Case Detail

FOIA Project Annotation: Judge Royce Lamberth has ruled that the Centers for Medicare and Medicaid Services properly withheld the domain portion of email addresses associated with each national provider identification number from Frederick Trotter under Exemption 6 (invasion of privacy). When registering, healthcare providers must provide contact information �" including an email address �" for someone who can answer questions about the providers' application. 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. CMS told Trotter that it had identified 6,380,915 active providers and would withhold all the email addresses because disclosure would constitute an invasion of personal privacy. Although Trotter amended his request for only the domain portion, the agency told him it would still withhold that portion as well. Assessing the privacy interests, Lamberth pointed out that "the information requested �" the email address domain names �" does indeed convey information about a particular individual. That is so because the email address domains all belong to a person. 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." By analogy, Trotter argued that disclosure of the domain names was no more invasive than the disclosure of only the state portion of a street address. But Lamberth observed that "this analogy is flawed. The privacy exemption would apply to someone's state of residence just as it applies to the email address domain. Though many people share the same state of residence of the same email address domain, both types of information nevertheless convey something particular about an individual." Trotter argued the information was publicly available. Responding to Trotter's claim, Lamberth noted that "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. Providers who participate in health-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 health-information exchange still maintain their interest in the privacy of their domains." Lamberth then rejected Trotter's claim that disclosure was in the public interest, pointing out that "Trotter provides no specific reasons to believe that the data would be useful in detecting waste, fraud, or abuse."
Issues: Exemption 6 - Invasion of privacy

FOIA Project Annotation: Judge Royce Lamberth has ruled that Frederick Trotter is not entitled to attorney's fees for his litigation against the Centers for Medicare and Medicaid Services to obtain two types of information â€" the domain portions of email addresses associated with CMS-registered healthcare providers and the providers' corresponding national provider identification numbers (NPI numbers). Lamberth rejected the bulk of Trotter's claims but ruled that CMS could not withhold the domains of providers who participate in electronic health-information exchange because the information (a digital records sharing program with CMS) is already disclosed to the public. Lamberth granted Trotter summary judgment on that narrow issue. Trotter then moved for an award of attorney's fees, arguing that he had substantially prevailed. In response to Trotter's original FOIA request for email addresses associated with each NPI number, CMS identified 6,380,915 active providers. The agency told Trotter it would withhold the full email address under Exemption 6 (invasion of privacy). Trotter then amended his request to ask only for domains associated with each provider. CMS again told Trotter that it planned to withhold those records as well under the privacy exemption. Trotter then filed suit for the domain addresses associated with each healthcare provider registered with CMS and the NPI numbers associated with those addresses. Lamberth ruled against Trotter on the substance of his request but found that because CMS made public email domains of those providers who participate in the health-information exchange, it could not withhold them. That group constituted 203,939 lines of provider information. Trotter then filed a motion for attorney's fees, requesting $189,685.85 in fees. While CMS agreed that Trotter was eligible for attorney's fees, the agency argued he was not entitled to fees. Lamberth agreed, finding that Trotter had failed to show any public interest derived from the disclosure of the extra lines. He noted that "Trotter's fee request relies on many of the same arguments and conclusory statements that the Court previously determined were inadequate. For example, Trotter rehashes his claim that the obtained data provide insights into how CMS performs its statutory and regulatory duties and whether CMS is reducing 'waste, fraud, and abuse.'" He observed that "Trotter does not explain how a domain link between an individual provider and their associated organization illuminates whether the organization is 'willing to spend money to enable the provider to exchange healthcare data using CMS-approved protocols.'" Addressing the second and third factors in the attorney's fees analysis â€" whether the requester had a personal or commercial interest in the records â€" Lamberth indicated that "the second and third factors weigh in favor of Trotter. But while these factors weigh in favor of Trotter because of his uncontested status as a 'data journalist,' they do 'little to advance [his] position when weighing all four factors.'" Turning to the fourth factor â€" whether the agency had a reasonable basis in law to withhold the records â€" Lamberth indicated that "CMS's decision to withhold most of the requested domains was not only reasonable, it was also correct. And Trotter is not entitled to fees where the government's actions were legally justified." Lamberth concluded that "at bottom, the Court cannot say that CMS's position was unreasonable, or that CMS's behavior was 'recalcitrant' of 'obdurate' when it was correct on the vast majority of its claims and the legal framework that was the focus of this litigation."
Issues: Litigation - Attorney's fees - Entitlement - Reasonable Basis for Withholding

Date Filed	Doc #	Docket Text
2019-07-05	1	COMPLAINT against CENTERS FOR MEDICARE AND MEDICAID SERVICES ( Filing fee $ 400 receipt number 0090-6236647) filed by FREDERICK C. TROTTER. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Sorenson, C.) (Entered: 07/05/2019)
2019-07-10	2	CIVIL COVER SHEET by FREDERICK C. TROTTER filed by FREDERICK C. TROTTER.(Sorenson, C.) (Entered: 07/10/2019)
2019-07-11		Case Assigned to Judge Royce C. Lamberth. (zeg) (Entered: 07/11/2019)
2019-07-11	3	SUMMONS (3) Issued Electronically as to CENTERS FOR MEDICARE AND MEDICAID SERVICES, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Notice and Consent)(zeg) (Entered: 07/11/2019)
2019-08-09	4	Joint MOTION to Stay by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 08/09/2019)
2019-08-09	5	ORDER granting 4 Motion to Stay. This case is stayed until November 4, 2019, by which time the parties shall file a Joint Status Report advising of proposed further steps for this case. Signed by Judge Royce C. Lamberth on 08/09/2019. (lcrcl2) (Entered: 08/09/2019)
2019-08-19		Set/Reset Deadlines: Joint Status Report due by 11/4/2019 (lsj) (Entered: 08/19/2019)
2019-10-30	6	Joint STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Pfaffenroth, Peter) (Entered: 10/30/2019)
2019-10-30	7	Joint MOTION to Stay re 5 Order on Motion to Stay (seeking continuation of stay) by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 10/30/2019)
2019-10-31	8	ORDER granting 7 Joint Motion to Continue Stay. The stay of this case is continued until February 7, 2020, by which time the parties shall file a Joint Status Report advising of proposed further steps for this case. Signed by Judge Royce C. Lamberth on 10/31/2019. (lcrcl2) (Entered: 10/31/2019)
2019-11-01		Set/Reset Deadlines: Joint Status Report due by 2/7/2020 (lsj) (Entered: 11/01/2019)
2020-02-01		Set/Reset Deadlines: Status Report due by 4/9/2020. Case Stayed. (nbn) (Entered: 02/14/2020)
2020-02-07	9	Joint MOTION to Stay re 5 Order on Motion to Stay, 8 Order on Motion to Stay, (seeking continuation of stay) and combined Joint Status Report by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 02/07/2020)
2020-02-07	10	Joint STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Pfaffenroth, Peter) (Entered: 02/07/2020)
2020-02-14	11	ORDER granting 9 Motion to Stay. Signed by Judge Royce C. Lamberth on 2/13/2020. (lcrcl1) (Entered: 02/14/2020)
2020-04-09	12	Joint STATUS REPORT and combined Joint Motion to Continue Stay by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Pfaffenroth, Peter) (Entered: 04/09/2020)
2020-04-09	13	Joint MOTION to Stay re 11 Order on Motion to Stay and combined Joint Status Report by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 04/09/2020)
2020-04-10	14	ORDER granting 13 Joint Motion to Continue Stay. The stay of this case is continued until June 11, 2020, by which time the parties shall file a Joint Status Report advising of proposed further steps for this case. Signed by Judge Royce C. Lamberth on 04/10/2020. (lcrcl2) (Entered: 04/10/2020)
2020-04-10		Set/Reset Deadlines: Joint Status Report due by 6/11/2020 (lsj) (Entered: 04/10/2020)
2020-06-10	15	Joint MOTION to Stay re 14 Order on Motion to Stay, by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Pfaffenroth, Peter) (Entered: 06/10/2020)
2020-06-10	16	Joint STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Pfaffenroth, Peter) (Entered: 06/10/2020)
2020-06-12	17	ORDER granting 15 Motion to Stay. The stay of this case is continued until September 11, 2020, by which time the parties shall file a Joint Status Report advising of proposed further steps for this case.. Signed by Judge Royce C. Lamberth on 06/12/2020. (lcmb) (Entered: 06/12/2020)
2020-07-30	18	NOTICE OF SUBSTITUTION OF COUNSEL by Kathleene A. Molen on behalf of CENTERS FOR MEDICARE AND MEDICAID SERVICES Substituting for attorney Peter C. Pfaffenroth (Molen, Kathleene) (Entered: 07/30/2020)
2020-09-09	19	Joint MOTION to Lift Stay re 17 Order on Motion to Stay,, Set/Reset Deadlines, by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 09/09/2020)
2020-09-09	20	Joint STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Molen, Kathleene) (Entered: 09/09/2020)
2020-09-11	21	ORDER granting 19 Motion to Lift Stay; Set/Reset Deadlines: Summary Judgment motion due by 10/13/2020. Response to Motion for Summary Judgment and Cross Motion due by 11/13/2020. Reply to Motion for Summary Judgment and Response to Cross Motion due by 12/11/2020. Reply to Cross Motions due by 1/15/2021. Signed by Judge Royce C. Lamberth on 09/11/2020. (lcrcl2) (Entered: 09/11/2020)
2020-09-16	22	ANSWER to Complaint by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Molen, Kathleene) (Entered: 09/16/2020)
2020-10-13	23	MOTION for Summary Judgment by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Statement of Facts, # 2 Memorandum in Support, # 3 Declaration Hugh Gilmore, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Text of Proposed Order)(Molen, Kathleene) (Entered: 10/13/2020)
2020-11-13	24	Memorandum in opposition to re 23 MOTION for Summary Judgment filed by FREDERICK C. TROTTER. (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Statement of Facts, # 8 Text of Proposed Order)(Sorenson, C.) (Entered: 11/13/2020)
2020-11-13	25	Cross MOTION for Summary Judgment by FREDERICK C. TROTTER (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit Exhibit 1, # 4 Exhibit Exhibit 2, # 5 Exhibit Exhibit 3, # 6 Exhibit Exhibit 4, # 7 Statement of Facts, # 8 Text of Proposed Order)(Sorenson, C.) (Entered: 11/13/2020)
2020-12-08	26	Unopposed MOTION to Modify Briefing Schedule by CENTERS FOR MEDICARE AND MEDICAID SERVICES (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 12/08/2020)
2020-12-09	27	ORDER granting 26 Motion to Modify. Set/Reset Deadlines: Defendant's Response to Cross Motion and Reply due by 12/18/2020; Plaintiff's Reply to Cross Motion due by 1/29/2021. Signed by Judge Royce C. Lamberth on 12/09/2020. (lcrcl2) (Entered: 12/09/2020)
2020-12-18	28	REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Statement of Facts, # 2 Declaration Frank Domizio, # 3 Declaration Supplemental Declaration - Hugh Gilmore, # 4 Declaration Carl Schell, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F)(Molen, Kathleene) Modified on 12/21/2020 to correct docket link (zjf). (Entered: 12/18/2020)
2020-12-18	29	Memorandum in opposition to re 25 Cross MOTION for Summary Judgment filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Statement of Facts, # 2 Declaration Frank Domizio, # 3 Declaration Supplemental Declaration - Hugh Gilmore, # 4 Declaration Carl Schell, # 5 Exhibit A, # 6 Exhibit B, # 7 Exhibit C, # 8 Exhibit D, # 9 Exhibit E, # 10 Exhibit F)(Molen, Kathleene) (Entered: 12/18/2020)
2021-01-29	30	REPLY to opposition to motion re 25 Cross MOTION for Summary Judgment filed by FREDERICK C. TROTTER. (Attachments: # 1 Exhibit V, # 2 Exhibit W, # 3 Exhibit X, # 4 Exhibit Y, # 5 Exhibit Z)(Sorenson, C.) (Entered: 01/29/2021)
2021-02-08	31	ORDER granting in part and denying in part 23 Motion for Summary Judgment; granting in part and denying in part 25 Cross-Motion for Summary Judgment; Set/Reset Deadlines: Attorney Meet and Confer Conference due by 3/10/2021; Fees Motion due by 4/24/2021. Signed by Judge Royce C. Lamberth on 02/08/2021. (lcrcl2) (Entered: 02/08/2021)
2021-02-08	32	MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on 02/08/2021. (lcrcl2) (Entered: 02/08/2021)
2021-03-04	33	Joint STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 03/04/2021)
2021-03-11	34	ORDER Status Report due by 3/24/2021. Signed by Judge Royce C. Lamberth on 3/11/2021. (lcrcl2) (Entered: 03/11/2021)
2021-03-24	35	Joint STATUS REPORT by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 03/24/2021)
2021-03-25	36	SCHEDULING ORDER: Fees Motion due by 4/26/2021; Response due by 6/7/2021; Reply due by 7/6/2021. Signed by Judge Royce C. Lamberth on 3/25/2021. (lcrcl2) (Entered: 03/25/2021)
2021-04-23	37	MOTION for Attorney Fees by FREDERICK C. TROTTER. (Attachments: # 1 Declaration Trotter Decl, # 2 Declaration Brittin Decl, # 3 Exhibit 101 - AJB Merit Fees, # 4 Exhibit 102 - AJB Fees on Fees, # 5 Declaration Sorenson Decl, # 6 Exhibit 103 - Merit Fees, # 7 Exhibit 104 - Fees on Fees, # 8 Exhibit 105 - Fee Summary, # 9 Exhibit 106 - USAO Matrix, # 10 Exhibit 107 - Costs, # 11 Exhibit 108 - AUSA Email, # 12 Memorandum in Support, # 13 Text of Proposed Order)(Sorenson, C.) (Entered: 04/23/2021)
2021-06-03	38	Consent MOTION to Modify Briefing Schedule by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Text of Proposed Order)(Molen, Kathleene) (Entered: 06/03/2021)
2021-06-04	39	ORDER granting 38 Motion to Modify; Set/Reset Deadlines: Response due by 6/21/2021 Reply due by 8/23/2021. Signed by Judge Royce C. Lamberth on 06/04/2021. (lcrcl2) (Entered: 06/04/2021)
2021-06-21	40	Memorandum in opposition to re 37 MOTION for Attorney Fees filed by CENTERS FOR MEDICARE AND MEDICAID SERVICES. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Text of Proposed Order)(Molen, Kathleene) (Entered: 06/21/2021)
2021-08-23	41	REPLY to opposition to motion re 38 Consent MOTION to Modify Briefing Schedule , 37 MOTION for Attorney Fees filed by FREDERICK C. TROTTER. (Attachments: # 1 Declaration A. Trotter, # 2 Exhibit 109, # 3 Exhibit 110, # 4 Exhibit 111, # 5 Exhibit 112, # 6 Exhibit 113, # 7 Exhibit 114, # 8 Exhibit 115, # 9 Exhibit 116, # 10 Exhibit 117, # 11 Declaration Sorenson, # 12 Exhibit 118, # 13 Exhibit 119, # 14 Exhibit 120, # 15 Exhibit 121, # 16 Memorandum in Support, # 17 Text of Proposed Order)(Sorenson, C.) (Entered: 08/23/2021)
2021-12-03	42	NOTICE OF SUBSTITUTION OF COUNSEL by Benton Gregory Peterson on behalf of CENTERS FOR MEDICARE AND MEDICAID SERVICES Substituting for attorney Kathleene A. Molen (Peterson, Benton) (Entered: 12/03/2021)
2022-03-30	43	MEMORANDUM OPINION. Signed by Judge Royce C. Lamberth on 3/29/2022. (lcrcl2) (Entered: 03/30/2022)
2022-03-30	44	ORDER denying 37 Motion for Attorney Fees. Signed by Judge Royce C. Lamberth on 3/29/2022. (lcrcl2) (Entered: 03/30/2022)
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