment, plaintiffs at various times (but not always at the same time) argued that referee physicians' names, zip codes, and medical specialties were not exempt from release under Exemption 6.

         5. Plaintiffs further argued that there was no way to check whether the selection of physicians was neutral without the physicians' names and zip codes.

         6. In their response to defendants' motion for summary judgment, plaintiffs argued that Exemption 4 did not apply because the names and addresses of referee physicians are available to the public.

         7. In the final pretrial order, plaintiffs agreed that the sole issue following the Tenth Circuit's remand was whether Exemption 4 and Exemption 6 applied to physicians' names and addresses.

         8. Plaintiffs further stipulated to the fact that they exhausted their administrative remedies with respect to the withholding of physicians' names and addresses.

         9. Plaintiffs stated they sought declaratory relief that defendants had violated FOIA, and injunctive relief directing defendants to turn over withheld information and enjoining defendants from relying on unlawful practices in future FOIA cases.

         10. In their proposed findings of fact and conclusions of law, plaintiffs stated that this Court should order defendant to produce unredacted reports showing physicians' names and zip codes.

         11. At the final pretrial conference, plaintiffs' counsel stated that defendants' offer to provide the physicians' names and zip codes would not resolve plaintiffs' claim because they had not waived their request for addresses and phone numbers.

         12. During opening statements at trial, plaintiffs' counsel stated that he would be happy with the release of physicians' cities, states, and zip codes.

         13. Following a morning break on the first day of trial, defendants' counsel offered to release physicians' cities, states, and zip codes, and argued that this case was thus moot.

         14. Plaintiffs' counsel argued that this case was not moot, asserting that plaintiffs wanted street addresses and a declaration that Exemption 4 and Exemption 6 did not apply to the information plaintiffs requested.

         15. Plaintiffs' counsel also speculated about what might happen if a new FOIA request was made for the same information plaintiffs had requested.

         16. Julia Tritz (“Tritz”), the deputy director for operations and claims management in the division of federal employees compensation, testified that she was hesitant to give an exact date for when defendants could release unredacted reports.

         17. In closing argument, defendants' counsel stated that unredacted reports could be produced in 60 days, and thought that it could be a matter of weeks.

         18. When the trial concluded, unredacted reports had not been produced.

         19. Instead, defendants have produced spreadsheets containing the names, cities, and states of all referee physicians.

         20. The spreadsheets also contain the zip codes of all but 17 referee physicians for whom defendants had previously redacted such information.[3]

         B. Conclusions of Law

         “Once the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot.” Anderson v. U.S. Dep't of Health & Human Services, 3 F.3d 1383, 1384 (10th Cir. 1993). Here, defendants have not produced the reports plaintiffs have requested. Instead, defendants have agreed to produce the requested reports. In any ordinary case, although defendants' agreement may not be enough to immediately moot the action, it would certainly be enough to give defendants a reasonable period of time to actually produce the requested reports without the parties continuing their fight. Then, if the reports were not produced within a reasonable time, the case could simply proceed as if there had been no agreement. The problem is that this is not an ordinary case because defendants did not agree to release the requested reports until the first day of trial; more than five years after the case began. For the Court to allow defendants even more time so that they could follow through on their promises would, thus, seem like giving defendants their cake and allowing them to eat it (slowly, over the course of five years). Moreover, defendants have pointed to no case, and the Court has independently found none, finding that a FOIA case is moot before the actual production of records requested by a plaintiff. As a result, even if in the proper circumstances a FOIA case could be considered provisionally moot by a defendant's agreement to produce records, the Court does not conclude that this case possesses any appropriate circumstances for allowing defendants time to follow through on their promises.

         The Court also rejects defendants' closing argument that this case is moot because defendants did not plan to assert a defense to plaintiffs' FOIA requests. As far as the Court is concerned, the issue is not whether defendants would assert a defense. As Anderson makes clear, a FOIA case is moot when the government produces all requested documents. Anderson does not say that a FOIA case is moot when the government decides to throw in the towel but not produce documents. Obviously, ordinarily, the two go hand-in-hand-the government drops its arguments and produces documents at the same time. Unfortunately for defendants, this is the odd case in which the two are not hand-in-hand. For that odd happenstance, defendants are solely to blame.

         As a result, the Court concludes that this case is not moot because defendants have not produced the reports plaintiffs requested.[4]

         Nevertheless, because it is important to address the issue, the Court concludes that, if defendants had actually produced the reports plaintiffs requested, this case would be moot. Whether the case would have been moot, requires the Court to look at three distinct categories of relief plaintiffs sought in their Complaint and the final pretrial order. First, plaintiffs' request for defendants to turn over the information they requested. As far as the Court is concerned, this category of relief has been amorphous from the initiation of this case. According to the Complaint, the purpose of the information plaintiffs requested was to make “intelligible” defendants' selection of referee physicians. The only information alleged to be needed to make defendants' selection process intelligible was physicians' names and zip codes. This makes perfect sense because, as plaintiffs describe the selection process, it is premised upon the zip code of an injured worker and the proximity (or lack thereof) of a physician in the same zip code. If physicians in the same zip code as the injured worker do not exist or do not agree to act as a referee, the selection process turns to physicians outside of the injured worker's zip code.

         In the Complaint, though, plaintiffs alleged that they also sought the “addresses” of physicians. Putting aside that such information is irrelevant for plaintiffs' purported goal of determining whether the selection process is biased, plaintiffs have used the vague term “addresses” in many different guises during the course of this litigation. Until very recently, the request has always been for addresses. As far as the Court is aware, the first time that street addresses were requested was following the morning break on the first day of trial. Of course, in order to make this case seem like a controversy, plaintiffs needed to add street to its request for addresses because, just an hour or two before, plaintiffs' counsel had said that plaintiffs would be satisfied with the cities and states of physicians. Again, putting aside that cities and states are irrelevant if plaintiffs have physicians' zip codes, the Court does not find creditable plaintiffs' late qualifier that addresses meant street addresses all along. At most, the Court construes plaintiffs' request for addresses to have been a request for cities, states, and zip codes of physicians, in light of the allegations and arguments contained in the Complaint, plaintiffs' summary-judgment papers, the stipulations in the final pretrial order, and the ultimate purpose of the information requested. As for plaintiffs' counsel's statement at the final pretrial conference that plaintiffs had also requested phone numbers, that is worthy of even less credence. At no point in this litigation have plaintiffs argued (or even alleged) that FOIA was violated by defendants' failure to turn over phone numbers of physicians.

         Second, plaintiffs' request for a declaration that FOIA was violated by defendants. Assuming that defendants had produced the records plaintiffs requested, plaintiffs claim for declaratory relief would also be moot. See Cornucopia Inst. v. U.S. Dep't of Agric., 560 F.3d 673, 676 (7th Cir. 2009). In Cornucopia, the Seventh Circuit Court of Appeals rejected a plaintiff's argument that, although its request for injunctive relief had been mooted by the provision of requested documents, its claim for declaratory relief remained alive. The Seventh Circuit stated that declaratory relief is only appropriate when a ruling would have an impact on the parties, and concluded that there would be no such impact because documents had been produced and the plaintiff did not seek damages. Id. Similarly, here, if defendants had produced the requested reports, there would nothing else for plaintiffs to seek in that regard. In addition, plaintiffs have not sought damages in this case. All that would arguably be left for resolution would be any request for attorneys fees, but, as the Seventh Circuit explained, that is insufficient because such a request is separate from the merits of this action. See id.

         Third, plaintiffs remaining request for relief, arguably, bleeds into whether a declaratory judgment would have any impact on the parties. In this case, plaintiffs have also requested an injunction enjoining defendants from relying on an invalid “regulation or practice” in future FOIA cases.[5] Whether plaintiffs were entitled to such injunctive relief was a matter of discussion during the course of the bench trial. Essentially, plaintiffs made the perfectly reasonable argument that, while the production of the information originally requested may be all well and good, such a result has no real meaning if plaintiffs have to re-litigate Exemption 4 and Exemption 6 in any future FOIA request for identical physician information. In turn, defendants also made a perfectly reasonable argument that no future FOIA requests have been made, and thus, plaintiffs do not have standing to seek relief for conduct that has not yet occurred and/or may never occur. Both parties arguments sound reasonable, but they both miss where the answer lies. Plaintiffs are the furthest from the answer. Although plaintiffs' argument, which is more akin to a policy argument, sounds reasonable, plaintiffs provide no legal support for the proposition that this Court can enjoin defendants' supposed future conduct. There is legal support for that proposition, but plaintiffs fail to mention it, and thus, fail to show how they are entitled to it. It is not for this Court to perform that role for plaintiffs.

         Nevertheless, because defendants brought up the matter of standing, and certainly implied that a FOIA plaintiff could never seek future injunctive relief, that is not necessarily accurate. The D.C. Circuit and Ninth Circuit, at the very least, have endorsed something known as a “policy or practice” claim. Payne Enterprises, Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988); Hajro v. U.S. Citizenship & Immigration Services, 811 F.3d 1086, 1103 (9th Cir. 2015). The Tenth Circuit has not formally adopted such a claim in a published opinion, but, at least one court in this District has allowed a case to proceed on such a basis because the plaintiff alleged a sufficiently concrete likelihood of future harm. See Smith v. U.S. Immigration & Customs Enforcement, 249 F.Supp.3d 1203, 1209-10 (D. Colo. 2017) (WJM). Whether or not a “policy or practice” claim exists in this Circuit, though, as mentioned, plaintiffs cannot possibly be said to have proven such a claim given that they have never even mentioned the concept. The closest plaintiffs have gotten to alluding to a “policy or practice” claim is in their request for defendants to be enjoined from enforcing an invalid policy or practice. That was merely a request for relief, though, plaintiffs did not present the matter as a cause of action. As a result, the case has proceeded for its entire length on the assumption that the only claim put forward by plaintiffs is one for violation of FOIA in the past when defendants did not produce all of the requested reports. No. other claim has been presented.

         Even if the Court was willing to construe plaintiffs' request for future relief as making a “policy or practice” claim, plaintiffs have still not argued (or even alleged) how they have established such a claim. Plaintiffs do not even identify an applicable test. If the Court were to dip into the D.C. and Ninth Circuit cases, one thing that appears required in all is that the plaintiff demonstrate that he or she will be subject to the allegedly invalid policy or practice in the near future. Here, the only arguable suggestion that plaintiffs made in this regard was that plaintiffs' counsel may make a FOIA request in the future. There is no evidence that the plaintiffs named in this action would make a future FOIA request. Therefore, even if a “policy or practice” claim exists, plaintiffs have failed to prove that they are entitled to relief with respect thereto. As a result, any requested relief in this regard does not make this case any less moot.

         In summary, this case is not moot because defendants have not yet produced the reports plaintiffs requested. Nevertheless, had defendants produced the reports plaintiffs requested on a slightly more timely basis than five plus years after initiation of this case, this case would be moot because plaintiffs would not be entitled to declaratory relief or injunctive relief.

         II. Does Exemption 4 Apply?

         Because this case is not moot, the Court will now turn to the merits. Plaintiffs have alleged that defendants violated FOIA in refusing to produce requested documents under Exemption 4 and Exemption 6. At some point between entry of the final pretrial order and the filing of defendants' original proposed findings of fact and conclusions of law, defendants chose to stop arguing that the documents plaintiffs requested were protected by Exemption 6. Although plaintiffs appeared quite happy to proceed with Exemption 6 at the bench trial, the Court stated that it would not hear argument or evidence on an issue defendants had dropped as permitting non-disclosure of the requested documents. As such, like the trial evidence and argument, the Court will focus on Exemption 4.

         Before getting to the meat of the question whether Exemption 4 applies here, it is important to understand what parts of Exemption 4 are at issue and what information plaintiffs contend does not fall within its reach. Exemption 4 provides that FOIA does not apply to matters that are “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). With respect to Exemption 4, this case has never been about trade secrets or privileged or financial information. Instead, the application of Exemption 4 in this case has always been about whether the documents plaintiffs requested were “commercial information obtained from a person and confidential.” Before the Tenth Circuit, plaintiffs did not challenge whether the documents at issue had been obtained from a person. In addition, the Tenth Circuit strongly suggested that the documents at issue involved commercial information. In the final pretrial order, plaintiffs then did not challenge whether the information was commercial.

         As a result, the only issue presented to the Court at the bench trial was whether the documents plaintiffs requested were confidential. More specifically, in their proposed findings of fact and conclusions of law, as well as at trial, plaintiffs, as is their want, bounced between arguing that physicians' zip codes, names, and addresses are not confidential. As already discussed, plaintiffs' flippant use of the term “addresses, ” at most, means cities, states, and zip codes. Therefore, the issue, properly framed, with respect to Exemption 4 is: whether the names, cities, states, and zip codes of physicians who are used in selecting referees by defendants are confidential for purposes of Exemption 4.

         With the issue properly framed, there is one more preliminary matter to resolve: what does “confidential” mean for purposes of Exemption 4. In Nat'l Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974), the D.C. Circuit explained that information is confidential if it is “(1) likely to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” This is known as the National Parks test. In Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 879 (D.C. Cir. 1992), the D.C. Circuit concluded that the National Parks test only applied to situations where information was submitted to the government under compulsion. In situations where information was provided to the government voluntarily, the D.C. Circuit announced a new rule: such information is confidential “if it is of a kind that would customarily not be released to the public by the person from whom it was obtained.” Id. This is known as the Critical Mass. test. Not all Circuits have used the Critical Mass. test. The Tenth Circuit, though, has-in this case. See Brown v. Perez, 835 F.3d 1223, 1231 (10th Cir. 2016). The Tenth Circuit says that “determining whether the information submitted to the government agency was given voluntarily or involuntarily” is the first step in analyzing Exemption 4. Id. Therefore, the Court will now embark on this first step.

         A. Voluntary or Involuntary?

         Findings of Fact

         1. Defendants purchase a database containing information on physicians from a company called Elsevier, Inc. (“Elsevier”).

         2. Defendants utilize information in the database in selecting referee physicians.

         3. Defendants acquire the database from Elsevier pursuant to a licensing agreement.

         4. The licensing agreement is between the U.S. Department of Labor (“DOL”) and Elsevier, and is dated September 30, 2006.[6]

         5. The licensing agreement renews automatically every year, unless one party provides notice of termination to the other at least 30 days prior to the expiration of the then-current term.

         6. The licensing agreement can be terminated by either DOL or Elsevier if the other party materially breaches any term of the agreement and the breach continues uncured for 30 days after written notice.

         7. Pursuant to the licensing agreement, Elsevier, as licensor, granted DOL, as licensee, a non-exclusive, non-transferrable license to use the “Database” for certain “Permitted Uses.”

         8. In consideration for Elsevier furnishing the Database, DOL is required to pay Elsevier a license fee annually.

         9. The licensing agreement defines the “Database” as the Official American Board of Medical Specialities (“ABMS”) Directory of Board Certified Medical Specialists that has been developed and maintained by Elsevier and ABMS.

         10. DOL is permitted to use the Database on DOL's computers to generate readonly reports on individual physicians for DOL's internal “Credentialing Purposes, ” which means analyzing a physician's credentials to determine whether the physician possesses particular qualifications or credentials in a medical specialty. The Database may be accessed remotely only if it is done via a secure web site and for DOL's internal purposes.

         11. Elsevier has the right to review DOL's use of the Database.

         12. DOL is required to comply with various guidelines, including, ensuring reasonable protection of ABMS data from unauthorized access.

         13. DOL is required to submit promotional or advertizing materials that include, among other things, mention of the Database to Elsevier for approval.

         14. DOL is required to use a specific copyright notice in promotional pieces and reports issued to third parties that contain the Database.

         15. DOL is required to provide Elsevier with screen shots involving the Database for approval of copyright and co-mingling guidelines.

         16. DOL may not co-mingle the Database with information from any other source.

         17. DOL may not re-license or distribute the Database to any third-party.

         18. DOL acknowledged that Elsevier and ABMS owned all right, title, and interest in the Database.

         19. DOL may not download or copy the Database, except in printing or downloading portions of the Database as a result of discrete searches.

         20. After acceptance of the licensing agreement and receipt of payment, Elsevier is required to provide DOL one copy of the Database on CD-ROM.

         21. Elsevier agreed to provide technical support during the term ...

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