March 13, 2008
FREEDOM OF INFORMATION UNDER THE INTERSTATE INSURANCE PRODUCT REGULATION COMPACT VERSUS CONNECTICUT LAW
By: Janet L. Kaminski Leduc, Senior Legislative Attorney
You asked how Connecticut's Freedom of Information Act compares to the Interstate Insurance Product Regulation Compact (“compact”) with respect to access to public records and if an insurer's product filings with the compact's commission are subject to the same disclosure as those made with the Connecticut Insurance Department.
The Office of Legislative Research is not authorized to render legal opinions and this report should not be considered one.
The compact is a multi-state agreement that creates a national public authority, the Interstate Insurance Product Regulation Commission (“commission”), to receive, review, and make regulatory decisions on insurance product filings according to national uniform standards that the participating states develop and adopt for life insurance, annuities, disability income, and long-term care insurance. For an overview of the compact, refer to OLR Research Report 2007-R-0637.
Article VIII of the compact requires the commission to promulgate rules establishing the conditions and procedures for the public's inspection and copying of its information and official records, except any relating to people's privacy and insurers' trade secrets. Similarly, Article X requires rules concerning access to product filing information that insurers' provide the commission. The commission adopted rules effective January 22, 2007 that are available online at http://www.insurancecompact.org/rulemaking_records/record_stnd_public_access_rule.pdf.
Connecticut's requirements for the public's inspection and copying of certain records, including those the Connecticut Insurance Department holds, are found in Title 1, Chapter 14 of the general statutes (FOIA).
While the compact's rules for public records follow a similar approach to public access as Connecticut's FOIA, there are differences between the two. For example, all requests for access to the compact commission's records must be in writing; the rules specifically prohibit verbal and e-mail requests. Conversely, FOIA appears to accommodate both verbal and written requests.
With respect to product filings, the compact exempts pending, withdrawn, and disapproved filings from disclosure. Pursuant to FOIA, the Connecticut Insurance Department makes all product filings, whether pending, withdrawn, disapproved, or approved, accessible to the public.
Both the compact and FOIA give a person who is denied access to records the right to appeal the decision. A person has to appeal within a certain period of time from the denial: 15 days under the compact, 30 days under FOIA. After the appeal process, a person may seek judicial review from a decision to deny access. Under the compact, the venue for judicial review is the jurisdiction where the commission's principal office is located, which is currently Washington, D.C. Under FOIA, judicial venue is Connecticut Superior Court.
A comparison of FOIA and the compact is presented in Table 1.
Table 1: Comparison of Connecticut FOIA Requirements to the Interstate Insurance Product Regulation Compact
Except as otherwise provided in state or federal law, all records that a public agency maintains or keeps on file must be public records, whether or not such records are required by law, rule, or regulation. (CGS § 1-210(a))
“Public records or files” means any recorded data or information relating to the conduct of the public's business prepared, owned, used, received, or retained by a public agency, or to which a public agency is entitled to receive a copy by law or contract under section 1-218 (entity performing governmental function), whether such data or information is handwritten, typed, tape-recorded, printed, photostated, photographed, or recorded by any other method.
(CGS § 1-200(5))
“Public record” means a record that is not exempt from inspection, examination, and copying under the Rule.
“Record” means an official record of the commission and a product filing.
“Official record” means any and all documents, papers, letters, books, audio, and video tapes, photographs, sound recordings, electronic data, or other material, regardless of physical form or characteristic, in the possession of the commission that were made or received in connection with the transaction of official business of the commission, other than a product filing.
“Product filing” means a filing an insurer submits to the commission for approval of a rate, product, or advertisement. (Rule §§ 101(c)-(f))
Trade secret exemption from public access requirement
Trade secrets are exempt from disclosure. “Trade secrets” are information, including formulas, patterns, compilations, programs, devices, methods, techniques, processes, drawings, cost data, or customer lists that (a) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from their disclosure or use, and (b) are the subject of efforts that are reasonable under the circumstances to maintain secrecy. (CGS § 1-210(b)(10)(A))
Information provided by an insurer, including but not limited to information provided in a product filing, that qualifies as a trade secret is exempt from inspection, examination, and copying.
(Rule § 103(b)(1))
“Trade secret” means any information, which may include, but is not limited to, a formula, pattern, compilation, program, device, method, technique or process, insurance actuarial formulas, statistics, supporting data, assumptions, underwriting guidelines, and credit scoring methodologies that (a) derive independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from their disclosure or use, and (b) are the subject of efforts that are reasonable under the circumstances to maintain their secrecy. (Rule § 102(h))
Product filing exemption from public access
No exemption. (The Connecticut Insurance Department makes all product filings, whether pending, disapproved, withdrawn, or approved, available upon request.)
Product filings that are pending approval, have been disapproved, or are withdrawn are exempt from inspection, examination, and copying.
(Rule § 103(b)(11))
Public inspection request; Response to request
Every person has the right to (1) inspect public records promptly during regular office or business hours; (2) copy such records with a hand-held scanner, subject to a copying fee; or (3) receive a copy of such records, subject to certain fees. Any agency rule or regulation (or part thereof) that conflicts with this requirement or curtails a person's rights as stated is void. Each agency must keep and maintain public records in its custody at its regular office or place of business in an accessible place, or other public location if the agency does not have such office or business place. (CGS § 1-210(a))
Any person applying in writing must receive, promptly upon receipt, a plain or certified copy of any public record, subject to certain fees.
(CGS § 1-212(a))
A public agency may require the prepayment of applicable fees if the fees are estimated to be $10 or more. (CGS § 1-212(c)
All of the commission's public records must be open to the public at the commission's principal office during regular office hours, subject to certain fees. (Rule § 103(a))
All requests for access to the commission's records must be in writing and be sent or delivered by mail, hand delivery, or facsimile. The commission shall not accept verbal or e-mail requests. (Rule § 103(c))
The custodian of the requested record must determine within 10 days of receipt of a request whether or not the information may be accessed. If the custodian needs additional time to make the determination, he or she must notify the person requesting information in writing.
(Rule § 104(a))
The commission must provide a space in its offices where a person requesting access to public records may inspect or examine records in person, upon appointment, during the commission's regular business hours. (Rule § 104(c))
Upon request and payment of the applicable fees, the commission must furnish a copy or certified copy of the public record. (Rule § 104(e))
The commission may, in its discretion, establish procedures to provide public access to public records contained in product filings through the Internet or other web-based application. The Commission may post any or all of its public records on its website, in which case it will not have to respond to a request for any such public record unless the person requesting access demonstrates an inability to access the public record through the website without undue hardship. (Rule § 108(a))
Denial of access
An agency that denies access to a record because of a statutory exemption must inform the person making the request in writing within four days of the request, except when the request is for certain personnel or medical files, in which case the agency denial must be in writing within 10 days of request. (CGS § 1-206)
If the custodian of requested records denies access to a record because the record is exempt from disclosure under the rule, he or she must notify the person making the request in writing within 10 working days of the request, or longer if more time is needed to make a determination of access. The denial notice must include why the information is exempt from disclosure.
(Rule § 104(b))
Appealing a denial
A person denied access may file a notice of appeal with the Freedom of Information Commission within 30 days from the denial. The FOI Commission must hear the appeal within 30 days from receiving it and make a decision on it within 60 days of the hearing. The law sets forth the things the FOI Commission must take into consideration when making its findings and determination. Any party aggrieved by an FOI Commission decision may seek judicial review in Superior Court. (CGS § 1-206(b))
If the custodian of the requested record denies access, a person may file a written notice of appeal with the commission within 15 working days of the mailing date of the custodian's decision. The person appealing must include in the notice the specific reasons he or she asserts that a record is subject to disclosure. If it does not, the appeal will be dismissed for lack of specificity, but the person may file a corrected notice within 15 days. If an appeal is not filed within the time permitted, the custodian's decision is final and binding. The commission's Appeals Committee, selected by the commission's management committee and made up of three commission members, must conduct a de novo review based on all relevant written materials the commission possesses. The Appeals Committee may, but is not required to, request oral testimony. Its decision must be (1) an affirmative vote of at least two of the three committee members and (2) issued in writing within 60 calendar days of the mailing date of the notice of appeal. The written decision must include the basis for the decision reached. Any party aggrieved by an Appeal Committee's decision may seek judicial review in the jurisdiction where the commission's principal office is located (currently Washington, D.C.). (Rule § 107)
Fees and services for which charges accrue
A state agency cannot charge more than 25 cents per page.
(CGS § 1-212(a)(1))
The fee for any copy of data that a state agency maintains in a computer storage system cannot exceed the cost to the agency to copy it to paper, disk, tape, or other electronic storage device or medium the person requests. In determining such fees, the agency may include only: (1) the amount equal to the hourly salary attributed to all agency employees involved in completing the request, including time to format or program data, except the fee cannot include search or retrieval costs incurred by agency staff; (2) the cost the agency pays an outside professional electronic copying service if such service is necessary to complete the request; (3) the actual cost of the storage devices or media provided to the person making the request; and computer time charges the agency incurs when another agency or contractor provides the agency with storage or retrieval services. (CGS §§ 1-212(b) and 1-211)
A state agency must waive fees when: (1) the person requesting information is indigent, (2) the requested records are exempt from disclosure, (3) complying with the request benefits the general welfare, or (4) the person requesting information is an elected official who (a) is obtaining the information from an agency of the political subdivision in which he or she serves and (b) certifies that the record pertains to his or her official duties. (CGS § 1-212(d))
The fee to certify a copy is $1 for the first page of a document and 50 cents for each additional page of the document. (CGS § 1-212(e))
An agency may establish a fee schedule, not to exceed $10, for allowing a person to copy a public record using a hand-held scanner.
(CGS § 1-212(g))
Copies of any records and any assistance from the commission personnel in locating or copying public records shall be charged to the person requesting the information. (Rule § 103(a))
Upon a request for public records, the commission must prepare an invoice reflecting the applicable charge based on the number of copies and any special service charges within 10 working days. (Rule § 105(a))
The commission must publish a fee schedule for copies of public records that must include charges for photocopies, postage, certified copies, and materials, as well as a service charge for personnel (including redaction time if information must be redacted from the records), programming, and computer time. The commission's executive director must determine the fees and publish them to the commission's website. All fees must be reasonable in relation to the service provided. (Rule § 1-105(b))
When the exact amount of fees cannot be determined in advance, they will be estimated and the person requesting the information will be required to pay 75% of the estimate before the commission will begin the work. The balance, adjusted to reflect actual charges incurred, is due upon the commission's completion of the work. (Rule § 105(c))
NOTE: At this time, there is no fee schedule published to the commission's website and, according to the executive director, the commission is not charging fees for information requested under the public access rule. They are responding to requests via electronic means. If the commission decides to begin charging for its services in the future, the executive director will develop and post a fee schedule in accordance with the rule and with notice to the public before implementing it.