Biles v. HHS, No. 11-1997, 2013 WL 1154207 (D.D.C. Mar. 21, 2013) (Lamberth, C.J.)

Re: Specific data from 2009 provided to Centers for Medicare and Medicaid Services (CMS) by all Medicare Advantage Organizations (MAO) reflecting MAO's actual costs expected to provide offered Medicare benefits

Disposition: Denying defendants' motion for summary judgment; granting plaintiff's motion for summary judgment; declining to address plaintiff's motion for attorney's fees and costs

• Exemption 4:  "[T]he only disputed issue is whether or not the requested information is confidential."  The "National Parks test for 'required information' applies . . . because the requested data is required by law to be submitted to CMS by all participating MAOs."  Thus, the information will be considered confidential if disclosure is "likely to (1) 'impair the Government's ability to obtain necessary information in the future' or (2) 'cause substantial harm to the competitive position of the person from whom the information was obtained.’" First, the court concludes that the defendant "has failed to meet its burden of showing how disclosure of the information will impair CMS from obtaining data in the future."  Because "all MAOs are required by statute to submit the requested data to CMS in order to participate as an MAO the following year, the Government will continue to be able to obtain the data . . . even if the requested data is disclosed."  Therefore, the defendant “focuses on the quality of the data the Government will be able to obtain," arguing "disclosure . . . will cause MAOs to adjust their bids in order to compete with other MAOs' bids . . . which would deprive CMS of the detailed and reliable information it now obtains."  However, the plaintiff counters by arguing that "'plans cannot simply raise bids strategically [or] willy-nilly [because] [t]here must be an actuarial basis for doing so.'"  The court finds that the defendant "offers 'nothing but speculative opinion that [MAOs] may not be forthcoming in the data they submit if [HHS] allows disclosure' . . . [though] the agency has the burden of showing that requested information comes within a FOIA exemption." The court next turns to the question of substantial competitive harm.  The court determines that "HHS's assertion that MAOs compete to attract enrollees is sufficient” to establish proof of competition because "'[a]ctual competition' does not require high levels of competition, but only 'actual' competition."  The court then determines that the defendant's assertions of competitive harm are "rebutted by [plaintiff] without an adequate evidentiary response from  [defendant].”  The "'harm' aspect of 'competitive harm' is an unfair commercial disadvantage by way of exposure."  The defendant fails to explain why giving "all MAOs . . . access to the requested data, . . . [which] prevent[s] any one MAO from unfairly benefiting to the detriment of another MAO[,] . . .  still poses a likelihood of substantial competitive harm."  Additionally, the defendant admits that some of the requested information is already publicly available.  The court explains that the "public availability of analogous data can cut both ways, as it can nullify claims that the requested data is confidential, but it can also make the requested data more harmful if the public data can be combined with the requested data to obtain commercial information that is likely to cause substantial competitive harm."  For this reason, summary judgment for the defendant is inappropriate, but summary judgment for the plaintiff is still a possibility.  The court also considers the age of the requested information.  The defendant has "failed to explain why the 2009 data is still commercially valuable to competitors or how that data could be used in 2014 or later to create a likelihood of substantial competitive harm."  Finally, the court finds that claims offered by the defendant regarding harm caused by releasing the requested information are "too conclusory to satisfy [defendant's] burden of proof."  "Crucial, and missing, in [defendant's] evidence is exactly how all of these consequences of disclosure would cause a likelihood of substantial competitive harm."