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), Denver, Colorado, for 

Plaintiffs-Appellants. 

Steve Frank, Attorney, Appellate Staff (Benjamin Mizer, Principal Deputy Assistant 

Attorney General, John F. Walsh, United States Attorney, Office of the United States 

Attorney, Denver, Colorado, and Leonard Schaitman, Attorney, Appellate Staff, U.S. 

Department of Justice, with him on the brief), 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 Court
2 

_________________________________ 

EBEL, Circuit Judge. 

_________________________________ 

Plaintiffs-Appellants Blake Brown, Dean Biggs, Jacqueline Deherrera, Ruth 

Ann Head, Marlene Mason, Roxanne McFall, Richard Medlock, and Bernadette 

Smith (“Plaintiffs”) appeal a summary judgment order upholding DefendantsAppellees Thomas E. Perez, Secretary of Labor, United States 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 federal civilian employees eligible 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 the 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 treating physician and the second-opinion 

physician hired by the OWC, an impartial “referee” physician is selected to resolve 
3 

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 basis 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 appointment is needed, the software 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 beholden—and presumably sympathetic—to the agency. 

Aplt. Br. 7. In support of that contention, Plaintiffs point to evidence that a certain 

orthopedic physician has repeatedly been selected to evaluate workers in distant zip 

codes, despite the presence of closer physicians of the same specialty. 

To investigate their suspicions, Plaintiffs filed FOIA requests for agency 

records pertaining to the referee selection 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 previously accepted an appointment (in reverse chronological 

order of their most recent appointment date). 
4 

referee appointments for orthopedic physicians in Colorado over the previous ten 

years. In order to target future FOIA requests more effectively, Plaintiffs also 

requested screenshot printouts showing how the menus of the OWC’s scheduling 

software would appear on a user’s computer screen.

In response, the agency released various redacted reports generated by its 

scheduling software. As relevant to this appeal, the reports contain information 

regarding the total number of times physicians in the identified specialties have 

served as referees or have been bypassed, as well as lists showing the patient and date 

of each referee evaluation performed by the selected physicians within certain 

timeframes. In general, the physicians’ and injured workers’ names, addresses, and 

other identifiers are redacted, although the injured workers’ zip codes remain visible. 

The agency declined to provide printouts of the scheduling program’s on-screen 

menus. 

Dissatisfied with that response, Plaintiffs filed this suit challenging the 

agency’s redactions of the doctors’ names and addresses from four specific types of 

reports,2

 as well as the agency’s withholding of screen printouts. Plaintiffs contend 

that they cannot verify their suspicions about the OWC’s scheduling practices unless 

they know how often each physician has been assigned to examine patients outside 

his or her zip code. For its part, the agency argues that the doctors’ names and 

 

2

 Specifically, Plaintiffs seek unredacted versions of the “Physician Activity 

Report,” “Physician Usage Report,” “Physician Prompt Pay Report,” and “Physician 

History Report.” Plaintiffs do not challenge the redaction of the injured workers’ 

information. 
5 

addresses are exempt from release under FOIA Exemptions 4 and 6, and that it 

cannot be required under FOIA to create records—such as the requested screen 

printouts—that it does not already maintain. On cross motions 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 exemptions 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 exemptions are to be narrowly construed.” Audubon Soc’y v. 

U.S. Forest Serv., 104 F.3d 1201, 1203 (10th Cir. 1997). “The government bears the 

burden of demonstrating the requested records fall within one of FOIA’s enumerated 

exemptions . . . .” Prison Legal News v. Executive Office for U.S. Attorneys, 628 

F.3d 1243, 1247 (10th Cir. 2011). The agency redactions at issue 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 clearly unwarranted invasion of personal 

privacy. See 5 U.S.C. § 552(b)(4), (6).

“Whether a FOIA exemption justifies withholding a record 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 summary 
6 

judgment in favor of the [the agency], we review the record and all reasonable 

inferences to be drawn therefrom in the light most favorable to [Plaintiffs].” Id. As 

always, summary judgment is only appropriate “if the [agency] shows that there is no 

genuine dispute as to any material fact and the [agency] is entitled 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 person 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 person, and (c) privileged or confidential.’” 

Anderson v. U.S. Dep’t of Health & Human 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 behalf of Elsevier, Inc. (“Elsevier”), the 

company that licenses to the agency the list of Board-certified physicians referenced 

 

3

 “The filing of cross-motions for summary judgment does not necessarily 

concede the absence of a material issue of fact. This must be so because 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 concede that no issues remain in the event his 

adversary’s theory is adopted.” Nafco Oil & 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 judgment are to be treated separately; the denial of one 

does not require the grant of another.” Christian Heritage Acad. v. Okla. Secondary 

Sch. Activities Ass’n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet 

Co. v. Sudduth, 608 F.3d 431, 433 (10th Cir. 1979)). “Even where the parties file 

cross motions pursuant to Rule 56, summary judgment is inappropriate if disputes remain 

as to material facts.” Id. 
7 

by the agency’s scheduling software. Plaintiffs challenge whether the referees’ 

redacted names and business addresses are (1) commercial and (2) confidential. 

1. Commercial 

“FOIA does not define the term ‘commercial,’ 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 information 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 means 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 Elsevier as a component of a database that 

Elsevier licenses to the agency for an annual fee. Because the redacted information 

is part of the data that Elsevier compiles, maintains, and ultimately sells as a product, 

it is safe to say that Elsevier has a “commercial interest” in that information. See 

Baker & Hostetler, 473 F.3d at 319.

2. Confidential 
8 

“The first step in an Exemption Four [confidentiality] analysis is determining 

whether the information submitted 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 this case, the parties agree that the submission at hand was an 

involuntary one.4 “Since the submission was involuntary, 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, “when dealing with a FOIA request for 

information the provider is required to supply, 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 unlikely to be implicated where the production 

of information is compelled, . . . there are circumstances in which disclosure could affect 

the reliability of such data.”). Id. Neither party puts forth evidence or argument 

addressing whether disclosure will affect the quality or reliability 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 was required to license its 

database to the agency, the argument could be made that the submission of the 

physician data was voluntary. But given that the parties agree that the submission 

was involuntary, we need not reach that issue. 
9 

As to the second alternative 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 conclusory and generalized allegations of 

substantial competitive harm are unacceptable and cannot support an agency’s 

decision to withhold requested documents, actual economic harm need not be proved; 

evidence demonstrating the existence of potential economic harm is sufficient.” Id. 

(quotation, alteration omitted). 

The agency asserts that Elsevier would suffer competitive injury because the 

disclosure of some of the information contained in its database would devalue the 

database.5 As the party with “the burden of persuasion at trial, [the agency] must 

support its motion with credible evidence . . . that would 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 Elsevier sent the OWC two years after the Plaintiffs’ FOIA 

requests, objecting to the disclosure of an unspecified type and quantity of 

information from its database. See App. 917-18 (“We must object to any disclosure 

of the physician data requested, under Exemption 4 of the FOIA. . . . The entire 

database of ABMS physicians is confidential, commercial information. Disclosure 

under FOIA would cause irreparable financial harm.”). 

 

5

 Elsevier, however, has neither intervened 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 Elsevier will suffer competitive injury from 

release of its database information. See Herrick v. Garvey, 298 F.3d 1184, 1191 

(10th Cir. 2002); Fed. R. Evid. 801(c). Yet, the agency 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 evidence that would be available 

to the jury.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 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 consider only admissible evidence 

in reviewing . . . summary judgment.”). “This does not mean that [summary 

judgment] evidence must be submitted ‘in a form that would be admissible at trial.’” 

Trevizo v. Adams, 455 F.3d 1155, 1160 (10th 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 trial as hearsay, on the theory 

that the evidence may ultimately be presented at trial in an admissible form. Argo, 

452 F.3d at 1199. Nonetheless, “the content 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 party submitting the evidence show that it will be possible to 

put the information, the substance or content of the evidence, into an admissible 
11 

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 material 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) (declining to consider hearsay statements that proponent 

failed to show could be presented in admissible form). 

Here, the agency neglects to show that it could put the substance of the letter into 

an admissible form. No representative of Elsevier has filed an affidavit in this case, and 

the agency’s affidavit does not suggest that a representative 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 form is to have the hearsay declarant testify directly to 

the matter at trial.”). In fact, although the agency now attempts to sidestep its previous 

admission, the agency conceded before the district court that the letter did not refer to 

Plaintiffs’ FOIA requests, but rather was received in response 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 admissible at trial, we may not consider it on 

summary judgment. See Johnson, 594 F.3d at 1210 (declining to consider hearsay 

statements where proponent failed to present affidavits showing that the statements 

could be replaced with live testimony by the declarants 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 the letter’s relevance. 
12 

1192–93 (declining to consider inadmissible hearsay evidence when ruling on the 

government’s FOIA summary judgment motion). 

Absent that letter, the record is devoid of evidentiary support 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 question whether Elsevier even could 

successfully object to disclosure of the physicians’ names 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 extent 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 the physician list included in its database from 

the American Board of Medical Specialists (“ABMS”). Plaintiffs put forth evidence 

showing that the ABMS public website makes physicians’ names and business 

addresses freely available and searchable 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 improperly rely on extra-record evidence, and 

 

7

 We further note that the agency has pointed the court to no record evidence 

showing that Elsevier faces actual competition in providing 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 evidence is insufficient to prevail on summary judgment.9

 See 

W. Coast Life Ins. Co. v. Hoar, 558 F.3d 1151, 1157 (10th Cir. 2009) (“In reviewing 

a grant of summary judgment, our inquiry is limited to the summary judgment record 

before the district court when the motion was decided.”); Anderson, 907 F.2d at 947. 

Accordingly, we conclude that genuine disputes of material fact regarding the 

public availability of the redacted data and potential commercial 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 sufficient 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 essential 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 confidentiality precluded summary judgment on 

Exemption 4). 

C. Exemption 6 (Personal Privacy) 

Exemption 6 protects “personnel and medical files 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 the release of such 

information would ‘constitute a clearly unwarranted invasion of personal privacy,’ 

 

9

 Contrary to the agency’s assertion, it is irrelevant that the ABMS website 

does not contain information regarding which physicians serve as referees for the 

OWC. Elsevier’s database does not contain that information either. Exemption 4 

only applies to the specific information that Elsevier submitted to the agency. 
14 

we must balance ‘the public interest in disclosure against the 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 disclosure of information and the 

invasion of privacy is not substantial, the private interest in protecting the disclosure must 

yield to the superior public interest.” Forest Guardians, 410 F.3d at 1218 (quotation 

omitted). “If, however, the public interest in the information is virtually nonexistent or 

negligible, then even a very slight privacy interest would 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 information.” 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, and (2) the weight of the referees’ privacy 

interest in the information contained in the reports. 

1. Similar files 

“‘Similar files’ refers broadly to ‘detailed Government records on an 

individual which can be identified as applying to that individual.’” Trentadue, 501 

F.3d at 1232-33 (quoting U.S. Dep’t of State 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 reports, presumably because Plaintiffs 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, rather than a narrow, meaning’ 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 individual physicians’ 

contact information, as well as details of those physicians’ employment history with 

the federal government, they probably constitute “similar files” under Exemption 6. 

See Trentadue, 501 F.3d at 1233. 

2. Privacy interest 

In general, “[t]he type of privacy interests Congress intended to protect under 

Exemption 6 ‘encompass the individual’s control of information concerning his or her 

person.’” Forest Guardians, 410 F.3d at 1218 (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 will always be dependent on the 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 185, 191-92 (2d Cir. 2012) (“The analysis is context 

specific.”). 

In seeking to establish the physicians’ privacy interests, the agency relies on a set 

of cases holding that certain lists of names and 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 nonunion agency employees’ privacy interest in 

preventing disclosure of their home addresses to union representatives was “not 
16 

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 interest in preventing release 

of their payroll records).

Although “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 always a significant threat to the privacy of 

the individuals on the list.”). “Instead, ‘whether disclosure of a list of names is a 

significant or a de minimis threat depends upon the characteristic(s) revealed by 

virtue of being on the particular 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 (“Names 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 categorically exempt individuals’ identities, 

. . . because the ‘privacy interest at stake may vary depending on the context in which 

it is asserted.’”) (quoting Armstrong, 97 F.3d at 582). 
17 

 The agency, however, fails 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 that the context-specific nature of the 

Exemption 6 inquiry precludes the agency’s cases from gaining much traction in this 

appeal. 

First, the agency’s cited cases concerned home addresses. As the Supreme 

Court recognized in FLRA, “the privacy of the home . . . is accorded special 

consideration in our Constitution, 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 home,’ and ‘we are reluctant to disparage the 

privacy of the home’”) (quoting id.) (alterations omitted). That “special 

consideration,” however, is not implicated here: This case concerns business 

addresses. It is not intuitive to us that the referee physicians possess a cognizable 

privacy interest in their business addresses—after all, it is in their economic interests to 

make their office locations generally available to the 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 sensitive to the dangers—including exposure to 

harassment, pressure, or threats—inherent in revealing workers’ identities and 
18 

addresses to potential adversaries. See, e.g., FLRA, 510 U.S. at 501 (“Whatever the 

reason that these employees have chosen not to become members of the union or to 

provide the union with their addresses, . . . it is clear that they have some nontrivial 

privacy interest in nondisclosure, and in avoiding the influx of union-related mail, and, 

perhaps, union-related telephone calls or visits, that would follow disclosure.”) (emphasis 

omitted); Sheet Metal Workers, 63 F.3d at 997-98 (expressing concern over “the wide 

range of use to which [the requested] information—a list of people engaged in the 

construction trade, broken into their particular occupational classification—could be 

put”) (citation and quotation 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’ identities and business addresses.12 Nor does it put forth 

any evidence that could support such a finding. 

Third, the remainder of the cases concerned 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 information ‘would be coupled with personal financial 

information.’”) (quoting Sheet Metal Workers, 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 evidence that researchers developing an abortion drug could be 

targeted for “abortion-related violence”); Ray, 502 U.S. at 177 n.12 (finding a 

significant privacy interest where unsuccessful undocumented immigrants could be 

“subject to possible embarrassment and retaliatory action” in their native countries).
19 

records)). For the first time on appeal, the agency contends 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 factual record”; and (3) “whether, in light of 

factual findings to which we defer or uncontested facts, our decision would involve 

only questions of law.” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). 

Because the agency did not raise 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 dispute 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 payment for referee evaluations.13 At 

most, the reports disclose the total number of referee evaluations performed by each 

physician over certain timeframes. The agency contends the number of evaluations 

could be combined with information regarding physician payments 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, 1048-51 (D.C. Cir. 2009) (finding that 

physicians had a substantial privacy interest in their Medicare claims because the 

 

13 In fact, the agency denied Plaintiffs’ FOIA requests for information 

regarding referee payments, and Plaintiffs do not challenge that denial.
20 

claims could be combined with publically available Medicare procedure 

reimbursement rates to calculate 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 financial information argument turns in 

substantial part on a question of fact—namely, the public availability of referee 

payments—for which there is scant relevant evidence in the record, the second and 

third factors also weigh against reaching that argument for the first time on appeal. 

Therefore, we do not consider the agency’s contention that the requested reports 

implicate the physicians’ personal financial information. 

In sum, we conclude that, on this record, 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 supporting 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 are billing records for the referee evaluations of two of 

the plaintiffs (although all patient-identifying information has been redacted). The 

agency, however, has not pointed the Court to any record evidence explaining the 

documents, let alone evidence indicating whether those records are public or whether 

Plaintiffs could obtain similar records for other physicians. Such inconclusive 

evidence cannot carry the agency’s summary judgment burden. 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 parties 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 for 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 provide 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, applies 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 . . . when maintained by an agency in any format, 

including an electronic format”); id. § 552(a)(3)(C) (“In responding . . . to a request 

for records, an agency shall 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) (same). 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 significantly to public understanding of the operations or activities 

of the government.’” FLRA., 510 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 raises genuine questions of material fact that defeat summary 

judgment, we need not assess the weight of Plaintiffs’ asserted public interest. 
22 

required to release printouts of the menu screens of its software program turns on whether 

those screens are “readily reproducible” in the requested printed format. 

Whether a record is “readily reproducible’ in a requested format is a question 

of fact that turns on the technical 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 feasibility 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 material facts remains. See Savant, 809 F.3d at 1137. Summary 

judgment on the request for screen printouts was improper. 

III. CONCLUSION 

For the foregoing reasons, we REVERSE the district court’s grant of summary 

judgment and REMAND this case for proceedings consistent with this opinion. 

 

16 At oral argument, Plaintiffs contended that their request would implicate only 

thirty to forty pages of printouts. However, they cited to no evidence in the record to 

confirm that assertion.