Brown v. DOL, No. 13-01722, 2018 U.S. Dist. LEXIS 149102 (D. Colo. Aug. 31, 2018) (Moore, J.)

Brown v. DOL, No. 13-01722, 2018 U.S. Dist. LEXIS 149102 (D. Colo. Aug. 31, 2018) (Moore, J.)

Re:  Request for records related to referee physicians and claimants involved in workers compensation cases

Disposition:  Granting in part and denying in part plaintiff's motion for declaratory and injunctive relief

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court notes that, "'[o]nce the government produces all the documents a plaintiff requests, her claim for relief under the FOIA becomes moot.'"  "Here, defendants have not produced the reports plaintiffs have requested. Instead, defendants have agreed to produce the requested reports. The court finds that, "this case is not moot because defendants have not produced the reports plaintiffs requested."
   
• Exemption 4:  The court notes that, "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."  "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."  "The [c]ourt concludes that the Critical Mass test, i.e., the test for voluntarily submitted information, applies.  "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.'"  The court finds that, "[u]ntil the first day of the bench trial . . . it could be said that [the company] had a custom of not releasing information if the information was subject to a requested suppression.  "Here, the evidence reflects that [the company] certainly provides information to parties other than defendants."  The court concludes that, "defendants have met their burden of establishing [the company's] custom of not releasing suppressed information to the public."  "Thus, to the extent that the information relevant to the Critical Mass test is suppressed information, the [c]ourt concludes that defendants have shown that Exemption 4 applies."  The court notes that, "[i]n this case, for the releases of which there is evidence in the record, few involve releases of information to the general public."  "Instead, the vast majority are best categorized as protected disclosures of information."  The court concludes that, "the release of [the company's] data pursuant to such licensing agreements is a 'protected disclosure[ ] of information,' and thus, not a customary release for purposes of Critical Mass."  The court further concludes that, "it is [the company's] custom to release to the general public [certain] information [electronically] and in its printed books . . . [the company] sold its printed books to libraries and sells subscriptions to public libraries that give access to [its electronic directory] as far as the [c]ourt is concerned, those are customs.  The court finds that, "the information available to the general public, in particular in [the company's] printed books, is evidence of the customary release of the information licensed to defendants because the latter is 'of a kind' with the former."  "As a result, to the extent that the information relevant to the Critical Mass test is all of the information [the company] licensed to defendants, the court concludes that defendants have failed to show that Exemption 4 applies.
  
  Finally, the court notes that, "[b]ased upon the unique circumstances of this case and a natural reading of the phrase . . . in this case, 'information presented to the Government' means all of the information [the company] provided to defendants."  "As a result, the [c]ourt concludes that the information to be considered, for purposes of whether information would customarily not be released to the public by the person from whom it was obtained, is all of the information provided to the government by the person."  "In light of the [c]ourt's conclusion that defendants have failed to show Exemption 4 applies to all of the information [the company] provided defendants, the [c]ourt thus finds that defendants have failed to show that Exemption 4 applies in this case."