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Amicus Consumers Checkbook v Dhhs

Amicus Consumers Checkbook v Dhhs

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SCHEDULED FOR ORAL ARGUMENT OCTOBER 10, 2008 
APPEAL NO. 07-5343 THE 
UNITED STATES COURT APPEALS 
FOR THE DISTRICT COLUMBIA CIRCUIT 

CONSUMERS' CHECKBOOK, 
CENTER FOR THE STUDY SERVICES, 

Plaintiff-Appellee, 

vs. 

UNITED STATES DEPARTMENT HEALTH 
AND HUMAN SERVICES, al., 

Defendants-Appellants. 

AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. SUPPORT APPELLEE APPEAL FROM THE U.S. DISTRICT COURT 
FOR THE DISTRICT COLUMBIA 

Paul Orfanedes 
Dale Wilcox 
JUDICIAL WATCH, INC. 
501 School Street, SW, Suite 500 
Washington, 20024 
(202) 646-5172 

Counsel for Amicus Curiae 

CORPORATE DISCLOSURE STATEMENT 
Judicial Watch Inc. ("Judicial Watch") not-for-profit, public interest organization that has parent company. publicly-held corporation has 10% greater ownership interest Judicial Watch. 

CERTIFICATE PARTIES, 
AND RELATED CASES 
Intervenors and Amici The Parties, Intervenors and Amici appearing the lower court and this appeal are listed the Brief for Federal Appellant. 

Under Review The ruling under review this appeal the August 22, 2007 Order The Honorable Emmet Sullivan, reproduced pages 267.3-267.4 the Joint Appendix ("JA"). The Memorandum Opinion accompanying this Order reported Consumers' Checkbook, Center for Study Services Department Health and Human Services, 502 Supp. 
(D.D.C. 2007). Related Cases None. 

TABLE CONTENTS 
CORPORA DISCLOSURE STATEMENT. 

CERTIFICATE PARTIES, 
RULING, AND RELATED CASES .................................... 

TABLE CONTENTS ........................................... iii 

TABLE AUTHORITIES .......................................... 

GLOSSARY

.....	................................................. 

INTEREST AMICUS CURIAE
.....	..............................

STATEMENT REGARDING STATUTES AND REGULATIONS
.....	.... 

SUMMARY THE ARGUMENT	.
.....	..... ......................

ARGUMENT ...	3	.... ...... ......... ................ 	
FOIA Exists Provide the Public With Information Make Intelligent, Informed Choices Regarding the Nature, Scope, and Procedure Federal Governmental Activities
.....	................. ............. ... 

II. 	
FOIA Embodies Strong Presumption "Of Full 
Agency Disclosure" and the Government Bears 
Heavy Burden Justify Withholding Information ............... 

III. 	The Contours Exemption 
IV. 	
Derivative Use Information Not Prohibited FOIA 13. 
CONCLUSION ....	................. .... ............

ADDENDUM 
CERTIFICATE COMPLIANCE PURSUANT 
F.R.A.P. 32(a)(7)(C) AND CIRCUIT RULE 32(a)(2) CERTIFICATE SERVICE 
TABLE AUTHORITIES 
Cases Page 
Alley Dep Health and Human Services, 
No. 07-0096 (N.D. Ala. May 2008) ......................... 20, 

Alliance for the Wild Rockies Dep the Interior, Supp. (D.D.C. 1999) ................................. 

Baltimore Sun US. Marshals Serv., 
131 Supp. 725 (D. Md. 2001) .............................. 

Board Trade Commodity Futures Trading Com., 
627 F.2d 392 (D.C. Cir. 1980) ................................... 

Bristol-Myers Co. Federal Trade Com., 
424 F.2d 935 (D.C. Cir. 1970), 
cert. denied, 400 U.S. 824 (1970) ................................. 

Brock Pierce County, 476 U.S. 253 (1986) ............................ 

Carter United States Dep Commerce, 
830 F.2d 388 (D.C. Cir. 1987) .................................. 

*City Chicago Dep the Treasury, 
287 F.3d 628 (71h Cir. 2002), 

rev and remanded other grounds, 
537 U.S. 1229 (2003) ...................................... 19, 

Dep Defense Federal Labor Relations Authority, 
510 U.S. 487 (1994) .................................... 10, 11, 

Dep the Air Force Rose, 425 U.S. 352 (1976) .................... 

*Authorities chiefly relied upon are marked with asterisks. 
Dep State Ray, 502 U.S. 164 (1991) ............................ 

*Detroit Free Press DOJ, F.3d (61h Cir. 1996) ................. 18, 

EPA 
Mink, 410 U.S. (1973) .................................... 

Frankel 
SEC, 460 F.2d 813 (2na Cir. 1972), 

cert. denied, 409 U.S. 889 (1972) ................................. 

Judicial Watch, Inc. Dep Justice, 

365 F.3d 1108 (D.C. Cir. 2004) .................................. 

Judicial Watch, Inc. Rossotti, 326 F.3d 1309 (D.C. Cir. 2003) ........... 

King 
Dep Justice, 586 Supp 286 (D.D.C. 1983), 

aff'd, 830 F.2d 210 (D.C. Cir. 1987) .............................. 

Kurzon 
Dep Health Human Services, 

649 F.2d (!51 Cir. 1981) ..................................... 

*Multi Media LLC Dep Agric., 
515 F.3d 1224 (D.C. Cir. 2008) ............................ 12, 

Nat'l Archives Records Admin. Favish, 541 U.S. 157 (2004) ......... 

Nat Ass Homebuilders Norton, 
309 F.3d (D.C. Cir. 2002) ................................ 

News-Press 
Dep Homeland Sec., 
489 F.3d 1173 (11th Cir. 2007) ................................. 

NLRB 
Robbins Tire Rubber Co., 437 U.S. 214 (1978) ............ 11, 

Oregon Natural Desert Ass Dep the Interior, Supp. 1088 (D. Or. 1998) ............................ 21, 

*Authorities chiefly relied upon are marked with asterisks. 

Painting And Drywall Work Preservation Fund Dep 
Housing and Urban Development, 936 F.2d 1300 

(D.C. Cir. 1991) .............................................. 

*Painting Indus. Haw. Mkt. Recovery Fund US. Dep the Air Force, F.3d 1479 (9th Cir. 1994) .................................... 
Ray Dep Justice, INS, 852 Supp. 1558 (S.D. Fla. 1994) ............ 
Renegotiation Bd. Bannercraft Clothing Co., 

415 U.S. (1974) .......................................... 

Ripskis Dep Housing and Urban Development, 
746 F.2d (D.C. Cir. 1984) ..................................... 
*Rosenfeld Dep Justice, F.3d 803 (9th Cir. 1995), 

cert. dismissed, 516 U.S. 1103 (1996) ............................ 
Schrecker DOJ, 349 F.3d 657 (D.C. Cir. 2003) ........................ 
Stern FBI, 737 F.2d (D.C. Cir. 1984) ............................... 
United States Suarez, 880 F.2d 626 (2nd Cir. 1989) ..................... 

US. Dep Justice Reporters Committee for Freedom the Press, 
489 U.S. 749 (1989) ...................................... 
Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973) .......................... 

Washington Post Co. Dep Health Human Services, 
690 F.2d 252 (D.C. Cir. 1982) .................................. 

*Authorities chiefly relied upon are marked with asterisks 
Vll 
Statutes, Rules and Regulations 
U.S.C.  552(a)(4)(B) .............................................. 
U.S.C.  552(b ................................................ 

Circuit Rule 29(b) .................................................. 

Federal Rule Appellate Procedure 29(b) .............................. 

Other Authorities 
Charles Ornstein, Report Slams UCI's Kidney Transplant 
Care, Los Angeles Times, February 16, 2006 ...................... 

Department Justice Guide the Freedom Information Act 
(2004) ..................................................... 

Gilbert Gaul, Inefficient Spending Plagues Medicare; Quality 
Often Loses Out 40-Year-Old Program Struggles 
Monitor Hospitals, Oversee Payments, The Washington Post, 
July24,2005,atA1 ....................................... 14, 

Greg Gordon, Range, deadly illness went unreported; 
Mesothelioma strikes years after victims' exposure 
asbestos, Star Tribune Minneapolis, MN,August 21, 2005, .................................................... 15, 

Carrie Johnson, Medicare Fraud Growing Problem: Medicare 
Pays Most Claims Without Review, The Washington Post, 
June 13, 2008, .......................................... 

*Authorities chiefly relied upon are marked with asterisks. 

S.Rep. No. 813, 891h Cong., 1st Sess.(1965) .........4,

... .... 

The 9/11 Commission Report: Final Report the National Commission 
............ ..... Terrorist Attacks upon the United States (2004) ... 
*Authorities chiefly relied upon are marked with asterisks. 

GLOSSARY 
FOIA Freedom Information Act, U.S.C.  552 HHS U.S. Department Health and Human Services Joint Appendix 
INTEREST AMICUS CURIAE 
Founded 1994, Judicial Watch non-profit, non-partisan, public interest organization headquartered Washington, D.C. that seeks promote accountability, transparency and integrity government and fidelity the rule law. furtherance these goals, Judicial Watch regularly investigates and monitors the actions government requesting access government records under the provisions ofFOIA. Judicial Watch then reports its findings --both the good and the bad --to the American public via its website and monthly newsletter and through other outreach efforts. 
The case bar concerns FOIA's personal privacy exemption, also known Exemption The government argues its principal brief that, under Exemption courts should not consider any derivative use information contained government records when weighing the public interest disclosure such records against individual's interest non-disclosure. Judicial Watch concerned that, validated, the government's "derivative use" argument would impede efforts investigate and monitor government activity and otherwise restrict the free flow information the public about the actions government. Judicial Watch thus seeks submit its amicus curiae brief the Court elaborate the "derivative use" issue, which, from Judicial Watch's perspective, not likely addressed the parties adequately. Pursuant Federal Rule 
Appellate Procedure 29(b) and Circuit Rule 29(b), Judicial Watch filing contemporaneously herewith unopposed motion for leave file its amicus curiae brief. 
STATEMENT REGARDING STATUTES AND REGULATIONS 
All applicable statutes and regulations are contained the Brief for Federal Appellant. 
SUMMARY THE ARGUMENT 
The American public has right know what their government to, and FOIA was enacted secure this right. FOIA requires full disclosure government records unless requested record falls with one the statute's nine, narrowly-construed exemptions. The burden the government prove that withheld records fall within exemption. The government's burden under Exemption heavy one. 
Congress has erected imposing barrier nondisclosure under Exemption restricting its reach cases where harm individual's privacy caused 
disclosure not only "unwarranted" but "clearly" so. Any alleged privacy 
interest must weighed against the public's interest disclosure. The only public interest disclosure identified the U.S. Supreme Court informing the public about "what their government to." U.S. Dep Justice Reporters 
Committee for Freedom the Press, 489 U.S. 749, 773 (1989). 
Appellant U.S. Department Health and Human Services ("HHS") argues that, weighing the public interest disclosure particular record against individual's interest non-disclosure under Exemption court should consider the public interest disclosure that particular record only and not how the record might used benefit the public interest. First, neither the text FOIA nor FOIA's legislative history provides any support for excluding such "derivative use" from the Exemption balancing test. Second, substantial number courts have considered "derivative use" information performing this public interest analysis. Finally, disingenuous for HHS argue that "derivative use" information should not considered weighing the public interest disclosure particular record because its entire argument that releasing the requested information will cause clearly unwarranted invasion privacy hinges the derivative use the requested information the privacy interest side the scale. the District Court, Appellee Consumers' Checkbook posited possible uses for the requested information that clearly would substantial benefit the public. The District Court properly analyzed those uses light the privacy interests asserted HHS and came the obvious conclusion that the balancing these interests weighed favor disclosure. Not only should this finding not disturbed, but this Court should confirm that the District Court properly considered the "derivative uses" that Consumers' Checkbook intends make the information issue analyzing the public interest its disclosure. 
ARGUMENT 	FOIA Exists Provide the Public With Information Make Intelligent, Informed Choices Regarding the Nature, Scope, and Procedure Federal Governmental Activities. crafting FOIA, Congress declared that "government secrecy benefits one. injures the people seeks serve; injures its own integrity and operation. breeds mistrust, dampens the fervor its citizens, and mocks their loyalty." Rep. No. 813, 89th Cong., Sess., (1965). 
The U.S. Supreme Court has declared that FOIA "is broadly conceived. seeks permit access official information long shielded unnecessarily from public view and attempts create judicially enforceable public right secure such information from possibly unwilling official hands." EPA Mink, 410 U.S. 
73, (1973). The Court also has observed that FOIA's ultimate purpose 

enable "the public have sufficient information able, through the electoral process, make intelligent, informed choices with respect the nature, scope, and procedure federal governmental activities." Renegotiation Bd. Bannercraft Clothing Co., 415 U.S. (1974) (quoting Frankel SEC, 460 F.2d 813, 816 (2nd Cir. 1972), cert. denied, 409 U.S. 889 (1972)). Similarly, the Court has declared that the "basic purpose FOIA ensure informed citizenry, vital the functioning democratic society, needed check against corruption and hold the governors accountable the governed." NLRB Robbins Tire Rubber Co., 437 U.S. 214, 242 (1978); see also Nat'l Archives Records Admin. Favish, 541 U.S. 157, 171-72 (2004) ("FOIA often explained means for citizens know 'what the[] Government to.' This phrase 
should not dismissed convenient formalism. defines structural necessity real democracy."). 
Indeed, "ours democratic form government where the public's right know how its government conducting its business has long been enduring and cherished value." Judicial Watch, Inc. Dep Justice, 365 F.3d 1108, 1122 (D.C. Cir. 2004). The U.S. Senate made express reference this 

overarching principle when quoted James Madison the "Purpose Bill" 

section its Report FOIA: 
Knowledge will forever govern ignorance, and people who mean their own governors, must arm themselves with the power knowledge gives. popular government without popular information the means acquiring it, but prologue farce tragedy perhaps both. Rep. No. 813, 891h Cong., !51 Sess., 2-3 (1965). 
II. 	FOIA Embodies Strong Presumption "Of Full Agency Disclosure" and the Government Bears Heavy Burden Justify Withholding Information. 
The Senate Report accompanying FOIA also states "[i]t the purpose the present bill ... establish general philosophy full agency disclosure unless information exempted under clearly delineated statutory language and provide court procedure which citizens and the press may obtain information wrongfully withheld." Rep. No. 813, 891h Cong., ist Sess., (1965). Consequently, this Court has declared that, "[a]t all times, courts must bear mind that FOIA mandates 'strong presumption favor disclosure.'" Nat'l Ass Homebuilders Norton, 309 F.3d 26, (D.C. Cir. 2002) (quoting Dep State Ray, 502 U.S. 164, 173 (1991)). FOIA "requires federal agencies disclose information upon request unless the statute expressly exempts the information from disclosure." Judicial Watch, Inc. Rossotti, 326 F.3d 1309, 
1310 (D.C. Cir. 2003). "Although Congress enumerated nine exemptions from the 
disclosure requirement, 'these limited exemptions not obscure the basic policy that disclosure, not secrecy, the dominant objective the Act."' Norton, 309 F.3d (quoting Dep the Air Force Rose, 425 U.S. 352, 361 (1976)). Because "[t]he legislative plan creates liberal disclosure requirement, limited only specific exemptions," the exemptions "are narrowly construed." Bristol-Myers Co. Federal Trade Com., 424 F.2d 935, 938 (D.C. Cir. 1970), cert. denied, 400 U.S. 824 (1970); see also Vaughn Rosen, 484 F.2d 820, 823 
(D.C. Cir. 1973) (Exemptions from disclosure "must narrowly construed, such way provide the maximum access consonant with the overall purpose the Act."). result FOIA's presumption full disclosure, the government bears the burden justifying its decision withhold requested information. the Senate Report accompanying FOIA states: 
Placing the burden proof upon the agency puts the task justifying withholding the only party able explain it. The private party can hardly asked prove that agency has improperly withheld public information because will not know the reasons for the agency action. Rep. No. 813, 891h Cong., 1st Sess., (1965). The U.S. Supreme Court thus has declared that ]nlike the review other agency action that must upheld 
supported substantial evidence and not arbitrary capricious, the FOIA 
expressly places the burden 'on the agency sustain its action' and directs the district courts 'determine the matter nova."' US. Dep Justice Reporters Committee for Freedom the Press, 489 U.S. 755 (quoting U.S.C.  552(a)( 4)(B)); see also King Dep Justice, 586 Supp 286, 290 (D.D.C. 
1983), aff'd, 830 F.2d 210 (D.C. Cir. 1987) ("Congress has directed the courts make nova review the agency's classification decisions with the burden the agency justify non-disclosure.") (citations omitted). "The burden not light one." Alliance for the Wild Rockies Dep the Interior, Supp. 32, (D.D.C. 1999). "And there nothing about invoking Exemption that lightens the agency's burden. fact, 'under Exemption the presumption favor disclosure strong can found anywhere the Act.'" Multi MediaLLC Dep't Agric., 515F.3d 1224, 1227 (D.C. Cir. 2008) (quoting Norton, 309 F.3d 32). 
III. The Contours Exemption 
Exemption FOIA exempts "personnel and medical files and similar files the disclosure which would constitute clearly unwarranted invasion personal privacy." U.S.C.  522(b )(6). determining the applicability Exemption this Court applies well-settled, three-step analysis. The first 
inquiry considers whether the requested information contained "personnel [or] 

medical files [or other] similar files." U.S.C.  552(b)(6). The second inquiry whether the disclosure the requested information would compromise substantial privacy interests. Id. the privacy interests issue are minimis, then disclosure cannot amount "clearly unwarranted invasion personal privacy" light FOIA' broad policy favoring disclosure. Ripskis Dep Housing and Urban Development, 746 F.2d 2-3 (D.C. Cir. 1984). The third inquiry balances the public interest disclosure the requested information with the potential harm privacy that would result from the disclosure. U.S.C.  552(b 6). creating Exemption "Congress sought construct exemption that would require balancing the individual's right privacy against the preservation the basic purpose the Freedom Information Act." Ripskis 746 F.2d 2-3. "If the balance favors the privacy element, the agency justified withholding the data; the interests the public full revelation are stronger, the information must released; the weights are approximately equal, the court must tilt the balance favor disclosure, the overriding policy the Act." Board Trade Commodity Futures Trading Com., 627 F.2d 392, 398 (D.C. Cir. 1980); see also Stern FBI, 737 F.2d 84, (D.C. Cir. 1984) (Exemption 6's language "require[s] balance tilted emphatically favor disclosure"). 

"[T]he scope the exemption held within bounds the use the limitation of'a clearly unwarranted invasion personal privacy."' Rep. No. 813, 89th Cong., Sess., (1965); see also Rose, 425 U.S. 378 n.16 (Congress' use the "clearly unwarranted" language "was considered and significant determination."). "Exemption does not protect against disclosure [of] every incidental invasion privacy --only such disclosures that constitute 'clearly unwarranted' invasions personal privacy." Rose, 425 U.S. 382. Exemption directed "at threats privacy interests more palpable than mere possibilities." Id. n.19. "Withholding information prevent speculative harm indeed contrary the statute's policy favoring disclosure." Carter United States Dep Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987). "By restricting the reach Exemption cases where the invasion privacy caused disclosure not only unwarranted but clearly so, Congress has erected imposing barrier nondisclosure under this exemption." Kurzon Dep Health Human Services, 649 F.2d 65, (1st Cir. 1981). Indeed, "rare case" when "the calculus unequivocally supports withholding ... because Congress has weighted the balance heavily favor disclosure." Id. 
"The only relevant public interest considered disclosure weighed this balance the extent which disclosure would serve the core 
purpose the FOIA, which contributing significantly public understanding the operations activities the government." Dep Defense Federal 
Labor Relations Authority, 510 U.S. 487, 495 (1994) (emphasis original); see 
also Renegotiation Bd., 415 U.S. ("Congress was principally interested 
opening administrative processes the scrutiny the press and general public 
when passed the Information Act") (internal quotations and citations omitted). 
Uncovering corruption important component this public interest. See 
NLRB, 437 U.S. ("basic purpose FOIA ensure informed citizenry 
... needed check against corruption ....");see also Washington Post Co. 
Dep Health Human Services, 690 F.2d 264 n.39 (D.C. Cir. 198 
(noting that one principal purpose FOIA monitor official conduct) (citation 
omitted). not the only component, however.1 
The broad public interest 

HHS errs arguing that requester must provide evidence government corruption misconduct order defeat withholding under Exemption Appellant's Brief 30-31 and n.4. such rule exists for Exemption only with respect Exemption pertaining law enforcement records, that this Court "adopted categorical rule permitting agency withhold information identifying private citizens mentioned law enforcement records, unless disclosure necessary order confirm refute compelling evidence that the agency engaged illegal activity." Schrecker DOJ, 349 F.3d 657, 661 (D.C. Cir. 200 (internal quotation marks omitted). any event, Consumers' Checkbook has show its brief, the Medicare program perennially has been rife with fraud. Brief Appellee 28-30; see also Carrie Johnson, Medicare Fraud Growing Problem: Medicare Pays Most Claims 
Without Review, The Washington Post, June 13, 2008, Al. 
being informed about "what the[] government to" encompasses many other 

important components, including monitoring whether agency carrying out its statutory duties and exposing agency inefficiency, prejudice, favoritism, and incompetence. See, e.g., Multi Media LLC, 515 F.3d 1232 (ordering release data regarding farmers who receive farm subsidies because "the information will enable the public more easily monitor whether the agency carrying out its statutory duty" "catching cheaters and lawfully administering its subsidy and benefit programs.").2 "Because the 'basic purpose [FOIA] ... focuses the citizens' right informed about what their government to," information that "sheds light agency's performance its statutory duties The Court also noted that the presumption disclosure "of special force" and there exists special need for public scrutiny" where agency action "distributes extensive amounts public funds the form subsidies and other financial benefits." Multi Media LLC, 515 F.3d 1232 (citing Brock Pierce County, 476 U.S. 253, 262 (1986) ("[T]he protection the public fisc matter that interest every citizen."); News-Press Dep Homeland Sec., 489 F.3d 1173, 1192 (11th Cir. 2007) ("easily" concluding that there substantial public interest under FOIA Exemption "learning whether FEMA good steward (sometimes several billions of) taxpayer dollars the wake natural and other disasters"); United States Suarez, 880 F.2d 626, 630 (2nd Cir. 1989) ("[T]here obvious legitimate public interest how taxpayers' money being spent, particularly when the amount large.")). the public interest." Id. 1231 (quoting Reporters Comm. for Freedom 
Press, 489 U.S. 773) (internal quotation marks omitted). 
IV. Derivative Use Information Not Prohibited FOIA. 
One HHS' principal arguments for reversal that the District Court allegedly erred considering derivative uses Consumers' Checkbook intends make the requested information balancing the public interest disclosure against any privacy interests that might exist. Appellant's Brief 37-38. HHS's argument has merit for several reasons. First, there support either the text legislative history FOIA for prohibition considering "derivative uses" information performing the balancing test required under Exemption fact, considering "derivative uses" information entirely consistent with FOIA's basic purpose informing the public about "what the[] government to." Although information disclosed under FOIA may, its face, reveal "what the[] government to," more often than not the information missing piece larger puzzle that, when combined with other sources information, exposes governmental inefficiency impropriety, which unquestionably within the 
public's right know. the information not released, the true nature the 
government's activities may never known.3 
There are many examples where piece critical information was 
obtained through FOIA, that, its face, appeared little utility 
consequence, seemed innocuous insignificant. Upon further analysis 
investigation, however, when the information obtained through FOIA was 
combined with other information, the result revealed important conclusions about 
what the government has been to. The following articles are only few 
examples the many instances where "derivative use" was made information 
obtained through FOIA and was critical uncovering governmental inefficiency impropriety: 
Gilbert Gaul, Inefficient Spending Plagues Medicare; Quality Often Loses Out 40-Year-Old Program Struggles Monitor Hospitals, Oversee Payments, The Washington Post, July 24, 2005, Al. paii large-scale investigation into the quality and monitoring Medicare services, the Washington Post obtained records hospital visits Medicare patients under the Freedom should noted that Consumers' Checkbook posited uses for the requested information that advance the public interest which not require resort derivative use information, e.g., tabulating physician's procedure volume indicator quality service, and monitoring whether Medicare has reimbursed physicians who have submitted suspiciously large number procedures. See Brief Appellee and 26. Nonetheless, the Court should use this opportunity define the contours derivative use information this Circuit for the trial courts. 
Information Act. The records, along with further investigatory work, revealed that Medicare officials knew number health care facilities that were out compliance and that conditions some facilities put patients jeopardy. one Florida hospital that handles many Medicare patients, high rate recurring infections heart patients actually served benefit the hospital, which reimbursed equally for new cases and for patients readmitted with complications from medical errors poor care. Critics Medicare cite problems the incentive for health care providers charge for additional services and focus receiving greater payments rather than patient needs and prevention.4 
Charles Ornstein, Report Slams UCI's Kidney Transplant Care, Los Angeles Times, February 16, 2006. investigation into the kidney transplant program UCI Medical Center Orange County December 2005 aided documents released under the Freedom Information Act found that the hospital failed ensure that all staff completed required training, and did not institute federally-mandated patient care reviews and oversight, including monitoring the diets organ donor recipients. UCI hospital shut down its liver transplant program last year, after investigation The Times revealed that more than patients had died waiting for organs, although the hospital turned down numerous donors. 
Greg Gordon, Range, deadly illness went unreported; Mesothelioma strikes years after victims' exposure asbestos, Star Tribune Minneapolis, MN, August 21, 2005, 9B. Because loophole rep01i requirements, the LTV Steel Mining Company did not report trend mesothelioma and other debilitating asbestosrelated illnesses among workers its Minnesota taconite mines dating froml 980, according records obtained from the Mine Safety and Health Administration under the Freedom Information Act. 1977 agency rule requires companies report work-related illnesses 

among active workers, but because mesothelioma usually does not appear for more than years after exposure asbestos, LTV did not report illnesses and deaths among its retirees, and action was taken improve safety other workers the mine. The gross failure companies report lung disease cases among mine workers was evident from the documents, after reporters spoke with families dozens affected workers the Iron Range region alone. According MSHA, the maximum penalty for companies that fail report illness $60.6 
The effect such "derivative use" information obtained through FOIA cannot overstated. Articles such these not only have kept the public informed about "what the[] government to," but also can the driving force behind public outrage that leads governmental action, the government itself has admitted elsewhere. See The 9/11 Commission Report: Final Report the National Commission Terrorist Attacks upon the United States 103 (2004) (acknowledging that democracy's "best oversight mechanism" "public disclosure" investigative journalists and watchdog groups "spur[] congressional committees into action."). FOIA was crafted precisely for this reason. See NLRB, 437 U.S. 242 (observing that the "basic purpose ofFOIA ensure informed citizenry, vital the functioning democratic society, needed check against corruption and hold the governors accountable the governed"). 

HHS' argument that the district court erred considering derivative uses the information issue also has merit because contrary wellestablished precedent. This Court has recognized the viability considering derivative uses information for purposes the Exemption balancing test when found that the disclosure information obtained through FOIA could "provide leads for investigative reporter seeking ferret out what government to." Painting and Drywall Work Preservation Fund Dep Housing and 
Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (internal quotations omitted). 
Similarly, the U.S. Court Appeals for the Eleventh Circuit has recognized the context Exemption that, although information itself may not further the purposes ofFOIA informing the public what the Government doing, the release information can serve the public interest "by allowing third persons investigate further our Government's conduct." Ray US. Dep Justice, 852 Supp. 1558, 1564 (S.D. Fla. 1994). fact, related matter before the U.S. Supreme Court, US. Dep State Ray, 502 U.S. 164 (1991 the government had argued that analysis the derivative use information should excluded from the Exemption balancing test, but the Court declined adopt any such categorical exclusion. Id. Painting Indus. Haw. Mkt. Recovery Fund Dep the Air 
Force, F.3d 1479 (9th Cir. 1994), the U.S. Court Appeals for the Ninth Circuit ("Ninth Circuit") considered derivative uses information analyzing the public interest the release records subject claim withholding under Exemption The Court declared, "[i]f 'derivative' public benefits are merely those which require some tabulation data released under FOIA, perhaps some further research the part the requester, see reason why the extra effort required the requester should, every case, render proffered public benefit more less strong." Id. 1485. Rosenfeld Dep Justice, F.3d 803 
(9th Cir. 1995), cert. dismissed, 516 U.S. 1103 (1996), the Ninth Circuit reaffirmed 
the validity using derivative use information when found that the public 
interest would served disclosing list names people whom the FBI had 
investigated that the list might later compared other publicly available 
information determine whether and what extent the FBI investigated 
individuals for participating political protests. Detroit Free Press DOJ, F.3d (6th Cir. 1996), the U.S. Court Appeals for the Sixth Circuit utilized derivative use information its public interest analysis when affirmed district court's order compelling release mug shot photographs. The Court stated that the mug shot photographs could 
used subject the government public oversight. Id. 98. Obviously, this 

oversight function could only occur making derivative use the 
photographs, the photographs themselves would explain nothing. The Court 
cited two examples: 
[R]elease photograph defendant can more clearly reveal the 
government's glaring error detaining the wrong person for 
offense than can any reprint only the name arrestee. 
Furthermore, mug shots can startlingly reveal the circumstances 
surrounding arrest and initial incarceration individual 
way that written information cannot. Had the now-famous videotape the Rodney King beating Los Angeles never been made, mug 
shot Mr. King released the media would have alerted the world 
that the arrestee had been subjected much more than routine 
traffic stop and that the actions and practices the arresting officers 
should scrutinized. Id. 
Likewise City Chicago Dep the Treasury, 287 F.3d 628 (7th Cir. 
2002), rev and remanded other grounds, 537 U.S. 1229 (2003), the U.S. 
Court Appeals for the Seventh Circuit utilized derivative use information its 
public interest analysis when affirming district court's order compelling release the individual names and addresses all firearm purchasers, manufacturers, 
dealers and importers two databases kept the Bureau Alcohol, Tobacco 
and Firearms ("ATP"). The Court found that, although the information concerning 
private individuals did not, its face, reveal anything about the agency's 
performance, disclosure the information would facilitate studies national 
patterns gun trafficking, which tum would inform the public "ATF's 

performance its statutory duties tracking, investigating and prosecuting 
illegal gun trafficking, well determining whether stricter regulation 
firearms necessary." Id. 637. 
Finally, Alley Dep Health and Human Services, No. 07-0096 (N.D. 
Ala. May 2008), case very similar the case bar, the U.S. District Court for 
the Northern District Alabama was called upon review HHS's withholdings 
under Exemption Medicare provider-identifying information.7 addition 
raw data the type and number procedures performed, the requestor Alley 
also sought the name, address, and city location providers. The Court found Alley, HHS advanced the same arguments that advances here, including that injunction issued the U.S. District Court for the Middle District Florida prohibits from disclosing the requested information and that release the information would constitute clearly unwarranted invasion privacy releasing Medicare provider-identifying information along with information concerning procedures performed could combined with publicly available fee schedules determine individual provider's Medicare income. The Court Alley disposed these arguments easily and ordered the release the requested information. copy the Court's ruling Alley included the Addendum, for the Court's convenience. this case, Consumers' Checkbook does not far. Consumers' Checkbook does not request the name and address the provider, but only the provider's physician-identifying number, which will allow Consumers' Checkbook later identify the provider using other publicly available information. also important note that the court Alley inadvertently stated that Consumers' Checkbook requested annual Medicare reimbursement totals for 
that disclosure this information would serve FOIA' basic purpose shedding light government conduct. Specifically, the Court found that several derivative uses the information would provide the public with information about what their government was to, including "any analysis how the government spending Medicare dollars and whether Medicare dollars are being funneled toward physicians with high operation success rates and low patient recovery periods who use their Medicare dollars efficiently or, the other hand, toward doctors who have either appalling records simply inefficient ones." Alley, No. 07-0096, slip op. (N.D. Ala. May 2008). The Court weighed this 
"substantial public interest" against the "very limited privacy interest" the mere 
possibility someone discovering the amount individual provider reimbursed Medicare annually and found "that the information withheld does 
not constitute clearly unwarranted invasion privacy." Id. 29.9 
each provider (as opposed raw Medicare claims data). Alley, No. 07-0096, slip op. (N.D. Ala. May 2008). fact, Consumers' Checkbook requested raw Medicare data elements, none which include any monetary amounts. Brief Appellee 36-37. 
Other examples courts relying derivative uses information when performing the balancing test required under Exemption include the following: Baltimore Sun U.S. Marshals Serv., 131 Supp. 725 (D. Md. 2001) (names and addresses individuals who received property seized under federal law could enable the public assess the government's exercise its power seize and dispose property); and Oregon Natural Desert Ass sum, HHS' argument that derivative use information disfavored the 

courts cannot sustained, substantial number courts have recognized, not utilized, derivative use information performing the Exemption balancing test. 
Finally, disingenuous for HHS argue that derivative use information should not considered the public interest side the scale because its entire argument that releasing the requested information will cause clearly unwarranted invasion privacy hinges the derivative use the requested information the privacy interest side the scale. Indeed, HHS has placed great deal weight speculative scenarios when evaluating the providers' alleged privacy interests. not the release provider information itself that HHS purports protect, but the combination this information together with other, publicly available information that, according HHS, might possibly reveal information about individual providers' annual Medicare reimbursement income. subset its derivative use argument, HHS also asserts that the district court improperly took into account the particular needs Consumers' Checkbook for the requested information. Appellants' Brief 24. HHS misapprehends the 
Dep the Interior, Supp. 1088 (D. Or. 1998). These and number similar, unreported cases are cited pages and the Department Justice 
Guide the Freedom Information Act (2004). 
process identifying whether the information requested will inform the public about what the government to. The Supreme Court has explained that, "as general rule, when documents are within FOIA's disclosure provisions, citizens should not required explain why they seek the information. person requesting the information needs preconceived idea the uses the data might serve." Favish, 541 U.S. 172. "When disclosure touches upon certain areas defined the exemptions, however, the statute recognizes limitations that compete with the general interest disclosure, and that, appropriate cases, can overcome it. ... effect this balance and give practical meaning the exemption, the usual rule that the citizen need not offer reason for requesting the information must inapplicable." Id. Instead, the requester must indicate how disclosing the withheld information "would serve the core purpose the FOIA, which contributing significantly public understanding the operations activities the government." FLRA, 510 U.S. 495 (quotation marks and 
emphasis omitted). other words, the only way determine whether requested information will inform the public about what the government through analysis the potential uses the information. This analysis must information-specific. need not depend upon the identity the requester the requester's motivation seeking the information, but must focus possible uses. Below, Consumers' Checkbook posited possible uses for the information that clearly would advance the public interest. The District Court properly analyzed those uses light the public interest and came the proper conclusion that disclosure the requested information serves the public interest. Not only should this finding not disturbed, but the Court should confirm that the District Court properly considered the "derivative uses" that Consumers' Checkbook intends make the information issue analyzing the public interest its disclosure. 
CONCLUSION 
For the foregoing reasons, the ruling the District Court should affirmed. Dated: June 17, 2008 Respectfully Submitted, 

Dale Wilcox JUDICIAL WATCH, INC. 501 School Street, SW, Suite 500 Washington, 20024 
(202) 646-5172 
Counsel for Amicus Curiae 

ADDENDUM 

ADDENDUM TABLE CONTENTS 
Alley US. Department Health and Human Services, 
No. 07-0096 (N.D. Ala. May 2008) ................................. 

Gilbert Gaul, Inefficient
Spending Plagues Medicare; Quality Often Loses Out 40-Year-Old Program Struggles Monitor Hospitals, Oversee Payments, The Washington Post, July 24, 2005 .................................................... 35a 
Charles Ornstein, Report Slams UCI's Kidney Transplant Care, 
Los Angeles Times, February 16, 2006 ............................... 42a 

Greg Gordon, Range, deadly illness went unreported; Mesothelioma strikes years after victims' exposure asbestos, 
Star Tribune Minneapolis, MN, August 21, 2005 ....................... 44a 

2008 May-08 AM. 09:10 
U.S. DISTRICT COURT 
N.D. ALABAMA THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT ALABAMA 
EASTERN DIVISION 

JENNIFER ALLEY and REAL TIME 

MEDICAL DATA, LLC  
Plaintiffs,  CV-07-BE-0096-E  
UNITED STATES DEPARTMENT  
HEALTH AND HUMAN SERVICES.,  
Defendant  

MEMORANDUM OPINION 
This matter before the court "Defendant's Motion for Summary Judgment" (doc. 30) and Plaintiffs' "Motion for Summary Judgment" (doc. 35). For the reasons stated this opinion, the court will GRANT part and DENY part Plaintiffs' Motion for Summary Judgment, and will GRANT part and DENY part Defendant's Motion for Summary Judgment. 
FACTUAL BACKGROUND 
The following facts are undisputed, except where the court designates otherwise. This case involves disagreement over Freedom Information Act, U.S.C.  552 ("FOIA"), request. The Plaintiffs1 this case are Real Time Medical Data, L.L.C. "Real The original complaint included only one Plaintiff, Jennifer Alley, but after HHS filed answer, her complaint was amended add Plaintiff Real Time. Although HHS memorandum brief objects that the complaint was amended without leave court the permission HHS, because HHS has filed motion objecting the 

Time")2 and its owner/agent, Jennifer Alley. Plaintiffs are the business providing Medicare claims data hospital and other healthcare organization clients. Defendant, the United States Department Health and Human Services ("HHS")3, has regularly provided Medicare outpatient data regarding Alabama Medicare providers Plaintiffs beginning September 2001. 
February 2003 FOIA Request February 2003, Plaintiffs submitted FOIA request that HHS provide them with "data Medicare claims paid any inpatient outpatient procedure performed (all CPT's) the states Georgia, Tennessee, Mississippi and Florida between January 2002 and December 31, 2002." (doc. 37, Ex. 6). HHS initially denied this request June 2003 because claimed that creating program provide the data "would involve significant amount programming time [that would not fall within its] customary two-hour threshold," and further stated that FOIA does not require federal agencies "to create records response FOIA requests." (doc. 37, Ex. 7). June 17, 2003, Plaintiffs appealed that denial HHS's Deputy Administrator, part the administrative process. June 10, 2003, eight days after the denial its request for Medicare data the four 
states surrounding Alabama, Plaintiffs submitted request for Medicare data regarding Alabama 
amended complaint during the ten months since its filing, the court will accept the amended complaint. For simplicity's sake, the court will refer Alley and/or Real Time Plaintiffs the plural even though some the correspondence may refer only one the Plaintiffs and only one Plaintiff technically existed this matter before May 25, 2007. Real Time was known "Healthcare Strategic Resources L.L.C." until February 2004. avoid 
confusion, the court will refer the entity "Real Time" before and after February of2004. For simplicity's sake, the court has not distinguished between HHS and the related entities such Centers Medicare and Medicaid Cahaba Government Benefit Administrators, but refers collectively those entities "HHS" this opinion. 
outpatient services; HHS had already been providing Plaintiffs with such Medicare data Alabama for inpatient services. Subsequently, HHS provided the data requested for Alabama outpatient services and continued provide such Medicare data regarding Medicare inpatient and outpatient services Alabama until February 2007. Plaintiffs claim that the inpatient and outpatient data requested February 2003 regarding the states surrounding Alabama 
which HHS initially refused provide -was identical the data requested and provided for inpatient and outpatient services Alabama. January 11, 2007, Plaintiffs filed the instant lawsuit against HHS, requesting preliminary and permanent injunctive relief regarding Plaintiffs' FOIA request for the 2002 Medicare data Florida, Georgia, Mississippi, and Tennessee. May 14, 2007, HHS reversed its denial that request, issuing disclosure decision that the following data would released: 
all the requested Part outpatient data; 
the requested Part inpatient data, with the exception patient control numbers; and 
the requested Part outpatient data, with the exception "certain data elements" 
withheld under FOIA's Exemption explained separate communication. 

(doc. 32, Ex. 3). Exemption the FOIA allows the government withhold "personnel and 
medical files and similar files the disclosure which would constitute clearly unwarranted 
invasion personal privacy." U.S.C.  552(b)(6) (emphasis added). June 12, 2007, HHS issued Plaintiffs supplemental disclosure decision for the 
Part outpatient data detailing the data withheld under Exemption and the decision 
Fla. Med. Ass'n, Inc. Dep Health, Ed., Welfare, 479 Supp. 1291 (M.D. Fla. 1979). 
The data elements withheld from the requested Part outpatient data from Georgia, Tennessee, 
and Mississippi were follows: 
provider name, provider address and provider city individual physicians; provider name, provider address and provider city when the provider group practice that consists only one two individual physician members (i.e., small group practices that can considered closely held corporations); and provider zip codes for individual physicians and small group practices where less than providers are located. 
(doc. 32, Ex. 4). The data elements withheld from the requested Part outpatient data 
from Florida were slightly different: 
provider name, provider address and provider city individual physicians and all group 
practices; and 
provider zip codes where less than individual providers are located the zip code. 
(doc. 32., Ex. 4). its decision, HHS explained that small group practices have privacy interests worthy protection under Exemption and that specific zip code data was being withheld prevent identification individual providers small communities. further advised Plaintiffs that they agreed pay the costs produce the data requested, production the information would take sixty days from the communication the agreement pay. HHS subsequently released all the data requested February 2003 

the data elements that designated withheld the disclosure decisions May and June 2007. Plaintiffs appealed the decision withhold the specified data elements HHS's Deputy Administrator4 and August 10, 2007, the agency responded with final decision upholding the
Although Plaintiffs mailed their "appeal" the Director FIG, not the Deputy Administrator, Centers for Medicare Medicaid Services, provided the administrative appeal process, the Deputy Administrator granted their letter appeal status. 
June 12, 2007 decision but including the correction typographical error. April 13, 2007 FOIA Requests for Alabama Data April 13, 2007, subsequent the filing the instant suit, Plaintiffs submitted two FOIA requests one ofHHS's carriers: one seeking Alabama Medicare data for inpatient and outpatient services performed February 2007, and the other seeking the same type data for March 2007. early May 2007, Plaintiffs inquired about the pending request for Alabama data, and HHS advised them that would not releasing the Alabama data and that denial letter would follow. May 25, 2007, Plaintiffs filed "Amended the Complaint" the instant case, asking the court require HHS provide the requested March 2007 Alabama Medicare data (but not the February 2007 Alabama Medicare data that was also requested), addition the 2002 Medicare data from the states surrounding Alabama. June 2007, Plaintiffs filed Motion for Preliminary Injunction relating the requested Alabama Medicare data, which this court subsequently denied. June 2007, Plaintiffs submitted one HHS's carriers FOIA request for Alabama Medicare data for May 2007. June 15, 2007, HHS issued disclosure decision regarding the April and June FOIA requests. The decision provided for the release the requested Part data full and for the release the requested Part data with the following exceptions: 
provider name, provider address and provider city individual physicians; provider name, provider address and provider city for group practices consisting only one two physicians (i.e., small group practices that can considered closely held corporations); and provider zip codes for individual physicians and small group practices where less than providers are located the zip code. 
(Doc. 32, Ex. 7). The asserted legal basis for the withholding was the same the basis stated 
HHS's June 12, 2007 disclosure decision regarding the states surrounding Alabama. However, these new requests did not pose the same retrieval and segregation issues the 2003 request, the decision did not discuss anticipated variances. With respect the April and June 2007 FOIA requests, HHS released through Cahaba the requested Part data full and the requested Part data except for the specified withheld data elements. 
The June 2007 disclosure decision specifically advised Plaintiffs their right appeal the decision and advised them that their "appeal should mailed within days the date this letter to: The Deputy Administrator, Centers for Medicare Medicaid Services .... "(doc. 32, Ex. 7). Plaintiffs did not submit appeal the June 15, 2007 decision within the thirty day period any time thereafter. Plaintiffs have not subsequently amended their complaint include their February May 2007 requests for Alabama Medicare data. June 22, 2007, HHS filed "Answer Amended Complaint," that included 
language objecting the Amended Complaint, but HHS has not filed any motion based those 
objections. November 16, 2007, HHS filed Motion for Summary Judgment, requesting 
that this court dismiss all claims this lawsuit. Plaintiffs subsequently filed Cross-Motion for 
Summary Judgment, asking the court find that HHS improperly withheld the data requested 
violation the FOIA and further order HHS release the requested information Plaintiffs. 
STANDARD REVIEW 
The Eleventh Circuit Court Appeals has noted that once documents issue are properly identified, FOIA cases are properly resolved motions for summary judgment. See Miccosukee Tribe Indians Fla., 516 F.3d 1235, 1243 (11th Cir. 2008); Miscavige IRS, .3d 366, 369 (11th Cir. 1993). Summary judgment appropriate FOIA action when 
"viewing the facts the light most favorable the non-moving party, genuine issue material fact remains." Burka Dep Health Human Servs. F.3d 508, 514 (D.C. Cir. 1996); see Fed. Civ. 56(c). 
The court shall determine novo the issue whether the federal agency's nondisclosure was proper. See U.S.C.  552 (a)(4)(B). The burden rests the government agency seeking withhold information prove that the information exempt from disclosure under least one FOIA Exemption. See U.S. Dep't State Ray, 502 U.S. 164, 172 (1991); News Press 
U.S. Dep Homeland Sec. 489 F.3d 1173, 1191 (11th Cir. 2007); see also Nadler U.S. Dep Justice, 955 F.2d 1479 (11th Cir. 1992), overruled other grounds U.S. Dep't Justice Landano, 508 U.S. 165 (1993). sustain its burden justifying the withholding data records under FOIA, the government must submit "affidavits declarations that describe the withheld material with reasonable specificity and explain why the records fall within the claimed FOIA exemptions." Times Publ'g Co. U.S. Dep't Commerce, 104 Supp. 1361, 1363 (M.D. Fla. 2000), rev'd and remanded other grounds, 236 F.3d 1286 (11th Cir. 2001); see also Weisberg Dep Justice, 745 F.2d 1476, 1492 (D.C. Cir. 1984). 
When the pleadings and the submitted affidavits and declarations demonstrate that genuine issue material fact exists and that the moving party entitled judgment matter law, the court must grant the motion for summary judgment. See Alyeska Pipeline Serv. Co. 
U.S.E.P.A. 856 F.2d 309,313-14 (D.C. Cir. 1988). However, the mere filing cross-motions for summary judgment does not preclude the existence genuine issues material fact. See Slay State Alabama, 636 F.2d. 1045, 1047 (11th Cir. 1981). the pleadings and submissions show that federal agency improperly withheld information from requesting party, 
FOIA gives the federal district court jurisdiction enjoin that "agency from withholding agency records and order the production any agency records improperly withheld from the complainant." U.S.C.  552(a)(4)(B); see Kissinger Reporters Comm.for Freedom the Press, 445 U.S. 136, 139 (1980). 
DISCUSSION 
The FOIA broad disclosure statute which evidences strong public policy favor public access information the possession federal agencies." News Press, 489 F.3d 1196. "[T]he Act broadly conceived, and disclosure, not secrecy, the dominant objective the Act." Long U.S. Dep Justice, 450 Supp. 42, (D.C. Cir. 2006) (citations omitted). The FOIA "seeks permit access official information long shielded unnecessarily from public view and attempts create judicially enforceable public right secure such information from possibly unwilling official hands." Envtl. Prat. Agency Mink, 410 U.S. 78, (1973) (statement quoted not questioned but case superseded statute/rule stated Zweibon Mitchell, 516 F.2d 594, 642 (D.C. Cir. 1975)). "In enacting the FOIA Congress sought open agency action the light public scrutiny. Congress did requiring agencies adhere general philosophy full agency disclosure."' U.S. Dep Justice Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Rep. No. 89-813, 89th Cong., 2nd Sess. (other quotation marks and citations omitted). Accordingly, the FOIA requires agencies the federal government release records the public upon request, unless one the nine statutory exemptions applies. NLRB Sears, Roebuck Co., 421 U.S. 132, 136 (1975). When requester challenges federal agency's denial FOIA request, "[t]he burden the agency demonstrate, not the requester disprove, that the materials sought ... [have not been] 

improperly withheld." Tax Analysts, 492 U.S. 142 their amended complaint, Plaintiffs allege -and HHS does not dispute -that HHS 
continues withhold5 the following data that Plaintiffs requested under FOIA: 
2002 Medicare Part data provider name, provider address and provider city individual physicians; provider name, provider address and provider city when the provider group practice that consists only one two individual physician members (i.e., small group practices that can considered closely held corporations); and provider zip codes for individual physicians and small group practices where less than providers are located the zip code. 
2002 Medicare Part data Florida provider name, provider address and provider city individual physicians and all group practices; and provider zip codes where less than individual providers are located. 
March 2007 Medicare Part data Alabama provider name, provider address and provider city individual physicians; provider name, provider address and provider city for group practices consisting only one two physicians (i.e., small group practices that can considered closely held corporations); and provider zip codes for individual physicians and small group practices where less than providers are located the zip code. 
The court must determine whether HHS has met its burden justifying the nondisclosure this 
data. 2002 Medicare Part Data and Tennessee 
The first set records that Plaintiffs requested was the 2002 Medicare data for the states Florida, Georgia, Mississippi, and Tennessee. Although the data withheld from the Florida 
request slightly different, that difference not material this analysis and the court will 
discuss the claim involving data for all four states the same time. 
5Although HHS also withheld patient control numbers from Part inpatient data, Plaintiffs' amended 
complaint does not contest that nondisclosure. 

Although HHS originally denied Plaintiffs' request February 2003, has since reversed its decision and has provided for the release all data requested with the specified data exceptions previously and subsequently discussed. Plaintiffs admit that -after they filed this FOIA suit and almost four years after the initial request -they have finally received the 2002 records minus the specified data exceptions. This reversal position would ordinarily moot any claims for the data released. See Brown U.S. Dep Justice, 169 App'x 537, 540 (11th Cir. 2006) (per curiam) (citing Lovell Alderete, 630 F.2d 428, 430-31 (5th Cir. 1980) (holding that the FOIA issue was moot when plaintiff received documents sought, even though the agency delivered them late)). declaration that agency's initial refusal disclose requested 
information was unlawful, after the agency made that information available, would constitute advisory opinion contravention Article III the Constitution." Payne Enter. United States, 837 F.2d 486, 491 (D.C. Cir. 1988). If, however, Plaintiffs are able demonstrate that HHS operates under internal "policy practice delayed disclosure some other failure abide the terms the FOIA," then the mootness doctrine would not invalidate their claim; they could assert that the agency policy represents "continuing injury" that will prevent their access information the future. See id. 
The court has examined Plaintiffs' amended complaint and submissions and sees 
allegations facts that would support argument that HHS has established policy delay 
whereby records are routinely withheld the initial processing level, but consistently released 
after administrative appeal. contrast, Plaintiffs admit that HHS routinely granted their 
other requests the initial processing level between September 2001 and April 13, 2007. 

Plaintiffs complain, however, that the initial denial letter June 2003 referred internal "policy practice" that violates the FOIA. that letter, HHS explained that respond Plaintiffs' request, would have create new computer program that would greatly exceed "our customary two-hour threshold." (doc 37, Ex. 7). Plaintiffs argue that any practice denying requests that generate more than two-hours' response time improper under the FOIA; the FOIA does not contain exception that allows federal agency withhold available information merely because compiling the data would require more than two hours' work. See Army Times Publ'g Co. Dep't Army, 684 Supp. 720, 723 (D. D.C. 1988) (explaining "administrative inconvenience and burden are not criteria which Congress allowed FOIA requests judged"); Ferguson Kelly, 455 Supp. 324, 326 (D.C. Ill. 1978) (finding that agency's claim that "response FOIA request may time-consuming burdensome not valid defense"). fact, Congress has specifically considered whether amend the FOIA allow for the discretionary denial requests that agencies deem unusually difficult expensive and has declined so, choosing instead enact measures that require requesters pay fee fulfilling request will especially costly and give agencies extra time for compliance with particularly challenging requests. See U.S.C.  552(a)(4)(A) 552(a)(6)(B). the evidence does fact demonstrate that HHS following "impermissible practice" denying any claim that requires more than two hours response time, then Plaintiffs' claim based withholding the data may moot, but their challenge the policy remains viable. The phrase "customary two-hour threshold" the initial denial letter troubles the court because that language supports the allegation that this wrongful application the FOIA custom opposed "isolated mistakes." See 0'Neill U.S. Dep Justice, 2007 
983143, (E.D. Wis. March 26, 2007) (quoting Payne, 837 F.3d 491). addition, the 
denial letter's discussion its "creation new record" excuse reveals misapplication that excuse computer programming situation. See Schladetsch U.S. Dep Haus. Urban Dev., 2000 33372125, (D. D.C. 2000) (finding that creating "programming necessary instruct the computer conduct the search does not involve the creation record"). 
The May 14, 2007 letter reversing the original decision does not advise that the previous decision misstated HHS policies that those policies had been changed, nor does characterize the old decision isolated mistake. fact, provides explanation for changing the decision but does provide reasons that are completely unrelated the old ones for continuing withhold certain data elements. Accordingly, the court has way knowing why the reversal occurred and whether the policies and practices referenced the original denial letter are still use. 
Despite Plaintiffs' assertions that HHS has policy unreasonably denying FOIA requests that take over two hours process and/or that require create computer programming, the government essentially ignores those assertions, insisting only that any claim related the released data moot. Although Plaintiffs' allegations may ultimately prove unfounded, the court cannot -on the record before -conclude that HHS does not have policy that violates the FOIA. Plaintiffs are entitled conduct discovery flesh out this claim. Therefore, the court finds that although the request for the data provided moot, the challenge the policy under which that data was originally withheld not. However, genuine issue material fact remains regarding this claim and the court will DENY both parties' motions for summary judgment this claim this point and will grant Plaintiffs leave conduct limited 
discovery this issue should they wish pursue it. 
The court turns next Plaintiffs' claims regarding the data from Florida, Georgia, Tennessee and Mississippi that has not yet been released. HHS asserts that bound the decision Florida Med. Ass'n Dep't Health, Ed., Welfare, 479 Supp. 1291 (M.D. Fla. 1979) ("FMA") and accompanying injunction that allegedly prohibits HHS from releasing the withheld data. the FMA injunction does indeed apply the withheld data, then this court has jurisdiction under FOIA order disclosure. Federal courts have jurisdiction over FOIA requests only the agency has "(1) improperly (2) withheld (3) agency records." See GTE Sylvania, Inc. Consumers Union US., Inc., 445 U.S. 375, 384 (1980) (emphasis added); see also U.S.C.  552(a)( 4)(B). Because agency's withholding data lawful obedience court injunction could not characterized "improper," another court may not order disclosure the data enjoined. See GTE Sylvania, Inc., 445 U.S. 387. Persons and agencies subject the injunction must obey that decree until modified reversed, even they have proper grounds object it. Id. 386; see generally Citizens Concerned About Our Children School Ed., 193 F.3d 1285, 1292 (11th Cir. 1999) (noting that, the FOIA context, the law considers enjoined party have lost the discretion contravene court order, and citing GTE Sylvania, Inc.). Furthermore, this court may not modify the scope permanent injunction that another court has issued. See Fed. Civ. 60(b). 
Therefore, even this court were disagree with the reasoning the federal court issuing the injunction the FMA decision, could neither modify the injunction nor order the 
13a 
agency produce any data the injunction applied that data and forbid its disclosure. 
Plaintiffs predictably argue that the FMA injunction does not apply their request. Accordingly, this court will examine the FMA decision and determine whether enjoins HHS from releasing the data the instant case. the FMA decision, the federal court the Middle District Florida issued permanent injunction prohibiting the Secretary Health, Education and Welfare ("HEW"),6 the predecessor HHS, from publishing annual list all physicians and healthcare providers, their addresses, and the net amount Medicare reimbursements paid each. 479 Supp. 1297. HEW had begun voluntarily publishing this list the general public, and medical associations petitioned for injunction stop this disclosure, claiming that the information fell under Exemption the FOIA and was prohibited the Privacy Act. The court analyzed the petition under Exemption balancing personal privacy interests against public interest disclosure, and found that the list "was exempt from required disclosure under the FOIA because would 'constitute clearly unwarranted invasion personal privacy."' Id. 1311. further found that the Privacy Act prohibited the "disclosure annual Medicare reimbursement amounts, way that will identify individual Medicare providers and their amounts reimbursements" without those individuals' prior written consent. Id. tandem with this decision, the court entered "permanent injunction behalf plaintiffs and the recertified class that they represent;" that class included all physicians licensed The HEW was department the United States government from 1953 1979. 1979, the government formed separate department for education and renamed HEW the Department Health and Human Services. practice Florida, and all other members the American Medical Association ("AMA") who are not Florida physicians they are Medicare providers and would individually identified HEW' disclosure list. Id. 1295-6, 1311. The accompanying permanent injunction provides relevant part follows: 
Defendants, Department Health, Education and Welfare ... are permanently enjoined from disclosing any list annual Medicare reimbursement amounts for any years, which would personally and individually identifY those providers services under the Medicare program who are members the recertified class this case. 
Any such disclosure annual Medicare reimbursement amounts, for any years, manner that would personally and individually identifY the providers services under the Medicare program who are members the recertified class this case declared contrary federal law. 

(doc.32, Ex.1, Attach. (emphasis added). 
HHS, who has the burden proving that this injunction compels the withholding the 
information requested, argues that the data falls within the scope the FMA injunction because: 
(1) the class enjoined includes Florida physicians well physicians from Georgia, Mississippi, and Tennessee who are AMA members and are Medicare providers; and (2) the data requested can combined with the public Physician Fee Schedule determine the annual reimbursement amount for identified individual providers. 
HHS has already produced Plaintiffs the Medicare data without the corresponding names, addresses, cities, etc. certain providers. HHS acknowledges that the data requested does not correlate exactly the HEW list FMA; the HEW list included already calculated annual reimbursement totals for each individual provider, while the request bar asks for raw data. HHS argues that this difference represents distinction form but not substance because the requested information does "personally and individually identify those providers" 
and further, provides the tools needed calculate the net Medicare reimbursement amounts for 
them. Releasing that data, they assert, would nevertheless "lead the disclosure annual Medicare reimbursement amounts for individual, identified providers" (doc. 32, Ex. iJ5) and, thus, run afoul the injunction. support that argument, HHS offers the affidavit Spike Duzor who provides rather tortuous explanation how "easily" the raw data can transformed into calculated reimbursement totals. The affiant's breezy testimony-that CMS analyst could combine raw data, internet access, Medicare codes, and calculator, and mere "twenty minutes," calculate physician's reimbursement amount for single procedure -does not convince the court that providing such raw data tantamount providing the "annual net Medicare reimbursement amounts" tied individually-identified providers prohibited the FMA injunction. addition, the court must give the words the injunction their plain meaning and resist any urge expand the stated scope the injunction; injunctive relief must limited scope afford only the relief that necessary protect the interest the parties the case. See Keener Convergys Corp., 342 F.3d 1264, 1269 (l11h Cir. 2003) (citing Gibson Firestone, 741 F.2d 1268, 1273 (11th Cir.1984)) (constitutional violation context); Soc'y for Good Will Retarded Children, Inc. Cuomo, 737 F.2d 1239, 1251 (2d Cir.1984) ("Injunctive relief should narrowly tailored fit the specific legal violations adjudged."); Consolidation Coal Co. Disabled Miners So. Va., 442 F.2d 1261, 1267 (4th Cir.1971) (An injunction "should tailored restrain more than what reasonably required accomplish its ends"). The importance honoring the narrow scope injunction particularly important when, here, that injunction permanent one enjoining federal agency with nationwide effect. HHS has 

not proven this court that the FMA injunction covers the data requested the instant case, and this court will not broadly construe the language the injunction expand its scope. federal district court sitting the District Columbia faced similar issue Consumers' Checkbook U.S. Dep'tofHealth Human Svcs., 502 Supp. (D. D.C. 2007). Plaintiffs that case requested disclosure from HHS all 2004 Medicare claims submitted physicians four states and Washington, D.C. HHS originally denied the request but, after plaintiff filed suit, revised its ruling and agreed produce responsive documents. Subsequently, HHS changed course again and invoked Exemption withhold the physicianidentifying information the records that plaintiff requested. Although HHS's original denial plaintiffs request apparently did not refer the FMA injunction, HHS argued the court that case -as does the instant case -that the FMA injunction barred the proposed disclosure. The court rejected this argument and relegated its explanation footnote, merely stating: "As plaintiff seeks different records, however, the injunction immaterial this Court's analysis." 
performed, this information was raw data. Anyone wishing determine the amount annual Medicare reimbursements paid physicians would have take the data provided, combine that data with other information available the public, and perform number calculations. short, the raw Medicare data requested was dissimilar nature the already-calculated annual Medicare reimbursement totals the FMA decision and injunction. Accordingly, the court finds that the FMA injunction does not apply the data requested the instant case and did not represent proper basis for HHS's withholding the data. Because HHS improperly withheld 
agency records, this court has jurisdiction order disclosure the withheld data. See GTE 
Sylvania, Inc., 445 U.S. 384 (1980). 
Although the FMA injunction does not apply the data withheld, HHS may nevertheless satisfy its burden proving that the information falls under least one FOIA Exemption. See John Doe Agency John Doe Corp., 493 U.S. 146, 151-52 (1989). Yet, because the FOIA emphasizes the need for "fullest responsible disclosure,'' the Supreme Court has "repeatedly stated that the policy the Act requires that the disclosure requirements construed broadly, the exemptions narrowly." Dep't the Air Force Rose, 425 U.S. 325, 362, 366 (1976) (quotation marks and citations omitted). 
HHS asserts that properly withheld the data under Exemption Exemption provides that FOIA's mandatory disclosure requirement does not apply "personnel and medical files and similar files the disclosure which would constitute clearly unwarranted invasion personal privacy." U.S.C.  552(b)(6) (emphasis added). determine whether HHS may properly invoke that exemption, the court must apply two-step analysis. See News Press, 489 1196. Step One: "Similar Files" 
The first step this analysis determining whether the requested information qualifies "personnel medical files similar files." The categories data the instant case are not personnel files and, although they relate medical information, they are not medical files. Consequently, they qualify under Exemption they will -like the vast majority the cases applying that exemption -under the term "similar files." 
The United States Supreme Court has explained that the phrase "similar files" has broad, rather than narrow, meaning. Dep State Washington Post Co., 456 U.S. 595, 602 (1982); see also New York Times Nat'! Aeronautics Space, 852 F.2d 602, 605 (D.C. Cir. 1988). The term usually includes "detailed Government records individual which can identified applying that individual." 
News-Press, 489 F.3d 1196-97. Names and addresses potentially qualify '"similar files' under Exemption 6." Id. 1199. 
Given the term's broad interpretation, the FMA decision found that Medicare reimbursement amounts fell within the meaning "similar files." explained: The legislative history indicates that the exemption was intended Congress apply information within the Veterans Administration, the HEW department, the Selective Service Administrative, and the United States Bureau Prisons The common denominator and pivotal characteristic all information which the term "similar files applies Prima facie the personal quality and nature that information. Hence, information identifiable applying some particular individual, and disclosure which would cause some special embarrassment that individual, presumptively included within the term "similar files" Exemption Personal "personalized" financial information may well qualify under the "similar files" rubric exemption six, least insofar contains "embarrassing disclosures" involves "sufficiently intimate details." .... There can doubt that the list annual reimbursements Medicare providers which the HEW Secretary proposes disclose information included within the term "similar files" Exemption the FOIA. Such information obviously stored with, and compiled the HEW department. FMA, 479 Supp. 1303-4 (citations omitted). 
Because the term "similar files" broadly construed and because the data the instant case compiled HHS and relates for the most part individual physicians, including names and addresses well personal financial information, the court finds that falls within the term "similar files" Exemption This conclusion, however, not determinative. Step Two: Balancing Privacy Interest against Public Interest Disclosure 
The second step the Exemption analysis requires analysis balancing the privacy interests the individual against the public interest disclosure; courts must determine whether defendant has proved that disclosure "would constitute clearly unwarranted invasion personal privacy." U.S.C.  552(b)(6). This burden proof"is onerous one." News-Press, 489 F.3d 1198. Exemption 6's "clearly unwarranted" language weighs the balancing scales 
"in favor disclosure." Ripskis Dep House. Urban Dev., 746 F.2d (D.C. Cir. 
1984). "Under Exemption the presumption favor disclosure strong can found 
anywhere under the Act." Nat'l Ass'n Home Builders Norton, 309 F.3d 26, (D.C. Cir. 
2002) (quoting Washington Post, 690 F.2d 261). the instant case, HHS eventually produced the Medicare information requested except for certain provider-identifying data, such the names and addresses individual physicians small group practices. (doc. 37, Ex. This court must identify the public and privacy interests involved and carefully weigh them. 
(1) Public Interest Disclosure begin the Exemption balancing process, the court focuses first the public interest disclosing the requested information. general rule, citizens requesting government 
documents under FOIA not need explain why they seek the information how they intend use it. See Nat Archives Records Admin. Favish, 541 U.S. 157, 172 (2004). Yet, once exemptions FOIA are invoked, the purpose the use becomes important that the court able balance the competing interests most effectively. Id. The requester must then answer the key question how disclosure the requested information "would serve the core purpose the FOIA, which contributing significantly public understanding the operations activities the government." News-Press, 489 F.3d 1191 (quoting U.S. Dep't Def Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)). other words, FOIA's basic purpose inform the public about "what their government .... That purpose, however, not fostered disclosure information about private citizens that accumulated various governmental files but that reveals little nothing about the agency's own conduct. U.S. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 773-4 (1989). The court must, therefore, not only examine the public interest asserted but also determine whether the release 
the withheld data informs the members the public about the operations activities their government. the case bar, Plaintiffs run business that purportedly uses Medicare claims data assist hospitals and other healthcare providers with strategic healthcare planning best utilize Medicare funds. part their business, Plaintiffs requested the disclosure Medicare data and assert that the information "is not merely helpful, but essential assess the efficiency Medicare and determine how the system may improved (sic) both quality care and costs taxpayers." (Pls. Br. 38). Further, Plaintiffs insist that the data would help the hospitals and 

Medicare providers know what services they are missing that the patient population going elsewhere receive: "the requested data helps determine what medical equipment purchased and when Medicare services are provided, and also helps the hiring and placement physicians." (Pls.' Br. 27). 
HHS does not dispute the benefit the public the disclosure Medicare data and has released the data requested with the exception individual physician-identifying information names, addresses, cities and, some cases, zip codes. The question for the court not whether general Medicare information informs the members the public about their government, but rather, whether the withheld provider-identifying information does so. the hearing held April 16, 2008 regarding these motions, the Plaintiffs further clarified the public interest the provider-identifying information. Their clients and the publicat-large may use that information evaluate the physicians with whom Medicare contracts. They may determine, for example, which doctors receive Medicare funds and then examine those doctors' operation success rates and patient post-operation recovery periods. This information would aid any analysis how the government spending its Medicare dollars and whether Medicare dollars are being funneled toward physicians with high operation success rates and low patient recovery periods who use their Medicare dollars efficiently or, the other hand, toward doctors who have either appalling records simply inefficient ones. When physicians with less than stellar records are identified, Plaintiffs' hospital clients may also choose consult with the physicians and counsel them about how improve their services and ultimately charge Medicare less. perform these analyses, Plaintiffs' clients and the members the public need not only general Medicare data but also physician-identifying information. 
The case 
Consumers' Checkbook US. Dep ofHealth Human Svcs., 502 

Supp. (D.D.C. 2007), involved similar facts the instant case. discussed previously, the plaintiff that case requested disclosure under FOIA Medicare claims submitted physicians certain states and HHS eventually produced the information requested except for physician-identifying information. Id. 82. The federal court Consumers' Checkbook characterized "important" the public interest obtaining data evaluate Medicare providers. Id. 86. Because the object the plaintiffs data Consumers' Checkbook was evaluate Medicare providers themselves, the court noted that "the Medicare claim information must 
include physician-identifying information linked each Medicare service procedure." Id. 
84. 
The FMA case also involved similar facts and comparable public interest "in knowing the amounts public funds spent reimbursing Medicare providers annually." 479 Supp. 1304. The court found such Medicare data "unquestionably one legitimate and important interest," particularly light the "national debate over putative legislative activity involving national health insurance." Id. 1304-5. But while the Medicare data itself was "serious public interest," the court could not agree that the weight that interest extended "unnecessarily identifying disclosures." Id. 1305. 
Having examined the public interest side the balancing scale, the court finds that the facts this case are similar those Consumer Checkbook and distinguishable from those the FMA decision; the provider-identifying data important the analysis "what the government to." See Reporters Comm., 489 U.S. 773-4. Therefore, the court further finds that Plaintiffs have identified substantial public interest under FOIA that extends not only the Medicare information already disclosed but also the provider-identifying information 

withheld. 
(2) Privacy Interest7 
Having examined the public interest disclosure Medicare data, the court next turns the privacy interests involved. Once the requester has identified substantial public interest under FOIA the disclosure the information, the burden shifts the agency justify its withholding. News Press, 489 F.3d 1192. HHS's letter explained that Exemption protected this information "because release these identifiers along with the requested CPT codes could, combination with readily available public information, used determine annual Medicare reimbursement amounts individually identified physicians." (Doc. 37, Ex. 12). Consequently, HHS concluded not only that Exemption protected this information but also that the Privacy Act forbid its disclosure without the prior written consent the physicians. Id. With respect the information withheld that did not relate specifically individual physicians, the HHS explained: 
Please note that have protected the identities small group practices because such 
practices can considered closely held corporations, which have privacy interests 
worthy protection under Exemption Also note that the specified zip code data 
withheld prevent identification individual provider based zip code. 
Id. The court will examine the information withheld according category. 
7The court notes that Plaintiffs argue strenuously that HHS has been providing for years the same information requested but withheld the instant case, including physician identifiers, without raising Exemption and privacy violations. the extent that this argument asserts waiver, the court notes that Exemption protects privacy interests that belong the individual here the Medicare providers -and not the agency; therefore, the agency cannot waive the individual's privacy interests. See Sherman U.S. Dep the Army, 244 F.3d 357, 363 (5th Cir. 2001) (citing Reporters Comm., 489 U.S. 763-5). 

When performing Exemption analysis, the Supreme Court concluded that privacy 
"encompass[ es] the individual's control information concerning his her person." Reporters 
Comm., 489 U.S. 763. Privacy interests attach "intimate details" such "marital status, 
legitimacy children, identity fathers children, medical conditions, welfare payments, 
alcoholic consumption, family fights, reputation, and Rural Haus. Alliance Dep Agric., 498 F.2d 73, (D.C. Cir. 1974). Yet, privacy interests are not necessarily limited 
information that would embarrassing revealed, see Nat'/ Ass Retired Fed. Employees 
Horner, 879 F.2d 873, 875 (D.C. Cir. 1989); they also attach information that restricted 
person group and simply not intended available the public. See Reporters Comm., 
489 U.S. 763-4. 
The Eleventh Circuit has noted that names and addresses not automatically fall within 
the exemption: threshold matter, the legislative histories behind the FOIA and the Privacy Act show that Congress did not intend either names addresses automatically withheld, even when they could linked with other information about these individuals. Between 1973 and 1977, numerous bills were introduced that would have amended the FOIA (or established independent law) either prohibiting limiting the sale distribution federal agencies lists names and addresses, including names and addresses individuals registered with, required provide information to, agency. Agencies would have been permitted release such lists only specifically authorized statute their statutory function, the recipient certified that would not use the list for commercial other solicitation. None these bills survived committee. Moreover, the Privacy Act prohibits federal agencies from selling renting individual's name and address, but specifically cautions that this provision "shall not construed require the withholding names and addresses otherwise permitted made public." U.S.C.  2(a)(n). 
Similarly, the federal courts have held that while names and addresses qualify potentially protectable "similar files" under Exemption the release list names and other identifying information does not inherently and always constitute "clearly unwarranted" invasion personal privacy. Instead, "whether disclosure list 

names significant minimis threat depends upon the characteristic(s) revealed virtue being the particular list, and the consequences likely ensue." News-Press, 489 F.3d 1198-99 (internal case cites omitted). the instant case, HHS would not producing the providers' names and addresses isolation; objects producing those names and addresses conjunction with Medicare reimbursement amounts. other words, producing these provider names and addresses also producing -at least potentially -their Medicare income. Courts have recognized that valid privacy interest exists protecting income amounts and income-related information. See Lepelletier FDIC, F.3d 37, (D.C. Cir. 1999) (upholding Exemption protection individual's name and address when matched with personal financial information that would invite solicitation); Hopkins U.S. Dep Haus. Dev., 929 F.2d 81, (2nd Cir. 1991) (upholding under Exemption the withholding identifying information contained certified payroll records); Nat'l Ass Retired Fed. Employees Horner, 879 F.2d 875-80 (upholding the withholding names and addresses individuals receiving federal employee retirement benefits); Diemert Assoc. Fed. Aviation Admin., 218 Fed App'x 479 (6th Cir. 
2007) (holding that release employee's income and/or medical information within employee's 
workers' compensation file was unwarranted invasion personal privacy). 
Yet, some courts have provided less privacy protection when the financial information 
withheld relates business activities, particularly when the business has governmental 
quasi-public function. For example, Washington Post U.S. Dep't Agric., 943 Supp. 
(D. D.C. 1996), the court found that Exemption did not protect the disclosure names and addresses individuals and the amount farm subsidies that the government provided them. 

Rather, found that the strong public interest understanding the government's administration the subsidy program outweighed the privacy interest protecting individual's business interests. Id. 35-37. 
Similarly, Public Citizen Health Research Group Dep Health, Ed., Welfare, 477 Supp. 595 (D.D.C. 1979), rev'd other grounds, 668 F.2d 537 (D.C. Cir. 1981), the federal court found that Exemption did not protect the disclosure physician profiles certain Medicare providers and Medicare services studies. explained: 
Practitioners who contract with the government provide medical services exchange 
for federal payments perform quasi-public function. The argument that substantial 
privacy rights attach such performance loses much its force when viewed the 
context Congress's abiding concern deliver cost-efficient public health care and 
physicians' clear prerogative avoid government business. 
Id. 604-5. 
The two cases that the parties have offered this court most closely analogous the 
instant case, Consumers' Checkbook and FMA, unfortunately reach different results and, 
therefore, provide this court with conflicting guidance. Defendants both cases invoked 
Exemption withhold physician-identifying information the Medicare records that plaintiffs 
requested. One court found Exemption did not apply and the other court found that did. Consumers' Checkbook, the court found that Exemption does not protect the 
disclosure all Medicare claims submitted physicians five specified states during 2004. 
The public interest identified Consumers' Checkbook involved the use data evaluate the 
performance the Medicare program, including the evaluation individual Medicare 
providers. Reasoning that the public interest understanding the functioning the 
governmental program outweighed the physicians' privacy interest their business Medicare 
income8, the court found that disclosure was not "clearly unwarranted." Yet, the court was 
careful emphasize that the identity the Medicare providers was key the Medicare 
evaluation; the data was being used evaluate Medicare providers themselves and, thus, the 
link between the task and the identifying information requested was direct and crucial. Giving 
the privacy interest only "limited" and "minimal" weight but characterizing the public interest "important," the court ordered defendant provide complete production the records 
requested." Id. 86, 89-90. the FMA decision, physicians brought action enjoin the Secretary HEW from 
disclosing "information concerning the annual amounts reimbursements paid Medicare 
providers way that would individually identify ... providers." 479 Supp. 1294-5. 
Upon weighing the competing interests, the court agreed that the public's right know how its 
Medicare money was spent represented "legitimate and important" interest but questioned 
whether the provider-identifying information was specifically required further that interest. 
The court ruled that disclosing list Medicare providers' names, addresses, and annual net 
Medicare reimbursement amounts did" 'constitute clearly unwarranted invasion personal 
privacy' since advancing those public interests there justifiable reason for exposing the 
personally identifying details public view." 479 Supp. 1305 (citations omitted). 
The court finds the instant case more closely aligned with the Consumer Checkbook 
case. that case, the provider-identifying data the case bar not unnecessary the The court emphasized that the annual Medicare reimbursement amount would not reveal the public the physicians' total income, but merely portion it, and further noted that the only portion revealed would relate compensation from government funds. Id. 85. Because the raw data released the instant case implicates less privacy intrusion than Consumer Checkbook's annual Medicare reimbursement totals, the balancing analysis the instant case would weigh more heavily favor releasing the data. 

public interest, but instead, helpful the public's analysis which providers not make efficient use Medicare funds. addition, both Consumer Checkbook and the instant case, the provider data was confined "the physicians' participation and compensation from government program, and thus implicates very limited privacy interests." See Consumer Checkbook, 502 Supp.2d (emphasis added). Indeed, the data requested this case unlike that Consumer Checkbook-is raw data that has not been converted into annual Medicare reimbursement totals for each provider; consequently, the release provider-identifying information connected with that raw data implicates even less privacy interests than the Consumer Checkbook data. This court weighs the substantial public interest this case against the very limited privacy interest and finds that the information withheld does not constitute clearly unwarranted invasion personal privacy. Accordingly, Exemption does not protect the names, addresses, and zip codes withheld, and HHS obligated under FOIA disclose them. Further, the court agrees with the reasoning Public Citizen that physicians who contract with the government provide medical services exchange for federal payments give some privacy rights, they perform quasi-public function. 
This court will GRANT summary judgment favor Plaintiffs and against Defendant regarding the withholding the following data from Plaintiffs' request for 2002 Medicare Part Outpatient Data Florida, Georgia, Mississippi, and Tennessee: 
provider name, provider address and provider city individual physicians; provider name, provider address and provider city when the provider group practice that consists only one two individual physician members (i.e., small group practices that can considered closely held corporations); and provider zip codes for individual physicians and small group practices where less than providers are located the zip code. 
The court will enter separate order final injunction directing Defendant make such agency 
records available Plaintiffs and permit the inspection and copying such records. March 2007 Medicare Part Data Alabama 
Having examined Plaintiffs' claim requesting Medicare Part data states surrounding Alabama, the court next turns their claim for March 2007 Medicare Part outpatient data Alabama. HHS asserts that Plaintiffs have not constructively exhausted their administrative remedies regarding this claim and, consequently, that this court has jurisdiction over 
"Exhaustion administrative remedies generally required before filing suit federal court that the agency has opportunity exercise its discretion and expertise the matter and make factual record support its decision." Oglesby U.S. Dep Army, 920 F.2d 57, (D.C. Cir. 1990); see Taylor Appleton, F.3d 1365, 1367 (11th Cir. 1994). plaintiffs failure exhaust administrative remedies, including agency appeals, means that has not met the "condition precedent" filing suit and, consequently, the claim question not "ripe" for judicial review. Taylor, F.3d. 1367 The FOIA recognizes two different means exhaustion: actual and constructive. Taylor, F.3d 1367. plaintiff meets the requirement actual exhaustion "when the agency denies all part party's document request." Id. 1368. Constructive exhaustion, the other hand, occurs when the agency fails meet certain statutory requirements. Id. 
Although HHS denied part their claim for Alabama data, Plaintiffs acknowledge that they did not appeal HHS' decision withholding part the data requested and thus, did not complete the steps required for actual exhaustion. They claim, however, that they constructively exhausted their administrative remedies because ofHHS's failure process their claim within 
the requisite time limit. 
According the provisions the FOIA, constructive exhaustion administrative remedies occurs the agency fails comply with its time limitation provisions. U.S.C.  552(a)(6)( C). Paragraph (a) states two time limits. The first-which Plaintiffs invoke concerns the time within which the agency must act upon FOIA request. provides that the agency, upon receipt FOIA request, shall 
determine within twenty days (excepting Saturdays and Sundays and legal public holidays) after the receipt any such request whether comply with such request and shall immediately notify the person making such request such determination and the reasons therefor, and the right such person appeal the head the agency any adverse determination. U.S.C.  552(a)(6)(A)(i). 
FOIA also provides that the time limits may extended "unusual circumstances" for ten working days written notice the requester. U.S.C.  (a)(6)(B)(iii). The act defines "unusual circumstances" as: the need search for and collect the requested records from field facilities other establishments that are separate from the office processing the request; 
(II) the need search for, collect, and appropriately examine voluminous amount 
separate and distinct records which are demanded single request; (ill) the need for consultation, which shall conducted with all practicable speed, with another agency having substantial interest the determination the request among two more components the agency having substantial subject matter interest therein. U.S.C.  552(a)(6)(B). the agency does not respond within the statutory time limits, the 
requester's administrative remedies are constructively exhausted and may bring suit. Taylor, F.3d 1368. the instant case, Plaintiffs submitted the claim for Alabama data April 13, 2007 and 
HHS advised Plaintiffs early May its denial. Although the exact date the denial unclear, the denial appears have occurred within the twenty-day statutory time period. The June 15, 2007 denial letter, which provided the reasons for the denial and advised Plaintiffs their appeal rights, dated few days after the expiration the twenty day period. Thus, HHS did not ignore Plaintiffs' claim and did communicate the denial within the prescribed time period, but its official response was few days late. The court notes that Plaintiffs sued this 
claim-by amending their previously-filed lawsuit include the Alabama claims-before the 
expiration the twenty day statutory period. 
The parties have not pointed this court case law addressing analogous facts the case bar. The court recognizes the importance the statutory time limits FOIA, which "promote timely agency response and contribute the faster release the information sought." Taylor, F.3d 1368. The court also acknowledges, however, Congress's intent that the administrative process pursued the end. Instead cutting short the process and interjecting federal court into the matter before the response due, the FOIA administrative procedure was set provide the agency not only time respond but also time correct re-think any misjudgments errors. See id. 1369 (citing Oglesby, 920 F.2d 64-65); see also Dettman Dep Justice, 802 F.2d 1472, 1476 (D:C. Cir. 1986) (applying exhaustion requirement because "it would both contrary 'orderly procedure and good administration' and unfair 'to those who are engaged the tasks administration' decide issue which the FBI never had fair opportunity resolve prior being ushered into litigation"). the instant case, Plaintiffs truncated the administrative process when they amended the 
current lawsuit include the Alab