Federal employees’ FOIA claims for referee physician info revived
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Wednesday, August 31, 2016

Federal employees’ FOIA claims for referee physician info revived

By Kathleen Kapusta, J.D. Reversing a summary judgment order upholding agency redactions to documents provided pursuant to the Freedom of Information Act to eight former federal employees eligible to receive federal workers’ comp benefits and who requested records pertaining to the selection of referee physicians, the Tenth Circuit found the FOIA exemptions invoked by the agency based on confidential commercial information and personal privacy raised genuine disputes of material fact (Brown v. Perez, August 29, 2016, Ebel, D.). The plaintiffs were all eligible to receive workers’ comp benefits through the Office of Workers’ Compensation. To receive benefits under that program, an injured worker must show a qualifying medical condition supported by a physician’s opinion. If there is a disagreement between a worker’s treating physician and the second-opinion physician hired by the OWC, an impartial "referee" physician is selected to resolve the conflict and that opinion is frequently dispositive. Select few? Although the OWC uses a software program to schedule referee appointments on a rotational basis from a list of Board certified physicians, the plaintiffs suspected that the agency did not follow this policy but instead hired the same "select few" referee physicians who were accordingly financially beholden and sympathetic to the OFC. They filed FOIA requests for agency records pertaining to the referee selection process, focusing on appointments for orthopedic physicians in Colorado over the past 10 years. They also requested screenshot printouts showing how the scheduling software menus would appear on a user’s computer screen. Redacted reports. The OWC, DOL, and the Secretary of Labor released various redacted reports containing information regarding the total number of times physicians in the identified specialties served as referees or were bypassed, as well as lists showing the patient and date of each referee evaluation performed by the selected physicians within certain timeframes. In general, the physicians’ and injured workers’ names, addresses, and other identifiers were redacted. The agency declined to provide printouts of the scheduling program’s on-screen menus. The plaintiffs then sued, challenging the redactions, and the agency asserted FOIA exemptions. It also argued that it could not be required to create the requested screen printouts. On cross-motions for summary judgment, the district court found in favor of the agency. Confidential commercial information. The agency asserted that the doctors’ names and addresses were exempt from release under FOIA exemption 4 for confidential commercial information. It invoked this exemption on behalf Elsevier, Inc., the company that licensed to it the list of Board-certified physicians referenced by the software. The appeals court first found that Elsevier had a commercial interest in the information as the redacted information was part of the data that it compiled, maintained, and sold as product. However, while the agency asserted that Elsevier would suffer competitive injury because the disclosure of some of the information contained in its database would devalue the database, its only evidence supporting this assertion was a letter that Elsevier sent the OWC two years after the plaintiffs’ FOIA requests, objecting to the disclosure of an unspecified type and quantity of information from its database. But this letter was hearsay and thus would be inadmissible at trial. Because the agency neglected to show that it could put the substance of the letter into an admissible form, the lower court could not consider it on summary judgment, said the appeals court. Absent that letter, the record was devoid of evidentiary support for the agency’s assertion. List publicly available? Further, the court questioned whether Elsevier even could successfully object to disclosure of the physicians’ names and addresses. Elsevier licensed the physician list included in its database from the American Board of Medical Specialists (ABMS), and there was evidence showing that the ABMS public website makes physicians’ names and business addresses freely available and searchable by zip code and specialty online. Although the agency disputed the breadth and accuracy of this list, some of its arguments improperly relied on extra-record evidence, and the remainder of the evidence was insufficient to prevail on summary judgment, the appeals court held, finding fact issues existed regarding the public availability of the redacted data and potential commercial harm to Elsevier. Personnel and medical files. Exemption 6, which protects "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," was invoked on behalf of the referee physicians mentioned in the reports. In seeking to establish the physicians’ privacy interests, the agency relied on cases holding that certain lists of names and addresses can implicate a privacy interest, even though that information may already be available to the public in some form. Those cases, however, concerned home addresses rather than business addresses, the court noted, observing that the agency did not provide any evidence to support its assertion that treating physicians have a privacy interest in their business addresses. Further, observed the court, the cases cited by the agency arose in the labor relations context and those courts were sensitive to the dangers—including exposure to harassment, pressure, or threats—inherent in revealing workers’ identities and addresses to potential adversaries. Here, however, the agency identified no similar risks. In addition, the remainder of its cases concerned disclosure of personal financial information, and the court found it beyond dispute that the agency reports at issue here did not contain any financial information regarding either the cost of or payment for referee evaluations. Summary judgment in the agency’s favor on this exemption was also improper. Screenshots. Finally, the court rejected the agency’s argument that the FOIA did not obligate it to create documents and that it had no duty to provide printouts of the scheduling program’s onscreen menus, finding that the duty of disclosure applies equally to electronic records and documents. Because the agency put forth no evidence concerning the burden that reproducing the menu screens as printouts would cause, it failed to show that fact issues remained.

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