Risk Metrics Corporation. v. Indiana Compensation Rating Bureau and Indiana Worker's Compensation Board

85 N.E.3d 891

• Court: Indiana Court of Appeals
• Decided: October 24, 2017
• Docket: Court of Appeals Case 49A02-1609-PL-2083
• Status: Published

Opinions

Najam, Judge.

Statement of the Case

Risk Metrics Corporation, n/k/a LexisNexis Risk Solutions, Inc., (“Lexis-Nexis”) appeals the trial court’s entry of summary judgment'for the Indiana Compensation Rating Bureau (“the Rating Bureau”)¹ and the Indiana Worker’s Compensation Board (“the Board”) on the Rating Bureau’s complaint for declaratory judgment. LexisNexis raises a single issue for our review, which we restate as whether the trial court erred when it concluded that certain insurance coverage policy data held by the Rating Bureau that were accessible by the Board are not subject to public access pursuant to Indiana’s Access to Public Records Act, Ind. Code §§ 5-14-3-1 to -10 (Supp. 2017) (“APRA”). We hold that the records of that data held by the Rating Bureau are confidential records and, therefore, are not available under' APRA. Accordingly, wé affirm the trial court’s judgment.

Facts and Procedural History²

The Board is the state agency that is charged with administering’ Indiana’s Worker’s Compensation Laws, I.C. §§ 22-3-2-2 to -6-3. Those laws require, in relevant part, that every employer in Indiana carry insurance to cover worker’s compensation claims, unless the employer is exempt. An employer required to carry such insurance “shall file with [the Board], in the form prescribed by the [B]oárd, within ten (10) days after the termination of the employer’s insurance by expiration or cancellation, evidence of the employer’s compliance .” I.C. § 22-3-5-2. However, at any time the Board “is entitled to request that an employer provide the [B]oard with current proof of compliance,” and if the employer “fails or refuses to provide current proof of compliance” the Board “may assess a civil penalty against the employer ....” I.C. § 22-3-5-2.5(a), (b). Prior to 1998, the Board received and maintained employer proof of compliance data (“POC data”) in accordance with Section 22-3-5-2 in the form of paper filings submitted by employers diréctly to the Board.

Meanwhile, insurers certified to provide worker’s compensation coverage in Indiana are, as a matter of law, members of the Rating. Bureau. I.C. § 27-7-2-3. Although, created by statute, the Rating Bureau is a private entity regulated by the Indiana Department of Insurance (“IDOI”), I.C. § 27-7-2-28.2. According to the Indiana Code, the Rating Bureau exists to achieve the following purposes:

(1) To prohibit price fixing agreements and other anticompetitive behavior by companies.

(2) To protect policyholders and the public against the adverse effects of excessive, inadequate; or unfairly discriminatory rates.

(3) To promote price competition among companies so as to provide rates that are responsive to competitive market conditions. '

(4) To provide regulatory procedures for the maintenance of appropriate data reporting systems.

(5) To improve availability, fairness, and reliability of insurance. ■

(6) To authorize essential cooperative action among companies in the ratemak-ing process and to regulate such activity to prevent practices that tend to substantially lessen competition or create a monopoly.

(7) To encourage the most efficient and economic marketing practices.

I.C. § 27-7-2-1.1.

Pursuant to those purposes, one of the key functions of the Rating Bureau is to collect statistical policy data from its members, which the Rating Bureau then uses to recommend minimum premiums and rates to the Commissioner of the IDOL I.C. § 27-7-2-4(a). And to facilitate the collection of that data, since December 31,1997, the Rating Bureau has used as its vendor the National Council on Compensation Insurance (“NCCI”). NCCI is a nongovernmental, not-for-profit company based in Florida. NCCI collects a vast array of statistical policy data, including POC data, from worker’s compensation insurance providers throughout the United States, which NCCI then reports to various jurisdictions as required on behalf of those providers.

On January 1,1998, the Board implemented a new system in which the paper proof-of-compliance filings from employers under Section 22-3-5-2 were replaced with electronic policy data from insurers. In particular, the Board entered into a contract with NCCI pursuant to which NCCI, acting as the Board’s agent, would “report ... to the Board” the policy data NCCI had collected on Indiana’s certified worker’s compensation insurance providers. Appellant’s App. Vol. V at 40. Between January of 1998 and August of 2014, NCCI provided the Indiana policy data directly to the Board electronically.

LexisNexis is in the business of compiling and selling business data that it collects through public records requests. Between 1999 and 2011, LexisNexis and the Board had several APRA disputes with respect to the policy data NCCI had collected and provided to the Board. In 2012, LexisNexis filed a complaint against the Board under APRA for access to that policy data. In January of 2013, LexisNexis and the Board settled that complaint pursuant to an agreement in which the Board agreed to make the policy data available for public access “so long as no change of law” occurred to make that data “confidential or exempted from disclosure in any way ....” Id. at 35-36.

Thereafter, effective July 1, 2013, the Indiana General Assembly enacted a new statute codified at Indiana Code Section 27-7-2-40. P.L. 275-2013 § 20. According to Section 27-7-2-40:

The [Rating Bureau] may collect data from its members under this chapter, including:

(1) claims data;

(2) policy data such as policy number, policy term, and employer and employee identification information; and

(3) proof of coverage data such as employer identification information, classification information, carrier information, agency identification information, premium information, and payroll data.

Unless this chapter specifically states otherwise, all data collected by the [Rating Bureau] from, its members is confidential and shall not be disclosed or disseminated to third parties unless consented to by the [Rating Bureau], To the extent this chapter authorizes the [Rating Bureau] to share the data with the [IDOI] or the [Board], the data must remain confidential. The [IDOI] and the [Board] shall not publish the data or distribute the data to third parties.

(Emphasis added.) On April 1, 2014, Lexis-Nexis again requested the Board to provide access to the NCCI-collected policy data.³ The Board denied the request, citing Indiana Code Section 27-7-2-40. Lexis-Nexis then filed a complaint with the Indiana Public Access Counselor (“PAC”).

While the PAC’s review of that complaint was pending, the Board terminated its contract with NCCI and entered into a new agreement with the Rating Bureau. Pursuant to that agreement, the Rating Bureau agreed to provide the Board with some of the statistical policy data NCCI had collected for the Rating Bureau on the condition that the data remained confidential with the Board. However, the contract further provided that the Board and the public would be permitted to view the POC data necessary to verify a given employer’s compliance with Indiana’s worker’s compensation insurance requirement on a given date using a web portal. Specifically, the contract provided that the Rating Bureau:

A. shall provide to the [Board] online internet based inquiry access to limited non-confidential data, which shall only include the name of the employer, the name of the worker’s compensation insurance coverage provider, the policy number, and the effective date of coverage (“Basic Coverage Data”);

B. shall provide internet based online inquiry access to the Basic Coverage Data to allow the general public to verify Indiana worker’s compensation coverage through a link on the [Board’s] website; and C.may, in the [Rating Bureau’s] sole discretion, transmit to the [Board] additional confidential coverage and policy data the [Rating Bureau] collects from its members. For purposes of this Agreement, the additional data may include data elements or a portion thereof as the parties may agree, such as policy number, insured business name and address, additional business names and addresses on the policy, policy effective date, policy expiration date, name of insurance provider, employer FEIN number, and any notices of cancellation and reinstatement (“Additional Policy Data”). The Additional Policy Data shall be transmitted to the [Board] at such intervals as the parties may agree from time to time. The Additional Policy Data shall be transmitted to the [Board] in an electronic PDF file or such other format as the parties may agree. The Additional Policy Data transmitted by the [Rating Bureau] to the [Board] shall be conspicuously marked as “CONFIDENTIAL” and “NOT AVAILABLE FOR DISTRIBUTION OR INSPECTION.” The [Rating Bureau] and the [Board] hereby acknowledge that the Additional Policy Data may be withheld by the [Rating Bureau]. Further, the Additional Policy Data shall not be distributed to third parties.

Appellant’s App. Vol. V at 119-20. Thereafter, the Rating Bureau and the Board instructed NCCI to cease electronic transfers of policy data directly to the Board.

After the Rating Bureau and the Board executed their contract, the PAC issued an informal opinion on the pending APRA request in LexisNexis’s favor. Following that opinion, the Rating Bureau filed its complaint for declaratory judgment against LexisNexis and the Board to prevent the Board from releasing the NCCI-collected policy data to LexisNexis. LexisNexis filed a counterclaim against the^ Rating Bureau and a cross-claim against the Board to compel public access to that data under APRA.

All parties then moved for summary judgment, and, after a hearing, the trial court granted the motions for summary judgment filed by the Board and the Rating Bureau and denied LexisNexis’s cross-motion. In entering its order, the trial court stated as follows:

8.' The Board does not presently create, receive, retain, or maintain the data or records sought by [LexisNexis]. Multiple Board employees, including the Board Chair, ■ testified that the Board does not possess or have access to data and records collected by the [Rating Bureau]. Further, there is no evidence in the record that the data or records sought by [LexisNexis] is filed ■With the Board. Accordingly, the Board does not possess or control public records sought by [LexisNexis].'

9. To the extent the [Rating Bureau], either directly or through its vendor, NCCI, has elected to voluntarily share or provide data access to the Board, the Indiana Legislature has, as recently as 2013, made clear such data is confidential, cannot be shared with third parties, and is not subject to APRA.... The plain language of this, .statute makes clear that [the Board-]collected [POC] data is confidential.

10. [LexisNexis] attempts to circumvent Indiana Code § 27-7-2-40 by asserting the Board has a duty to accumulate additional [POC] data under Indiana law and[,] once in possession of this data, cannot refuse to disclose the same. The [c]ourt disagrees with [LexisNexis]. Multiple witnesses for the Board, including the Board Chairperson, testified the Board does -not -collect, need, or utilize the [POC] data sought by [LexisNexis]. Additionally, the statute relied upon by [LexisNexis] (Ind, Code § 22-3-5-2) does not mandate the Board to collect the extensive [POC] data sought by [LexisNexis],

11. Moreover, the Board has agreed that the limited access website 'portal made available'by the [Rating Bureau] fulfills the Bodrd’s statutory needs. This [cjourt cannot interfere with that determination.

12. Accordingly, the [c]ourt hereby finds the Board is not in control or possession of records or documents subject to APRA sought by LexisNexis, that the Board is not required to collect the [POC] data sought by LexisNexis, and[,] to the extent the [Rating Bureau]' causes data or records to be supplied to the Board, that data is confidential and is statutorily exempted from APRA.

Appellant’s App. Vol. II at 17-19 (emphasis added; internal citations omitted).⁴ This appeal ensued.

Discussion and Decision

LexisNexis appeals the trial court’s denial of its motion for summary judgment and the court’s entry of summary judgment for the Rating Bureau and the Board. Our standard of review is clear:

We review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of ,.. the non-moving parties, summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no,genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)).' “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id, (internal citations omitted).

The initial burden is on the summary-judgment movant to “demonstrate [ ] the absence of any genuine issue of fact as to a determinative issue,” at which point the burden shifts to the non-movant to “come forward with contrary evidence” showing an issue for the trier of fact. Id. at 761-62 (internal quotation marks and substitution omitted). And “[ajlthough the non-moving party has the burden on appeal of persuading us that the grant of summary judgment was erroneous, we carefully assess the trial court’s decision to ensure that he was not improperly denied his day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to Hugh-ley ).

Here, the trial court entered detailed findings of fact and conclusions thereon in its summary judgment order. While such findings and conclusions are not required, in a summary judgment and do not alter our standard of review, they are helpful on appeal for us to understand the reasoning of the trial court. See Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). We also note that the trial court had before it cross-motions for summary judgment, but that also does not alter our standard of review. Id.

This appeal presents questions of statutory interpretation. As the Indiana Supreme Court has stated:

[Statutory interpretation, is a question of law that we review de novo. In interpreting a statute, the first step is to determine whether the Legislature has spoken clearly and unambiguously on the point in question. When a statute is clear and unambiguous, we apply words and. phrases in their plain, ordinary, and usual sense. .When a statute is susceptible to more than one interpretation it is deemed ambiguous and thus open, to judicial construction. When faced with an ambiguous statute, our primary goal is to determine, give effect to, and implement the intent of the Legislature with well-established rules of statutory construction. We examine the statute as a whole, reading its sections together so that no part is rendered meaningless if it can be harmonized with the remainder of the statute. And we do not presume that the Legislature intended language used in a statute to be applied illogically or to bring about an unjust or absurd result.

Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (citations, alterations, and quotation marks omitted).

[14] The dispute between the parties here centers around LexisNexis’s APRA request to the Board. APRA provides that “it is the public policy of the state that all persons are entitled to full and complete information regarding the' affairs of government and the official acts of those who represent them as public officials and employees.” I.C. § 5-14-3-1. “Thus, in APRA our legislature declared that transparency in government is the public policy of the State of Indiana. But the public’s right of access to public records is also subject to well-recognized exceptions under APRA.” Groth v. Pence, 67 N.E.3d 1104, 1108 (Ind. Ct. App. 2017), trains. denied.

We agree with the trial court that disclosure of the records sought by Lexis-Nexis under APRA is prohibited by law. APRA expressly removes from public access those records “declared confidential by state statute.” I.C. § 5-14-3-4(a)(l). And Indiana Code Section 27-7-2-40 unambiguously declares that the insurance company records held by the Rating Bureau are “confidential and shall not be disclosed or disseminated to third parties” without the Bureau’s consent. The records sought by LexisNexis under APRA are the insurance records of the Rating Bureau’s members, which contain the statistical policy data collected by NCCI. As a matter of law, those records are held by the Rating Bureau. As such, the records sought are confidential and are not subject to disclosure under APRA.

Nonetheless, LexisNexis proffers two theories to avoid the result required under the Indiana Code. First, LexisNexis asserts that Indiana’s Worker’s Compensation Laws require the Board itself to collect and maintain POC data from Indiana’s employers. Thus, Lexis-Nexis asserts, the vast array of statistical policy data collected by NCCI on behalf of. the Board must also be held by the Board and, therefore, subject to public access. In support of that position, LexisNexis substantially relies on Indiana Code Section 22-3-5-2, which states that an “employer” in Indiana is “required to carry insurance” for worker’s compensation claims and “shall file with the worker’s compensation board, in the form prescribed by the board, within ten (10) days after the'termination of the employer’s insurance by expiration or cancellation, evidence of the employer’s compliance .... ”

Section 22-3-5-2 does not say what' LexisNexis claims it says. The statute does not expressly direct the Board to do anything at all. Rather, Section 22-3-5-2 places a burden on employers, not the Board, and it is a limited burden at that: employers “shall file” with the Board proof of their compliance, but only if existing insurance coverage is terminated. And even then, any manner of “evidence” of compliance suffices. I.C. § 22-3-5-2.

Moreover, Section 22-3-5-2 does not require the Board to collect anything equivalent to the statistical policy data collected by NCCI that LexisNexis seeks under APRA! Indeed, even if Section 22-3-5-2 could be read to mean that the Board must collect POC data from Indiana’s employers, that POC data is nowhere near as comprehensive as the statistical policy data collected by NCCI and actually sought by LéxisNexis. Rather, the POC data would be a very 'small subset of the statistical policy data that LexisNexis seeks to obtain. In other words, the statistical policy data that LexisNexis seeks from the Board reaches far beyond the limited data that employers are required to provide to the Board under Section 22-3-5-2.

And, significantly, that limited POC data is already accessible to the public, and LexisNexis, by way of the Board’s contract with the Rating Bureau. Again, according to the Board’s contract with the Rating Bureau, the Rating Bureau “shall provide” to both the Board and the public “internet based online inquiry access” to “limited non-confidential data, which shall only include the name of the employer, the name of the worker’s compensation insurance coverage provider, the policy number, and the effective date of coverage.” Appellant’s App. Vol. V at 119-20. Further, Indiana Code Section 22-3-5-2.5(a) states that the Board “is entitled to request that an employer provide the [B]oard with current proof of compliance .... ” Thus, the Board may determine an employer’s compliance with the worker’s compensation insurance coverage requirement on a case-by-case basis, which the web portal enables the Board to do. That same access to case-by-case information is already made available to the public—and to LexisNexis—through the web portal.⁵

LexisNexis’s APRA request also disregards the fact that Section 22-3-5-2 expressly leaves the manner in which an employer complies with that statute’s filing requirement to the discretion of the Board. In particular, Section 22-3-5-2 states that employers shall file, when required, their evidence of compliance “in the form prescribed by the [B]oard.” It is clear that the Board, in the exercise of its discretion under the statute, has deemed evidence of compliance through the records held by the Rating Bureau to be the form prescribed by the Board, which brings' Lexis-Nexis’s APRA request back to the confidentiality requirement of Section 27-7-2-40.

Still, LexisNexis contends that it would be “irrational” to allow the Board to use the Rating Bureau as a proxy to collect otherwise “required regulatory filing[s]” and thereby deny public access to those filings. Appellant’s Br. at 48. But that assertion is based on LexisNexis’s misinterpretation of Section 22-3-5-2, which does not require the Board to collect the vast array of statistical policy' data LexisNexis seeks and does not require employers to file such data with the Board. Indeed, there are no required regulatory filings under Section 22-3-5-2 other than an employer’s proof of compliance if existing insurance coverage- is terminated, which information is already available to the public. Further, it is not irrational for the Board in the exercise of its statutory discretion to verify employer compliance by using a subset of the data held by the' Rating Bureau, which the Bureau already collects by operation of law from insurers to support the IDOL And the General Assembly has declared that the other Rating Bureau data are confidential.

LexisNexis also asserts that the statistical policy data is really held by NCCI, not the Rating Bureau, and that the Board’s previous releases of that data and previous contract with NCCI are relevant to the instant proceedings. But we reject those contentions. Whatever the Board’s prior decisions on the requested data, the instant case is substantially different in that the Rating Bureau is a party and has objected to the release of the data, which, as a matter of law, it collects from insurers on &- confidential basis. Moreover, representatives for NCCI and the Board agreed that the Board’s prior contract with NCCI is no longer in force. The assertions of LexisNexis to the contrary are not persuasive.

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. 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 POC data publicly available under its contract with the.Rating Bureau. Accordingly, we affirm the trial court’s entry of summary judgment for the, Board and the Rating Bureau and the court’s: denial of LexisNexis’s motion for summary judgment.

Affirmed.

Bradford, J., concurs.. Riley, J., dissents with separate opinion.

1 . The Rating Bureau is hot an agency of the State but, rather, is a private entity created by Indiana statute. See Ind. Code § 27-7-2-3 (Supp. 2017).

2 . We held oral argument in the Indiana Court of Appeals courtroom on August 24, 2017. We commend counsel for their excellent advocacy.

3 . There is no dispute that the policy data collected by NCCI on behalf of the Board was the same policy data NCCI collected on behalf of the Rating Bureau.

4 . Although not relevant in light of our holding on appeal, following its order on the .motions for summary judgment the trial court entered two subsequent orders even though the court had declared its order on the summary judgment motions to be a final judgment.

5 . Any other access the Board might seek to statistical policy data held by the Rating Bureau is only available to the Board in the Bureau's discretion. That additional policy data is not required or even implicated by Section 22-3-5-2, which, again, only requires employers to.report to the Board when their coverage has been terminated but does not otherwise require the Board to maintain POC data.