Brown v. Perez
835 F.3d 1223
10th Cir.2016Background
- Plaintiffs are former federal employees who sought FOIA records from the Department of Labor’s Office of Workers’ Compensation (OWC) about referee-physician selection to test whether OWC favored certain doctors.
- Plaintiffs requested unredacted versions of four physician reports (Physician Activity, Usage, Prompt Pay, History) and screenshot printouts of the OWC scheduling software menus. Plaintiffs did not challenge redaction of injured workers’ data.
- OWC produced redacted reports removing physician names/addresses and refused to produce software screenshots; it invoked FOIA Exemptions 4 (confidential commercial information) and 6 (personal privacy).
- District court granted summary judgment for the agency on all claims; Tenth Circuit granted partial rehearing and reconsidered whether screenshots existed and whether exemptions were properly applied.
- The Tenth Circuit held (1) FOIA does not require agencies to create records, so the agency properly denied screenshot printouts that did not already exist in stored electronic form; (2) summary judgment for the agency was improper as to Exemptions 4 and 6 because genuine factual disputes remained about Elsevier’s commercial harm and the physicians’ privacy interests.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exemption 4 (commercial/confidential) | Plaintiffs: physician names/addresses are not confidential commercial info and may be publicly available via ABMS; disclosure needed to test favoritism. | DOL/Elsevier: physician data is commercial, licensed from Elsevier, and disclosure would cause competitive harm/devalue database. | Reversed district court: genuine factual disputes exist about public availability and competitive harm; summary judgment for agency on Exemption 4 improper. |
| Exemption 6 (personal privacy) | Plaintiffs: business addresses and counts of referee assignments do not create substantial privacy invasion; public interest in government operations outweighs any privacy interest. | DOL: physician identities and referee histories are “similar files” invoking privacy; disclosure could invade privacy or reveal financial info when combined with other data. | Reversed district court: factual disputes about the scope/weight of privacy interests remain; summary judgment for agency on Exemption 6 improper. |
| Screenshots / creation of records | Plaintiffs: screenshots of scheduling software menus should be produced to understand selection process. | DOL: screenshots are not stored as records; producing them would require recreating images (opening software and generating printouts), which FOIA does not compel. | Affirmed in part: FOIA does not require agencies to create records; because screenshots did not exist in stored form, agency properly denied them. |
Key Cases Cited
- Milner v. Department of the Navy, 562 U.S. 562 (2011) (FOIA disclosure general rule and exemptions overview)
- Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980) (FOIA does not require agencies to create records)
- Forsham v. Harris, 445 U.S. 169 (1980) (FOIA does not obligate creation of explanatory material)
- Anderson v. U.S. Dep’t of Health & Human Servs., 907 F.2d 936 (10th Cir. 1990) (Exemption 4 standard: commercial, obtained from person, confidential)
- Utah v. U.S. Dep’t of Interior, 256 F.3d 967 (10th Cir. 2001) (involuntary submissions and commercial harm analysis under Exemption 4)
- Trentadue v. Integrity Comm., 501 F.3d 1215 (10th Cir. 2007) (de novo review for FOIA exemptions; Exemption 6 "similar files" scope)
- U.S. Dep’t of Defense v. FLRA, 510 U.S. 487 (1994) (privacy interest in home addresses and context-specific privacy analysis)
- Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (FOIA’s core public-interest purpose guides Exemption 6 balancing)