In the Matter of a Request for Declaratory Ruling



    Declaratory Ruling #92

Chairman, State Workers' Compensation Commission, Petitioner





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.



"This material contains trade secret, confidential and proprietary information and may not be transmitted to a third party or publicly disclosed."


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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

                                                                                      Frederick E. Hennick, Chairman

  Dated:  ___________________


Dolores E. Tarnowski,