in Bredice v. Doctors Hospital, 50 F.R.D. 249 (D.D.C.1970), Aff'd mem., 156 U.S. App. D.C. 199, 479 F.2d 920 (1973).
The Court is not insensitive to the importance of encouraging candid and conscientious evaluation by MCE committee members. The limits of such encouragement under exemption five, however, are that the document be a part of the deliberative give-and-take process. Vaughn v. Rosen, 173 U.S.App.D.C. 187, 195, 523 F.2d 1136, 1144 (D.C. Cir. 1975). An MCE report is not submitted until the committee has formulated its conclusions; furthermore, its recommendations are collective observations from the committee. Subjective opinions or disagreements among individual committee members do not appear in the report, and NCMF offers only conclusory assertions that such subjective expressions will be affected by disclosure of the final document.
This is not enough to satisfy defendants' burden under FOIA.
contemplates a balancing test between an individual's interest in privacy and the general public's interest in government information. Plaintiff conceded, as it must, that the records sought fall within the "personnel or medical files" provision of the exemption. The factors to be considered, then, with respect to both patients and physicians,
are: (1) will disclosure result in an invasion of privacy and, if so, how seriously?; (2) what public interest factors favor, or oppose, disclosure and what weight should they be accorded?
Patients have a substantial interest in not being identified to the general public. Protecting the intimate details of an individual's medical file is indeed a central goal of the privacy exemption. As discussed above, however, individual identification is extremely unlikely based on the data sought by Public Citizen, even in conjunction with information already publicly available. Further, a minute risk of incidental identification does not transform disclosure of the requested documents into an "unwarranted invasion." See Department of Air Force v. Rose, 425 U.S. 352, 381-82, 96 S. Ct. 1592, 48 L. Ed. 2d 11 (1975); Sears, Roebuck & Co. v. General Services Admin., 402 F. Supp. 378, 384-85 (D.D.C.1975), Aff'd in part, rev'd on other grounds, 180 U.S.App.D.C. 202, 553 F.2d 1378 (D.C. Cir.), Cert. denied, 434 U.S. 826, 98 S. Ct. 74, 54 L. Ed. 2d 84 (1977). To decide otherwise would, in effect, authorize the withholding of all aggregate data concerning patients, a plainly erroneous conclusion. See Department of Air Force v. Rose, supra at 375-76, 96 S. Ct. 1592; H.R.Rep.No.1497, Supra at 11.
Defendants also claim a privacy interest on behalf of physicians who provide Medicare and Medicaid services. The Court finds that such an interest is implicated under FOIA. Disclosure of physician identities in profiles or MCE studies raises the prospect of misleading publicity, possibly unwarranted professional and public criticism, and damage to professional reputation.
At the same time, this privacy invasion is not overly intrusive. Congress, in formulating exemption six, expressed particular concern over disclosure of "highly personal" information about individuals. S.Rep.No.813, Supra at 9; See Getman v. NLRB, 146 U.S.App.D.C. 209, 214, 450 F.2d 670, 675 (D.C. Cir. 1971). The revelation that a physician performs a large number of surgical procedures, or has requests for extension in hospital denied regularly, does not possess that "intimacy" which has protected records of a person's alcoholic consumption or the legitimacy of his children, Rural Housing Alliance v. Department of Agriculture, 162 U.S.App.D.C. 122, 498 F.2d 73 (D.C. Cir. 1974), or of his family status within the home, Wine Hobby USA, Inc. v. Internal Revenue Service, 502 F.2d 133 (3d Cir. 1974), or of the state of his personal finances, Ditlow v. Shultz, 170 U.S.App.D.C. 352, 517 F.2d 166 (D.C. Cir. 1975). Nor is the professional embarrassment suffered as likely to have consequences of an immediately personal nature as is disclosure of F.B.I. personnel names, which may lead to continuous harassment or threats of reprisal. See generally Lesar v. Department of Justice, 455 F. Supp. 921 (D.D.C.1978); Tarnopol v. Federal Bureau of Investigation, 442 F. Supp. 5 (D.D.C.1977). Unlike F.B.I. agents, physicians do not rely on anonymity or secret communications as virtual conditions of their employment.
Against these qualified values of patient and physician privacy, plaintiff presents an impressive array of affiants, experienced in the health care field, articulating important public interests that attach to disclosure of the four categories of records. Foremost is the interest in enabling the consuming public to make more fully informed choices among individual physicians and hospitals rendering Medicare and Medicaid services. The availability of objective comparative data from PSRO profiles and MCE studies would help patients facing a surgical procedure to evaluate the relative performance of providers; it would also assist physicians from outside the Washington, D.C. area who refer patients within the District. State agencies involved in health planning, institutional licensing, and Medicaid-Medicare evaluation would benefit from access to this information, as would academics conducting research on various health care delivery issues. See generally Exhibits A through N, attached to plaintiff's motion for summary judgment. Moreover, a better-informed public may be an added incentive to monitoring efforts by the PSROs themselves.
None of these interests reflects considerations of a purely or primarily private nature; the goal of scrutinizing government performance which is at the core of FOIA is a central aim of each of the groups mentioned. See Ditlow v. Shultz, 170 U.S.App.D.C. 352, 358, 517 F.2d 166, 172 (D.C. Cir. 1975). In this regard, it is important to emphasize the precise question of physician privacy that is before the Court. Plaintiff does not seek disclosure of each physician's entire professional dealings; only services that are compensated out of public funds are involved. Practitioners who contract with the government to provide medical services in exchange for federal payments perform a quasi-public function. The argument that substantial personal privacy rights attach to such performance loses much of its force when viewed in the context of Congress's abiding concern to deliver cost-efficient public health care and physicians' clear prerogative to avoid government business.
Although PSROs currently share some statistical information with state health planning and evaluation agencies, Public Citizen contends that information sought in this action is not otherwise available. NCMF's conclusory affidavits to the contrary are not persuasive in the face of Public Citizen's detailed supporting affidavits. Compare Affidavits of Norman Fuller at paragraph 9 And Paul Schlein at paragraph 9 With Affidavits of Beverlee Myers at paragraphs 4-7 And Michael Schonbrun at paragraphs 9-15.
It is argued that disclosure here will produce diminished participation by the medical profession in the PSRO process and even in the Medicare and Medicaid programs. See Affidavit of Michael Goran at paragraphs 7, 21, attached to HEW's cross-motion to dismiss, February 22, 1978. While this represents a public interest consideration favoring secrecy, defendants propound it only in the broadest speculative terms. There is no evidence of a probable reduction in the total number of physicians willing to participate as PSRO members. Nor have defendants shown in any way that information on the necessity and quality of federally reimbursed medical services, which by statute must be provided to PSROs, will be denied or provided only in attenuated form if the limited information sought here is in fact disclosed. The conclusory assertion that physicians in significant numbers will refuse to treat Medicare and Medicaid patients is likewise unsubstantiated. See Minnesota Medical Ass'n v. State, 274 N.W.2d 84, 92 (Minn.1978).
Disclosure of a physician's identity does nothing to intrude on his confidential relationship with patients, nor does it restrict the exercise of his professional medical judgment. The conceivable adverse effect on overall physician participation does not outweigh a clear public interest in increased knowledge concerning the quality of government-funded medical services. If Congress concludes that such a hypothetically adverse impact necessitates blanket protection against disclosure, it may of course act accordingly. It has not done so.
The Court concludes that the invasion of personal privacy resulting from disclosure of certain non-patient-identifiable records is not "clearly unwarranted" in light of the important public interests at stake. Getman v. NLRB, supra; Sears, Roebuck & Co. v. General Services Admin., supra.
Exemptions Four and Seven
These two exemptions
need only be addressed briefly. The argument that MCE studies are the "commercial information" or "trade secrets" of a PSRO is frivolous. Plaintiff seeks no data concerning fees, payment schedules, or other commercial arrangements. Furthermore, MCE studies contain no information about secret formulas or rare treatment methods; their object is the review of prevalent medical services, not esoteric experiments. Indeed, HEW regulations specifically instruct PSROs to study commonly used medical techniques and procedures. Handbook for the Conduct of Medical Care Evaluation Studies (MCEs) at 6 (1978). Finally, NCMF as the only PSRO serving Washington, D.C. cannot suffer competitive injury from disclosure; nor will disclosure impair its ability to gather information since physicians and hospitals are required to furnish the data. See National Parks and Conservation Ass'n v. Morton, 162 U.S.App.D.C. 223, 498 F.2d 765 (D.C. Cir. 1974).
Exemption seven is also inapplicable because the records requested here are not compiled for law enforcement purposes. The only NCMF data even arguably covered under the exemption is sanction reports and recommendations, and Public Citizen requests no such data. What it does request is precisely the kind of ordinary medical review material that, "despite occasionally alerting the administrator to violations of the law, is acquired essentially as a matter of routine." Center for National Policy Review v. Weinberger, 163 U.S.App.D.C. 368, 371, 502 F.2d 370, 373 (D.C. Cir. 1974); Rural Housing Alliance v. Department of Agriculture, 162 U.S.App.D.C. 122, 130, 498 F.2d 73, 81 (D.C. Cir. 1974).
In addition to the exemptions claimed, HEW and AAPSRO urge the Court to reconsider its ruling that NCMF is an "agency" under FOIA, in light of the subsequent decision in Forsham v. Califano, 190 U.S.App.D.C. 231, 587 F.2d 1128 (D.C. Cir. 1978), Cert. granted, 441 U.S. 942, 99 S. Ct. 2159, 60 L. Ed. 2d 1044 (1979). Forsham involved raw data from a federally funded research study which formed the basis for recommendations by a federal agency, although the study itself was funded without any specific regulatory objectives in mind. Since neither the funding agency nor the agency making recommendations had possession of the raw data requested, and the 13 recipients of research grants that did were not themselves an "agency," no "agency record" existed for purposes of FOIA. Id. 190 U.S.App.D.C. at 238-239, 587 F.2d at 1135-36.
The decision in Forsham does not disturb this Court's prior holding. The Circuit Court's primary line of reasoning, concerning the degree of federal involvement necessary to transform data into "agency records," need not be reached if the possessor and producer of the data is itself an agency. NCMF undisputedly possesses and controls the production of all relevant documents here; moreover, it satisfies the test for agency status previously promulgated by this Circuit and endorsed in Forsham. To qualify as an agency under FOIA, 5 U.S.C. § 552(e), an organization must exercise substantial independent authority in performing its particular functions, Washington Research Project, Inc. v. Department of HEW, 164 U.S.App.D.C. 169, 179, 504 F.2d 238, 248 (D.C. Cir. 1974), Cert. denied, 421 U.S. 963, 95 S. Ct. 1951, 44 L. Ed. 2d 450 (1975); Soucie v. David, 145 U.S.App.D.C. 144, 152, 448 F.2d 1067, 1075 (D.C. Cir. 1971), and it must be sufficiently controlled by government to justify attributing governmental character to its operations. Rocap v. Indiek, 176 U.S.App.D.C. 172, 175, 539 F.2d 174, 177 (D.C. Cir. 1976). See H.R.Rep.No.876, 93d Cong., 2d Sess. 8 (1974), Reprinted in (1974) U.S.Code Cong. & Admin.News, pp. 6267, 6274; S.Rep.No.1200, 93d Cong., 2d Sess. 9 (1974) (Conf.Report), Reprinted in (1974) U.S.Code Cong. & Admin.News, pp. 6285, 6293.
The holding in Forsham that private medical centers receiving pure research grants lack the independent decisional authority to qualify as an agency is clearly distinguishable from the facts of this case. As noted above, NCMF has statutory authority to make final, binding decisions, and it exercises such authority on a regular basis just as Congress intended. The conclusion that the 13 medical centers in Forsham are not sufficiently subject to day-to-day federal control must also be distinguished here. The PSRO statute established pervasive procedural requirements for virtually every phase of PSRO activities, and organizational requirements governing selection of the PSRO entity and its members. These statutory obligations are supplemented extensively by HEW regulations and by the PSRO Transmittals and Program Manual which are binding on each PSRO. See NCMF Contract, Art. XIV, (July 1, 1977), attached to defendants' Affidavit of Michael Goran. In short, PSROs such as NCMF perform a characteristically governmental function and are subject to detailed government control in their program planning and implementation.
Defendants have failed to establish the applicability of any exemptions claimed. Accordingly, plaintiff's motion for summary judgment is hereby granted and defendants' motion for reconsideration or summary judgment is hereby denied. The Court in entering its earlier decision that NCMF is an "agency," felt that an immediate appeal would not materially advance the ultimate termination of the litigation. It denied NCMF's request for an interlocutory appeal, but assured defendants that a stay would be entered upon resolution of the entire controversy. All further proceedings in this action are now stayed for 30 days, to allow defendants to seek a stay pending appeal in the United States Court of Appeals for the District of Columbia Circuit.