FREEDOM OF INFORMATION COMMISSION
OF THE STATE OF CONNECTICUT
| In the Matter of a Complaint by | FINAL DECISION | ||
| D. James Sutton and Ruth H. Sutton, | |||
| Complainants | |||
| against | Docket #FIC 2008-417 | ||
|
Commissioner, State of Connecticut, Department of Insurance; and State of Connecticut, Department of Insurance, |
|||
| Respondents | June 10, 2009 | ||
The above-captioned matter was heard as a contested case on September 29 and November 14, 2008 at which times the complainants and the respondents appeared, stipulated to certain facts and presented testimony, exhibits and argument on the complaint.
After consideration of the entire record, the following facts are found and conclusions of law are reached:
1. The respondents are public agencies within the meaning of §1-200(1), G.S.
2. It is found that the complainants sought records pertaining to certain transactions between two insurance companies, Reliance Insurance Company (domiciled in Pennsylvania) and Travelers Casualty and Surety Company (domiciled in Connecticut) and by letters dated April 21 and May 20, 2008 the complainants requested copies of certain documents related to those transactions.
3. By letter dated May 13, 2008, the respondents provided the complainants with nine pages of records that were responsive to their April 21, 2008 request and advised the complainants that any requested record that was not attached were not provided for one or more of the following reasons:
a. “the Department does not have in its possession the kind of documents that you are seeking;
b. the document requested is confidential under Connecticut law; or
c. the documents requested have previously been provided to you and/or to your wife, Ruth J. Sutton, pursuant to your previous requests….”
4. It is found that by letter dated May 27, 2008 the respondents acknowledged receipt of the complainants’ May 20, 2008 records request.
5. By letter dated and post marked May 16, 2008 and filed on May 19, 2008, the complainants appealed to this Commission alleging that the respondents had violated the FOI Act by failing to comply with their records requests citing to requests dating as far back as October 16, 2007. The complainants requested the imposition of a civil penalty against the respondents.
6. It is found that the complainants’ May 20, 2008 records request is the last in a series of requests that date as far back as September 2003 in response to which the respondents provided the complainants with over 200 pages of records.
7. At the hearing on this matter, and in their motion to dismiss, the respondents contended that this Commission lacks subject matter jurisdiction over any of the complainants’ requests that precede their May 20, 2008 records request.
8. Section 1-206, G.S., provides in pertinent part that:
“(a) Any denial of the right to inspect or copy records provided for under section 1-210 shall be made to the person requesting such right by the public agency official who has custody or control of the public record, in writing, within four business days of such request, except when the request is determined to be subject to subsections (b) and (c) of section 1-214, in which case such denial shall be made, in writing, within ten business days of such request. Failure to comply with a request to so inspect or copy such public record within the applicable number of business days shall be deemed to be a denial.
(b)(1) [a]ny person denied the right to inspect or copy records under section 1-210…may appeal therefrom to the [FOI] Commission, by filing a notice of appeal with said commission. A notice of appeal shall be filed within thirty days after such denial….”
[Emphasis added.]
9. It is found that the notice of appeal was not filed within thirty days after any denial or any alleged violation with respect to any of the complainants’ requests other than their April 21, 2008, request within the meaning of §1-206(b)(1), G.S.
10. It is concluded, therefore, that the Commission lacks jurisdiction over any of the complainants’ requests made prior to their April 21, 2008 request.
11. With respect to the April 21 and May 20, 2008 requests, §1-200(5), G. S., provides:
“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, whether such data or information be handwritten, typed, tape-recorded, printed, photostated, photographed or recorded by any other method.
12. Section 1-210(a), G. S., provides in relevant 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 (1) inspect such records promptly during regular office or business hours, (2) copy such records in accordance with subsection (g) of section 1-212, or (3) receive a copy of such records in accordance with section 1-212.
13. Section 1-212(a), G. S., provides in relevant part that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record.”
14. It is found that the requested records, to the extent that they exist, are public records within the meaning of §§1-200(5), 1-210(a), and 1-212(a), G.S.
15. It is found that by letter dated June 23, 2008 the respondents again informed the complainants that the requested documents could not be provided, in part, because either:
a. the Department does not have in its possession the kind of documents that you have requested;
b. the document requested is confidential under Connecticut law; or
c. the documents requested have previously been provided to you and/or to your wife, Ruth J. Sutton, pursuant to your previous requests....”
16. It is found that the respondents conducted a thorough search of all its files in which the records requested would reasonably be maintained which included searching all of its corporate files and confirming with each individual who handled any portion of the transactions in question that all responsive records had been provided.
17. It is found that many of the records of the respondents’ regulation of the transactions between the two insurance companies, which may have been responsive to the complainants’ requests, were generated prior to April of 2000 and were destroyed prior to any of the complainants’ requests pursuant to the respondents’ records retention schedule.
18. It is found that the respondents maintain twenty-nine additional pages of records that were responsive to the complainants’ April 21 and May 20, 2008 requests, nine pages of which were provided as described in paragraph 3c, above.
19. As already found in paragraph 6, above, the respondents had provided the complainants with over 200 pages of records pursuant to previous requests and have provided those records to this Commission during the hearing in this matter with a notarized certification that such records are the only records it maintains that are responsive to the complainants’ requests, other than those described in paragraph 20, below.
20. At the hearing on this matter, and in their brief, the respondents contended that the twenty pages of records were withheld pursuant to the confidentiality requirements found in §§38a-8(d), 38a-69a(a), 38a-913, G.S., and 40 P.S. §65.2-A.
21. Section 38a-8(d), G.S., provides in relevant part that:
The commissioner shall maintain, as confidential, any confidential documents or information received from the National Association of Insurance Commissioners, or the International Association of Insurance Supervisors, or any documents or information received from state or federal insurance, banking or securities regulators or similar regulators in a foreign country which are confidential in such jurisdictions. The commissioner may share any information, including confidential information, with the National Association of Insurance Commissioners, the International Association of Insurance Supervisors, or state or federal insurance, banking or securities regulators or similar regulators in a foreign country so long as the commissioner determines that such entities agree to maintain the same level of confidentiality in their jurisdiction as is available in this state.
22. Section 38a-69a(a), G.S., provides in relevant part that:
All financial analyses, financial examination workpapers, operating and financial condition reports concerning any insurance company, fraternal benefit society or health care center prepared by or on behalf of or for the use of the Insurance Commissioner or the Insurance Department examiner, shall be confidential unless such documents are otherwise a matter of public record, or the commissioner, in the commissioner's opinion deems it in the public interest to disclose or otherwise make available for public inspection the information contained in such documents.
23. Section 38a-913, G.S., provides in relevant part that:
In all [delinquency] proceedings and judicial reviews thereof pursuant to section 38a-912, all records of the insurer, other documents and all Insurance Department files and court records and papers, so far as they pertain to or are a part of the record of the proceedings, shall be and remain confidential ….
24. Section 65.2-A of 40 P.S., provides in relevant part that:
The commissioner shall maintain as confidential any documents, materials or other information received from the National Association of Insurance Commissioners, or its successor organization, or from regulatory or law enforcement officials of this Commonwealth or other jurisdictions in which the documents, materials or other information are confidential by law in those jurisdictions. Documents, materials or other information obtained by the commissioner under this section shall be given confidential treatment, may not be subject to subpoena and may not be made public by the commissioner or any other person.
The commissioner may share confidential documents, materials or other information relating to any company, insurer or person with regulatory or law enforcement officials of this Commonwealth or other jurisdictions as long as, prior to receiving the documents, materials or other information, those parties demonstrate by written statement the necessary authority and intent to provide to it the same confidential treatment as required by this article. Access may also be granted to the National Association of Insurance Commissioners, or its successor organization, if, prior to receiving the information, the organization demonstrates by written statement the intent to provide to it the same confidential treatment as required by this article.
25. The respondents submitted the twenty pages of withheld records to the Commission for in camera inspection, which records have been identified as in camera record #s 2008-417-001 through 2007-417-020 and consist of the following:
a. internal memos reflecting the financial conditions of several insurance companies;
b. internal memos reflecting information relayed to state insurance regulators regarding the financial condition of Reliance Insurance Group;
c. an internal e-mail regarding the liquidation of Reliance Insurance companies;
d. a memo drafted by the Pennsylvania Insurance Department regarding Reliance Insurance companies rehabilitation;
e. a letter to Connecticut Insurance Guaranty Association from the respondents regarding the liquidation of Reliance Insurance companies;
f. the respondents’ examination division’s approval check list and financial analysis of Reliance Insurance company;
g. an internal memo regarding the financial analysis of the Reliance Group reinsurance agreement; and
h. excerpts from financial analysis procedures manual.
26. After careful review of the in camera records, it is found that in camera records #s 2008-417-01 through 2008-417-09 are excluded from the mandatory disclosure provision of the FOI Act pursuant to §§38a-8(d) and 38a-69a(a), G.S.
27. It is found that the respondents withdrew their claim of exemption with respect to in camera record #2008-417-010 because the respondents inadvertently provided that record to the complainants pursuant to a previous request.
28. It is found that in camera records #s 2008-417-011 through 2008-417-020 are also excluded from the mandatory disclosure provisions of the FOI Act pursuant to §38a-69a(a), G.S., as financial examination workpapers of the respondents within the meaning of that provision.
29. At the hearings on this matter, and in their brief, the complainants contend that the respondents have not compiled and provided all non-exempt records that are responsive to their requests.
30. It is found that such contention is largely based on the complainants’ belief that the sale of the Reliance Insurance Company to the Travelers Insurance Company was a certain type of transaction for which, pursuant to the complainants’ belief and understanding, certain records should have been, and even were required to be, generated.
31. At the hearings on this matter, there was a great deal of testimony about whether the transaction between the two insurance companies was an indemnity transaction or a bulk reassurance/assumption transaction and more testimony regarding the point in time when the transaction moved from being one to the other. There was also extensive testimony describing the respondents’ statutory obligations with respect to regulating either transaction and what records may or may not be generated as a result of the respondents’ regulation under either type.
32. Notwithstanding whether the transaction was an indemnity transaction or a bulk reassurance/assumption transaction, the respondents demonstrated through credible testimony that they have provided the complainants with all non-exempt records that they maintain that are responsive to their requests.
33. It is concluded that the respondents did not violate the disclosure provisions of §§1-210(a) or 1-212(a), G.S., as alleged by the complainants.
34. Consequently, the Commission declines to consider the imposition of a civil penalty in this matter.
The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint:
1. The complaint is hereby dismissed.
Approved by Order of the Freedom of Information Commission at its regular meeting of June 10, 2009.
____________________________
S. Wilson
Acting Clerk of the Commission
PURSUANT TO SECTION 4-180(c), G.S., THE FOLLOWING ARE THE NAMES OF EACH PARTY AND THE MOST RECENT MAILING ADDRESS, PROVIDED TO THE FREEDOM OF INFORMATION COMMISSION, OF THE PARTIES OR THEIR AUTHORIZED REPRESENTATIVE.
THE PARTIES TO THIS CONTESTED CASE ARE:
D. James Sutton and Ruth H. Sutton
Commissioner, State of Connecticut,
Department of Insurance; and State
of Connecticut, Department of Insurance
C/o Heather J. Wilson, Esq.
Assistant Attorney General
55 Elm Street
P.O. Box 120
Hartford, CT 06141
____________________________
S. Wilson
Acting Clerk of the Commission
FIC/2008-417FD/sw/6/16/2009