Open records agency upholds insurance ruling

But state will appeal decision and fine

HARTFORD » The Freedom of Information Commission this week cut in half the civil penalty its staff had initially sought to levy against Insurance Commissioner Katharine Wade for failing to turn over documents related to a merger.

The commission, which rarely imposes fines, felt Wade should face a penalty for refusing to comply with an order to turn over documents to its hearing officer for review.

But Freedom of Information Commission Chairman Owen Eagan felt the maximum $1,000 penalty might not be warranted and they voted to reduce it to $500, while the commission upheld the underlying decision against Wade.

An Insurance Department spokeswoman said the department would appeal the decision to Superior Court.

“We have been advised by counsel that the nondisclosure statutes categorically protect the documents which are the subject of these FOIA requests,” Donna Tommelleo, a spokeswoman for the agency, said Wednesday. “These statutes prohibit the department from complying with the FOI commission’s directives, and we strongly believe that the courts will agree with us on appeal.”

The argument is similar to the one made by Assistant Attorney General John Langmaid during the hearing.

Langmaid said it’s up to the Freedom of Information Commission to seek a court order or a subpoena to compel the Insurance Department to turn over the sensitive information being sought because it’s protected under Connecticut’s insurance statutes.

Langmaid said Wade couldn’t comply with the request for documents because she was constrained by the insurance statutes.

However, Simon I. Allentuch, an attorney for the coalition that brought the FOIA request and complaint, said the commissioner withheld the documents for months before producing any information requested by the

Connecticut Campaign for Consumer Choice.

“This commissioner has acted with a guilty conscience,” said Allentuch.

“She made scurrilous nonsense legal arguments” in order to keep the records from the commission and the parties, said Allentuch, of Neubert, Pepe & Monteith, P.C.

The hearing process, according to Allentuch, was completely “perverted” because they couldn’t even get the Insurance Department to produce a list of documents for Lisa Fein Siegel, the FOI hearing officer, to see.

He said it turned the entire process upside down and was not appropriate behavior for a public servant.

“That was the behavior of a person with a guilty conscience,” Allentuch said referring to Wade.

Siegel told the commission that when the character of the record is at issue, it’s the hearing officer’s job to look at the record. However, by refusing to produce the documents, it means Siegel was unable to make that determination.

The state Insurance Department never held a public hearing on the proposed merger between Aetna and Humana because its role was more diminished than it was when it came to the proposed Anthem-Cigna merger. Humana’s market in Connecticut was relatively small so the impact the merger would have on the state didn’t cause much concern. Attorney General George Jepsen did not join the U.S. Department of Justice’s opposition to that merger, but he did join in criticizing the Anthem-Cigna merger.

Wade gave approval for the Aetna-Humana merger in January 2015.

In requesting the documents it sought the Connecticut Campaign for Consumer Choice was trying to understand why Wade gave the insurance companies her approval.

Matthew Katz, executive vice president and CEO of the Connecticut State Medical Society, said Wednesday that the decision affirms the hearing officer’s ruling that the agency didn’t comply with the request.

“The issue here is transparency, information, and public right to know, and right now we don’t have the public right to know,” Katz said.

He said they are still waiting for the documents.