Washington Post Co. v. New York State Insurance Department

94 A.D.2d 648, 462 N.Y.S.2d 208, 9 Media L. Rep. (BNA) 1730, 1983 N.Y. App. Div. LEXIS 18057

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1983
• Status: Published

Opinions

— Judgment, Supreme Court, New York County (Lehner, J.), entered August 16,1982, granting the petition to enjoin withholding of records of intervenors deposited in respondents’ custody, subject to prior in camera inspection, reversed, on the law, the petition denied, and this proceeding dismissed, with one bill of costs to all three intervenors. At issue here is the applicability of New York’s Freedom of Information Law ([FOIL] Public Officers Law, art 6) to materials deposited by intervenors, three life insurance companies, with respondent State Insurance Department. Specifically, we are asked to determine if these materials are subject to FOIL, and if so, whether these materials, or any part of them, are statutorily exempt from disclosure under subdivision 2 of section 87 of the Public Officers Law. Section 26-a of the Insurance Law requires every domestic insurer to maintain certain records at its principal office in this State, consisting of charter and by-laws, books of account, identities of stockholders and “the minutes of any meetings of its stockholders, policyholders, board of directors and committees thereof.” Respondent Superintendent of Insurance is authorized to examine into the affairs of such insurers doing business in this State (Insurance Law, § 28), and his appointed examiner is authorized to have “convenient access at all reasonable hours to the books, records, files, securities and other documents of such insurer” (Insurance Law, § 29). The statute goes on to require that officers and agents of insurance companies should cooperate with the superintendent in facilitating such examinations. In furtherance of this spirit of co-operation, a practice developed whereby insurance companies deposited these books, records, files, securities and other documents with the department as an accommodation, to obviate the necessity of the superintendent’s examiners having to travel to insurance company offices whenever they wish to conduct such an examination. This practice was formalized by individual letters to insurance companies from the Insurance Department on February 21, 1927, directing them to submit copies of the minutes of the board of directors to the Insurance Department. Circular letter number 18 (1966) of the department reiterated this practice, as did circular letter number 1 (1970). It stands undisputed that this procedure was adopted as an accommodation to the department for its own convenience, and that the circular letters provided that “these minutes will continue to be treated as confidential by the Department.” The materials in question consist of voluminous copies of minutes of the boards of directors of the three intervenor insurance companies. In 1980, petitioner’s reporter, in a formal request under FOIL, sought access to these minutes for the years 1977-1979. After a series of administrative determinations and appeals, including an advisory opinion by the Committee on Public Access to Records (Public Officers Law, § 89, subd 1) recommending access to petitioner, respondents denied the request. This CPLR article 78 proceeding ensued. A “record” is defined in FOIL (Public Officers Law, § 86, subd 4) as “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever including, but not limited to, reports, statements, examinations, memoranda, opinions, folders, files, books, manuals, pamphlets, forms, papers, designs, drawings, maps, photos, letters, microfilms, computer tapes or discs, rules, regulations or codes.” The materials sought here are not submitted pursuant to any statutory requirement, but merely pursuant to the circular letters designed to ease the work of the Insurance Department. The dissent seizes on the fact that the circular letter uses the term that the insurance companies are “required” to file the copies with the department as a basis for finding that they are public records within the meaning of FOIL. On the basis of that reasoning they would be public records if kept in the offices of the insurance companies themselves, as required by the statute. Surely the fact that such records are required to be maintained does not make them public records. The mere fact that for convenience they are filed with the department does not change their character. They have only been deposited into the physical custody of the department as an accommodation and remain the private property of interveners, “to be treated as confidential”. They are not public records. On the contrary, they contain references to the most sensitive data on company policy, financial management and investment strategy. Indeed, even interveners’ stockholders would have to show good faith and proper purpose before obtaining access to these corporate documents (see Matter of Crane Co. v Anaconda Co., 39 NY2d 14). The declared purpose of FOIL was to grant public access to information in furtherance of the “people’s right to know the process of governmental decision-making” (Public Officers Law, § 84; cf. Glantz v Scoppetta, 66 AD2d 716). In contrast, intervenors’ deposit of these documents with the department in order to facilitate the latter’s routine examination into their affairs (Insurance Law, § 28) is not in furtherance of any decision-making function by any governmental body. The materials in question are not the kinds of records contemplated in FOIL’S declared purpose (Public Officers Law, § 84). These private company documents have not, as a matter of law or regulation, become Insurance Department records so as to bring them within the ambit of FOIL. Accordingly, we need not reach the question of whether these documents are statutorily exempt from FOIL access under subdivision 2 of section 87 of the Public Officers Law. Concur — Carro, J. P., Silverman, Bloom and Fein, JJ.