author: MORITZ, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jakota Allen WOLFNAME, Defendant-Appellant.
    No. 15-8025
    United States Court of Appeals, Tenth Circuit.
    Filed August 26, 2016

      Howard A. Pincus, Assistant Federal Public Defender, (Virginia L. Grady, with him on the briefs) Office of the Federal Public Defender, Denver, Colorado, for Defendanb-Appellant.
    Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United States Attorney, and Kerry J. Jacobson, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Lander, Wyoming, for Plaintiff-Appellee.
    Before TYMKOVICH, Chief Judge, HARTZ and MORITZ, Circuit Judges.
   MORITZ, Circuit Judge.

In this case, the parties ask us to decide whether assault is an element of every conviction under 18 U.S.C. § 111(a)(1) — a statute that prohibits forcibly resisting, opposing, impeding, intimidating, interfering with, or assaulting a federal officer engaged in the performance of his or her official duties.

As it turns out, however, an earlier panel of this court has already answered that question. See United States v. Hathaway, 318 F.3d 1001, 1007-10 (10th Cir. 2003) (defining each of § Ill’s proscribed offenses based on the type of assault involved). Thus, the district court in this case erred in failing to instruct the jury that to convict Jakota Wolfname of resisting or interfering with an officer under § 111(a)(1), the jury had to find that Wolf-name assaulted that officer.

But that doesn’t necessarily mean we can grant Wolfname a new trial. Because he failed to challenge the elements instruction below, we may reverse only if the district court’s failure to adequately instruct the jury satisfies our test for plain error. Under the facts of this ease, we conclude that it does. The error was clear and obvious under Hathaway. It affected Wolfname’s substantial rights. And it seriously affected the fairness, integrity, or public reputation of Wolfname’s trial. Accordingly, we reverse his conviction and remand for further proceedings.

Background

. While responding to an early-morning 911 call, Blaine Parnell — a police officer with the United States Bureau of Indian Affairs — attempted to arrest Wolfname on two outstanding tribal warrants. Parnell ordered Wolfname to put his hands behind his back. But Wolfname had other ideas: he took off running instead. Parnell gave chase and eventually caught up when Wolfname hit a barbwire fence. Both men went over the fence, and Wolfname struggled with Parnell as Parnell worked to subdue him. Parnell was eventually able to handcuff Wolfname. But not before Wolf-name managed to grab Parnell’s thumb and pull it towards Parnell’s wrist.

As the result of his flight from Parnell and the ensuing scuffle, a grand jury indicted Wolfname for “knowingly and forcibly assaulting], resisting], and interfering] with” Parnell while Parnell “was engaged in the performance of his official duties, which resulted in bodily injury to ... Parnell.” See § 111(a)(1), (b).

At trial, Wolfname didn’t dispute that he ran from Parnell. But he did testify that Parnell placed him in a chokehold once the two men ended up on the other side of the barbwire fence. As a result, Wolfname said, he was unable to breathe. And while Wolfname admitted that he grabbed Parnell’s hand, he denied that he intended to injure Parnell. Instead, Wolfname explained, “I just wanted to breathe, and that’s why I did that, pulled his arm from my neck.” R. vol. 3, 260.

Parnell, however, told a different story. He maintained that he put Wolfname in a headlock, not a chokehold. And he insisted that unlike a chokehold, a headlock only restricts a suspect’s movement; it doesn’t interfere with a suspect’s breathing. Besides, Parnell testified, Wolfname didn’t grab his thumb until after Parnell released him from the headlock.

At the close of evidence, the government asked the jury to convict Wolfname of “resisting, interfering [with], and assaulting” Parnell. R. vol. 3, 361. In doing so, it equated assault with being “willing to injure.” Id. at 362. The government also asked the jury to find that Wolfname made physical contact with, and inflicted bodily injury upon, Parnell.

The government got most of what it asked for. The jury found Wolfname guilty of resisting and interfering with Parnell in violation of § 111(a)(1). It also found that Wolfname made physical contact with Parnell. But the jury wrote, “No,” next to the assault option on the verdict form. R. vol. 2, 11. And despite testimony from Parnell and his orthopedic surgeon indicating that Parnell suffered damage to a ligament in his thumb during the struggle, the jury also declined to find that Wolfname inflicted bodily injury on Parnell.

The district court imposed a 24-month prison sentence. Wolfname appeals.

Discussion

On appeal, Wolfname argues that we should reverse his conviction because the district court erred in failing to instruct the jury on assault as an element of resisting and interfering with an officer under § 111(a)(1). But Wolfname didn’t raise this argument below. So we review only for plain error. See United States v. Makkar, 810 F.3d 1139, 1144 (10th Cir. 2015). Under our plain-error test, we can reverse Wolfname’s conviction only if (1) an error occurred; (2) the error was plain; (3) the error affected Wolfname’s substantial rights; and (4) the error “seriously affected the fairness, integrity, or public reputation of a judicial proceeding.” Id.

I. The district court erred in failing to instruct the jury that assault is an element of resisting or interfering with an officer under § 111(a)(1).

Wolfname argues that common-law assault, i.e., an attempt or threat to injure Parnell, was an essential element of his conviction for resisting and interfering with an officer under § 111(a)(1). Thus, he maintains, the district court erred in failing to instruct the jury on that element. In support, Wolfname cites United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).

In Hathaway, the issue before us was whether § 111 sets forth separate offenses with separate elements, or whether § 111 instead contains a single offense and separate sentencing factors. See id. at 1006 (explaining that unlike sentencing factors, “elements must be charged in the indictment, submitted to a jury, and proven by the [government beyond a reasonable doubt.” (quoting Jones v. United States, 526 U.S. 227, 232, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999))). The version of § 111(a) at issue in Hathaway provided:

(a) In general. — Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [certain individuals] while engaged in or on account of the performance of official duties ...
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than three years, or both.

Id. at 1005 (emphasis added) (quoting § 111 (2000)).

Citing Jones, we easily concluded that § 111(a) proscribes two separate offenses — a misdemeanor offense and a felony offense — “each element of which must be charged in the indictment and proven to the jury beyond a reasonable doubt.” Id. at 1107. Then we moved on to the more difficult task: delineating those elements. That endeavor, we pointed out, turned primarily on the definitions of two phrases: “simple assault” and “all other cases.” Id.

First, we defined “assault,” in relevant part, as “a willful attempt to inflict injury upon the person of another, or ... a threat to inflict injury upon the person of another.” Id. at 1008 (quoting United States v. Joe, 831 F.2d 218, 220 (10th Cir. 1987)). Next, we defined “simple assault” as assault (i.e., an attempt or threat to injure) that “does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit murder or any felony other than those referred to in § 113(a)(2).” Id. .

Finally, with this definition of “simple assault” in hand, we defined § lll(a)’s two offenses. Critically — at least for purposes of analyzing Wolfname’s argument in this case — we did so based on the type of assault involved in each. First, there’s a misdemeanor § 111(a) violation. This offense requires proof of simple assault, i.e., “assault which does not involve actual physical contact, a deadly or dangerous weapon, bodily injury, or the intent to commit” certain felonies. Id. Second, there’s a felony § 111(a) violation. That offense requires proof of “all other cases” assault, i.e., “any assault that involves actual physical contact or the intent to commit [certain felonies] but does not involve a deadly or dangerous weapon or bodily injury.” Id. at 1008-09.

Based on this analysis, Wolfname argues that Hathaway made assault an essential element of every § 111(a)(1) offense. We agree. True, we didn’t explicitly state in Hathaway that the government must prove assault when it alleges a defendant violated § 111(a)(1) by resisting, opposing, impeding, intimidating, or interfering with — rather than assaulting — an officer. But that holding is implicit in what we did say.

In Hathaway, we set out to “determine the elements of the offense or offenses proscribed by § 111(a).” Id. at 1006. We then divided § 111(a) into two offenses: a misdemeanor and a felony. Finally, we defined each of those offenses based on the type of assault involved. See id. at 1009 (“[T]he only difference between a felony offense and a misdemeanor offense under § 111(a) is the nature of the assault.”). Because a § 111(a)(1) conviction for resisting, opposing, impeding, intimidating, or interfering must fall into one of these two categories, a conviction for any of these acts necessarily involves — at a minimum— simple assault. Accordingly, assault is necessarily an element of any § 111(a)(1) conviction under Hathaway.

This conclusion should come as no surprise; we’re hardly the first to reach it. In fact, at least three of our sister circuits have concluded that Hathaway “leaves no room for a [§ 111(a)] conviction that does not involve at least some form of assault.” United States v. Chapman, 528 F.3d 1215, 1219 (9th Cir. 2008). Accord United States v. Green, 543 Fed.Appx. 266, 272 n.9 (3d Cir. 2013) (unpublished) (interpreting Hathaway as “finding some assaultive conduct required to violate § 111”); United States v. Davis, 690 F.3d 127, 135 (2d Cir. 2012) (citing Hathaway as example of ease that treats assaultive conduct as essential element of any § 111(a) misdemeanor conviction). Yet despite this consensus, the government resists this reading of Hathaway. In support, it advances three general arguments.

First, the government argues that the Hathaway court was only required to decide the elements of § 111(a)(1) assault, not the elements of § 111(a)(1) resisting, opposing, impeding, intimidating, or interfering. This is so, the government says, because the defendant in Hathaway conceded that we could sustain his conviction for misdemeanor assault under the statute. Thus, the government asserts, we had no reason to address how § 111(a)(1) might define a conviction based on any of the other prohibited acts.

We disagree. It’s not at all clear that the defendant’s concession in Hathaway was as specific as the government suggests. Instead, it appears the defendant only generally conceded there that we could sustain a misdemeanor conviction under the statute — not a misdemeanor conviction for assault. See 318 F.3d at 1010 (“[The defendant] does not contend that he was not validly convicted of violating § 111(a); instead, he argues that in light of the deficient indictment, the district court could only have viewed his conviction as one for the misdemeanor.”). Moreover, the indictment in Hathaway alleged that the defendant assaulted, resisted, opposed, impeded, intimidated, and interfered with the victim. Id. at 1004. Thus, in holding that the indictment was “insufficient to allege a felony violation of § 111(a)(1),” the question of how to define a felony conviction based on each of those acts was squarely before us. Id. at 1010.

Next, the government directs our attention to two unpublished Tenth Circuit cases: United States v. Waweru, 628 Fed.Appx. 608 (10th Cir. 2015), and United States v. Dale, 539 Fed.Appx. 880 (10th Cir. 2013). According to the government, we affirmed the defendants’ § 111(a)(1) convictions in both of these cases despite the absence of “conduct that was ... charged or proven as ‘assault.’ ” Aplee. Br. 21. Thus, the government deduces, assault cannot be an element of every § 111(a)(1) conviction under Hathaivay, if it were, this court would have reversed the defendants’ convictions in Waweru and Dale.

But as the government conceded at oral argument, it doesn’t appear that the defendant in Waweru ever argued that assault was an element of his conviction under Hathaway. The same is true in Dale. Nor does it appear that we considered the question sua sponte in either case. Thus, these cases wouldn’t be precedential even if they were published. See 10th Cir. R. 32.1(A) (noting that unpublished decisions aren’t precedential); Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 1073, 1084 (10th Cir. 2011) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” (quoting Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925))).

Finally, the government makes a last-ditch effort: it argues that adopting Wolf-name’s reading of Hathaway will result in an interpretation of § 111 that (1) renders some of the statute’s language superfluous; (2) is inconsistent with other circuits’ interpretation of the statute; and (3) contradicts legislative intent.

But even assuming the government could win that particular battle, it would still lose the war. That’s because even if the government’s assertions are true, it doesn’t mean that Wolfname’s interpretation of Hathaway is incorrect. At best, it means that Hathaway’s interpretation of § 111 is incorrect. And even if we assume that’s the case, we lack authority to overrule Hathaway’s interpretation of § 111 absent en banc review or an intervening Supreme Court decision. See United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014). In short, we are bound by Hathaway. And Hathaway makes assault — i.e., an attempt or threat to injure — an element of every § 111(a) violation under the version of the statute then in effect.

Of course, that doesn’t necessarily mean that the instruction in this case was deficient. As both parties point out, Congress subsequently amended § 111(a) in 2008. And according to the government, the 2008 amendment clarified “that proof of an underlying technical assault is not required for a conviction on the statute’s other five prohibited forms of forcible conduct.” Aplee. Br. 19.

We think that the amendment did just the opposite. In relevant part, the statute now reads:

(a) In general. — Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with [certain individuals] while engaged in or on account of the performance of official duties ...
shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

§ 111(a) (2008) (emphasis added).

Essentially, Congress amended § 111(a) to replace the phrase “in all other cases” with a slightly modified version of the definition we gave that phrase in Hathaway. Compare Hathaway, 318 F.3d at 1008-09 (defining “all other cases” to include “any assault that involves actual physical contact or the intent to commit” certain felonies), with Court Security Improvement Act of 2007, Pub. L. No. 110-177, 121 Stat 2534 (“striking ‘in all other cases’ and inserting “where such acts involve physical contact with the victim of that assault or the intent to commit another felony’ ”).

In short, the 2008 amendment didn’t controvert our holding in Hathaway, instead, it effectively codified it. Thus, Hathaway remains good law. And under Hathaway, assault is an element of any § 111(a)(1) offense. Accordingly, the district court erred in failing to instruct the jury that, to convict Wolfname of resisting or interfering with Parnell, it had to find that Wolfname attempted or threatened to injure him.

But that still doesn’t end our inquiry. Wolfname failed to raise his assault-is-an-element argument below. So we can only reverse his conviction if we conclude that the district court’s instructional error satisfies our plain-error test — i.e., if the instructional error (1) was plain; (2) affected Wolfname’s substantial rights; and (3) “seriously affected the fairness, integrity, or public reputation of a judicial proceeding.” Makkar, 810 F.3d at 1144. We turn to those matters next.

II. The instructional error was plain.

“An error is ‘plain’ if it is ‘clear or obvious’ under ‘current, well-settled law.’ ” United States v. Thornburgh, 645 F.3d 1197, 1208 (10th Cir. 2011) (quoting United States v. Whitney, 229 F.3d 1296, 1308-09 (10th Cir. 2000)). “In general, for an error to be contrary to well-settled law, either the Supreme Court or this court must have addressed the issue.” Id. (quoting United States v. Ruiz-Gea, 340 F.3d 1181, 1187 (10th Cir. 2003)).

According to the government, “neither the Supreme Court nor the Tenth Circuit has directly addressed” whether assault is an element of every § 111(a)(1) conviction, and the “circuits [that] have considered the matter are split.” Aplee. Br. 7. Thus, the government concludes, “there cannot be a finding of [plain] error.” Id. See United States v. Teague, 443 F.3d 1310, 1319 (10th Cir. 2006) (“If neither the Supreme Court nor the Tenth Circuit has ruled on the subject, we cannot find plain error if the authority in other circuits is split.”).

We agree with the government that the circuits are split on this issue. Compare Davis, 690 F.3d at 135-36 (requiring proof of assaultive conduct to support misdemeanor § 111(a) conviction for resisting), with United States v. Williams, 602 F.3d 313, 318 (5th Cir. 2010) (holding that misdemeanor § 111(a)(1) conviction for resisting doesn’t require proof of assaultive conduct). Likewise, we agree that if neither this court nor the Supreme Court has directly addressed a particular issue, then a circuit split on that issue weighs against a finding of plain error. See United States v. Story, 635 F.3d 1241, 1248 (10th Cir. 2011).

But that’s as far as our agreement with the government can extend because — contrary to the government’s assertion — we have, in fact, “directly addressed” this issue. Aplee. Br. 7. See Hathaway, 318 F.3d at 1005-10. In Hathaway, we explained that to resolve the issue before us, we had to “determine the elements of the offense or offenses proscribed by § 111(a).” 318 F.3d at 1006. We then held that some type of assault is an element of every § 111(a) conviction. See id. at 1009 (“[T]he only difference between a felony offense and a misdemeanor offense under § 111(a) is the nature of the assault” involved, (emphasis added)). And, as we discussed above, nothing in the 2008 amendment calls that holding into question.

Accordingly, the fact that other circuits are split on the issue of whether assault is an element of every § 111(a) conviction doesn’t prevent us from characterizing the error in this case as plain. See Teague, 443 F.3d at 1319 (stating that circuit split precludes finding of plain error if neither this court nor the Supreme Court has addressed the issue); see also Makkar, 810 F.3d at 1145 (reasoning that “another circuit’s commission of an error doesn’t necessarily and always ‘control’ the plain error inquiry” (quoting Ahidley, 486 F.3d at 1193 n.7)).

In short, an error is plain if it is “contrary to well-settled law.” Thornburgh, 645 F.3d at 1208 (quoting Ruiz-Gea, 340 F.3d at 1187). Because Hathaway is well-settled law in this circuit, the district court’s failure to instruct the jury in accord with Hathaway amounts to plain error. See id.

III. The instructional error affected Wolfname’s substantial rights and the fairness, integrity, or public reputation of a judicial proceeding.

For purposes of our plain-error test, “[a]n error seriously affects the defendant’s substantial rights ... when the defendant demonstrates ‘that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.’ ” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014) (quoting United States v. Mendoza, 698 F.3d 1303, 1310 (10th Cir. 2012)). “A reasonable probability is a probability sufficient to undermine confidence in'the outcome.” Id. (quoting United States v. Hasan, 526 F.3d 653, 665 (10th Cir. 2008)).

Here, the district court failed to instruct the jury that to convict Wolfname of resisting or interfering with Parnell, it had to find that Wolfname assaulted, i.e., attempted or threatened to injure, him. See Hathaway, 318 F.3d at 1008 (defining assault). And, but for that error, we agree that there is a reasonable probability the jury would have reached a different verdict. After all, Wolfname unequivocally denied that he intended to injure Parnell. Instead, Wolfname testified, he only grabbed Parnell’s hand and pulled Parnell’s arm away from his neck so that he could breathe. Critically, after hearing this testimony, the jury declined to convict Wolfname of assaulting Parnell — even after the prosecutor equated assault with being “willing to injure.” R. vol. 3, 362. These facts, standing alone, are sufficient to undermine our confidence in the verdict. See Rosales-Miranda, 755 F.3d at 1258 (quoting Hasan, 526 F.3d at 665).

Nevertheless, despite the jury’s refusal to convict Wolfname of assaulting Parnell, the government maintains that the district court’s failure to instruct the jury that assault was an element of resisting and interfering with Parnell didn’t affect Wolf-name’s substantial rights. First, the government points out that in convicting Wolf-name, the jury necessarily found that he acted forcibly, i.e., that he used, attempted to use, or threatened to use physical force. Second, it argues that Wolfname did, in fact, injure Parnell.

But a finding that Wolfname used force (or attempted or threatened to use it) isn’t the same as a finding that Wolfname attempted or threatened to inflict injury. Likewise, a finding that Wolfname actually injured Parnell doesn’t necessarily equate with a finding that Wolfname intended to injure him. Moreover, the jury explicitly rejected the government’s assertion that Wolfname injured Parnell. Accordingly, we agree with Wolfname that the district court’s erroneous failure to instruct the jury on the element of assault affected his substantial rights.

It also affected the fairness, integrity, or public reputation of the trial. True, a district court’s failure to instruct the jury on an essential element of the crime charged won’t always satisfy the fourth prong of the plain-error test. See, e.g., Johnson v. United States, 520 U.S. 461, 469-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (declining to reverse under fourth prong of plain-error test because, even assuming failure to instruct on element of offense affected defendant’s substantial rights, evidence supporting omitted element was overwhelming and uncontrovert-ed). But here, the evidence of the omitted element — that Wolfname threatened or attempted to injure Parnell — was neither overwhelming nor uncontroverted. Thus, we agree that reversal is appropriate.

Conclusion

The circuits may be split on the meaning of § 111. But they’re not split on the meaning of Hathaway. That opinion, as the Ninth Circuit has pointed out, “leaves no room for a [§ 111(a)] conviction that does not involve at least some form of assault.” Chapman, 528 F.3d at 1219. Accord Green, 543 Fed.Appx. at 272 n.9; Davis, 690 F.3d at 135. Moreover, our analysis in Hathaway appears not only to have survived the 2008 amendment to § 111(a), but perhaps to have inspired it. See 153 Cong. Rec. S15789-01 (daily ed. December 17, 2007) (statement of Sen. Kyi) (indicating that 2008 amendment “codified]” Hathaway’s “thoughtful explanation” regarding meaning of phrase “in all other cases”). Accordingly, the district court’s failure to instruct the jury on the essential element of assault constitutes plain error. And because that plain error affected Wolfname’s substantial rights and the fairness, integrity, or public reputation of his trial, we reverse Wolfname’s conviction and remand for further proceedings.

      . We also indicated that § 111(b) proscribes a third (felony) offense: one that involves assault with a deadly or dangerous weapon or assault that causes bodily injury. Hathaway, 318 F.3d at 1007-09.

        . In fact, neither case even cites Hathaway.

      . Although the government doesn’t explicitly argue as much in asserting that the instructional error isn’t plain, circuits are also split on the meaning of the 2008 amendment itself. Compare Davis, 690 F.3d at 136 (concluding that amendment itself demonstrates Congress’ intent to require proof of assaultive conduct), with Williams, 602 F.3d at 317 (concluding that amendment “supports the conclusion that § 111(a)(1) prohibits more than assault, simple or otherwise”); see also United States v. Gagnon, 553 F.3d 1021, 1025 n.4 (6th Cir. 2009) (stating that 2008 “amendment does little to clarify ... whether § 111 is limited only to assaults or includes all the actions spelled out in § 111(a)”). We decline to rely on this circuit split as persuasive evidence that the error in this case isn't plain for two reasons. First, both the Sixth Circuit in Gag-non and the Fifth Circuit in Williams were writing on a clean slate; neither had to take Hathaway’s analysis into account in interpreting the 2008 amendment. Second, in discussing the amendment, both the Sixth Circuit in Gagnon and the Fifth Circuit in Williams elided Congress’ use of the phrase "involve[s] physical contact with the victim of that assault.” Court Security Improvement Act of 2007, Pub. L. No. 110-177, 121 Stat 2534 (emphasis added). In fact, the Gagnon court went so far as to replace that phrase with ellipses in quoting the amended version of the statute. 533 F.3d at 1025 n.4. Because this phrase unambiguously expresses that assault is an element of every felony § 111(a) conviction, a circuit split on the issue wouldn't dissuade us from finding plain error even if the government had preserved this argument. See United States v. Ahidley, 486 F.3d 1184, 1193 and n.7 (10th Cir. 2007) (finding plain error despite circuit split because statutory language was unambiguous); Anderson v. U.S. Dep't of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005) ("The failure to raise an issue in an opening brief waives that issue.”).

      . The government doesn’t suggest that it alleged, let alone proved, that Wolfname threatened to injure Parnell. Accordingly, we limit our inquiry to its allegation that Wolfname attempted to injure him.


source: Caselaw Access Project

author: EBEL, Circuit Judge.

license: Public Domain

text:
    Blake BROWN; Dean Biggs; Jacqueline Deherrera; Ruth Ann Head; Marlene Mason; Roxanne McFall; Richard Medlock; Bernadette Smith, Plaintiffs-Appellants, v. Thomas E. PEREZ, Secretary of Labor; United States Department of Labor, an agency of the United States; Office of Workers Compensation, an agency of the United States Department of Labor, Defendants-Appellees.
    No. 15-1023
    United States Court of Appeals, Tenth Circuit.
    Filed August 29, 2016
    As Amended on Rehearing November 8, 2016.

      John S. Evangelisti (Karen Larson, with him on the brief), Denver, Colorado, for Plaintiffs-Appellants.
    Steve Frank, Attorney, Appellate Staff (Benjamin Mizer, Principal Deputy Assistant Attorney General, John F. Walsh, United States Attorney, Office of the United States Attorney, Denver, Colorado, and Leonard Schaitman, Attorney, Appellate Staff, U.S. Department of Justice, with him on the brief), U.S. Department of Justice, Washington, D.C., for Defendants-Appellees.
    Before TYMKOYICH, Chief Judge, EBEL, and PHILLIPS, Circuit Judges.
   EBEL, Circuit Judge.

Plaintiffs-Appellants Blake Brown, Dean Biggs, Jacqueline Deherrera, Ruth Ann Head, Marlene Mason, Roxanne McFall, Richard Medloek, and Bernadette Smith (“Plaintiffs”) appeal a summary judgment order upholding Defendants-Appellees Thomas E. Perez, Secretary of Labor, United States Department of Labor, and the Office of Workers Compensation’s (“OWC”) (collectively, “the agency”) redactions to documents they provided to Plaintiffs pursuant to the Freedom of Information Act, (“FOIA”), 5 U.S.C. § 552. Because FOIA does not require an agency to recreate records, we affirm in part, pertaining to the denial of relief to Appellants on the claimed screenshots.- But because we also find that the FOIA exemptions invoked by the agency raise genuine disputes of material fact, we reverse in part and remand for further proceedings.

I. BACKGROUND

Plaintiffs are former federal civilian employees eligible to receive federal workers compensation benefits. See Federal Employees’ Compensation Act, (“FECA”), 5 U.S.C. §§ 8102(a), 8103(a), 8133. The relevant federal workers compensation program is administered by the OWC, a subdivision of the Department of Labor. To receive benefits under that program, an injured worker must show a qualifying medical condition supported by a physician’s opinion. If there is a disagreement between a worker’s treating physician and the second-opinion physician hired by the OWC, an impartial “referee” physician is selected to resolve the conflict. 5 U.S.C. § 8123(a); see also 20 C.F.R. § 10.321. The referee’s opinion is frequently dispositive of the benefits decision.

To ensure impartiality, it is the OWC’s official policy to use a software program to. schedule referee appointments on a rotational basis from a list of Board-certified physicians. Div. of Fed. Emp. Comp., Dep’t of Labor, FECA Pro. Man. ch. 3-500 §§ 4-6. When an appointment is needed, the software program searches that list for physicians who practice within twenty-five miles of the injured worker’s zip code. Id. If, upon inquiry, every nearby physician proves unwilling or unable to accept the appointment, the scheduling program expands its geographic search radius and continues to search until an available referee is found. Id.

Plaintiffs, however, suspect that the OWC does not adhere to its official policy, but instead always hires the same “select few” referee physicians, who are accordingly financially beholden — and presumably sympathetic — to the agency. Aplt. Br. 7. In support of that contention, Plaintiffs point to evidence that a certain orthopedic physician has repeatedly been selected to evaluate workers in distant zip codes, despite the presence of closer physicians of the same specialty.

To investigate their suspicions, Plaintiffs filed FOIA requests for agency records pertaining to the referee selection process. Although the Plaintiffs’ individual requests differed slightly, they generally focused on the statistics for referee appointments for orthopedic physicians in Colorado over the previous ten years. In order to target future FOIA requests more effectively, Plaintiffs also requested screenshot printouts showing how the menus of the OWC’s scheduling software would appear on a user’s computer screen.

In response, the agency released various redacted reports generated by its scheduling software. As relevant to this appeal, the reports contain information regarding the total number of times physicians in the identified specialties have served as referees or have been bypassed, as well as lists showing the patient and date of each referee evaluation performed by the selected physicians within certain timeframes. In general, the physicians’ and injured workers’ names, addresses, and other identifiers are redacted, although the injured workers’ zip codes remain visible. The agency declined to provide printouts of the scheduling program’s on-screen menus.

Dissatisfied with that response, Plaintiffs filed this suit challenging the agency’s redactions of the doctors’ names and addresses from four specific types of reports, as well as the agency’s withholding of screen printouts. Plaintiffs contend that they cannot verify their suspicions about the OWC’s scheduling practices unless they know how often each physician has been assigned to examine patients outside his or her zip code. For its part, the agency argues that the doctors’ names and addresses are exempt from release under FOIA Exemptions 4 and ,6, and that it cannot be required under FOIA to create records — such as the requested screen printouts — that it does not already maintain. On cross motions for summary judgment, the district court found in favor of the OWC on all grounds. Plaintiffs now appeal.

II. DISCUSSION

A. FOIA Standard of Review

FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep’t of Navy, 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). “FOIA is to be broadly construed in favor of disclosure, and its exemptions are to be narrowly construed.” Audubon Soc’y v. U.S. Forest Serv., 104 F.3d 1201, 1203 (10th Cir. 1997). “The government bears the burden of demonstrating the requested records fall within one of FOIA’s enumerated exemptions .... ” Prison Legal News v. Executive Office for U.S. Attorneys, 628 F.3d 1243, 1247 (10th Cir. 2011). The agency redac-tions at issue in this appeal implicate two exemptions: Exemption 4, which applies to confidential commercial information, and Exemption 6, which applies to personnel, medical, and similar files whose disclosure would constitute a clearly unwarranted invasion of personal privacy. See 5 U.S.C. § 552(b)(4), (6).

“Whether a FOIA exemption justifies withholding a record is a question of law that we review de novo.” Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007); 5 U.S.C. § 552. “Because this appeal arises from a grant of summary judgment in favor of the [the agency], we review the record and all reasonable inferences to be drawn therefrom in the light most favorable to [Plaintiffs].” Id. As always, summary judgment is only appropriate “if the [agency] shows that there is no genuine dispute as to any material fact and the [agency] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

B. Exemption 4 (Confidential Commercial Information)

Exemption 4 protects “trade secrets and commercial or financial information [that is] obtained from a person and [is] privileged or confidential.” 5 U.S.C. § 552(b)(4). “If not a trade secret, for Exemption 4 to apply the information must be ‘(a) commercial or financial, (b) obtained from a person, and (c) privileged or confidential.’ ” Anderson v. U.S. Dep’t of Health & Human Servs., 907 F.2d 936, 944 (10th Cir. 1990) (quoting Nat’l Parks and Conserv. Ass’n v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974)). The agency invokes this exemption on behalf of Elsevier, Inc. (“El-sevier”), the company that licenses to the agency the list of Board-certified physicians referenced by the agency’s scheduling software. Plaintiffs challenge whether the referees’ redacted names and business addresses are (1) commercial and (2) confidential.

1. Commercial

“FOIA does not define the term ‘commercial,’ so courts have given the term its ordinary meaning.” New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43, 49 (1st Cir. 2015); see also Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189, 1194 (9th Cir. 2011) (same). Consequently, “[t]he exemption reaches ... broadly and applies (among other situations) when the provider of the information has a commercial interest in the information submitted to the agency.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 319 (D.C. Cir. 2006); see also Am. Airlines, Inc. v. Nat’l Mediation Bd., 588 F.2d 863, 870 (2d Cir. 1978) (“ ‘Commercial’ surely means pertaining or relating to or dealing with commerce.”).

Here, the information at issue— namely, the physicians’ names and addresses — is provided to the agency by El-sevier as a component of a database that Elsevier licenses to the agency for an annual fee. Because the redacted information is part of the data that Elsevier compiles, maintains, and ultimately sells as a product, it is safe to say that Elsevier has a “commercial interest” in that information. See Baker & Hostetler, 473 F.3d at 319.

2. Confidential

“The first step in an Exemption Four [confidentiality] analysis is determining whether the information submitted to the government agency was given voluntarily or involuntarily.” Utah v. U.S. Dep’t of Interior, 256 F.3d 967, 969 (10th Cir. 2001) (citing Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 878-79 (D.C. Cir. 1992)). In this case, the parties agree that the submission at hand was an involuntary one. “Since the submission was involuntary, the information is protected from disclosure by FOIA if disclosure will either: ‘(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.’” Id. (quoting Nat’l Parks, 498 F.2d at 770) (emphasis added).

As to the first alternative prong, “when dealing with a FOIA request for information the provider is required to supply, the governmental impact inquiry will focus on the possible effect of disclosure on its quality.” Critical Mass, 975 F.2d at 878 (“While ... the governmental interest is unlikely to be implicated where the production of information is compelled, ... there are circumstances in which disclosure could affect the reliability of such data.”). Id. Neither party puts forth evidence or argument addressing whether disclosure will affect the quality or reliability of Elsevier’s list of Board-certified doctors. Accordingly, this prong bears no weight in our analysis.

As. to the second alternative prong, “all that the parties need show ... is actual competition and the likelihood of substantial competitive injury.” Utah, 256 F.3d at 970 (quotation omitted). “Although conclusory and generalized allegations of substantial competitive harm are unacceptable and cannot support an agency’s decision to withhold requested documents, actual economic harm need not be proved; evidence demonstrating the existence of potential economic harm is sufficient.” Id. (quotation, alteration omitted).

The agency asserts that Elsevier would suffer competitive injury because the disclosure of some of the information contained in its database would devalue the database. As the party with “the burden of persuasion at trial, [the agency] must support its motion with credible evidence ... that would entitle it to a directed verdict if not controverted.” Anderson, 907 F.2d at 947 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Here, the agency’s only evidence supporting its assertion is a letter that Elsevier sent the OWC two years after the Plaintiffs’ FOIA requests, objecting to the disclosure of an unspecified type and quantity of information from its database. See App. 917-18 (“We must object to any disclosure of the physician data requested, under Exemption 4 of the FOIA.... The entire database of ABMS physicians is confidential, commercial information. Disclosure under FOIA would cause irreparable financial harm.”).

Plaintiffs, however, object to that letter. We agree with Plaintiffs that the letter is hearsay: “It is an out-of-court written statement ... now offered to prove the truth of the matter asserted”— viz., that Elsevier will suffer competitive injury from release of its database information. See Herrick v. Garvey, 298 F.3d 1184, 1191 (10th Cir. 2002); Fed. R. Evid. 801(c). Yet, the agency fails to identify any applicable hearsay exception. Consequently, the letter would be inadmissible at trial. See id.; Fed. R. Evid. 802.

“To determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury.” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006); see also Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1541 (10th Cir. 1995) (“It is well settled in this circuit that we can consider only admissible evidence in reviewing ... summary judgment.”). “This does not mean that [summary judgment] evidence must be submitted ‘in a form that would be admissible at trial.’ ” Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 5.Ct. 2548, 91 L.Ed.2d 265 (1986)). “Parties may, for example, submit affidavits ...” despite the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the evidence may ultimately be presented at trial in an admissible form. Argo, 452 F.3d at 1199. Nonetheless, “the content or substance of the evidence must be admissible.” Id. (quoting Thomas v. IBM, 48 F.3d 478, 485 (10th Cir. 1995)). “The requirement is that the party submitting the evidence show that it will be possible to put the information, the substance or content of the evidence, into an admissible form.” 11 James Wm. Moore et al., Moore’s Federal Practice-Civil § 56.91 (3d ed. 2015) (collecting cases); see also Fed. R. Civ. P. 56(c)(2) adv. comm. cmt. (“The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated.”); Johnson v. Weld Cty., 594 F.3d 1202, 1210 (10th Cir. 2010) (declining to consider hearsay statements that proponent failed to show could be presented in admissible form).

Here, the agency neglects to show that it could put the substance of the letter into an admissible form. No representative of Elsevier has filed an affidavit in this case, and the agency’s affidavit does not suggest that a representative of Elsevier would testify to the letter’s competitive injury assertions at trial. See Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (“The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial.”). In fact, although the agency now attempts to sidestep its previous admission, the agency conceded before the district court that the letter did not refer to Plaintiffs’ FOIA requests, but rather was received in response to other FOIA requests, which sought access to Elsevier’s entire database. Because the agency has not shown that the letter or its contents would be admissible at trial, we may not consider it on summary judgment. See Johnson, 594 F.3d at 1210 (declining to consider hearsay statements where proponent failed to present affidavits showing that the statements could be replaced with live testimony by the declarants at trial); Herrick, 298 F.3d at 1192-93 (declining to consider inadmissible hearsay evidence when ruling on the government’s FOIA summary judgment motion).

Absent that letter, the record is devoid of evidentiary support for the agency’s assertion. And, of course, as the moving party, the agency is not entitled to an inference that Elsevier would object to the release of the particular information at issue in this case. See Anderson, 907 F.2d at 947.

Furthermore, it remains an open question whether Elsevier even could successfully object to disclosure of the physicians’ names and addresses. When “materials ... appear to be in the public domain, no meritorious claim of confidentiality can be made.” Id. at 952 (citing CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) (“To the extent that any data requested under FOIA are in the public domain, the submitter is unable to make any claim to confidentiality— a sine qua non of Exemption 4.”)). Elsevier licenses the physician list included in its database from the American Board of Medical Specialists (“ABMS”). Plaintiffs put forth evidence showing that the ABMS public website makes physicians’ names and business addresses freely available and searchable by zip code and specialty online. Although the agency disputes the breadth and accuracy of the list provided on the ABMS website, some of its arguments improperly rely on extra-record evidence, and the remainder of its evidence is insufficient to prevail on summary judgment. See W. Coast Life Ins. Co. v. Hoar, 558 F.3d 1151, 1157 (10th Cir. 2009) (“In reviewing a grant of summary judgment, our inquiry is limited to the summary judgment record before the district court when the motion was decided.”); Anderson, 907 F.2d at 947.

Accordingly, we conclude that genuine disputes of material fact regarding the public availability of the redacted data and potential commercial harm to Elsevier remain outstanding. See Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016) (“An issue is genuine if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is material if under the substantive law it is essential to the proper disposition of the claim.” (quotations and citations omitted)). Therefore, summary judgment in the agency’s favor on Exemption 4 was improper. Cf. Anderson 907 F.2d at 946 (assessing whether questions of fact regarding confidentiality precluded summary judgment on Exemption 4).

C. Exemption 6 (Personal Privacy)

Exemption 6 protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(6). “In determining whether the release of such information would ‘constitute a clearly unwarranted invasion of personal privacy,’ we must balance ‘the public interest in disclosure against the privacy interest Congress intended the exemption to protect.’ ” Trentadue, 501 F.3d at 1233 (quoting Forest Guardians v. U.S. Fed. Emergency Mgmt. Agency, 410 F.3d 1214, 1218 (10th Cir. 2005)). “If there is an important public interest in the disclosure of information and the invasion of privacy is not substantial, the private interest in protecting the disclosure must yield to the superior public interest.” Forest Guardians, 410 F.3d at 1218 (quotation omitted). “If, however, the public interest in the information is virtually nonexistent or negligible, then even a very slight privacy interest would suffice to outweigh the relevant public interest.” Id. (quotation omitted). “The primary purpose of this exemption is to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information.” Prison Legal News v. Samuels, 787 F.3d 1142, 1147 (D.C. Cir. 2015) (quotations omitted).

The agency invokes this exemption on behalf of the referee physicians mentioned in the reports. Plaintiffs dispute (1) whether the reports satisfy Exemption 6’s “similar files” requirement, and (2) the weight of the referees’ privacy interest in the information contained in the reports.

1. Similar files

“‘Similar files’ refers broadly to ‘detailed Government records on an individual which can be .identified as applying to that individual.’ ” Trentadue, 501 F.3d at 1232-33 (quoting U.S. Dep’t of State v. Wash. Post Co., 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982)); see also Forest Guardians, 410 F.3d at 1217 (“ ‘Similar files’ under Exemption 6 has a ‘broad, rather than a narrow, meaning’ and encompasses all information that ‘applies to a particular individual.’ ”) (quoting Wash. Post Co., 456 U.S. at 600, 602, 102 S.Ct. 1957). Because the redacted reports contain individual physicians’ contact information, as well as details of those physicians’ employment history with the federal government, they probably constitute “similar files” under Exemption 6. See Trentadue, 501 F.3d at 1233.

2. Privacy interest

In general, “[t]he type of privacy interests Congress intended to protect under Exemption 6 ‘encompass the individual’s control of information concerning his or her person.’ ” Forest Guardians, 410 F.3d at 1218 (quoting U.S. Dep’t of Def. v. FLRA, 510 U.S. 487, 500, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (internal alteration omitted)). However, “[t]he scope of a privacy .interest under Exemption 6 will always be dependent on the context in which it has been asserted.” Prison Legal News, 787 F.3d at 1147 (quoting Armstrong v. Exec. Office of the President, 97 F.3d 575, 581 (D.C. Cir. 1996)); see also Long v. Office of Pers. Mgmt., 692 F.3d 185, 191-92 (2d Cir. 2012) (“The analysis is context specific.”).

In seeking to establish the physicians’ privacy interests,' the agency relies on a set of cases holding that certain lists of names and addresses can implicate a privacy interest, even though that information may already be available to the public in some form. See, e.g., FLRA, 510 U.S. at 500, 114 S.Ct. 1006 (finding that nonunion agency employees’ privacy interest in preventing disclosure of their home addresses to union representatives was “not insubstantial”); Forest Guardians, 410 F.3d at 1219 (finding that property owners had “some privacy interest” in floodplain maps that could reveal their names, home addresses, and participation in a federal insurance program); Sheet Metal Workers Int’l Ass’n, Local No. 9 v. U.S. Air Force, 63 F.3d 994, 998 (10th Cir. 1995) (finding that federal contractor employees had a substantial privacy interest in preventing release of their payroll records).

Although “the federal courts have held that ... names and addresses qualify as potentially protectable ‘similar files’ under Exemption 6, the release of a list of names and other identifying information does not inherently and always constitute a ‘clearly unwarranted’ invasion of personal privacy.” News-Press v. U.S. Dep’t of Homeland Sec., 489 F.3d 1173, 1199 (11th Cir. 2007) (quoting 5 U.S.C. § 552(b)(6)); see U.S. Dep’t of State v. Ray, 502 U.S. 164, 176 n.12, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (“We emphasize ... that we are not implying that disclosure of a list of names and other identifying information is inherently and always a significant threat to the privacy of the individuals on the list.”). “Instead, ‘whether disclosure of a list of names is a significant or a de minim-is threat depends upon the characteristic(s) revealed by virtue of being on the particular list, and the consequences likely to ensue.’ ” News-Press, 489 F.3d at 1199 (quoting Ray, 502 U.S. at 176 n.12, 112 S.Ct. 541).

The agency, however, fails to address meaningful differences between the characteristics and consequences at issue in its cited cases, and those at issue here. For the following reasons, we conclude that the context-specific nature of the Exemption 6 inquiry precludes the agency’s cases from gaining much traction in this appeal.

First, the agency’s cited cases concerned home addresses. As the Supreme Court recognized in FLRA, “the privacy of the home ... is accorded special consideration in our Constitution, laws, and traditions.” 510 U.S. at 501, 114 S.Ct. 1006; see also Forest Guardians, 410 F.3d at 1221 (finding a privacy interest because “ ‘many people simply do not want to be disturbed at home,’ and “we are reluctant to disparage the privacy of the home’ ”) (quoting id.) (alterations omitted). That “special consideration,” however, is not implicated here: This case concerns business addresses. It is not intuitive to us that the referee physicians possess a cognizable privacy interest in their business addresses — after all, it is in their economic interests to make their office locations generally available to the public, so that patients can visit for evaluation and treatment. But the agency has not provided any testimony from physicians— or any other evidence — to support its assertion that treating physicians have a privacy interest in their business addresses. Of course, the agency is not entitled to such an inference in its favor.

Second, certain of those cases arose in the labor relations context. Accordingly, the courts were sensitive to the dangers— including exposure to harassment, pressure, or threats — inherent in revealing workers’ identities and addresses to potential adversaries. See, e.g., FLRA, 510 U.S. at 501, 114 S.Ct. 1006 (“Whatever the reason that these employees have chosen not to become members of the union or to provide the union with their addresses, ... it is clear that they have some nontrivial privacy interest in nondisclosure, and in avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure.”) (emphasis omitted); Sheet Metal Workers, 63 F.3d at 997-98 (expressing concern over “the wide range of use to which [the requested] information — a list of people engaged in the construction trade, broken into their particular occupational classification' — could be put”) (citation and quotation omitted). In that context, the consequences of disclosure are more apparent and may be substantial. Not so here. The agency identifies no risk of harassment, embarrassment, or other consequence that could ensue from disclosure of the referee physicians’ identities and business addresses. Nor does it put forth any evidence that could support such a finding.

Third, the remainder of the cases concerned disclosure of personal financial information in addition to names and addresses. See Forest Guardians, 410 F.3d at 1218 (“The privacy interest in an individual’s home address becomes even more substantial when that information ‘would be coupled with personal financial information.’ ”) (quoting Sheet Metal Workers, 63 F.3d at 997 (concerning payroll records)). For the first time on appeal, the agency contends that the requested reports implicate the physicians’ personal financial information.

Although we have discretion to affirm on any ground adequately supported by the record, the exercise of that discretion is guided by three considerations: (1) was the alternate ground “fully briefed and argued here and below”; (2) did the parties have “a fair opportunity to develop the factual record”; and (3) “whether, in light of factual findings to which we defer or uncontested facts, our decision would involve only questions of law.” Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004). Because the agency did not raise this argument before the district court, the first factor weighs against reaching it on appeal.

As to the second and third factors, it is beyond dispute that the four specific types of agency reports at issue in this appeal do not contain any financial information regarding either the cost of or payment for referee evaluations. At most, the reports disclose the total number of referee evaluations performed by each physician over certain timeframes. The agency contends the number of evaluations could be combined with information regarding physician payments in order to determine the income each physician has derived from performing referee evaluations. Cf. Consumers’ Checkbook Ctr. for the Study of Servs. v. U.S. Dep’t of Health & Human Servs., 554 F.3d 1046, 1048-51 (D.C. Cir. 2009) (finding that physicians had a substantial privacy interest in their Medicare claims because the claims could be combined with publically available Medicare procedure reimbursement rates to calculate the physicians’ fees). The agency, however, puts forth no evidence showing that referee exam reimbursement rates or payments are publically available. Because the agency’s financial information argument turns in substantial part on a question of fact — namely, the public availability of referee payments — for which there is scant relevant evidence in the record, the second and third factors also weigh against reaching that argument for the first time on appeal. Therefore, we do not consider the agency’s contention that the requested reports implicate the physicians’ personal financial information.

In sum, we conclude that, on this record, and given the meaningful differences between the context of this appeal and our previous Exemption 6 cases, genuine disputes of material fact regarding the scope of that referees’ privacy interest in their business addresses and referee history remain outstanding. Yet, without knowing the full scope of the privacy interest implicated, a court cannot properly perform the balancing test required by Exemption 6. Consequently, summary judgment in the agency’s favor on Exemption 6 was improper.-

D. Screenshots

FOIA’s duty of disclosure applies to electronic records and documents. See 5 U.S.C. § 552(f)(2) (defining “record” to “include[] any information that would be an agency record ... when maintained by an agency in any format, including an electronic format”); id. § 552(a)(3)(C) (“In responding ... to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format....”). But FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980); Forsham v. Harris, 445 U.S. 169, 186 (1980) (“FOIA imposes no duty on the agency to create records.” (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161-62 (1975) (holding that FOIA does not compel agencies to write or create material to explain disclosed documents))). Relying on that well-established principle, the district court held that FOIA did not compel Defendants to create and produce printouts of the menu screens displayed by its scheduling program.

Defendants claim on appeal that these screenshots are “existing electronic records,” (Aplt. Br. 55), but the district court accepted the agency’s contrary position that the screenshots “do not exist” because “screen shots are not created or maintained as part of the scheduling process.” Our review of the record leads us to conclude that the undisputed evidence is that such screenshots do not exist. (Aplt. App. 897, Decl. of Julia Trist, ¶ 28(i)). There is no contrary evidence that these images were electronically stored in such a way that would enable their recovery. Therefore, for the government to produce the requested printouts, it would have to open the software, input the relevant data, and recreate a screen image that could be captured and produced. Because FOIA does not require an agency to create records, the agency need not undertake that process. Accordingly, summary judgment on the request for screen printouts was proper, so we affirm on that issue.

III. CONCLUSION

For the foregoing reasons, we REVERSE in part, and AFFIRM in part, the district court’s grant of summary judgment and REMAND this case for proceedings consistent with this opinion.

      . Within a given zip code, the software first selects physicians who have not previously accepted a referee appointment (in alphabetical order), and then selects physicians who have previously accepted an appointment (in reverse chronological order of their most recent appointment date).

      . Specifically, Plaintiffs seek unredacted versions of the "Physician Activity Report,” "Physician Usage Report,” "Physician Prompt Pay Report,” and "Physician History Report.” Plaintiffs do not challenge the redaction of the injured workers' information.

      . "The filing of cross-motions for summary judgment does not necessarily concede the absence of a material issue of fact. This must be so because by the filing of a motion a party concedes that no issue of fact exists under the theory he is advancing, but he does not thereby so concede that no issues remain in the event his adversary’s theory is adopted.” Nafco Oil & Gas, Inc. v. Appleman, 380 F.2d 323, 324-25 (10th Cir. 1967); see also Eagle v. Louisiana & S. Life Ins. Co., 464 F.2d 607, 608 (10th Cir. 1972) ("Presentation of cross-motions for summary judgment does not concede the absence of a material issue of fact.”). Accordingly, "[cjross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.” Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)). "Even where the parties file cross motions pursuant to Rule 56, summary judgment is inappropriate if disputes remain as to material facts.” Id.

      . Inasmuch as there is no indication that El-sevier was required to license its database to the agency, the argument could be made that the submission of the physician data was vol- ' untary. But given that the parties agree that the submission was involuntary, we need not reach that issue.

      . Elsevier, however, has neither intervened in this case nor voiced any objection to disclosure on the record.

      . For that reason, even if we were to consider the letter, its probative value would be suspect. However, given that we do not consider the letter, we need not resolve the controversy over the letter’s relevance.

      . We further note that the agency has pointed the court to no record evidence showing that Elsevier faces actual competition in providing the physician information to the agency.

      . Although Plaintiffs also claim that ABMS will sell the list to the public for $895, they cite no record evidence supporting that claim.

      . Contrary to the agency's assertion, it is irrelevant that the ABMS website does not contain information regarding which physicians serve as referees for the OWC. Elsevier's database does not contain that information either. Exemption 4 only applies to the specific information that Elsevier submitted to the agency.

      . On appeal, the agency does not invoke the privacy interests of the injured workers listed in the reports, presumably because Plaintiffs do not challenge the redactions of those workers' identifying information.

      . See also Long, 692 F.3d at 191 ("Names and other identifying information do not always present a significant threat to an individual's privacy interest.”) (quotation omitted); Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006) ("The statute does not categorically exempt individuals’ identities, ... because the 'privacy interest at stake may vary depending on the context in which it is asserted.’ ”) (quoting Armstrong, 97 F.3d at 582).

      . See, e.g., Judicial Watch, 449 F.3d at 153 (finding a substantial privacy interest in light of evidence that researchers developing an abortion drug could be targeted for "abortion-related violence”); Ray, 502 U.S. at 177 n.12, 112 S.Ct. 541 (finding a significant privacy interest where unsuccessful undocumented immigrants could be "subject to possible embarrassment and retaliatory action” in their native countries).

      . In fact, the agency denied Plaintiffs’ FOIA requests for information regarding referee payments, and Plaintiffs do not challenge that denial.

      . The only record evidence arguably supporting the agency's contention that outside sources could be used to calculate the physicians’ incomes consists of what appears to be two online billing statements submitted by Plaintiffs. The Court’s best guess is that the documents are billing records for the referee evaluations of two of the plaintiffs (although all patient-identifying information has been redacted). The agency, however, has not pointed the Court to any record evidence explaining the documents, let alone evidence indicating whether those records are public or whether Plaintiffs could obtain similar records for other physicians. Such inconclusive evidence cannot carry the agency’s summary judgment burden. See Cordova v. Aragon, 569 F.3d 1183, 1191 (10th Cir. 2009) ("It is not our role to sift through the record to find evidence not cited by the parties to support arguments they have not made.").

      . ■ "[T]he only relevant 'public interest in disclosure’ to be weighed in [Exemption 6’s] balance is the extent to which disclosure would serve the 'core purpose of the FOIA,' which is 'contributing significantly to public understanding of the operations or activities of the government.' ” FLRA., 510 U.S. at 495, 114 S.Ct. 1006 (quoting U.S. Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 775, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989)). Because we find that the physicians’ privacy interest raises genuine questions of material fact that defeat summary judgment, we need not assess the weight of Plaintiffs’ asserted public interest.