Records denial in insurance company sale overturned

OHIO–The Ohio Supreme Court in Columbus unanimously ruled in early December that the state Department of Insurance improperly withheld records involving the failed sale of an insurance company. The Plain Dealer had asked the court to release the documents so the public could understand why the sale of Blue Cross and Blue Shield of Ohio to Columbia/HCA Healthcare Corp. failed.

The high court, after reviewing all of the documents the newspaper requested, found that most were not entitled to blanket protection as trade secrets or as confidential work papers and ordered the release of hundreds of pages of records.

In March 1996, Blue Cross and Blue Shield of Ohio announced the sale of a large portion of its assets to Columbia/HCA. Pursuant to state law, the insurance companies submitted documents to the Department of Insurance. Among the records were draft contracts, bids, and letters of negotiation.

The sale was terminated in March 1997 after the Insurance Department found that it was unfair to policyholders and not in the public’s interest.

Having told Blue Cross that the documents would be shielded from public view, the Department denied the Plain Dealer’s request for disclosure of the documents. The newspaper then filed suit to compel release of the withheld documents.

The Supreme Court ruled that the documents were not “confidential work papers.” Responding to the department’s argument that releasing the records would destroy confidence in the confidentiality of submissions to the department, the court said that ordering disclosure should “serve to strengthen the confidence of all parties, especially the citizens who rely on the Department and its regulatory powers.”

Noting that the documents at issue did not disclose any information about the business of Blue Cross or its business plans, the court said that they are not trade secrets.

Documents cannot be shielded in their entirety if they contain some trade secrets, the court held. Furthermore, the court emphasized that the existence of a confidentiality agreement between a state agency and a business to shield records does not meet the statutory trade secret definition.

Two justices, concurring only in the majority’s judgment, wrote a separate opinion, saying that the case “should not serve as a paradigm for fashioning the broader rules of law stated by the majority.” (Ohio ex rel. The Plain Dealer v. Ohio Dept. of Insurance; Media Counsel: Frederick Gittes, Columbus)