                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
BRIAN BILES                          )
                                     )
                 Plaintiff,         )
                                    )
      v.                            )    Civil No. 11-1997
                                    )
DEPARTMENT OF HEALTH AND             )
HUMAN SERVICES                       )
                                     )
                Defendant.          )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Brian Biles, MD, MPH (“Dr. Biles”), brings an action against defendant U.S.

Department of Health and Human Services (“HHS”) under the Freedom of Information Act

(“FOIA”), 5 U.S.C. § 552 (2012), for injunctive relief, claiming that HHS is unlawfully

withholding information that Dr. Biles requested in a proper FOIA request. HHS claims that the

information is properly withheld under FOIA’s Exemption Four because the release of the

information would cause substantial competitive harm to the private health insurance companies

that submitted the requested data to HHS in 2010 and would impair HHS’s ability to obtain

accurate information in the future.

       Before the Court is defendant’s Motion for Summary Judgment, ECF No. 20, April 30,

2012, and plaintiff’s Cross Motion for Summary Judgment, ECF No. 24, July 13, 2012. Upon

consideration of defendant’s motion, plaintiff’s cross motion and opposition, defendant’s reply

and opposition, ECF No. 27, Aug. 13, 2012, plaintiff’s reply, ECF No. 30, Sept. 10, 2012, the

applicable law, and the record herein, the Court will DENY defendant’s motion and GRANT

plaintiff’s motion.
I.     BACKGROUND

       On July 18, 2011, plaintiff Dr. Biles—a professor at The George Washington University

School of Public Health and Health Services who studies the Medicare Advantage (“MA”)

program—filed a FOIA request with defendant HHS’s Centers for Medicare and Medicaid

Services (“CMS”), which oversees the Medicare Advantage (“MA”) program. Pl.’s Mem. in

Opp’n to Def.’s M. Summ. J. & in Supp. of Pl.’s M. Summ. J. (“Pl.’s Mem.”) 2, ECF No. 24-1;

Biles Decl. ¶ 1, Exh. A (CV), ECF No. 24-2; Def.’s Mem. in Supp. of Def.’s M. Summ. J.

(“Def.’s Mem.”) 4, ECF No. 20. In order to analyze the efficiency and effectiveness of the MA

and Medicare programs, Dr. Biles requested “specific data and other information for 2009

provided to CMS, in or about June 2010, by all Medicare Part C Medicare Advantage

Organizations on WORKSHEET 1—MA BASE PERIOD EXPERIENCE AND PROJECTION

ASSUMPTIONS.” Pl.’s Complaint ¶ 1; Def.’s Mem. 4; Biles Decl. Ex. F, at 1 (FOIA Request).

       Medicare Advantage organizations (“MAOs”) are private insurance companies that offer

health insurance coverage to Medicare beneficiaries and are required, pursuant to 42 C.F.R. §

422.254, to submit a Bid Pricing Tool to CMS by the first Monday of June each year. Rice Decl.

¶¶ 5, 7–9, ECF No. 20-1; Pl.’s Mem. 2. The Bid Pricing Tool is an Excel workbook comprised

of seven worksheets of data that determine the projected costs and revenue for an MAO to

provide coverage to MA beneficiaries in the next calendar year. Def.’s Mem. 4; Pl.’s Mem. 1–3;

Rice Decl. ¶¶ 5–7, 12.    The “bid” submitted by MAOs is not like a traditional bid in a

competitive arena where one winner takes all, as in bids for government contracts. Pl.’s Mem. 7.

CMS explains:

       [T]he MA . . . program[] [is] not competitive in the way that term is normally
       understood. Although [MAOs] do compete for members, primarily through the




                                               2
        benefits offered and the cost (member cost sharing and premium) of those
        benefits, they do not directly compete for the payments that CMS makes. 1

CMS “approve[s] all sustainable bids that are otherwise qualified without preference for the

lowest bidder.” 2 76 Fed. Reg. at 21,518.

        Further unlike a competitive bid for a contract where the bidder can choose his desired

bid amount, an MAO’s “bid” is based on the MAO’s actual costs expended by the MAO in the

previous year to provide its offered Medicare benefits; this data is called the MAO’s “base

period” data and is the category from which Dr. Biles has requested specific data. Pl.’s Mem. 7;

see Rice Decl. ¶ 6. Base period data must be verified by an actuary. Pl.’s Mem. 15, 42; Rice

Decl. ¶ 12; 76 Fed. Reg. at 21,518 (statement by CMS/HHS) (“Utilization, costs, and trends must

be certified by a qualified, independent actuary prior to bid submission.”); 42 C.F.R. §

422.254(b)(5) (2012).

        Ultimately, the “bid” data is trended forward to the next year by a series of formulae, like

inflation and other factors, embedded in the seven Excel worksheets of the Bid Pricing Tool.

Pl.’s Mem. 7; see Rice Decl. ¶ 6; 76 Fed. Reg. at 21,517. The formulae calculate the bid data to

determine the expected revenue needed to cover the MAO’s projected Medicare costs for the

next year. Pl.’s Mem. 7; Rice Decl. ¶ 6; 42 C.F.R. § 422.245(a)(1) (2012). This “payment plan”

is the basis for CMS’s payments to an MAO, and CMS pays MAOs one year in advance to cover

its portion of the MAOs’ projected cost and revenue requirements for the next year. See id; Rice

1
  Medicare Program; Changes to the Medicare Advantage and the Medicare Prescription Drug Benefit Programs for
Contract Year 2012 and Other Changes, 76 Fed. Reg. 21,432, 21,518 (Apr. 15, 2011) (final rule) (CMS/HHS
responding to and refuting claims by MAOs that some of the payment data collected by the bidding process should
not be released to the public due to a risk of competitive harm).
2
 CMS “may decline to approve a bid if the [MAO] proposes significant increases in cost sharing or decreases in
benefits offered under the plan” and CMS may only approve bids where (1) “[t]he bid amount and proportions are
supported by the actuarial bases provided by [the MAO],” (2) “[t]he bid amount and proportions reasonably and
equitably reflects the plan’s estimated revenue requirements for providing the benefits under that plan,” (3) the bid
places limitations on enrollee cost sharing, and (4) the bid’s benefit package and plan costs are “substantially
different from [the MAO’s] other bid submissions . . . of [the same] plan type with respect to premiums, benefits, or
cost-sharing structure.” 42 C.F.R. § 422.256(a)–(b) (2012).

                                                         3
Decl. ¶¶ 6–11; Pl.’s Mem. 7; 42 C.F.R. § 422.254(a)(1) (2012). For example, an MAO’s 2011

payment plan is based on 2009 actuarial data. See Pl.’s Mem. 7; Rice Decl. ¶ 12.

        Additionally, while the payment plan is determined according to the MAO’s estimated

internal costs, the payment amount is limited by a federally-set benchmark, which is the

maximum amount CMS will pay an MAO in a given locality.                             See 42 U.S.C. § 1395w-

23(b)(1)(B) (2012); 42 C.F.R. § 422.258 (2012). The benchmarks are publicly announced by the

first Monday in April of the year prior to the bid submissions to which the benchmarks will

apply. 42 U.S.C. § 1395w-23(b)(1)(B).

        Dr. Biles requested “retroactive,” “historical” cost and utilization data from Sections I, II,

III, and VI of Worksheet One 3 of the Bid Pricing Tool and claims to have not requested any data

that “disclose[s] MAO assumptions, predictions, projections, or expectations for how th[o]se

costs may change in the future.” Pl.’s Mem. 8; Def.’s Mot. Summ. J. Ex. 1; Def.’s Mem 4

(“Def.’s Statement of Material Facts Not in Genuine Dispute”) ¶ 3; Biles Decl. ¶¶ 58–60, 95.

Section I was released to Dr. Biles by CMS and is therefore not in dispute. Biles Decl. ¶ 96;

Def.’s M. Summ. J. Exs. 1–3, Ex. 4 at 2. Sections II, III, and VI are in dispute, as CMS refuses

to disclose those sections in their entirety pursuant to FOIA’s Exemption Four. Pl.’s Mem. 3,

Exs. 3–4; Marquis Decl. ¶¶ 21–27, ECF No. 20-2.




3
  Worksheet One of the Bid Pricing Tool requires an MAO to submit the following information from the prior year:
(1) member months (the number of months each enrollee was enrolled in the plan during the year; (2) risk score (an
indicator of the risk profile, or cost potential, of the enrolled population); (3) plan list (what type of plans are
included in the reporting); (4) utilization by service area (how many times enrollees received each service); (5)
average cost by service category; (6) projection factors; (7) revenue from CMS and enrollee premiums; (8)
administrative costs. Rice Decl. ¶ 6. Dr. Biles has requested only some of these categories of information. Pl.’s
Mem. 3, Exs. 3–4; Marquis Decl. ¶¶ 21–27.


                                                         4
           Section II contains base period background information that defines the period of time

that Section III data 4 reflects and includes the “Paid Through Date,” 5 “Member Months,” 6 and

the “Non ESRD Risk Score,” 7 along with other background data. Biles Decl. ¶ 97–107.

           Section III is retrospective 2009 cost and utilization data for various types of health

services the MAO covers in its offered plans. Biles Decl. ¶ 108. Section III includes the rates

that each service was utilized during 2009 and automatically populates the average cost per

utilization. Biles Decl. ¶¶ 111–12. Section III also provides the costs per member per month

(“PMPM”) by service category for the base period; the total PMPM costs for a type of health

service are the result of three factors—the price paid for services, the quantity of services used,

and the intensity of services (the extent that highly expensive new technology was used). Biles

Decl. ¶¶ 112–13.

           Section VI reflects the MAO’s revenue for the calendar year as well as non-benefit

expenses, like internal operating costs, that were required to provide the services described in

Section III for the 2009 calendar year. Biles Decl. ¶ 114.




4
 The experience data is based on costs incurred for providing MA benefits during calendar year 2009. Biles Decl. ¶
97.
5
    This is the date in 2010 through which the MAO has paid its 2009 claims. Biles Decl. ¶ 98.
6
    This is the number of months each enrollee was covered by the MAO plan during 2009. Biles Decl. ¶ 99.
7
  This is a projected risk score upon which the 2010 payment plan was based. Biles Decl. ¶¶ 103–05. A risk score
is essentially the health of the MAO’s enrollee population and is used to adjust CMS’s payment to an MAO based
on their beneficiaries’ health. Id. A “Non ESRD” risk score means the risk score of the MAO’s enrollees that does
not includes ESRD (“End Stage Renal Disease”) enrollees. However, ESRD Medicare beneficiaries are generally
prohibited by CMS from joining MAO plans, and ESRD patients comprise only 0.9 % of all Medicare beneficiaries.
Biles Supp. Decl., ¶¶ 38–39, ECF No. 30-1. Thus, the Non ESRD Risk Score appears to be, for all practical
purposes, the projected risk score of an MAO upon which the MAO’s payment plan is based. Id.


                                                           5
II.    LEGAL STANDARD

       A.      Summary Judgment

       “The court shall grant summary judgment if the movant shows that (1) there is no

genuine dispute as to any material fact and (2) the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a) (emphasis added); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986). The mere existence of any factual dispute will not defeat summary judgment; the

requirement is that there be no genuine dispute about a material fact. Anderson, 477 U.S. 247–

48. A fact is material if, under the applicable law, it could affect the outcome of the case. Id. A

dispute is genuine if the “evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id. In order for the dispute to be genuine, a nonmoving party must present

enough specific facts, beyond mere allegations or conclusory statements, that would enable a

reasonable jury to find in favor of the nonmoving party. Anderson, 477 U.S. at 252; Greene v.

Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Because the court cannot try issues of fact when

determining summary judgment but can only determine whether there are issues to be tried, the

nonmoving party’s evidence is to be believed and all justifiable inferences are to be drawn in the

nonmoving party’s favor. Id. at 255; see Freeman v. Continental Gin Co., 381 F.2d 459, 469

(5th Cir. 1967).

       The court must find that the movant is entitled to “judgment as a matter of law” in order

to grant summary judgment, Fed. R. Civ. P. 56(a), and therefore must find that there is no

genuine issue for trial. There is no genuine issue for trial unless the nonmoving party provides

sufficient favorable evidence to enable a jury to return a verdict for the nonmoving party.

Anderson, 477 U.S. at 250–51 (explaining that the summary judgment inquiry is whether “there

are any genuine factual issues that properly can be resolved only by a finder of fact because they



                                                6
may reasonably be resolved in favor of either party,” agreeing that the standard for summary

judgment mirrors the standard for a directed verdict under Fed. R. Civ. Pro. 50(a), and

instructing that “[i]f reasonable minds could differ as to the import of the evidence . . . a verdict

[or a summary judgment] should not be directed [or granted]”). The burden is on the moving

party to show that there is an absence of evidence to support the nonmoving party’s case.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

       If the moving party would have the burden of persuasion at trial, the moving party must

provide enough credible evidence to show that it is entitled to a directed verdict if not

controverted at trial, which shifts the burden to the nonmoving party to show, by credible

evidence, that a “genuine issue” exists.       477 U.S. at 331 (Brennan, J., dissenting) (not

inconsistent with the majority opinion); see 10A Fed. Prac. & Proc. Civ. § 2727 (Charles Alan

Wright et al. eds., 3d ed. 2012). If the moving party would not have the burden of persuasion at

trial, the moving party may satisfy Rule 56’s burden of production by either submitting evidence

that negates an essential element of the nonmoving party’s claim so that the nonmoving party

cannot meet their required burden of production or by affirmatively showing that there is no

evidence on the record to support a judgment for the nonmoving party. Celotex, 477 U.S. at

331–32 (Brennan, J., dissenting) (not inconsistent with the majority opinion); see 10A Fed. Prac.

& Proc. Civ. § 2727 (Charles Alan Wright et al. eds., 3d ed. 2012).

       FOIA cases are typically and appropriately decided by summary judgment. Brayton v.

Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). By statute, the

agency bears the burden in litigation to justify withholding any records. 5 U.S.C. § 552(a)(4).

This is in part because of the “strong presumption in favor of disclosure,” Dep’t. of State v. Ray,

502 U.S. 164, 173 (1991), and because FOIA requesters face an information asymmetry given



                                                 7
that the agency possesses the requested information and decides whether it should be withheld

or disclosed. See Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145–46 (D.C. Cir. 2006). Thus,

even where the requester has moved for summary judgment, the Government “‘ultimately [has]

the onus of proving that the [documents] are exempt from disclosure.’” Pub. Citizen Health

Research Grp. v. FDA, 185 F.3d 898, 904–05 (D.C. Cir. 1999) (quoting Nat’l Ass’n of Gov’t

Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).              To show an exemption’s

applicability, an agency may rely on reasonably detailed and non-conclusory declarations to

satisfy its burden of production. See McGehee v. CIA, 697 F.2d 1095, 1102 (D.C. Cir. 1983);

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (“[I]t is now well

established that summary judgment on the basis of such agency affidavits is warranted if the

affidavits describe the documents and the justifications for nondisclosure with reasonably

specific detail, demonstrate that the information withheld logically falls within the claimed

exemption, and are not controverted by either contrary evidence in the record nor by evidence of

agency bad faith.”); Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (“‘Conclusory and

generalized allegations of exemptions’ are unacceptable.” ) (citations omitted).

       B.      Freedom of Information Act

       The Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (2012), generally provides

that any person has a statutory right, enforceable in court, to obtain access to executive branch

federal agency records, except to the extent that such records, or portions of them, are protected

from public disclosure by one of nine exemptions or by one of three additional special law

enforcement record exclusions. See 5 U.S.C. § 552(b) (2012); Newport Aeronautical Sales v.

Dep’t of Air Force, 684 F.3d 160, 162 (D.C. Cir. 2012). The Supreme Court noted that “[t]he

basic purpose of [the] FOIA is to ensure an informed citizenry, vital to the functioning of a



                                                8
democratic society, needed to check against corruption and to hold the governors accountable to

the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). Exemptions

“must be narrowly construed” so that the “limited exemptions do not obscure the basic policy

that disclosure, not secrecy, is the dominant objective of the Act.” John Doe Agency v. John Doe

Corp., 493 U.S. 146, 152 (1989).

       The FOIA exemptions exemplify various policy interests that conflict with and ultimately

supersede the basic FOIA policies of government transparency and an informed citizenry. John

Doe, 493 U.S. at 152 (“‘Congress realized that legitimate governmental and private interests

could be harmed by release of certain types of information,’ and therefore provided the ‘specific

exemptions under which disclosure could be refused.’”) (citing FBI v. Abramson, 456 U.S. 615,

621 (1982)). An agency seeking to withhold information under a FOIA exemption has the

burden of proving that the information falls under the claimed exemption, and the district court

must review the agency’s decision de novo. 5 U.S.C. § 552(a)(4)(B); Quinon v. FBI, 86 F.3d

1222, 1227 (D.C. Cir. 1996). Further, “[i]f a document contains exempt information, the agency

must still release ‘any reasonably segregable portion’ after deletion of the nondisclosable

portions.” Oglesby v. U.S. Dep’t of the Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5

U.S.C. § 552(b)). To ensure that all reasonably segregable information has been disclosed to the

requester, the district court is required to enter a finding on segregability, even if the issue of

segregability has not been raised by the plaintiff. Trans-Pacific Policing Agreement v. U.S.

Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

       Exemption Four to FOIA exempts from disclosure some information relating to trade

secrets or commercial or financial information. 5 U.S.C. § 552(b)(4) (2012). For Exemption

Four to apply, the information must (1) involve trade secrets and commercial or financial



                                                9
information, (2) be obtained from a person outside the government, and (3) be privileged or

confidential. Id. Exemption Four was drafted to balance the strong public interest in favor of

disclosure against the right of private businesses to protect sensitive information. National Parks

& Conservation Ass’n v. Morton, 498 F.2d 765, 768–69 (D.C. Cir. 1974); see Worthington

Compressors, Inc. v. Costle, 662 F.2d 45, 53 (D.C. Cir. 1981) (“‘[A]s a matter basic to our free

enterprise system, private business information should be afforded appropriate protection, at

least from competitors.”).     Under Exemption Four, documents or information that the

government requires an entity to provide are less rigorously protected than documents or

information voluntarily provided to the government by the entity. Critical Mass Energy Project

v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878–880 (D.C. Cir. 1992) (en banc) (creating the

two tests for “voluntary” and “required” information and assigning the above-stated National

Parks test to the analysis for “required” information); see also National Parks, 498 F.2d at 766.

III.   DISCUSSION

       For Exemption Four to apply, the information must (1) involve trade secrets or

commercial or financial information, (2) be obtained from a person outside the government, and

(3) be privileged or confidential. National Parks, 498 F.2d at 766. It is undisputed that the

information in this case is financial or commercial and was obtained from a “person” outside of

the government, and HHS has not claimed that the information is privileged. Pl.’s Mem. 18;

Def.’s Mem. 12–13. Thus, the only disputed issue is whether or not the requested information is

confidential. Id.

       To determine whether information is confidential, the court must first determine whether

the information was submitted to the government voluntarily or whether the government required

the information to be submitted. See Critical Mass, 975 F.2d at 878–80. A submission is



                                                10
compelled when the government requires a private party to submit information as a condition of

doing business with the government. See Lepelletier v. F.D.I.C., 977 F. Supp. 456, 460 n.3

(D.D.C. 1997), rev’d in part on other grounds, 164. F.3d 37 (D.C. Cir. 1999) (“Information is

considered ‘required’ if any legal authority compels its submission, including informal mandates

that call for the submission of the information as a condition of doing business with the

government”); Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 28 (D.D.C. 2000). In

the present case, because the requested data is required by law to be submitted to CMS by all

participating MAOs, 42 C.F.R. § 422.254 (2012), the National Parks test for “required

information” applies. Critical Mass, 975 F.2d at 878–80.

       Under National Parks, information is confidential if its disclosure is likely to (1) “impair

the Government’s ability to obtain necessary information in the future” or (2) “cause substantial

harm to the competitive position of the person from whom the information was obtained.” Nat’l

Parks, 498 F.2d at 770; see Critical Mass, 975 F.2d at 878. Here, HHS contends that both

prongs of the test are satisfied as a matter of law (though HHS need only prove one of the prongs

to prevail) and that there are no genuine issues of material fact, thus requesting summary

judgment in its favor. Def.’s Mem. 1, 14–21. Dr. Biles contends that HHS has not met its

burden of proving with affirmative, non-conclusory evidence that Exemption Four applies in this

case and therefore requests summary judgment in his favor. Pl.’s Mem. 28.

       A.     Impairment to Government’s Ability to Obtain Information in the Future

       Because all MAOs are required by statute to submit the requested data to CMS in order to

participate as an MAO the following year, the Government will continue to be able to obtain the

data required by the mandatory Bid Pricing Tool submission even if the requested data is

disclosed. Private companies participate as MAOs because it is profitable to them, and neither



                                               11
an MAO official nor HHS has suggested that an MAO would refuse to participate in the MA

program if the requested data were released. See Pl.’s Mem. 21–22; Biles Decl. ¶ 33; Rice Decl.

¶¶ 9–10. See generally Rice Decl.; Marquis Decl.; Yiu Decl., ECF No. 27-5; Smith Decl., ECF

No. 27-4; Theisen Decl., ECF No. 27-3; Rice Supp. Decl., ECF No 27-2.

        Because HHS will continue to be able to obtain the required data, HHS focuses on the

quality of the data the Government will be able to obtain. HHS claims that the disclosure of the

requested information will cause MAOs to adjust their bids in order to compete with other

MAOs’ bids or to keep other MAOs from “decipher[ing] their bids,” which would deprive CMS

of the detailed and reliable information it now obtains. Def.’s Mem. 18–20; Rice Decl. ¶¶ 24–

25. Dr. Biles disputes these claims, noting that “[i]f an MAO wishes to participate, but fails to

provide the voluminous and detailed information required on the Bid Pricing Tool [and abide by

the actuarial requirements], CMS is empowered not only to decline to renew their contract, but

also to impose sanctions.” Pl.’s Mem. 22 (citing 42 CFR § 422.254(a)(3)).

        HHS fails to explain (1) how bids could be manipulated by MAOs by using the requested

data when the Bid Pricing Tool requires actuary-verified data and other strict structural

requirements that cannot be modified without serious consequences 8 and (2), even if MAOs were

able to adjust their bids in some material way, how those adjustments would impair CMS’s

ability to obtain the information required by 42 C.F.R. § 422.254 in the future—as mere changes

in the bid amounts do not necessarily equate to inaccurate data or CMS’s inability to obtain the




8
  For example, CMS can impose sanctions or choose not to renew a contract, 42 C.F.R. § 422.254(a)(3), or, worse,
the MAO could be subject to penalties for misrepresentation in contracting with the government under the False
Claims Act, 31 U.S.C. §§ 3729–30 (2012). See also 42 C.F.R. § 422.254(b)(5) (a qualified actuary must certify the
plan’s actuarial valuation); § 422.256(b)(1) (CMS can only accept applications if the “bid amount and proportions
are supported by the actuarial bases provided.”); 42 U.S.C. § 1395w-27(d)(1) (2012) (CMS is required to audit the
financial records (including cost and utilization data) of at least one-third of all MAOs each year.).

                                                       12
required information in the future. 9 See Gov’t Accountability Project v. HHS, 691 F. Supp. 2d

170, 175–76, 178–79 (D.D.C. 2010) (agency failed to show “how” data resulted in claimed

results).

         CMS claims that “[d]isclosure of the requested information would undermine the

integrity of the bidding process.” Def.’s Mem. 19. But in a 2010 response to MAOs that were

claiming the exact same thing (that the release of certain payment data would undermine the

integrity of the bidding process), CMS claimed that there was no risk of loss to the integrity of

the bidding process, not because of the type of data that was being released, but because the

bidding process consisted of actuary-verified data: “Utilization, costs, and trends must be

certified by a qualified, independent actuary prior to bid submission. Since we will continue to

require actuarial certification, integrity is unaffected.” 75 Fed. Reg. 21,432, 21,518. HHS fails

to dispute Dr. Biles’s claim that “plans cannot simply raise bids strategically [or] willy-nilly

[because] [t]here must be an actuarial basis for doing so.” Pl.’s Mem. 54. HHS offers “nothing

but speculative opinion that [MAOs] may not be forthcoming in the data they submit if [HHS]

allows disclosure . . ., [though] the agency has the burden of showing that requested information



9
  Further, CMS does not explain how changes in the MAOs’ bid amounts would pose a threat to the MA program
when CMS has a benchmark amount over which CMS will not pay an MAO and when MAOs have strong
incentives to remain competitive (and thus, keep their costs down and their enrollee benefits up in order to attract
enrollees). Def.’s Mem. 20; Rice Decl. ¶ 26; 76 Fed. Reg. at 21,518 (“The fact that MA-eligible Medicare
beneficiaries can, on average, select from over 2 dozen MA and Part D plans in every county of the nation is ample
evidence that competition is robust.”). It seems, if anything, that the MAOs would use the information to lower their
bid amounts in an effort to become more competitive in the market, which saves both enrollees and the Government
money; pushing the bid amount higher, as HHS claims “may” happen, does not follow as the only logical
consequences of disclosure, especially when HHS claims that MAOs exist in a competitive enrollee market where
enrollees, on average, have a dozen MAOs to choose from in each geographic region. Def.’s Mem. 21; 76 Fed. Reg.
at 21,518 (“. . . MA-eligible Medicare beneficiaries can, on average, select from over 2 dozen MA and Part D plans
in every county of the nation . . . .”). If all MAOs could ascertain the bid amounts of all the other MAOs, as would
be the case here if the Government is correct, it seems most likely that, in CMS’s own words, “competition, if
anything, will be enhanced by release [of the data] rather than harmed in any way.” 76 Fed. Reg. at 21,518; see also
id. (“[W]here plans are free to modify the actual competitive components that are used to build up bids, such as
benefit offerings and member cost-sharing, little is left of the argument that revealed cost trends will have an impact
on the competitive nature of the programs.”).

                                                         13
comes within a FOIA exemption.” Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169

F.3d 16, 18 (D.C. Cir. 1999) [hereinafter Mohawk].

         Dr. Biles also cites a line of precedent holding that impairment is highly unlikely when

disclosure of the information is compelled. 10 In Mohawk, the court noted that disclosure of

required data containing “hard, cold numbers”—a fitting description of the actuarial cost data

required by the Bid Pricing Tool—refutes a conclusory claim by HHS that disclosure of the

information will impair HHS’s ability to obtain the information in the future. 169 F.3d at 18.

This line of precedent, sourced initially from National Parks, is convincing to and binding on the

Court. Even if HHS’s contentions are true, HHS has failed to meet its burden of showing how

disclosure of the information will impair CMS from obtaining the data in the future—the first

prong of the National Parks test. HHS must meet its burden of production regarding the second

prong of the National Parks test (substantial competitive harm) in order to survive an overall

motion for summary judgment in Dr. Biles’s favor.

         B.       Substantial Competitive Harm

         To prove a likelihood of substantial competitive harm, HHS must prove that (1) the

submitters of the information “actually face competition” and that (2) “substantial competitive

10
   Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999); Critical Mass, 975 F.2d
at 878; Nat’l Parks, 498 F.2d at 770; Ctr. For Auto Safety, 244 F.3d at 148; In Defense of Animals v. USDA, 656 F.
Supp. 2d 68, 72 (D.D.C. 2009) (“Where the government obtains information involuntarily, disclosure does not
impair the government’s ability to obtain similar information in the future.”); Kahn v. Fed. Motor Carrier Safety
Admin., 648 F. Supp. 2d 31, 36 (D.D.C. 2009); People for Ethical Treatment of Animals v. U.S. Dep’t of Agric.,
2005 WL 1241141, *5 (D.D.C. May 24, 2005).
          HHS cites Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 29 (D.D.C. 2000) for support.
Def.’s Mem 18–19. In Judicial Watch, certain information was required to be submitted in order to apply for a loan
with the Export-Import Bank. Id. at 30. Despite the mandatory nature of the submission, this Court found that
disclosure of the requested information would impair the Government’s ability to obtain accurate information in the
future, which would “hinder the Bank’s ability to fulfill its statutory purpose” “to foster domestic economic growth
by supporting United States export transactions that are too risky for private capital financing.” Id. However,
Judicial Watch is distinguishable from the present situation, as those applying for loans are, unlike MAOs, not
restricted by actuarial requirements and in competition with each other for the best loan rate. Id. at 24 (“[T]he Bank
is authorized to provide guarantees, insurance, and extensions of credit on competitive terms to United States
businesses that seek to export goods and services to other countries, particularly where private financing and
insurance is unavailable because of risk factors specific to the country importing those goods.”).

                                                         14
injury [to the submitters] would likely result from disclosure.” Nat’l Parks & Conservation

Ass’n v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976) (“Nat’l Parks II”).

                   i. Proof of Competition

           Though HHS’s assertions of competition within the bidding process 11 are contradicted,12

HHS’s assertion that MAOs compete to attract enrollees is sufficient to support HHS’s burden of

production and persuasion on this issue, as Dr. Biles admits that “low levels” of competition

exist among MAOs in the marketplace, Biles Decl. ¶¶ 116–23; see also Pl.’s Mem. 29. “Actual

competition” does not require high levels of competition, but only “actual” competition.

                   ii. Proof of Substantial Competitive Harm

           “In reviewing an agency’s determination as to substantial competitive harm, we

recognize that ‘predictive judgments are not capable of exact proof,’ and we generally defer to

the agency’s predictive judgments as to “‘repercussions of disclosure,’’” but conclusory

statements from the agency do not suffice. United Technologies Corp. v. U.S. Dep’t of Def., 601

F.3d 557, 563 (D.C. Cir. 2010) (citations omitted). “Under FOIA, an agency has the burden to

demonstrate that the withheld documents are exempt from disclosure, which it may meet by

submitting ‘affidavits [that] show, with reasonable specificity, why the documents fall within the

exemption. The affidavits will not suffice if the agency’s claims are conclusory, merely reciting

statutory standards, or if they are too vague or sweeping.’” In Def. of Animals v. U.S. Dep’t of

Agric., 501 F. Supp. 2d 1, 5–8 (D.D.C. 2007). The question here is whether or not HHS’s claims

are too “conclusory” or “vague” to survive Dr. Biles’s motion for summary judgment.



11
     Def.’s Mem. 19.
12
  76 Fed. Reg. at 21,518 (“Although Part C and D plans do compete for members, primarily through the benefits
offered and the cost (member cost sharing and premium) of those benefits, they do not directly compete for the
payments that CMS makes. Rather, we approve all sustainable bids that are otherwise qualified without preference
for the lowest bidder.”).

                                                      15
       HHS’s claims can be summarized by the following statement: “Releasing the requested . .

. data would cause harm” “by providing propriety plan information that is not publicly available”

that would (1) provide “insight” into “enrollment stability,” “market shares,” “market strategy,”

“target market,” “market strength,” utilization of services by enrollees, “financial details” and

“position,” “underlying costs,” “efficiency of operations,” “profit objectives,” “cost structure,”

and “business growth strategies”; (2) enable “[c]ompetitors . . . to calculate—to a reasonable

approximation based on educated estimates—the amount of an organization’s bids,” which

would give competitors an “unfair competitive advantage in bidding for future MA contracts;”

(3) enable competitors to “undermine [an MAO’s] position by modifying their product design

and pricing,” “exploit[] difference[s] in cost and benefit design,” and “devise strategies aimed at

attracting beneficiaries with higher or lower scores” that would “disrupt [an MAO’s] risk pool”;

and (4) “reveal the economic nature of the [MAO’s] contracts with its providers,” which both

“providers” and “competitors could use . . . to undercut [the MAO] in price negotiations.” Def.’s

Mem. 15–18; Def.’s Reply 16–17, ECF No. 27; Theisen Decl. ¶¶ 10–11.

       Only the last three points hold any hope of rising above conclusory claims of commercial

harm, as mere observations that disclosure will provide “insight” into certain types of

information fail to show how such “insight” creates a likelihood of substantial competitive harm

and are therefore insufficient to establish HHS’s burden of proof. The last three points can be

distilled into two claims: (1) the disclosure of the information will allow MAOs to make changes

to their own practices (such as design, pricing, benefits, and price negotiations with providers)

that would allow them to better compete with other MAOs, and (2) providers with which MAOs

contract could use the data to manipulate the negotiation process. See Theisen Decl. ¶ 10b.




                                                16
         HHS’s assertion that disclosure will enable MAOs to change their practices to better

compete with other MAOs is nothing more than arguing that disclosure has a likelihood of

creating competition among MAOs—an assertion that does not necessarily prove that disclosure

has a likelihood of creating substantial competitive harm, which implies an “unfair” exposure of

one competitor to that competitor’s detriment and to a non-exposed competitor’s gain. 13

However, the last point regarding providers’ ability to manipulate the negotiation process when

contracting with MAOs could serve as proof of a likelihood of substantial competitive harm, as

the providers may not be similarly exposed 14 and can therefore gain a commercial advantage

over the MAO.

         Still, HHS’s assertions of competitive harm are rebutted by Dr. Biles, without an

adequate evidentiary response from HHS, when Dr. Biles claims that (a) the 2009 requested data

cannot cause competitive “harm” because the disclosure of the data is “symmetrical,” meaning

that all competitors are exposed to the same degree by the disclosure; (b) much of the data is

already publicly available, which nullifies HHS’s claims that the data is “confidential”; (c) the

requested data is now stale for purposes of predicting MAOs’ future bids, as it is retrospective,

historical data rather than projective data and cannot be “trended” in order to make predictions

because the data is only from a single year—2009. Pl.’s Mem. 41–44.

13
  See, e.g., Nat’l Parks II, 547 F.2d at 678 n.18 (“The district court concluded that disclosure of the information by
the Park Service would be useful to a competitor in devising means to improve its competitive position at the
expense of the concessioner. Such disclosure would reveal concessioners’ business secrets . . . without providing the
concessioner in most instances with similar access to the books and records of his competitors. This competitive
disadvantage is fundamentally unfair and would be likely to cause harm to the concessioner's basic position.”)
(emphasis added); see also Nat’l Parks, 498 F.2d 765 at 768–69; Pub. Citizen Health Research Grp. v. Nat’l Insts.
for Health, 209 F. Supp. 2d 37, 48 & n.7 (D.D.C. 2002); Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19,
29 (D.D.C. 2000); Pub. Citizen Health Research Grp. v. FDA, 997 F. Supp. 56, 65 (D.D.C. 1998).
14
  This is rebutted by Dr. Biles’s claims that providers are similarly exposed by publicly available data. See Biles
Decl. ¶¶ 65–84. These claims are somewhat disputed by HHS, but for different reasons unrelated to providers’
ability to negotiate contracts with MAOs. See Def.’s Reply 20–22 (arguing that the public cost data for providers,
which has not commercially harmed those providers, is “entirely different” from the requested data in order to show
that HHS’s claims of competitive harm to MAOs are not nullified by the lack of commercial harm to providers).


                                                         17
                         a. Asymmetrical Harm

        Dr. Biles argues that, when all MAOs have access to the requested data, there is no risk

of substantial competitive harm to an MAO because all of the MAOs have access to data to

which every other MAO has access—preventing any one MAO from unfairly benefiting to the

detriment of another MAO. Pl.’s Mem. 2. Dr. Biles refers to this as a lack of “asymmetric”

disclosure and claims that asymmetric disclosure is required in order to prove substantial

competitive harm. Pl.’s Mem. at 30–33. (citing Silverberg v. Dep’t of Health & Human Servs.,

1991 WL 633740, *4 (D.D.C. June 14, 1991) (reasoning that because each laboratory would

have access to the same type of information as every other laboratory in the program, that no

single laboratory would receive a competitive advantage over the other). The Court does not

need to determine whether or not asymmetric disclosure is required for substantial competitive

harm. However, precedent suggests that the “harm” aspect of “competitive harm” is an unfair

commercial disadvantage by way of exposure. 15 Thus, “asymmetric” disclosure, or the lack

thereof, is valid evidence that can help establish or nullify a claim of substantial competitive

harm. HHS fails to explain why symmetric disclosure still poses a likelihood of substantial

competitive harm, and, instead, only asserts that “asymmetrical competitive harm . . . has never

been required [under Exemption 4].” Def.’s Reply 12. Pointing out what is not required to show

substantial competitive harm is not affirmative evidence of competitive harm nor is it sufficient

evidence to rebut Dr. Biles’s claim.

                         b. Public Availability of Requested Data

        HHS admits that some information relating to the “bid” and the plan payment is already

publicly available. Rice Decl. ¶ 19, Rice Supp. Decl. ¶¶ 4–7, ECF No. 27-2. However, HHS


15
   See Nat’l Parks II, 547 F.2d at 678 n.18 (“This competitive disadvantage is fundamentally unfair and would be
likely to cause harm to the concessioner's basic position.”); see also supra note 13 and accompanying text.

                                                      18
asserts: “The information requested by Dr. Biles goes far beyond the information that CMS

proactively discloses to the public. Release of the specific information requested by Dr. Biles

will cause substantial harm to the competitive positions of [MAOs] . . . .” Rice Decl. ¶ 16. Dr.

Biles rebuts that assertion by claiming that “[a]ny difference[s] between the data that is not

public and the Worksheet 1 data are so small that they are irrelevant for analytic purposes by

researchers[] or other MA[Os] and their consultants.” Biles Supp. Decl. ¶ 24. HHS does not

show—by numbers, specific examples, or any evidence beyond conclusory statements—how the

portions of data requested by Dr. Biles that Dr. Biles claims can already be obtained by public

means are materially different than the public data for purposes of competitive use. 16

         Dr. Biles argues that because “a considerable amount of the data sought is already public

or can be calculated based on data published by CMS,” any likelihood of substantial competitive

harm must be considered in light of analogous data that is already available to MAOs. Pl.’s

Mem. 33. The Court agrees. But public availability of analogous data can cut both ways, as it

can nullify claims that the requested data is confidential, but it can also make the requested data

more harmful if the public data can be combined with the requested data to obtain commercial

information that is likely to cause substantial competitive harm.

         Whether or not some of the requested data is publicly available is clearly a “disputed

fact” that is both material and a “genuine issue” upon which the case could turn because the

public availability of the data would nullify HHS’s Exemption Four claim: “Public availability of

information defeats an argument that the disclosure of the information would likely cause

competitive harm.” Nat’l Cmty. Reinvestment Coal v. Nat’l Credit Union Admin., 290 F. Supp.

2d 124, 134 (D.D.C. 2003).              Thus, summary judgment in favor of HHS is inappropriate.

16
  HHS claims that Dr. Biles is “incorrect” to claim that certain portions of his requested data are essentially publicly
available because the public data and the requested data are “not always identical” and are “different” in that the
requested data is “more detail[ed]” than the public data and is “proprietary.” Rice Supp. Decl. ¶¶ 7, 9–11.

                                                          19
However, summary judgment in favor of Dr. Biles is still a possibility: if HHS fails to offer

enough evidence to satisfy its burden of proof regarding competitive harm, it would be irrelevant

whether or not the data is publicly available since Dr. Biles would automatically prevail.

                           c. Staleness of Requested Data

         Regarding FOIA, this Circuit has recognized that “stale information is of little value.”17

Payne Enterprises, Inc. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988). HHS has not

explained why the requested 2009 data is valuable to MAOs in light of Dr. Biles’s claims that it

is too stale and aged to be used for substantial competitive purposes. Pl.’s Reply 22–23. HHS

recognized the concept of staleness in its rule-making response in 2011 where CMS, refuting

MAO objections to the release of MAO payment data, argued that two-year-old payment data

was stale and unlikely to harm MAOs: “[A]lthough trends from one year to the next might be

revealed through release of payment data for sequential years, the fact remains that such trends

will be stale (at least 2 years old) and reveal little about competitive strategies in future years.”

76 Fed. Reg. at 21518. At the earliest, MAOs could make use of the 2009 data in 2014. 18 Biles

Supp. Decl. ¶ 91.

         Dr. Biles claims that the passing of time, as well as the changes in the health care

industry, which include rising costs, health care reform under the Patient Protection and
17
   See also JCI Metal Prods. v. U.S. Dep’t of the Navy, 2010 WL 2925436, *7 (S.D. Cal. July 23, 2010) (“any
resulting competitive harm to JCI from the release of this ‘stale’ information would be minimal.”); N.Y. Times Co. v.
U.S. Dep’t of Labor, 340 F. Supp. 2d 394, 402 (S.D.N.Y. 2004) (disclosure of information used to maintain a
competitive advantage would not cause competitive injury if released four years later because the information is
outdated); Braintree Elec. Light Dep’t v. Dep’t of Energy, 494 F. Supp. 287, 291 (D.D.C. 1980) (“One of the key
issues in any exemption 4 case is the current significance of the commercial data”); Boeing Co. v. Dep’t of Air
Force, 616 F. Supp. 2d 40, 49 (D.D.C. 2009) (concluding that while the agency could properly withhold information
about future rates, it had to disclose information about past rates). But cf. Wash. Psychiatric Soc. v. U.S. Office of
Pers. Mgmt, 1988 U.S. Dist. LEXIS 17609 (D.D.C. Oct. 12, 1988) (holding that documents submitted by insurance
companies containing detailed compilations of benefit costs and user statistics could be used by competitors to
redesign their benefit packages to seek a competitive advantage, even years after the data was submitted).
18
  Dr. Biles points out that “[c]ontracts with providers, benefits, and other internal MAO policies must be set well in
advance of a calendar year, as these policies must be in place when Medicare beneficiaries select an MA plan for the
Calendar Year 2013 during the ‘open enrollment season’ that begins October 15, 2012.” Biles Supp. Decl. ¶ 91.


                                                         20
Affordable Care Act, 19 changes in the way rebates are calculated, etc. 20—make the 2009 data too

stale to rise to the level of “substantial” commercial harm, if it rises to the level of any type of

harm at all.       Pl.’s Reply 43.      HHS responds with the puny reply that Dr. Biles has “not

connect[ed] changes in the health care system to the alleged staleness of the data” 21 and that

“‘[i]nformation does not become stale merely because it is old’”—citing a completely

distinguishable case where this district held that old and no longer used air bag technology

information was not stale because it would reveal to a competitor a “comprehensive picture of

the progression of air bag technology over almost a decade,” which would give a competitor “an

edge in improving their own technology by not having to invest as much time and money in

research and development.” Def.’s Reply 17–18 (citing Ctr. for Auto Safety v. Nat’l Highway

Traffic Safety Admin., 93 F. Supp. 2d 1 (D.D.C. 2000)). Neither claim by HHS is sufficient to

rebut Dr. Biles’s claim that the data is too stale to cause a likelihood of commercial harm.

           HHS also contends that “competitors could ascertain (or at least closely estimate) the

amounts and component pieces of a given [MAO]’s recent bid,” Rice Decl. ¶ 17 (emphasis

added), and could use that knowledge to “undermine [an MAO’s] position in the marketplace”

“if” that competitor could access an MAO’s bid information for all of its plans “over a several

year period.” Rice Decl. ¶ 22 (emphasis added). Dr. Biles notes that, because he has only


19
     26 U.S.C. § 5000A (2012).
20
  Dr. Biles lists the following relevant changes in the health care market since 2009: (1) The Affordable Care Act
reduced MA payments that must continue to be reduced until the MA payments reach an average of 101% of costs
in traditional Medicare in 2017 (down from an average of 114%), Biles Supp. Decl. ¶ 93; (2) The Affordable Care
Act also changed payment policies that revise the calculation of MA payments based on counties, phasing in a new
national policy based on placing all counties into one of four payment groups that benefits MAOs in areas with very
high traditional Medicare costs and disadvantages MAOs in areas with low traditional Medicare costs, Id. ¶ 94, (3)
CMS announced new bonus payments that will be awarded to MAOs based on the performance of the health care
providers than an MAO contracts with, Id. ¶ 96.
21
   This claim is not only puny, but also inaccurate. Dr. Biles clearly explains that the 2009 requested data would be
stale in light of “major provisions” to the MA program, including a reduction in payments to MAOs, a new formula
for MA plan payment benchmarks, a new formula for calculating the “rebate” to MA plans, and a new quality rating
system that was initiated in 2012 that affects MAO payments. Biles Decl. ¶¶ 124, 127–31.

                                                        21
requested historical cost data from 2009—a single year—and has not requested any projection

data, the requested data cannot be trended. Pl.’s Reply 13–14; 23; Def.’s Mem. Ex. 1. Further,

Dr. Biles claims that, because the 2009 data is now stale in the rapidly changing and non-linear

healthcare market, MAOs cannot use the data effectively to predict an MAO’s recent or future

bid. Pl.’s Mem. 2. HHS’s only rebuttal to these claims is an assertion that if Exemption Four

does not protect this 2009 data, Exemption Four would not protect data from subsequent years,

which would eventually have to be released and would then give researchers and other MAOs

the ability to trend the data. Def.’s Reply 19 n.5. HHS’s conclusion does not follow, as the

request for the release of more recent data, as well as data over multiple years that could be

trended, creates a distinguishable factual situation that requires a new analysis and new evidence

of substantial competitive harm. 22 Speculative assertions do not serve as affirmative evidence.

         HHS has failed to explain why the 2009 data is still commercially valuable to competitors

or how that data could be used in 2014 or later to create a likelihood of substantial competitive

harm, thereby failing to meet its burden of proof in light of Dr. Biles’s nullifying evidence.

                           d. HHS’s Specific Claims Regarding the Requested Data

         When there are various categories of data, the agency has the burden of establishing why

or how each category of data is likely to cause substantial competitive harm. See S. Alliance for

Clean Energy v. U.S. Dep’t of Energy, 2012 WL 1021487, *10–11 (D.D.C. Mar. 28, 2102);

Gov’t Accountability Project, 691 F. Supp. 2d at 179. HHS does not explain how disclosure of

Worksheet 1, Section II, Lines 1 (“Paid Through”), 4 (“Completion Factor”), 5 (“Plans in Base’),

or 6 (“Describe the source of the base period experience data”) could cause competitive harm.

22
  The Court’s present holding applies only to the requested data from the single year (2009) from which it is
requested. Even if the exact same data were subsequently requested for, say, 2010 (a single year), the present
holding does not act as a green light for disclosure. As the Court expresses above, requests for additional years of
data (even if requested in increments of single years) that would enable the presently requested data to be trended is
a distinguishable set of facts that requires an entirely separate and new analysis.

                                                         22
       HHS objects to disclosure of Section II, Line 2 (“Member Months”) because release of

that information would provide “insight into enrollment stability and market share.” Rice Decl. ¶

18; see also Marquis Decl. ¶ 24. Dr. Biles contends that enrollment data is already publicly

available, Pl.’s Mem. 38 (citing Rice Decl. ¶ 14 (stating that each month since August 2006,

CMS has posted on its website the number of enrollees in each MA plan.)), but the public data’s

detail, as compared to the requested data’s detail, is disputed by HHS. Rice Supp. Decl. ¶ 7.

Still, regardless of whether or not the data is publicly available, HHS fails to show how “insight

into enrollment stability and market share” will likely cause substantial competitive harm to an

MAO, thereby failing to meet its burden of proof for this claim.

       In addition to HHS/CMS employees, several MAO officials provided declarations in

support of HHS. The MAO officials’ main objections regarded the release of Section II “risk

scores,” Section III “cost structure” and “utilization patterns,” and Section VI “expenses” and

“profit/loss by plan.” Theisen Decl. ¶¶ 5, 9–11; Yui Decl. ¶ 14.

       HHS contends that the disclosure of risk scores would “enable . . . competitors to devise

strategies aimed at unfairly attracting beneficiaries with higher or lower [health] scores,” which

would “disrupt [an MAO’s] risk pool” and “violate CMS’s requirement that plans ‘not design

benefit packages that discourage enrollment or encourage disenrollment of severely or

chronically ill beneficiaries.’” Theisen Decl. ¶¶ 5a, 10a. However, HHS does not explain how a

competitor would use the 2009 data to “devise strategies” or what those “strategies” would be

and has not offered any evidence that affirms that an MAO would actually engage in the claimed

activity that apparently violates a CMS requirement. It is difficult to understand how MAOs

could successfully violate a “requirement” of CMS for very long without repercussions, and it is

equally unclear why it would be “unfair[]” for competitors to try and attract beneficiaries with



                                               23
better or worse health when all MAOs would have equal access to the risk data and could

therefore all try to do the same thing. Further, “attracting beneficiaries” by way of “strategies”

seems highly speculative when beneficiaries choose to enroll in a specific plan with a specific

MAO based on various personal factors. See Biles Decl. ¶¶ 28–32, 135. Additionally, Dr. Biles

claims that risk scores, to the extent they would be used by competitors, are already publicly

available. Pl.’s Reply 14, 18–19 (citing Rice Supp. Decl. ¶ 10). HHS asserts that the public risk

scores are “not always identical” to the risk scores in Worksheet 1, but fails to explain why the

difference between the scores is commercially significant. 23 HHS’s vague, speculative claims

and conclusory rebuttals to Dr. Biles’s counter evidence do not satisfy its evidentiary burden.

         MAO officials claim that “cost structure” and “utilization patterns” data in Section III

would allow competitors or providers to use the information to “undercut [an MAO] in price

negotiations” when contracting. Yui Dec. ¶ 14; Theisen Decl ¶¶ 5b, 10b–c, 11. Dr. Biles claims

that the symmetric disclosure of the data, Pl.’s Reply 9–13, the stale nature of the 2009 data,

Biles Supp. Decl. ¶¶ 91–96; Biles Decl. ¶ 124–27, the existing public and industry knowledge of

cost and utilization information, Biles Supp. Decl. ¶ 63, the inability to trend the requested data,

Pl.’s Reply 15–16, and the “high level of aggregation” of the Section III data 24 prevents a


23
   HHS notes that the non-ESRD risk score requested by Dr. Biles is “not always identical to the risk score that CMS
makes public.” Rice Supp. Decl. ¶ 8. The actual risk score for each MAO is retroactively calculated and is publicly
available, while the projected risk score (the risk score Dr. Biles is requesting) is the risk score upon which the bid is
based is not publicly available. Biles Supp. Decl. ¶ 25. Though HHS asserts that the actual risk score and the
projected risk score could differ, Rice Supp. Decl. ¶ 8, Dr. Biles notes that HHS does not offer any data
substantiating the implied assertion of actual difference between projected and actual risk scores and explains that,
since MAOs have until June of the submission year to submit actuarially-certified risk score data, the projected risk
score should be quite close to the actual risk score. Biles Supp. Decl. ¶ 26. “Actuaries preparing Worksheet 1 for an
MAO would, in light of past experience with the MAO’s enrollee pool, have a good understanding of the health
status of the MAO’s enrollees” (which is the essence of the risk score). Id. Since MAO actuaries have access to
actual risk scores for past years for all MAO plans and since the future projected risk scores are logically similar to
past plan risk scores, any difference between the projected and actual risk scores should be so minimal as to make
any difference irrelevant for purposes of research or competitors. Id.
24
  Dr. Biles explains that costs per member per month data is a combination of three factors and that the Section III
data “masks the relationship among [the three factors] for any individual plan, making it impossible to discern the
extent to which a particular factor is responsible for cost.” Biles Decl. ¶ 113. “These numbers are at a high level of

                                                           24
competitor or a provider from effectively using the requested data to manipulate contract

negotiations, Biles Decl. ¶ 113. HHS fails to explain how a competing MAO or provider would

use the requested 2009 data to “undercut” an MAO in contract negotiations and does not provide

sufficient evidence to rebut Dr. Biles’s contradicting and possibly nullifying claims.

         Finally, HHS asserts that Section VI cost data would “provide information about the

efficiency of operations and the financial position of the organization.” Rice Decl ¶ 20. Here,

HHS’s claims are again too conclusory to satisfy their burden of proof. “Efficiency” and

“financial position” are highly generalized terms that do not, in themselves, prove competitive

harm; stating that disclosure of cost information would reveal “financial position” could describe

any sort of disclosure of MAO information, including the disclosure of payment and enrollment

information that CMS has already made public. MAO officials, on behalf of HHS, claim that the

“expenses” and “profit/loss by plan” data in Section VI would “allow competitors and network

providers to build business strategies to unfairly target [an MAO’s] specific cost structure.”

Theisen Decl. ¶ 5c. These claims are rebutted by Dr. Biles’s assertions of staleness, symmetric

disclosure, and public availability of the requested data. Biles Supp. Decl. ¶¶ 85–96; Pl.’s Reply

9–13. But regardless of Dr. Biles’s contradicting evidence, an assertion that a competitor or

provider would “build business strategies to unfairly target [an MAO’s] specific cost structure,”

without further explaining how the disclosure of the requested data would facilitate that activity,

is exactly the sort of vague claim that is unacceptable as evidence of commercial harm.

                           e. HHS’s Burden

         HHS contends that releasing the requested data would “cause harm” by providing

“proprietary plan information” that is not publicly available, which would result in “insight” into

aggregation so that a competing [MAO] could not learn anything about another [MAO’s] internal contracting
policies with hospitals or physicians or how their strategy for managing utilization of high costs procedures . . . is
designed.” Id.

                                                         25
various aspects of an MAO’s operations like “market strategy” and “financial details.” Rice

Decl. ¶ 18.    HHS asserts that disclosure of the information would be “inappropriate” and

“unfair.” Rice Decl. ¶¶ 21–22; Marquis Decl, ¶ 26. Crucial, and missing, in HHS’s evidence is

exactly how all of these consequences of disclosure would cause a likelihood of substantial

competitive harm to MAOs. See Gov’t Accountability Project, 691 F. Supp. 2d at 175–76, 178–

79 (agency failed to show “how” competitor would use data to its advantage or to competitor’s

disadvantage ). HHS does not even give examples of the extent of the harm or the type of harm

that would occur if the requested data were released. HHS has the burden of showing that

substantial competitive harm is likely. HHS has failed to provide a single non-conclusory claim

that asserts anything beyond a possibility of competition and has failed to rebut Dr. Biles’s

nullifying evidence with affirmative, non-conclusory counter evidence.           “Conclusory and

generalized allegations of substantial competitive harm, of course, are unacceptable and cannot

support an agency’s decision to withhold requested documents.” Pub. Citizen Health Research

Grp. v. FDA, 704 F.2d 1280, 1291 (D.C. Cir. 1983). Assuming that HHS’s claims are true, HHS

has failed to meet its burden of proving that disclosure of the requested information will likely

cause substantial competitive harm.       Thus, summary judgment in favor of Dr. Biles is

appropriate.

IV.    ATTORNEYS’ FEES AND COSTS

       Dr. Biles has moved for attorneys’ fees and costs. Pl.’s Compl. 5 ¶ 5 (Relief). Though

Dr. Biles has prevailed and though FOIA gives this Court authority to award attorneys’ fees to

Dr. Biles, 5 U.S.C. § (a)(4)(E)(i) (2012), the Court will not address that request here. Pursuant to

the local rules, the Court shall “enter an order directing the parties to confer and to attempt to

reach agreement on fee issues” and shall set a status conference at which the Court will (1)



                                                26
determine whether settlement of any and or all aspects of the fee matter has been reached, (2)

enter judgment for any fee on which agreement has been reached, (3) make the determination

regarding pending appeals required by paragraph (b) of LCvR 54.2, and (4) set an appropriate

schedule for completion of the fee litigation.

V.     CONCLUSION

       For the foregoing reasons, defendant’s Motion for Summary Judgment will be DENIED

and plaintiff’s Motion for Summary Judgment will be GRANTED. Defendant is ordered to

disclose to plaintiff, in the form requested by plaintiff, all information requested in plaintiff’s

July 18, 2011, FOIA request submitted to CMS.

       A separate Order consistent with this Memorandum Opinion shall issue this date.

       Signed by Royce C. Lamberth, Chief Judge, on March 21, 2013.




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