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Divided COA: Workers’ comp insurance policy data confidential

October 24, 2017

A split panel of the Indiana Court of Appeals affirmed a trial court ruling that data the state collects on workers’ compensation insurance is confidential, but a dissenting judge called the majority’s decision “an open invitation to erode the transparency of governmental affairs.”

The Indiana Compensation Rating Bureau and the Indiana Worker’s Compensation Board petitioned Marion Superior Court and won a declaratory judgment that the data the agencies collect from employers on workers’ comp insurance coverage data is confidential.

Employers certified to provide workers’ compensation coverage are members of the Rating Bureau under I.C. § 27-7-2-3. The quasi-governmental entity collects workers’ comp insurance data and is intended to bar price-fixing and keep rates competitive, among other things. The Bureau uses a vendor, a Florida nonprofit called the National Council on Compensation Insurance, to facilitate data collection.

LexisNexis Risk Solutions, Inc., which compiles and sells business data, has had several disputes with Indiana agencies over the years when it sought information under the Access to Public Records Act. Some of that information may include premiums employers pay for coverage.

The trial court found, among other things: that the bureau didn’t maintain and wasn’t required to collect some of the information LexisNexis sought; that the plain statutory language makes proof of compliance data confidential; and that the court could not interfere with the board’s determination that the rating bureau’s public access web portal fulfilled its statutory requirements.

The Court of Appeals majority affirmed Tuesday in Risk Metrics Corporation. v. Indiana Compensation Rating Bureau and Indiana Worker's Compensation Board, 49A02-1609-PL-2083.

“In sum, LexisNexis asks that we impose a requirement on the Board to collect records and statistical policy data that the Indiana Code does not require the Board to collect; that we mandate that those records be filed directly with the Board when the Indiana Code leaves the form prescribed for such records to the discretion of the Board; and that we order the Board to maintain a database of those records that is redundant to the Rating Bureau’s database. We reject each of those propositions," Judge Edward Najam wrote in a majority decision joined by Judge Cale Bradford.

"We hold that the records sought by LexisNexis pursuant to APRA are confidential as a matter of law and, therefore, are not subject to disclosure, and we approve of the manner in which the Board has made (proof of coverage) data publicly available under its contract with the Rating Bureau,” Najam continued.

Dissenting Judge Patricia Riley rejected the majority’s interpretation and would reverse and award LexisNexis summary judgment on its APRA complaint.

“Unlike the majority, I find that I.C. § 22-3-5-2 unequivocally imposes on the Board a statutory duty to receive and collect the insurance information employers 'shall file with' the Board. Although the Board now, in blatant disregard of its duty, asserts that it no longer “want[s] or need[s] a copy of the [] data[,]' as it claims the limited access through the public web portal to be sufficient, the designated evidence of the T.R. 30(b)(6) witness confirms that the Board enjoys greater access to the proof of coverage data than the data accessible on the web portal,” Riley wrote.

“By concluding that because the Board does not presently create, receive, retain, or maintain the data requested by LexisNexis the Board is not subject to APRA, the trial court — and now the majority — truncated and ignored the plain statutory language of I.C. § 22-3-5-2, which mandates the Board to receive an employer’s proof of coverage filings,” Riley continued.  … In sum, the majority’s conclusion today amounts to an open invitation to erode the transparency of governmental affairs which is one of the fundamental bedrocks of the American constitutional form of representative government.”

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