Trotter v. Centers for Medicare and Medicaid Services

• Court: District Court, District of Columbia
• Decided: February 8, 2021
• Docket: Civil Action No. 2019-2008
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FREDERICK C. TROTTER,

Plaintiff,'

v. Case No. 1:19-cv-2008-RCL

CENTER FOR MEDICARE AND MEDICAID SERVICES,

Defendant.

MEMORANDUM OPINION

Plaintiff Frederick C. Trotter wanted information about millions of doctors, nurses, and

other healthcare providers from the Center for Medicare and Medicaid Services (CMS).

Specifically, he asked CMS to disclose to him the domain portion of the email address associated

with each healthcare provider registered with CMS, along with the provider's national provider

identification number. 1 CMS denied his request, claiming that disclosing that information would

invade the healthcare providers' privacy. So, Trotter sued under the Freedom of Information Act

(FOIA), seeking to compel disclosure.

Both parties seek summary judgment.

Upon consideration of the motions (ECF Nos. 23, 25), briefs (ECF Nos. 23-2, 24-1, 25-1,

28, 29, 30), declarations (ECF Nos. 23-3, 24-2, 25-2, 28-2, 28 -3, 28-4), and all other pertinent

papers of record, the Court will GRANT IN PART and DENY IN PART CMS's motion for

summary judgment and GRANT IN PART and DENY IN PART Trotter's cross-motion for

summary judgment.

1 An email address consists of a local-part, the "@" symbol, and a domain. For example, in the email address bevo@utexas.edu, "bevo" is the loca)-part and "utexas.edu" is the domain . I. BACKGROUND

Federal regulations require virtually every healthcare provider to register with CMS and

obtain a unique identification number, known as a "national provider identification" number. See

generally 45 C.F.R. ch. 162. To obtain a national provider identification number, healthcare

providers must register with a· database called the "national plan and provider and enumeration

system." Schell Deel. 16 (ECF No. 28-4). When registering, healthcare providers must provide

contact information-including an email address-for someone who can answer questions about

the provider's application. Id. The email address need not be for the provider himself, but each

email address must belong to a person, as opposed to an entity or corporation. Id.

Trotter submitted a FQIA request for the email address associated with each national

provider identification number. Gilmore Deel. 15. CMS identified 6,380,915 active providers.

Id. at 1 15. After CMS informed Trotter it would withhold the full email addresses to protect the

healthcare providers' privacy, id. at 17, Trotter amended his request to ask only for the domains

associated with each provider, id. at 1 8. Again, CMS asserted the providers' privacy interests and

refused to release the domains. Id. at 1 12. After exhausting his administrative remedies, id. at

1 13, Trotter filed this suit. II. LEGAL ST AND ARDS

A. Freedom of Information Act

FOIA establishes an enforceable right to federal agency records, unless one of the act's

exemptions applies. 5 U.S.C. § 552(a), (b). Information is presumptively subject to disclosure.

Dep 't ofState v. Ray, 502 U.S . -164, 173 (1991 ). An agency that withholds responsive documents,

bears the burden of proving that one of FOIA's exemptions allows it to decline to disclose the

information. DiBacco v. Dep 't of the Army, 926 F.3d 827, 834 (D.C. Cir. 2019).

2 Relevant here is the sixth of FOIA's nine exemptions, which shields from disclosure

"personnel and medical files and similar files the disclosure of which would constitute a clearly

unwarranted invasion of personal privacy." Id. at § 552(b)(6). In determining whether the

personal privacy exemption applies, the Court conducts a four-step inquiry. Aqualliance v. Army

Corpso[Eng'rs, 243 F. Supp. 3d 193,197 (D.D.C. 2017).

First, the Court must determine whether the information at issue is a "personnel and

medical file[] [or] similar file[]"-that is, whether the information relates to a particular individual.

See Dep 't ofState v. Wash. Post Co., 456 U.S. 595, 599-603 (1982) .

Second, the Court must determine whether the individual has a cognizable privacy interest

in the information. In determining whether a privacy interest exists, the Court looks to both the

common law and common understandings of privacy. See Nat '! Archives & Records Admin. v.

Favish, 541 U.S. 157, 167 (2004). Those standards allow for a broad range of privacy interests:

both "intimate" and "prosaic" information may be protected. Painting & Drywall Work Pres.

Fund, Inc. v. Dep 't ofHous. & Urban Dev., 936 F.2d 1300, 1302 (D.C. Cir. 1991). When a privacy

interest exists, it belongs to and exists to protect the individual, not the government. See US.

Dep 't o,fJustice v. Reporters Comm.for Freedom ofthe Press, 489 U.S. 749, 763-65 (1989). Most

corporations cannot claim the privacy exemption, see FCC v. AT&T, Inc., 562 U.S. 397, 403

(2011), but closely held corporations and other similar entities can, Multi Ag Media LLC v. USDA,

515 F.3d 1224, 1228-29 (D.C. Cir. 2008).

Third, the requester must demonstrate that disclosure of the information serves a significant

public interest. See Roth v. Dep 't of Justice, 642 F.3d 1161, 1174-75 (D.C. Cir. 2011). Releasing

information serves a significant public interest when it informs the public about agency actions.

See Citizens for Responsibility. & Ethics in Washington v. Dep 't of Justice, 746 F.3d 1082, 1093

3 (D.C. Cir. 2014). Whatever interest the requester asserts must be held by the public at large; a

requester's personal interest in the information is irrelevant. Reporters Comm., 489 U.S. at 771-

72.

Fourth, the Court must balance the individual interest in privacy against the public interest

in disclosure. If the agency demonstrates that the individual interest in privacy outweighs the

public interest in disclosure, it is entitled to exempt the documents from disclosure. Favish, 541

U.S. at 172. But if the agency fails to carry its burden, the documents must be disclosed. See, e.g.,

Multi Ag, 515 F.3d at 1233.

The Court reviews an agency's determination not to disclose information de nova.

5 U.S.C. § 552(a)(4)(B).

B. Summary Judgment

The Court grants summary judgment "if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.

56. The moving party bears the burden of showing its entitlement to summary judgment; the

moving party, however, must simply show that the non-moving party has not produced enough

evidence to prevail at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

In this posture, the Court construes facts and makes inferences in favor of the non-moving

party. Scott v. Harris, 550 U.S. 3 72, 380 (2007). If the parties disagree about material facts, the

Court must credit the non-moving party's version. Robinson v. Pezzat, 818 F.3d 1, 8 (D.C. Cir.

2016). Facts, however, are disputed only if a reasonable jury could believe either side of the

dispute. See Scott, 550 U.S. at 380. A fact is material if it is necessary to the Court's decision.

See Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).

4 In a FOIA case, an agency is entitled to summary judgment if it can show that (a) it has

identified all responsive documents and (b) it has disclosed all responsive documents, except those

that fall within an exemption. DiBacco, 926 F.3d at 834.

III. ANALYSIS

Trotter challenges CMS ' s denial of his request for the domain names of all healthcare

providers' email addresses on two grounds. First, he argues that CMS did not conduct an adequate

search for records. Second, he argues that the domain information he seeks does not fall under

FOIA ' s privacy exemption. Neither argument passes muster.

A. Adequacy of Search

Trotter initially argued that CMS has not conducted a search for the records he seeks

because it had not provided a search method or search terms in its affidavits . In his reply brief,

however, Trotter conceded that argument. Pl. 's Reply 8, ECF No. 30. Now, both parties agree

that the information Trotter seeks can be found in a known database. And CMS identified some

6,380,915 relevant fields in that database. No further search could uncover additional relevant

documents, so no further search is required. Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007).

B. Privacy Exemption

The Court analyzes whether the privacy exemption applies using the four-part framework

set forth above.

1. Applicability of Exemption

First, for the privacy exemption to apply, the information must convey information about

a particular individual. See Wash. Post Co., 456 U.S. at 599-603 (1982). Here, the information

requested-the email address domain names-does indeed convey information about a particular

5 individual. That is so because the email address domains all belong to a person. 2 And those

domains convey information about the person to which they belong because the domains identify

entities with whom the contact persons have a commercial relationship or, in some cases, the

providers' own websites. Cf Prechtel v. FCC, 330 F. Supp. 3d 320, 329 (D.D.C. 2018) (email

addresses); Gov 't Accountability Project v. Dep 't of State, 699 F. Supp. 2d 97, 106 (D.D.C. 2010)

(same). The domains, therefore, qualify protectable information under the privacy exemption. 3

To argue that that the email address domains do not fall within the FOIA privacy

exemption, Trotter offers the following analogy . He argues that disclosing a name is like

disclosing only the state portion of a street address. But this analogy is flawed. The privacy

exemption would apply to someone's state of residence just as it applies to his email address

domain. Though many people share the same state of residence or the same email address domain,

both types of information nevertheless convey something particular about an individual. Thus, the

Court finds that the email address domain names Trotter seeks satisfy the first requirement for the

FOIA privacy exemption requirement.

2. Individual Privacy Interest

The second requirement for the FOIA privacy exemption to apply is that the individual has

a privacy interest in the information sought. Favish, 541 U.S. 157,167 (2004). Such a privacy

2 Even in cases where the providers are corporations, the contact persons are individuals. Thus, the same analysis applies to both individual providers-doctors, nurses, and the like-and organizational providers-clinics, hospitals, other entities. 'To be sure, there are some contexts where email address domains do not convey information about the email address owner. See, e.g., Blache v. Dep 't of Def, 370 F. Supp. 3d 40, 59 (D.D.C. 2019) (rejecting claim of privacy exemption for domains when the agency failed to show how domains could reveal personal information). Take, for example, a FOlA request for the domain of every Department of Justice employee. That each employee's email has a justice.gov domain would not provide any new information about individuals already known to work for the Department. But here, each domain is tied to a national provider identification number. Many of the domains will reveal the providers' employers or companies. Even generic domains, in this context, wi II reveal at least some personal information about the providers-which email service they use. So here, the providers' domains surmount the low bar to qualify as protectible information.

6 interest exists when the release .of the information requested could reasonably be expected to cause

an invasion of personal privacy. See Favish, 541 U.S. 157, 167. The government argues that the

providers have a privacy interests in their domains because releasing the domains could allow a

malicious actor to invade their privacy by targeting them in more effective cyber-attacks. See

Domizio Deel. at ~~ 8-11. It explains that malicious actors use a technique known as

spearphishing, which involves. using personal information to induce the target to provide other

sensitive information. Id. The government argues that if a malicious actor could email the

providers and include their national provider identification numbers, the providers would be more

likely to fall for the spearphishing effort. Id. The Court agrees that providers have at least some

privacy interest in avoiding spearphishing. Cf Long v. Immigration & Customs Enf't, 464 F. Supp.

3d 409, 419-423 (D.D.C. 2020).

Trotter responds that the providers have surrendered their privacy interest in avoiding

spearphishing because CMS already releases some national provider identification numbers paired

with domain names. This argument succeeds in part. CMS does provide email addresses in the

same location as identification numbers, but only for participants in electronic health information

exchange, a digital records-sharing program. See generally Dep't Health & Human Servs.,

Principles and Strategy for · Accelerating Health Information Exchange (Aug. 7, 2013),

https ://www.healthit.gov/sites/default/files/acceleratinghieprinciples_strategy. pdf. Providers who

participate in heath-information exchange no longer have an interest in maintaining the privacy of

their domains because CMS has disclosed this information publicly. But providers who do not

participate in heath-information exchange still maintain their interest in the privacy of their

domains.

7 Trotter also argues that only solo practitioners could have a pnvacy interest in their

domains, because corporations do not have privacy interests under FOIA. But this argument is a

red herring. The privacy interest belongs to the individual. And, as explained above, all of the

contacts associated with national provider identification numbers are individuals.

Finally, Trotter argues that disclosure should be required under a CMS regulation. But this

is a FOIA action, not an APA suit. The CMS regulation is thus irrelevant. See Pub. Citizen Health

Research Grp. v. Food & Drug Admin., 704 F.2d 1280, 1287 (D.C. Cir. 1983).

Therefore, providers who participate in heath-information exchange and who have their

email addresses listed within their identification numbers on a CMS website do not have a privacy

interest in their domains; all other providers have some privacy interest in their domains.

3. Public Interest

Third, as the requester of private information, Trotter must identify a significant public

interest and must demonstrate how releasing the information would serve the public interest. See

Roth, 642 F.3d at 1174-75.

Disclosure serves the public interest by informing the public about agency actions. See

Citizens for Responsibility & Ethics in Washington, 746 F.3d at 1093. Trotter says that he meets

the standard because the "actions of the Defendant are part of, and impact the healthcare system,

and the requested data describes that healthcare system." Pl. 's Opp'n 17, ECF No. 24. More

specifically, he says that the data will allow the public to "evaluat[ e] whether CMS is properly

addressing issues of waste, fraud, and abuse." 4 Id.; see also Trotter Deel.~ 40, ECF No. 24-2. In

" Trotter also claims that the information will help facilitate epidemiological studies, but he does not explain how those studies would shed light on CMS 's functions as opposed to public health in general. That claim, therefore, cannot support a significant public interest in releasing the information. See Roth, 642 F.3d at 1174-75.

8 pointing to how an agency addresses waste, fraud, and abuse, Trotter identifies a significant public

interest.

Trotter, fails, however, to show a nexus between the information he seeks and how CMS

addresses waste, fraud, and abuse. See Pinson v. Dep 't ofJustice, 202 F. Supp. 3d 86, 101 (D.D.C.

2016). Mere speculation does not satisfy this nexus requirement. Id. And Trotter offers only

speculation that the public could use domains to learn about waste, fraud, and abuse.

His logic on this prong follows an attenuated, three-step path. First, he suggests-without

evidence-that linking a provider to a domain may allow the public to determine to which

organization a provider is primarily connected. Trotter Deel. il~ 37-38. Second, he suggests that

the public could combine information about a provider's primary organization with information

about the organization's policies to examine the organization's "clinical approach[]." Id. at ~il 39-

40. Third, he suggests that the public could use that data to understand how some organizations

respond to financial incentives provided by CMS. Id. at~~ 39--40. And fourth, he explains that

information about responses to CMS financial incentives will lead to information about waste,

fraud, and abuse.

Trotter's logic is too tenuous to establish the necessary nexus. C.Y Consumers' Checkbook Ctr. for the Study ofServs. v. Dep 't ofHealth & Human Servs., 554 F.3d 1046, I 054-55 (D.C. Cir.

2009) (declining to release private CMS data given absence of specific allegations of fraud to

support asse1ied public interest in detecting fraud). Trotter's first link is speculative because he

provides no reason to believe that a provider's domain has any connection to his primary

organization; a provider could just as easily stick with whichever email address he obtained first

out of convenience. Trotter's second link is speculative because he does not explain how

knowledge about a provider's primary organization leads to information about clinical approach;

9 he simply assumes that one fol,lows the other. Trotter's third link is the most sound: information

about an organization's clinical approach may provide data about how organizations respond to

CMS policies. But Trotter's fourth link is the most speculative: rather than alleging that waste,

fraud, and abuse is occurring, he speculates that developing information about financial incentives

will automatically uncover waste, fraud, and abuse. Trotter provides no specific reasons to believe

that the data would be useful in detecting waste, fraud, or abuse. And his generalized concerns,

"do[] not raise a cognizable public interest under FOIA in verifying that CMS is adequately

detecting fraud." Id at 1054. Therefore, Trotter cannot meet his burden to establish a significant

public interest in disclosing the information he seeks.

4. Balancing

Finally, the Court must balance the individual interest in privacy against the public interest

in disclosure. Here, while the· government has demonstrated privacy interests in shielding the

domains of providers who do not participate in heath-information exchange, Trotter has identified

no public interest in disclosing them. The privacy interest thus outweighs the public interest in

disclosure. Therefore, the domains of providers who do not participate in heath-information

exchange are exempt from disclosure. See id at 1054.

The domains of providers who participate in heath-information exchange, however, must

be disclosed because exempting them from disclosure serves no privacy interests.

IV. CONCLUSION

Based on the foregoing, the Court will GRANT IN PART and DENY IN PART CMS's

motion for summary judgment, ECF No. 23, and GRANT IN PART and DENY IN PART

Trotter's cross-motion for summary judgment, ECF No. 25. The Court will require CMS to

disclose the domains and identification numbers only of providers who (1) participate in health-

10 information exchange and (2) have their email addresses and provider identification numbers listed

together in the National Plan and Provider Enumeration System.

Date: - - -- rI,., 1./ - - - -- Royce C. Lamberth United States District Judge