PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BLAKE BROWN; DEAN BIGGS; JACQUELINE DEHERRERA; RUTH ANN HEAD; MARLENE MASON; ROXANNE MCFALL; RICHARD MEDLOCK; BERNADETTE SMITH, Plaintiffs - Appellants,

v. THOMAS E. PEREZ, Secretary of Labor; UNITED STATES DEPARTMENT OF LABOR, an agency of the United States; OFFICE OF WORKERS COMPENSATION, an agency of the United States Department of Labor, Defendants - Appellees. No. 15-1023

________________ _________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:13-CV-01722-RM-MJW)

________________ _________________ John S. Evangelisti (Karen Larson, with him on the brief), De nver, Colorado, for Plaintiffs-Appellants. Steve Frank, Attorney, Appellate Staff (Ben jamin Mizer, Principal Deputy Assistant Attorney General, John F. Wa lsh, United States Attorney, Office of the United States Attorney, Denver, Colo rado, and Leonard Schaitman, A ttorney, Appellate Staff, U.S. Department of Justice, with him on the brie f), U.S. Deppartment of Justice, Washington, D.C., for Defendants-Appellees.

________________ _________________ Before TYMKOVICH , Chief Judge, EBEL , and PHILLIPS , Circuit Judges. FILED United States Court of Appeals Tenth Circuit 

### August 29, 2016
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ EBEL , Circuit Judge.

________________ _________________ Plaintiffs-Appellants Blake Brown, D ean Biggs, Jacqueline Deherrera, Ruth Ann Head, Marlene Mason, Roxanne McFall, Richard Medlock, and Bernadette Smith (“Plaintiffs”) a ppeal a summary judgment order upholding DefendantsAppellees Thomas E. Perez, Secretary of Labor, United St ates Department of Labor, and the Office of Workers Compensation’s (“OWC”) (collectively, “the agency”) redactions to documents they provided to Plaintiffs pursuant to the Freedom of Information Act, (“FOIA”), 5 U. S.C. § 552. Because we find that the FOIA exemptions invoked by the agency raise genuine disputes of material fact, we reverse and remand for further proceedings.
I. BACKGROUND Plaintiffs are former fede ral civilian employees elig ible to receive federal workers compensation benefits. See Federal Employees’ Compensation Act, (“FECA”), 5 U.S.C. §§ 8102(a), 8103(a), 8133. The relevant federal workers compensation program is administered by th e OWC, a subdivision of the Department of Labor. 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 trea ting physician and th e second-opinion physician hired by the OWC, an impartial “referee” physicia n is selected to resolve3 the conflict. 5 U.S.C. § 8123(a); see also 20 C.F.R. § 10.321. The referee’s opinion is frequently dispositive of the benefits decision. To ensure impartiality, it is the OWC’s official policy to use a software program to schedule referee appointments on a rotational ba sis from a list of Boardcertified physicians. Div. of Fed. Emp. Comp., Dep’t of Labor, FECA Pro. Man. ch. 3-500 §§ 4-6. When an appoi ntment is needed, the softwa re program searches that list for physicians who practice within twenty-five miles of the injured worker’s zip code. Id. If, upon inquiry, every nearby physician proves unwilling or unable to accept the appointment, the scheduling program expands its geographic search radius and continues to search until an available referee is found. 1 Id. Plaintiffs, however, suspect that the OWC does not adhere to its official policy, but instead always hires the same “select few” referee physicians, who are accordingly financially behol den—and presumably sympat hetic—to the agency. Aplt. Br. 7. In support of that contention, Plaintiffs po int to evidence that a certain orthopedic physician has repeatedly been selected to ev aluate workers in distant zip codes, despite the presence of closer physicians of the same specialty. To investigate their suspicions, Plain tiffs filed FOIA re quests for agency records pertaining to the referee select ion process. Although the Plaintiffs’ individual requests differed slightly, they generally focused on the statistics for

1 Within a given zip code, the software first selects physicians who have not previously accepted a referee appointment (in alphabetical order), and then selects physicians who have previ ously accepted an appointment (in reverse chronological order of their most recen t appointment date).4 referee appointments for ort hopedic physicians in Colorado over the previous ten years. In order to target future FOIA requests more ef fectively, Plaintiffs also requested screenshot prin touts showing how the menus of the OWC’s scheduling software would appear on a user’s computer screen. In response, the agency released vari ous redacted reports generated by its scheduling software. As rele vant to this appeal, the reports contain information regarding the total number of times physic ians in the identif ied specialties have served as referees or have b een bypassed, as well as list s showing the patient and date of each referee evaluation performed by th e selected physicia ns within certain timeframes. In general, th e physicians’ and injured work ers’ names, addresses, and other identifiers are redacted, although the injured workers’ zip codes remain visible. The agency declined to provide printout s of the scheduling program’s on-screen

menus. Dissatisfied with that re sponse, Plaintiffs filed this suit challenging the agency’s redactions of the doctors’ names and addresses fr om four specific types of reports, 2 as well as the agency’s w ithholding of screen print outs. Plaintiffs contend that they cannot verify thei r suspicions about the OWC’ s scheduling practices unless they know how often each phys ician has been assigned to examine patients outside his or her zip code. For its part, the agency argues that th e doctors’ names and

2 Specifically, Plaintiffs seek unredacted versions of the “Physician Activity Report,” “Physician Usage Report,” “Physic ian Prompt Pay Repor t,” and “Physician History Report.” Plaintiffs do not challenge the redaction of th e injured workers’ information.5 addresses are exempt from release under FO IA Exemptions 4 and 6, and that it cannot be required under FOIA to create records—such as th e requested screen printouts—that it does not already main tain. On cross mo tions for summary judgment, the district court found in favor of the OWC on all grounds. Plaintiffs now appeal.
II. DISCUSSION A. FOIA Standard of Review FOIA “requires federal agencies to make Government records available to the public, subject to nine exem ptions for specific categories of material.” Milner v. Dep’t of Navy, 562 U.S. 562, 564 (2011). “FOIA is to be broadly construed in favor of disclosure, and its exemp tions are to be narrowly cons trued.” Audubon Soc’y v. U.S. Forest Serv., 104 F.3d 1201, 1203 (10t h Cir. 1997). “The government bears the burden of demonstrating the re quested records fall within one of FOIA’s enumerated exemptions . . . .” Prison Legal News v. Executive Offi ce for U.S. Attorneys, 628 F.3d 1243, 1247 (10th Cir. 2011). The agency redactions at issu e in this appeal implicate two exemptions: Exemption 4, which applies to confidential commercial information, and Exemption 6, which applies to personnel, medical, and similar files whose disclosure would constitute a cl early unwarranted i nvasion of personal privacy. See 5 U.S.C. § 552(b)(4), (6). “Whether a FOIA exemption justifies withholding a reco rd is a question of law that we review de novo.” Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007); 5 U.S.C. § 552. “Because this appeal arises from a grant of summary6 judgment in favor of the [the agency], we review the record and all reasonable inferences to be drawn there from in the light most favorable to [Plaintiffs].” Id. As always, s ummary judgment is only appropriate “ if the [agency] shows that there is no genuine dispute as to any material fact and the [agency] is entitle d to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 3
B. Exemption 4 (Confidential Commercial Information) Exemption 4 protects “trade secrets and commercial or financial information [that is] obtained from a pers on and [is] privileged or confidential.” 5 U.S.C. § 552(b)(4). “ If not a trade secret, for Exemption 4 to apply the information must be ‘(a) commercial or financial, (b) obtained from a pe rson, and (c) privileged or confidential.’” Anderson v. U.S. Dep’t of Health & Huma n Servs., 907 F.2d 936, 944 (10th Cir. 1990) (quoting Nat’l Parks and Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)). The agency invokes this exemption on beha lf of Elsevier, Inc. (“Elsevier”), the company that licenses to the agency the list of Board-cer tified physicians referenced

3 “The filing of cross-motions for summary judgment does not necessarily concede the absence of a materi al issue of fact. This must be so b ecause by the filing of a motion a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so conced e that no issues rema in in the event his adversary’s theory is adopted.” Nafco O il & Gas, Inc. v. Appleman, 380 F.2d 323, 324-25 (10th Cir. 1967); see also Eagle v. Louisiana & S. Life Ins. Co., 464 F.2d 607, 608 (10th Cir. 1972) (“Presentation of cross-motions for summary judgment does not concede the absence of a material issue of fact.”). Accordingly, “[c]ross motions for summary ju dgment are to be treated separately; the denial of one does not require the grant of another.” Chri stian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025, 1030 (10th Cir. 20 07) (quoting Buell Cabinet Co. v. Sudduth, 60 8 F.3d 431, 433 (10t h Cir. 1979)). “E ven where the parties file cross motions pursuant to Rule 56, summary judgment is inap propriate if disputes remain as to material facts.” Id.7 by the agency’s scheduling so ftware. Plaintiffs challe nge whether the referees’ redacted names and business addresses are (1) commercial and (2 ) confidential. 1. Commercial

“ FOIA does not define the term ‘commerc ial,’ so courts have given the term its ordinary meaning.” New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43, 49 (1st Cir. 2015); see also Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189 , 1194 (9th Cir. 2011) (same). Consequently, “[t]he exemption reaches . . . broadly and applies (among other situations) when the provider of the information has a commercial interest in the info rmation submitted to the agency.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006); see also Am . Airlines, Inc. v. Nat’l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978) (“‘Commercial’ surely m eans pertaining or relating to or dealing with commerce.”). Here, the information at issue— namely, the physicians’ names and addresses—is provided to the agency by Else vier as a component of a database that Elsevier licenses to the agen cy for an annual fee. Becau se the redacted information is part of the data that El sevier compiles, maintains, a nd ultimately sells as a product, it is safe to say that Elsevier has a “commer cial interest” in that information. See Baker & Hostetler, 473 F.3d at 319. 2. Confidential8 “The first step in an Exemption Four [confidentiality] analysis is determining whether the information submitte d to the government agency was given voluntarily or involuntarily.” Utah v. U.S. Dep’t of Interior, 256 F. 3d 967, 969 (10th Cir. 2001) (citing Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878-79 (D.C. Cir. 1992)). In th is case, the parties agree that the submission at hand was an involuntary one. 4 “Since the submission was involunt ary, the information is protected from disclosure by FOIA if disclosure will either: ‘(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.’” Id. (quoting Nat’l Parks, 498 F.2d at 770) (emphasis added). As to the first alternative prong, “w hen dealing with a FOIA request for information the provider is required to su pply, the governmental impact inquiry will focus on the possible effect of disclosure on its quality.” Critical Mass, 975 F.2d at 878 (“While . . . the governmental interest is un likely to be implicated where the production of information is compelled, . . . there are ci rcumstances in which di sclosure could affect the reliability of such data.” ). Id. Neither party puts forth evidence or argument addressing whether disclosure will affect the quality or relia bility of Elsevier’s list of Board-certified doctors. Accordingly, this prong bears no weight in our analysis.

4 Inasmuch as there is no indication that Elsevier wa s required to license its database to the agency, th e argument could be made th at the submission of the physician data was vol untary. But given that the pa rties agree that the submission was involuntary, we need not reach that issue.9 As to the second alternativ e prong, “all that the parties need show . . . is actual competition and the likelihood of substantial competitive injury.” Utah, 256 F.3d at 970 (quotation omitted). “Although conclu sory and generalized allegations of substantial competitive ha rm are unacceptable and cann ot support an agency’s decision to withhold requested documents, act ual economic harm need not be proved; evidence demonstrating the existence of pot ential economic harm is sufficient.” Id. (quotation, alteration omitted). The agency asserts that Elsevier woul d suffer competitive injury because the disclosure of some of the information c ontained in its databa se would devalue the database. 5 As the party with “the burden of pe rsuasion at trial, [the agency] must support its motion with cred ible evidence . . . that w ould entitle it to a directed verdict if not controverted.” Anderson, 907 F.2d at 947 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)). Here, the agency’s only evidence supporting its assertion is a letter that El sevier sent the OWC two year s after the Plaintiffs’ FOIA requests, objecting to the disclosure of an unspecified type and quantity of information from its database. See App. 9 17-18 (“We must object to any disclosure of the physician data requested, under Exemp tion 4 of the FOIA. . . . The entire database of ABMS physicians is confidential, commercial information. Disclosure under FOIA would cause irrepa rable financial harm.”).

5 Elsevier, however, has neither interv ened in this case nor voiced any objection to disclosure on the record.10 Plaintiffs, however, object to that letter. We agree with Plaintiffs that the letter is hearsay: “It is an out-of-court written statement . . . now offered to prove the truth of the matter asserted”—viz., that El sevier will suffer comp etitive injury from release of its database information. S ee Herrick v. Garvey, 298 F.3d 1184, 1191 (10th Cir. 2002); Fed. R. Evid. 801(c). Yet, the ag ency fails to identify any applicable hearsay exception. Consequently, the letter would be inadmissible at trial. See id.; Fed. R. Evid. 802. “To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the eviden ce that would be available to the jury.” Argo v. Blue Cross & Blue Sh ield of Kan., Inc., 45 2 F.3d 1193, 1199 (10th Cir. 2006); see also Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (“It is well settled in this circuit that we can co nsider only admissible evidence in reviewing . . . summary judgment.”). “This does not mean that [summary judgment] evidence must be submitted ‘in a form that would be admiss ible at trial.’” Trevizo v. Adams, 455 F.3d 1155, 1160 (10t h Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “Parties may, for example, submit affidavits . . .” despite the fact that affidavits are often inadmissible at tr ial as hearsay, on the theory that the evidence may u ltimately be presented at trial in an admissible form. Argo, 452 F.3d at 1199. Nonetheless, “the cont ent or substance of the evidence must be admissible.” Id. (quoting Thomas v. IBM, 48 F. 3d 478, 485 (10th Cir. 1995)). “The requirement is that the part y submitting the evidence show that it will be possible to put the information, the substance or cont ent of the evidence, into an admissible11 form.” 11 James Wm. Moore et al., Moore’s Federal Practice–Civil § 56.91 (3d ed. 2015) (collecting cases); see also Fed. R. Civ. P. 56(c)(2) adv. comm. cmt. (“The burden is on the proponent to show that the ma terial is admissible as presented or to explain the admissible form that is anticipated.”); Johnson v. Weld Cty., 594 F.3d 1202, 1210 (10th Cir. 2010) (dec lining to consider hearsay statements that proponent failed to show could be pres ented in admissible form). Here, the agency neglects to show that it could put the substance of the letter into an admissible form. No represen tative of Elsevier has filed an affidavit in this case, and the agency’s affidavit does not suggest that a representativ e of Elsevier would testify to the letter’s competitive injury assertions at trial. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (“The most obvious way that hearsay testimony can be reduced to admissible fo rm is to have the hearsay d eclarant testify directly to the matter at trial.”). In fact, although the agency now attempts to sidestep its previous admission, the agency c onceded before the district court that the letter did not refer to Plaintiffs’ FOIA requests, but rather was received in respon se to other FOIA requests, which sought access to Elsevier’s entire database. 6 Because the agency has not shown that the letter or its contents would be ad missible at trial, we may not consider it on summary judgment. See Johnson, 594 F.3d at 1210 (declining to consider hearsay statements where proponent fa iled to present affidavits s howing that the statements could be replaced with live testimony by the d eclarants at trial); Herrick, 298 F.3d at

6 For that reason, even if we were to consider the letter, its probative value would be suspect. However, given that we do not consider the letter, we need not resolve the controversy over th e letter’s relevance.12 1192–93 (declining to consider inadmiss ible hearsay eviden ce when ruling on the government’s FOIA summary judgment motion). Absent that letter, the record is devoid of evidentiary suppor t for the agency’s assertion. And, of course, as the moving party, the agency is not entitled to an inference that Elsevier would object to the release of the particular information at issue in this

case. 7 See Anderson, 907 F.2d at 947. Furthermore, it remains an open ques tion whether Elsevier even could successfully object to disclo sure of the physicians’ name s and addresses. When “materials . . . appear to be in the public domain, no meritorious claim of confidentiality can be made.” Id. at 952 (citing CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) (“To the exte nt that any data requested under FOIA are in the public domain, the submitter is unable to make any claim to confidentiality—a sine qua non of Exemption 4.”). Elsevier licenses th e physician list included in its database from the American Board of Medica l Specialists (“ABMS”). Pl aintiffs put forth evidence showing that the ABMS public website makes physicians’ names and business addresses freely available and searchab le by zip code and specialty online. 8 Although the agency disputes the breadth and accuracy of the list provided on the ABMS website, some of its arguments impr operly rely on extra-record evidence, and

7 We further note that the agency has pointed the c ourt to no record evidence showing that Elsevier faces actual competition in provid ing the physician information to the agency. 8 Although Plaintiffs also claim that ABMS will sell the list to the public for $895, they cite no record evidence supporting that claim.13 the remainder of its evid ence is insufficient to pr evail on summary judgment. 9 See W. Coast Life Ins. Co. v. Hoar, 558 F.3d 11 51, 1157 (10th Cir. 2009) (“In reviewing a grant of summary judgment, our inquiry is limited to the summary judgment record before the district court wh en the motion was decided.”); Anderson, 907 F.2d at 947. Accordingly, we conclude that genuine di sputes of material fact regarding the public availability of the redacted data and potential co mmercial harm to Elsevier remain outstanding. See Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016) (“An issue is genuine if there is suffici ent evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is material if under the substantive law it is essentia l to the proper disposition of the claim.” (quotations and citations omitted)). Therefore, summary judgment in the agency’s favor on Exemption 4 was improper. Cf. Anderson 907 F.2d at 946 (assessing whether questions of fact regarding confiden tiality precluded summary judgment on Exemption 4). C. Exemption 6 (Personal Privacy) Exemption 6 protects “ personnel and medical file s and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “In determining whether th e release of such information would ‘constitute a clearly unwarranted inva sion of personal privacy,’

9 Contrary to the agency’s assertion, it is irrelevant that the ABMS website does not contain information regarding whic h physicians serve as referees for the OWC. Elsevier’s database does not contain that inform ation either. Exemption 4 only applies to the specific information th at Elsevier submitted to the agency.14 we must balance ‘the public interest in disclosure against th e privacy interest Congress intended the exemption to protect .’” Trentadue, 501 F. 3d at 1233 (quoting Forest Guardians v. U.S. Fed. Emergency Mgmt. Agency, 410 F.3d 1214, 1218 (10th Cir. 2005)). “If there is an important public interest in the disc losure of information and the invasion of privacy is not substantial, the priv ate interest in protecti ng the disclosure must yield to the superior public interest.” Fo rest Guardians, 410 F.3d at 1218 (quotation omitted). “If, however, the public interest in the information is virtually nonexistent or negligible, then ev en a very slight privacy interest w ould suffice to outweigh the relevant public interest.” Id. (quotation omitted). “The primary purpose of this exemption is to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal informat ion.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (quotations omitted). The agency invokes this exemption on behalf of the referee physicians mentioned in the reports. 10 Plaintiffs dispute (1) whether the reports satisfy Exemption 6’s “similar files” requirement, a nd (2) the weight of the referees’ privacy interest in the informati on contained in the reports. 1. Similar files “‘Similar files’ refers broadly to ‘detailed Government records on an individual which can be iden tified as applying to that individual.’” Trentadue, 501 F.3d at 1232-33 (quoting U.S. Dep’t of St ate v. Wash. Post Co., 456 U.S. 595, 602

10 On appeal, the agency does not invoke the privacy interests of the injured workers listed in the repor ts, presumably because Plai ntiffs do not challenge the redactions of those workers’ identifying information.15 (1982)); see also Forest Guardians , 410 F.3d at 1217 (“‘Similar files’ under Exemption 6 has a ‘broad, ra ther than a narrow, mean ing’ and encompasses all information that ‘applies to a particular individual.’” ) (quoting Wash. Post Co., 456 U.S. at 600, 602). Because the redacted reports contain i ndividual physicians’ contact information, as well as details of those physicians’ em ployment history with the federal government, they probably constitu te “similar files” under Exemption 6. See Trentadue, 501 F.3d at 1233. 2. Privacy interest In general, “[t]he type of privacy in terests Congress intended to protect under Exemption 6 ‘encompass the individual’s cont rol of information concerning his or her person.’” Forest Guardians, 410 F.3d at 1 218 (quoting U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 500 (1994) (internal alteration omitted)). However, “[t]he scope of a privacy interest under Exemption 6 w ill always be dependent on th e context in which it has been asserted.” Prison Legal News, 787 F.3d at 1147 (quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 581 (D .C. Cir. 1996)); see also Long v. Office of Pers. Mgmt., 692 F.3d 1 85, 191-92 (2d Cir. 2012) (“ The analysis is context specific.”). In seeking to establish the physicians’ pr ivacy interests, the agency relies on a set of cases holding that certain lists of names a nd addresses can implicate a privacy interest, even though that information may already be available to the public in some form. See,
e.g., FLRA, 510 U.S. at 500 (finding that nonuni on agency employees’ privacy interest in preventing disclosure of their home addres ses to union representatives was “not16 insubstantial” ); Forest Guardians, 410 F.3d at 1219 (finding that property owners had “some privacy interest” in floodplain maps that could reveal their names, home addresses, and participation in a federal insurance program); Sheet Metal Workers Int’l Ass’n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 998 (10th Cir. 1995) (finding that federal contractor employees had a substantial privacy inte rest in preventing release of their payroll records).
A lthough “the federal courts have held that . . . names and addresses qualify as potentially protectable ‘similar files’ under Exemption 6, the release of a list of names and other identifying information does not inherently and always constitute a ‘clearly unwarranted’ invasion of personal privacy.” News -Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1199 ( 11th Cir. 2007) ( quoting 5 U.S.C. § 552(b)(6)); see U.S. Dep’ t of State v. Ray, 502 U.S. 164, 176 n.12 (1991) (“We emphasize . . . that we are not implying that disclosure of a list of names and other identifying information is inherently and alwa ys a significant threat to the privacy of the individuals on the list.”). “Instead, ‘whe ther disclosure of a list of names is a significant or a de minimi s threat depends upon the ch aracteristic(s) revealed by virtue of being on the particul ar list, and the consequences likely to ensue.’” NewsPress, 489 F.3d at 1199 (quoting Ray, 502 U.S. at 176 n.12). 11

11 See also Long, 692 F.3d at 191 (“Name s and other identifying information do not always present a significant threat to an individual’s privacy interest.”) (quotation omitted); Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006) (“The statute does not cat egorically exempt i ndividuals’ identities, . . . because the ‘priv acy interest at stake may vary de pending on the context in which it is asserted.’”) (quoting Ar mstrong, 97 F.3d at 582).17 The agency, however, fail s to address meaningful differences between the characteristics and consequences at issue in its cited cases , and those at issue here. For the following reasons, we conclude th at the context-speci fic nature of the Exemption 6 inquiry precludes the agency’s ca ses from gaining much traction in this appeal. First, the agency’s cited cases concer ned home addresses. As the Supreme Court recognized in FLRA, “the privacy of the home . . . is accorded special consideration in our Constitu tion, laws, and traditions.” 510 U.S. at 501; see also Forest Guardians, 410 F.3d at 1221 (finding a privacy interest because “‘many people simply do not want to be disturbed at hom e,’ and ‘we are reluct ant to disparage the privacy of the home’”) (quoting id.) (a lterations omitted). That “special consideration,” however, is not implicat ed here: This case concerns business addresses. It is not intuitive to us that the referee physicians possess a cognizable privacy interest in their busine ss addresses—after all, it is in their economic interests to make their office locations generally available to th e public, so that patients can visit for evaluation and treatment. But the agency has not provided any testimony from physicians—or any other evidence—to support its assertion that treating physicians have a privacy interest in their business addresses. Of course, the agency is not entitled to such an inference in its favor. Second, certain of those cases arose in the labor relations context. Accordingly, the courts were sensitiv e to the dangers—including exposure to harassment, pressure, or threats—inherent in revealing work ers’ identities and18 addresses to potential adversaries. See, e.g., FLRA, 510 U.S. at 501 (“ Whatever the reason that these employees ha ve chosen not to become members of the union or to provide the union with their addresses, . . . it is clear th at they have some nontrivial privacy interest in nondisclosure, and in avoi ding the influx of union-related mail, and, perhaps, union-related telephone calls or visi ts, that would follow di sclosure.”) (emphasis omitted); Sheet Metal Workers, 63 F.3d at 9 97-98 (expressing concer n over “the wide range of use to which [the requested] in formation—a list of people engaged in the construction trade, broken into their par ticular occupational classification—could be put”) (citation and q uotation omitted). In that context, the consequences of disclosure are more apparent and may be substantial. Not so here. The agency identifies no risk of harassment, embarrassment, or other consequence that could ensue from disclosure of the referee physicians’ iden tities and business addresses. 12 Nor does it put forth any evidence that could support such a finding. Third, the remainder of the cases con cerned disclosure of personal financial information in addition to names and addresses. See Forest Guardians, 410 F.3d at 1218 (“The privacy interest in an individual’s home address becomes even more substantial when that info rmation ‘would be coupled with personal financial information.’”) (quoting Sheet Metal Worker s, 63 F.3d at 997 (concerning payroll

12 See, e.g., Judicial Watch, 449 F.3d at 153 (finding a substantial privacy interest in light of eviden ce that researchers developing an abortion drug could be targeted for “abortion-related violen ce”); Ray, 502 U.S. at 177 n.12 (finding a significant privacy interest where unsu ccessful undocumented im migrants could be “subject to possible embarrassment and retaliatory action” in their native countries)

.19 records)). For the first time on appeal, the agency co ntends that the requested reports implicate the physicians’ personal financial information. Although we have discretion to affirm on any ground adequately supported by the record, the exercise of that discretion is guided by three considerations: (1) was the alternate ground “fully briefed and argued here and below ”; (2) did the parties have “a fair opportunity to develop the factua l record”; and (3) “whether, in light of factual findings to which we defer or unc ontested facts, our d ecision would involve only questions of law.” Elkins v. Comf ort, 392 F.3d 1159, 116 2 (10th Cir. 2004). Because the agency did not ra ise this argument before the district court, the first factor weighs against reaching it on appeal. As to the second and third factors, it is beyond dis pute that the four specific types of agency reports at issue in this appeal do not contain any financial information regarding either the cost of or paymen t for referee evaluations. 13 At most, the reports disclose the total numbe r of referee evaluati ons performed by each physician over certain timeframe s. The agency contends the number of evaluations could be combined with information rega rding physician paym ents in order to determine the income each physician has derived from performing referee evaluations. Cf. Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 10 48-51 (D.C. Cir. 2009) (finding that physicians had a subs tantial privacy interest in th eir Medicare claims because the

13 In fact, the agency denied Plain tiffs’ FOIA requests for information regarding referee payments, and Plaint iffs do not challenge that denial.20 claims could be combined with pub lically available Medicare procedure reimbursement rates to calcu late the physicians’ fees). The agency, however, puts forth no evidence showing that referee exam reimbursement rates or payments are publically available. 14 Because the agency’s financia l information argument turns in substantial part on a questi on of fact—namely, the public availability of referee payments—for which there is scant releva nt evidence in the re cord, the second and third factors also weigh against reaching th at argument for the fi rst time on appeal. Therefore, we do not consider the agency ’s contention that th e requested reports implicate the physicians’ personal financial information. In sum, we conclude that, on this reco rd, and given the meaningful differences between the context of this appeal and our previous Exemption 6 cases, genuine disputes of material fact regarding the scope of that referees’ privacy interest in their business addresses and referee history remain outstanding. Yet, without knowing the full scope of the privacy interest implicated, a court cannot properly perform the balancing

14 The only record evidence arguably supp orting the agency’s contention that outside sources could be used to calculate the physicians’ incomes consists of what appears to be two online billing statements submitted by Plaintiffs. The Court’s best guess is that the documents ar e billing records for the refe ree evaluations of two of the plaintiffs (although all pa tient-identifying information has been redacted). The agency, however, has not pointed the Cour t to any record evidence explaining the documents, let alone evidence indicating whet her those records are public or whether Plaintiffs could obtain si milar records for other physic ians. Such inconclusive evidence cannot carry the ag ency’s summary judgment bur den. See Cordova v. Aragon, 569 F.3d, 1183, 1191 (10th Cir. 2009) (“It is not our role to sift through the record to find evidence not cited by the pa rties to support arguments they have not made.”).21 test required by Exemption 6. 15 Consequently, summary judgment in the agency’s favor on Exemption 6 was improper.
D. Screenshots The agency denied Plaintiffs’ request fo r printouts of the menu screens displayed by its scheduling program on the basis that FOIA “ does not obligate agencies to create or retain documents; it only obligates them to pr ovide access to those which it in fact has created and retained.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980). FOIA’s duty of disclosure, however, a pplies equally to electronic records and documents. See 5 U.S.C. § 552(f)(2) (defining “record ” to “include[] any information that would be an agency record . . . wh en maintained by an ag ency in any format, including an electronic format”); id. § 552(a )(3)(C) (“In responding . . . to a request for records, an agency sha ll make reasonable efforts to search for the records in electronic form or format . . . .”). Moreover, FOIA requires an agency to supply records in any format requested as long as the information is “readily reproducible by the agency in that form or format.” Id. § 552(a)(3)(B); see also TPS, Inc. v. U.S. Dep’t of Def., 330 F.3d 1191, 1195 (9th Cir. 2003) (sam e). Therefore, whether the agency is

15 “[T]he only relevant ‘public interest in disclosure’ to be weighed in [Exemption 6’s] balance is the extent to which disclosure would serve the ‘core purpose of the FOIA,’ which is ‘contributing significa ntly to public understanding of the operations or activities of the government.’” FLRA., 5 10 U.S. at 495 (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 , 775 (1989)). Because we find that the physicians’ privacy interest rais es genuine questions of materi al fact that defeat summary judgment, we need not assess the weight of Plaintiffs’ as serted public interest.22 required to release printouts of the menu scr eens of its software pr ogram turns on whether those screens are “readily reproducibl e” in the requested printed format. Whether a record is “readily reproducible’ in a request ed format is a question of fact that turns on the tec hnical feasibility of the request and the resulting burden to the agency. See TPS, 330 F.3d at 1195; Sample v. Bureau of Prisons, 466 F.3d 1086, 1088 (D.C. Cir. 2006); Scudder v. Cent. Intelligence Agency, 25 F. Supp. 3d 19, 33-34 (D.D.C. 2014); Public.Resource.org v. U.S. Internal Revenue Serv., 78 F. Supp. 3d 1262, 1265 (N.D. Cal. 2015). Here, technical feas ibility appears to be undisputed. But the agency puts forth no evidence concerning the burden that reproducing the menu screens as printouts would cause. 16 Therefore, the agency failed to carry its burden to show that no genuine issue of mate rial facts remains. See Savant, 809 F.3d at 1137. Summary judgment on the request for scre en printouts was improper.
III. CONCLUSION For the foregoing reasons, we REVERSE th e district court’s grant of summary judgment and REMAND this case for proceedi ngs consistent with this opinion.

16 At oral argument, Plaintiffs contended that their request would implicate only thirty to forty pages of printouts. Howeve r, they cited to no evid ence in the record to confirm that assertion.