Brown v. U.S. Dep't of Labor (342 F. Supp. 3d 1112, 2018)

RAYMOND P. MOORE, United States District Judge

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, 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. 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.

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.

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. 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. 2016). 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.

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 read-only 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 of the licensing agreement.

22. Elsevier is required to provide updates to the Database annually.

23. Elsevier agreed that the format on which the Database is delivered would be free from defects.

24. Within 30 days of termination of the licensing agreement, DOL is required to destroy or give back to Elsevier all copies of the Database, and expunge any data contained in or derived from the Database that is in DOL's data storage facilities.

25. Elsevier is under no obligation to license the Database.

Conclusions of Law

The burden of establishing that requested documents fall within a FOIA exemption is on the government, here, defendants. Brown , 835 F.3d at 1229. Defendants argue that the applicable test for purposes of Exemption 4 is the test for involuntarily submitted information set forth in National Parks . This could be considered an odd choice for the government to make, given that the National Parks test is generally considered to be the more stringent of the two tests. See, e.g. , Cortez III Serv. Corp., Inc. v. Nat'l Aeronautics & Space Admin. , 921 F.Supp. 8, 13 (D.D.C. 1996). Perhaps defendants are simply a generous bunch, perhaps they simply want to truly earn any victory they may achieve in this case, whatever drove defendants decisionmaking, it has been clear and consistent throughout this case: defendants want the National Parks test applied. Before the Tenth Circuit, the parties did not dispute that the information at issue was submitted involuntarily. Brown , 835 F.3d at 1231 & n.4. In the final pretrial order, their proposed findings of fact and conclusions of law, and at trial, plaintiffs have argued that Exemption 4 does not apply irrespective of the test used. At trial, though, plaintiffs clearly argued that the information they requested was voluntarily submitted to defendants by Elsevier. As such, the Court concludes that there is an issue to be resolved in this case as to which test applies, National Parks or Critical Mass .

The Court concludes that the Critical Mass test, i.e., the test for voluntarily submitted information, applies. Notably, defendants have made an abject attempt to establish that the reverse is true-that Elsevier submitted its information involuntarily. Defendants effort is abject in that no evidence, other than the license agreement itself, was presented to show that Elsevier submitted the Database involuntarily. Defendants pointed to no specific provision of the licensing agreement that rendered Elsevier's submission of the Database involuntary. Instead, defendants relied on the general argument that, because Elsevier and DOL entered into a contract, it was required for Elsevier to provide the Database. Considered naturally, defendants argument is that if a third-party enters into any type of contract with the government, anything the third-party does pursuant to the contract is required, or, in context, involuntary. To support this interesting proposition, after being invited to provide case law, defendants offered one case involving a contract.

So, is that case helpful? Not really. In that case, Sun-Sentinel Co. v. U.S. Dep't of Homeland Sec. , 431 F.Supp.2d 1258 (S.D. Fla. 2006), the court found that National Parks was applicable in determining the confidentiality of names and identification numbers of inspectors, which were required to be provided to the Federal Emergency Management Agency ("FEMA") pursuant to contracts between FEMA and various contractors who provided the inspectors. Id. at 1275. The court stated that it made this finding "[a]fter careful review of the record," which given the citations the court made, presumably included reviewing the contracts between FEMA and the contractors. See id.

The problem is that the Sun-Sentinel court did not recite the language of the contracts requiring the contractors to turn over the inspectors' names and identification numbers. All the court says is that "the National Parks test is proper given the wording of the contracts." Id. at 1275 n.15. Thus, in Sun-Sentinel , the language of the relevant contracts very well may have supported a proposition that, in Sun-Sentinel , the third-parties were required to turn over certain information. That is not particularly helpful in this case, given that there can be little dispute that the licensing agreement here almost certainly has different contractual language than the contracts between FEMA and the third-parties in Sun-Sentinel .

Turning to the substance of this issue, the problem with defendants' entire approach to it has been that defendants have never discussed the principles underlying Critical Mass ' test for voluntarily-submitted information. The reason the D.C. Circuit decided to adopt a new test for voluntarily-submitted information was because, as far as the Circuit was concerned, there were different interests at work in protecting such information. More specifically, the D.C. Circuit explained that, when information is voluntarily submitted, the purpose of Exemption 4 "is that of encouraging cooperation with the Government by persons having information useful to officials." Critical Mass , 975 F.2d at 878 (quotation omitted). Otherwise, "the ability of the government to make intelligent, well informed decisions will be impaired." Id. (quotation omitted).

This is precisely what is at stake here. Defendants made that perfectly clear in their opening statement and closing argument. Notably, Critical Mass clearly states that, when information is compelled, the government's interest is in its "continued reliability," while, when information is volunteered, the government's interest is in ensuring its "continued availability." Despite that, in this case, defendants have argued that, if Elsevier's information is released, it will no longer be available to the government, and thus, the government's ability to select referee physicians will be impaired. In other words, defendants rely upon the government's interests in volunteered information, not compelled information. Just to make sure that reliability was not at issue in this case, defendants' witness from Elsevier testified that the reliability of its information would not be impaired if the same was released. Simply put, defendants have argued for a National Parks test based upon a Critical Mass exigency that purportedly exists. This Court will not follow that schizophrenic approach.

Here, defendants have repeatedly argued that Elsevier has information useful to the government-because the information is used by the government to select referee physicians-and, without Elsevier's information, defendants' ability to make well-informed decisions would be impaired-because defendants' computer system for selecting referee physicians would need to be overhauled. Defendants have further argued that, if the information at issue in this case was disclosed, Elsevier would attempt to terminate the licensing agreement. In other words, Elsevier would decline to cooperate with defendants if defendants could not ensure the confidentiality of Elsevier's information. Defendants could not have picked out the logic from Critical Mass better if they had tried. See Critical Mass , 975 F.2d at 878. Put simply, if it sounds like Critical Mass , it probably is.

That being said, there is no bright-line rule for when information is submitted voluntarily or involuntarily. At the far end of voluntariness is information simply given to the government with the government giving back nothing in exchange other than the promise of confidentiality, such as the information at issue in Critical Mass . At the far end of involuntariness is information given to the government for the sole reason that the government has compelled its disclosure by enforcing a statutory mandate. In the first scenario, the government only needed to promise confidentiality to obtain the information. In the latter, the government had to resort to its statutory powers to extract the information. Obviously, there is a lot of information in the government's control that falls between these extremes. The licensing agreement at issue in this case does exactly that. Where on the scale of voluntariness/involuntariness the Database sits is perhaps open to debate, but, this Court concludes that it is more voluntary than involuntary.

First, as just discussed, policy considerations significantly favor concluding that the Database was voluntarily provided to defendants. Second, the plain terms of the licensing agreement reflect that defendants are enticing Elsevier's release of the Database on the condition of confidentiality. Confidentiality is embedded throughout the licensing agreement, not least in defendants being prohibited from distributing the Database to any third-party. Of course, there is also the annual fee Elsevier receives as enticement for its cooperation, but, that in no way minimizes the importance of confidentiality. Simply paying Elsevier a fee cannot transform the voluntary release of information into an involuntary act.

The licensing agreement also provides that, after accepting the agreement and receiving payment, Elsevier provide defendants with a copy of the Database. In some sense this can be considered a requirement on Elsevier's part, and it is this provision that the Court believes defendants allude to when they argue that the Database was involuntarily submitted. The provision, though, is more accurately considered a voluntary exchange: defendants voluntarily give money in exchange for Elsevier giving the Database. It is this exchange, as memorialized in a written agreement, that is the sole factor (in favor of involuntariness) that distinguishes the information given by Elsevier and the information given in Critical Mass . This Court, though, does not see why the calculus should change merely because, in this case, the government is willing to pay for information, while in Critical Mass they did not need to. If anything, the government should have an even greater interest in protecting such demonstrably valuable information.

Third, if there are requirements in the licensing agreement, they fall heavily on requiring action (or inaction) by defendants, not Elsevier. Arguably, pursuant to the contract , Elsevier is required to (1) provide the Database to defendants (after it receives payment), (2) update the Database annually, and (3) ensure there are no defects in the CD-ROM on which the Database is delivered. Massed against these arguable requirements, are the definite requirements imposed upon defendants. The requirement that defendants only use the Database as permitted in the licensing agreement. The requirement that defendants not distribute the Database to third-parties. The requirement that defendants allow Elsevier to review defendants' use of the Database. The requirement that defendants comply with numerous guidelines for using ABMS data. The requirement that defendants submit promotional and advertizing material to Elsevier for review. The requirement that defendants provide Elsevier with screen shots for approval of copyright and co-mingling guidelines. The requirement that defendants not co-mingle the Database with other material. The Court could go on. Suffice to say, the licensing agreement is a veritable laundry list of requirements on defendants' part. Thus, to turn the licensing agreement on its face, and use one of the purported requirements therein against Elsevier, while ignoring all that is required of defendants. would undermine the purpose of not only the licensing agreement, but also the D.C. Circuit's interpretation of Exemption 4 in Critical Mass .

Finally, as Tritz testified, defendants purchase information from Elsevier. The licensing agreement provides that Elsevier is granting defendants a license to use the Database. The licensing agreement does not provide that the license is being granted because defendants or the law require it, but, instead, because defendants are paying for it. In no reasonable sense can purchasing the Database from Elsevier or Elsevier granting defendants the right to use it be considered Elsevier involuntarily turning the Database over to defendants. If it was, information provided pursuant to every license agreement in which the government enters would have to be considered involuntarily submitted. Not only does such a construction subvert the meaning of a license, it makes no logical sense.

As a result, the Court concludes that the information at issue in this case was voluntarily submitted to defendants, and thus, the Critical Mass test for confidentiality applies.

B. Customarily Released?

Critical Mass provides that, when information is submitted voluntarily to the government, it 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." Critical Mass , 975 F.2d at 879.

Findings of Fact

1. Joann Amore ("Amore"), the Director of Elsevier's professional certification directory business, testified that part of the data Elsevier sells comes from the ABMS, some is collected directly by Elsevier, and some comes from other sources such as state medical boards or the postal service.

2. In collecting its own data, Elsevier annually reaches out to physicians, asking them to review and up-date their data.

3. The data Elsevier sells defendants comes in part from the ABMS and in part from Elsevier's direct contact with doctors.

4. ABMS' data contains information related to a doctor's board certifications.

5. Elsevier pays ABMS for its data.

6. ABMS can request that information it provides be suppressed from publication by Elsevier.

7. Suppressed information includes a doctor's gender.

8. If a zip code is part of an address that is suppressed from publication, Elsevier would consider the address including the zip code confidential.

9. If a doctor's city and state are published (but not the street address), a zip code could go with the city and state.

10. Some doctors are totally suppressed, which means that Elsevier cannot even publish the doctor's name. When a customer searches for a doctor who has been totally suppressed, the customer will receive a privacy notice stating that no results for the doctor searched can be displayed.

11. The data licensed to defendants does not include doctors who have asked for total suppression.

12. If a doctor asks for only certain information to be suppressed, such as just the doctor's phone number, defendants would receive information on the doctor, but they may or may not receive the information that has been asked to be suppressed, such as the phone number. In some cases, Elsevier will allow suppressed information, such as the phone number, to be in the data provided to defendants provided that there is no risk that the data will be put on a public website.

13. If a doctor is included in licensed data, and the doctor later asks for total privacy, in an update the doctor will vanish.

14. ABMS requires that Elsevier respect suppression requests.

15. A doctor can also reach out to Elsevier privately and ask for data to be suppressed. Elsevier will try to honor those requests as much as they can.

16. Board certifications need to be made available, but other data Elsevier collects does not necessarily need to be made public.

17. It is important for Elsevier to honor suppression requests because Elsevier needs to have a doctor's board certification(s) available to its customers, and, if Elsevier did not honor a suppression request, a doctor could petition his/her board to have total privacy which would prevent customers from confirming certifications.

18. Elsevier also licenses the data it licensed to defendants to hospital or health systems, some health insurance plans, and state boards.

19. Elsevier also licenses the data to a few consumer websites, but they get a smaller subset of data with more restrictions. This data would include doctors' names and specialities, but it may not include addresses.

20. Elsevier licenses the following data about physicians to defendants: board certifications, street addresses, phone numbers, cities, states, and zip codes. Some doctors may have more than one address, and some may have no phone number.

21. Elsevier has a basic template for its licensing agreements.

22. Elsevier's licensing agreements provide that the licensee is only allowed to use the data for specified purposes.

23. Elsevier's licensing agreements allow the license to be terminated for a material breach of the agreement.

24. Elsevier's licensing agreements provide that if the agreement is terminated for any reason, the data must be returned or expunged from the licensee's database within 30 days of termination.

25. Elsevier's licensing agreements provide that data cannot be redistributed to other people.

26. If defendants were to release data without permission, Elsevier would terminate the licensing agreement. Elsevier would do this because it needs to protect the licensed data.

27. Elsevier performed some additional research into 95 doctors who were involved in one of the reports plaintiffs requested for purposes of determining what data was published about those doctors in 2011 and what data is currently suppressed.

28. Elsevier did not have a problem with releasing information about 40 doctors because either the doctors or the doctors' contact information did not come from Elsevier's data.

29. Elsevier did not object to information on 34 doctors being released because, in December 2011, in the last print edition of Elsevier's print product, Elsevier had released the same information. Where certain contact information for these 34 doctors has not been released it is because Elsevier did not have that information in its database; it is not due to the information being suppressed.

30. Elsevier did not object to the release of the names and certain contact information of 21 doctors. The reason why is not perfectly clear. Amore testified that this information could be released because it had not been suppressed, and then later testified that the information could be released because it was in the interests of trying to resolve this case.

31. The contact information of the 21 doctors that Elsevier agreed to release did not appear in the last print edition of Elsevier's print product.

32. Elsevier determined that the competitive risk was minimal in releasing information about these 95 doctors.

33. Elsevier would not grant defendants permission to release any further data.

34. Elsevier would terminate the licensing agreement if defendants were required to release data from the Database in the future. Elsevier would do this because it cannot allow unspecified and/or unlimited amounts of data to be released.

35. Elsevier published a print directory with ABMS until December 2011.

36. Doctors' names and/or contact information were suppressed in Elsevier's print books.

37. The limitations on information in Elsevier's printed books were similar to the ones Amore discussed with respect to the information licensed to defendants.

38. Doctors could choose to opt out entirely from the printed books.

39. The print directories were, for the most part, sold to libraries. Elsevier could also sell them to individuals and organizations.

40. The print directories stated that they were proprietary, they could not be loaded into other sources, and they could not be re-published.

41. ABMS "directory dot com" is an Elsevier publication, and it is accessed via an annual subscription.

42. ABMS "directory dot com" contains a subset of the data licensed to defendants and has less detail. Doctors can choose to be opt out entirely from ABMS "directory dot com."

43. If a doctor requests suppression, his/her data would be suppressed from ABMS "directory dot com."

44. Another Elsevier publication is "board certified docs dot com," which is produced for the professional credentialing community, and accessed via a subscription.

45. The data available in "board certified docs dot com" is more similar to the data defendants receive, as it contains all details about professional certifications. Doctors can request all of their information be suppressed, but, at the very least, a doctor's name and board certification would appear unless the doctor had total privacy.

46. The subscription agreements for access to "board certified docs dot com" indicate that doctor profiles can be used for purposes of credentialing, and the profiles cannot be re-sold, loaded into other databases, or copied.

47. Elsevier sells electronic subscriptions to libraries for access to its data. Libraries do not get the same data licensed to defendants.

48. The libraries' subscriptions give access to ABMS "directory dot com," which gives users of the subscription access to the subset of data contained on that site. Users can search by name or specialty.

49. A subscribing library is given a password that allows access for one year. On some occasions, the library will not need to use the password because the library's computer signature will be recognized by Elsevier's database.

50. Elsevier also sells subscriptions to libraries allowing five patrons of the library to access ABMS "directory dot com" at the same time. A patron can see a doctor's address or city if that information is allowed to be published.

51. In subscription agreements that are signed by parties subscribing to ABMS "directory dot com" there are restrictions on the use of Elsevier's data, and the subscription agreements provide that the data cannot be re-sold or loaded onto other databases and the data can only be used on the subscribing party's premises. These same restrictions and provisions are on ABMS "directory dot com" itself.

52. Elsevier sells mail-in lists of various medical specialities.

53. The mail-in lists are for one-time use, and Elsevier must approve the item being mailed.

54. Elsevier provides a user-guide for law firms to help them search for expert witnesses.

55. In 2011, ABMS required doctors to make their names, board certifications, cities, and states available for confirmation.

Conclusions of Law

It is defendants' burden to prove Elsevier's custom(s).

Critical Mass , 975 F.2d at 879. In that regard, it is the custom of release to the public that is at issue. Id. In addition, it is Elsevier's custom that is relevant, not "how the industry as a whole treats the information." Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin. , 244 F.3d 144, 148 (D.C. Cir. 2001). Further, "[a] party can voluntarily make protected disclosures of information, and as long as the disclosures are not made to the general public, such disclosures do not constitute customary disclosures." Id.

Before beginning, it is very important to mention again the very odd posture of this case. Like a legal sausage maker, defendants have attempted to slice the information at issue in this case into a few tiny slices. The embodiment of this handiwork are the three spreadsheets attached to Exhibit T. Although spreadsheet 1 will be mentioned later, for now it is irrelevant because Amore testified that none of the information therein came from Elsevier. As such, it helps little in determining Elsevier's custom. Spreadsheets 2 and 3, however, do contain Elsevier information. According to Amore, spreadsheet 2 contains all of the contact information in Elsevier's database for 34 doctors that was released in the final print edition of Elsevier's printed directory. Amore also testified that the printed directories were sold mostly to libraries. To the extent there is a custom there, it is that at least some of Elsevier's information can be released to the public through a printed product sold to libraries.

Spreadsheet 3 is where things become less clear. According to defendants' letter in Exhibit T, the names and contact information included in spreadsheet 3 are of 21 doctors who have not asked for that information to be suppressed. In addition, Amore clarified that the information contained in spreadsheet 3 was not released in Elsevier's printed product. Thus, it would appear that Elsevier will allow its information to be released if a doctor does not ask for suppression of that information, even if the same has not been included in a printed (or, presumably, an online) directory. Whether that is a custom of Elsevier is far from clear though. Ultimately, however, the burden is on defendants, and, in this case, the Court has not been presented with an argument that Elsevier would customarily not release the information included in spreadsheet 3.

There is still more to spreadsheet 3 though. Specifically, the information not contained in the spreadsheet. According to defendants' letter in Exhibit T, contact information for a doctor that is not included in spreadsheet 3 is subject to a requested suppression, and thus, that information does not appear in the spreadsheet. Until the first day of the bench trial, therefore, it could be said that Elsevier had a custom of not releasing information if the information was subject to a requested suppression. So it is clear, the information that has not been released in spreadsheet 3 was phone numbers, street addresses, and zip codes. As the Court has already discussed, plaintiffs have limited their request to zip codes. Therefore, when the bench trial began, arguably only one slice of the sausage remained: the zip codes of 17 doctors. On the first day of the bench trial, though, defendants stated that even this final slice had disappeared because they would provide the previously unreleased zip codes to plaintiffs. What that means for Elsevier's custom of not releasing information that is subject to a requested suppression will be discussed more shortly. In terms of how this Court goes about tackling the Critical Mass test, it leaves at least one question.

Notably, with respect to what information is the Court meant to determine whether defendants have proven a custom? Defendants have made no effort to clearly explain as to which informational vantage point Elsevier's customs should be considered directed. Is it the information included in spreadsheet 2? Based upon the Court's understanding of defendants' arguments, the answer is probably not. Is it the information included in spreadsheet 3? As mentioned, defendants have made no argument that Elsevier does not customarily release the information included in spreadsheet 3. Thus, presumably, their answer is again no. That leaves the information not included in spreadsheet 3, which for purposes of this case is the zip codes of 17 doctors. In closing argument, the only arguable custom to which defendants pointed was related to this type of information. Specifically, defendants argued that suppressed information is not customarily provided by Elsevier. In this light, defendants presumably want this Court to look only at the final slice of the sausage, and consider whether that slice is customarily released to the public.

There is another option: that the sausage should not be sliced at all. Critical Mass explains that "information provided to the Government" voluntarily is confidential if it would not be customarily released to the public. Critical Mass , 975 F.2d at 879. Read naturally, "information provided to the Government" would seem to imply the information given to the government. As Amore testified, here, that would mean doctors' names, board certifications, street addresses, phone numbers, cities, states, and zip codes. All of that information would be "information provided to the Government" by Elsevier. Defendants, however, argue that there is no controversy with respect to much of this information because they have released much of it in some form and/or have agreed to release it in the format plaintiffs requested. Taking that argument to the extreme reached on the first day of the bench trial, there would be no controversy here because defendants have agreed to release all of the information still at issue. Until defendants produce all of the requested documents, however, that is not so.

In this light, there is an open question as to whether the Court should consider the information provided to defendants as being merely the suppressed information or all of the information Elsevier provided to the government. Because the Court believes it important to address both possible options, the Court will analyze the Critical Mass test from both perspectives.

The Court begins with suppressed information. As an initial matter, the Court observes the misnomer in describing information as suppressed in the context of information that has purportedly been provided to the government. The very nature of suppression is that it has not been provided. See New Oxford American Dictionary 1748 (3d ed. 2010) (defining "suppress" as, inter alia , "prevent[ing] the dissemination of (information)"). Simply put, if Elsevier suppressed any information, then defendants really should not have that information at all even if they wanted to release it to plaintiffs. Of course, the suppressed information involved in the case might have conveniently been suppressed as to everyone other than defendants. Putting aside that, that would undermine the purpose of Elsevier respecting a doctor's request for suppression, it also does not really comport with Amore's testimony. Notably, Amore was equivocal in explaining what would happen if a doctor requested some but not all of his/her contact information be suppressed. Amore testified that the pertinent contact information may or may not end up in the information defendants received, and, in some cases, the contact information may be provided to defendants if it was determined that there would be no risk of the information being made public. That would seem to undermine Amore's testimony that ABMS requires Elsevier to respect suppression requests and that it is important for Elsevier to honor suppression requests. In any event, it does not support a suggestion that all suppressed information has been suppressed as to everyone other than defendants.

Despite the seeming contradiction of defendants being in possession of information that is meant to be suppressed, somehow defendants are in possession of some such information. For example, given that defendants have agreed to release the zip codes of 17 doctors that were not provided on spreadsheet 3, defendants presumably are or were in control of those zip codes. Otherwise, why else would the parties be here? See U.S. Dep't of Justice v. Tax Analysts , 492 U.S. 136, 144-145, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989) (explaining that "agency records" for purposes of FOIA are those materials either created or obtained by an agency and in the agency's control at the time they are requested). Assuming, therefore, that there is some suppressed information that defendants control (or did at the time of plaintiffs' requests), what is Elsevier's custom with respect to it?

Amore's testimony reflects that, at least as of the first day of the bench trial, Elsevier had a stated custom of not releasing suppressed information. As just discussed, with respect to how that custom is or was enforced against defendants, there are obviously some holes in it. If the "customarily released" test looked at how information is customarily released to the government, the foregoing could be a problem for defendants, at least as it pertains to the information at issue in this case. That, however, is not the relevant perspective for the test. The test instead looks to the custom of public release. See Critical Mass , 975 F.2d at 879.

Here, the evidence reflects that Elsevier certainly provides information to parties other than defendants. For example, Elsevier publishes ABMS "directory dot com," Elsevier publishes a directory on "board certified docs dot com," Elsevier sells electronic subscriptions to libraries, and Elsevier produced a printed directory with ABMS until December 2011. With respect to all of these publications or subscriptions, Amore testified that information was suppressed. Plaintiffs have not introduced any evidence contradicting Amore's testimony in this regard. There are also other ways Elsevier releases its information. Amore testified that Elsevier licenses the data it provided to defendants to hospital or health systems, some health insurance plans, and state boards. Amore also testified that Elsevier sells mail-in lists. There was no testimony, however, as to whether suppressed information is excluded from the information contained in these licenses and mail-in lists. Equally, though, there is no evidence that suppressed information is contained in these releases. Finally, Amore testified that Elsevier licenses data to a "few" consumer websites. Amore testified that the consumer websites get a smaller subset of data with more restrictions, and the data may not include addresses. Again, though, there has been no development of whether the consumer websites receive suppressed information.

Ultimately, even if the Court were to assume that information released pursuant to licenses and subscriptions constituted releases to the public for purposes of the Critical Mass test, the Court concludes that defendants have met their burden of establishing Elsevier's custom of not releasing suppressed information to the public. Notably, there is no evidence in the record contradicting Amore's testimony as to this public custom. Thus, to the extent that the information relevant to the Critical Mass test is suppressed information, the Court concludes that defendants have shown that Exemption 4 applies.

The Court now addresses whether or not defendants have made the same showing with respect to all of the information Elsevier provides defendants. As mentioned, Amore testified that defendants receive doctors' names, board certifications, street addresses, phone numbers, cities, states, and zip codes. What is Elsevier's custom with respect to this information? Well, that is an interesting question because defendants do not attempt to even claim that there is