FREEDOM OF INFORMATION COMMISSION |
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In the Matter of a Request for Declaratory Ruling |
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Declaratory Ruling #92 |
Chairman, State Workers' Compensation Commission, Petitioner |
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On February
23, 2000, the Commission considered and agreed to respond to
a request for a declaratory ruling
filed by the Chairman, State Workers' Compensation Commission (WCC).
In
his request, the petitioner states:
"Our
workers' compensation act ง31-348 requires each insurance company providing workers'
compensation insurance to employers in this state to report the name of each
company insured along with the effective and expiration date of each insured's workers' compensation policy. In
the early 90's, as we upgraded our
agency's electronic technology we were able
to initiate a program whereby the National Council on Compensation Insurance [NCCI] became the repository of workers'
compensation proof of coverage
information required by statute. The NCCI then electronically submitted the data to this agency and the
information became part of our workers' compensation insurance proof of
coverage database.
"Recently, we have received requests for
copies of our proof of coverage
database. In compliance with the Freedom of Information Act, we asked the NCCI to provide us with the information sought
in CD-ROM format. See ง1-211. When
the NCCI provided us with the CD-ROM they also included a letter relating the
expectations of confidentiality of insureds reporting coverage information. The NCCI in their letter stated they were appending the following language to all data
submissions to this agency.
"NOTICE
PROPRIETARY-CONFIDENTIAL
"This material contains trade secret, confidential and proprietary information and may not be transmitted to a third
party or publicly disclosed."
Declaratory Ruling #92 Page
2
The petitioner seeks the Commission's ruling as to
whether information in the workers' compensation insurance proof of
coverage data, which Conn. Gen. Stat. ง31-348
mandates must be reported to this agency and for which the NCCI currently acts as the WCC's compiling agent, are exempt from
disclosure under the state's Freedom of Information (FOI) Act.
Conn.
Gen. Stat. ง1-210(a) provides in pertinent part:
"Except
as otherwise provided by any federal law or state statute, all records
maintained or kept on file by any public agency, whether or not such
records are required by any law or by any rule
or regulation, shall be public records and every person shall have the right to
inspect such records promptly during regular office or business hours or to
receive a copy of such records in accordance with the provisions of section
1-212."
The petitioner points out that the NCCI's claim to
confidentiality seems to be premised on Conn. Gen. Stat. ง1-210(b)(5), which
states that a public agency need not disclose:
"Trade secrets, which for purposes
of the Freedom of Information Act, are
defined as unpatented, secret, commercially valuable plans, appliances, formulas,
or processes, which are used for the making, preparing, compounding, treating
or processing of articles or materials which are trade
commodities obtained from a person and which are recognized by law as
confidential, and commercial or financial information given in confidence, not
required by statute...."
It is clear that the subject proof of coverage
information does not constitute a trade secret as that term is defined in ง
1-210(b)(5). And although that section provides an exemption for commercial or
financial information given in confidence, the statute further requires that
the information must not be required by statute.
Conn.
Gen. Stat. ง31-348 provides:
"Every insurance
company writing compensation insurance or its duly appointed agent shall report
in writing or by other means to the chairman of the Workers' Compensation
Commission, in accordance with rules prescribed by the chairman, the
name of the person or corporation insured,
including the state, the day on which the policy becomes effective and the date
of its expiration, which report shall be made within fifteen
days from the date of the policy. The
cancellation of any policy so written and
Declaratory Ruling #92 Page
3
reported
shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. Any
insurance company violating any provision of this section shall be fined not
less than one hundred nor more than one thousand dollars for each
offense."
Because
ง31-348 mandates the reporting of insurance proof of coverage information to
the petitioner, it is the Commission's opinion that the commercial or financial information exemption of Conn. Gen. Stat.
ง1-210(5) cannot serve as a basis for
permitting the non-disclosure of such information.
The
overarching legislative policy of the FOI Act is one that favors "the open
conduct of government and free public access to government records." Wilson
v. FOI Commission, 181 Conn. 324, 328 (1980); Chairman v. FOI
Commission, 217 Conn. 193, 196 (1991); Maher v. FOI Commission, 192
Conn. 310, 315 (1984). As our Supreme Court has repeatedly noted,
"construction of the FOI Act must be guided by the policy favoring
disclosure. . . ." Superintendent of Police v. FOI Commission, 222
Conn. 621, 626 (1992). The general
rule under the FOI Act is disclosure, exceptions to this rule must be narrowly construed and the burden of
establishing the applicability of an exemption clearly rests upon the party
claiming the exemption. New Haven v. FOI Commission, 205 Conn. 767, 775
(1988); Superintendent of Police, supra; Ottochian v. FOI Commission,
221 Conn. 393 (1992).
In light of the above, in response to the petition
in these proceedings, the Commission
issues the following ruling:
The WCC must disclose upon request, in
accordance with Conn. Gen. Stat. งง1-210(a), 1-211 and 1-212, information in
the workers' compensation insurance proof of coverage data, which Conn. Gen. Stat. ง31-348 mandates must be reported
to the WCC and for which the NCCI
currently acts as the WCC's compiling agent.
By Order of the Freedom
of the Freedom of Information Commission
ญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญญ__________________________
Frederick E. Hennick, Chairman
Dated: ___________________
Ordered:_________________
Dolores E. Tarnowski,
Clerk