Note: In 2015, the Minnesota Supreme Court held in Minnesota Joint Underwriting Association v. Star Tribune that MJUA is not a government entity, which supersedes the discussion portion of this opinion.

Facts and Procedural History:

On September 14, 2004, IPAD received a letter dated September 13, 2004, from John Bjorkman. In the letter, Mr. Bjorkman asked the Commissioner to issue an advisory opinion regarding the classification of certain data that the Minnesota Joint Underwriting Association (MJUA) maintains. In a letter dated September 21, 2004, IPAD sought comments from the Minnesota Department of Commerce. Donna Watz, Staff Attorney, provided comments in a letter dated September 28, 2004.

A summary of the facts as Mr. Bjorkman presented them is as follows. He wrote:

...the MJUA has been asked to disclose the names and addresses of its policyholders by an insurance agent who intends to solicit those policyholders. The MJUA has declined to release the information pending receipt of an advisory opinion from the Commissioner.

By way of background, the MJUA is a statutorily created entity authorized to issue insurance to entities and individuals unable to obtain insurance in the private marketplace. See Minn. section 62I.02. The MJUA is considered a state agency within the purview of [Chapter 13]. The MJUA is also, in our view, considered an insurer or insurance company as those terms are used in various state and federal privacy provisions. Indeed, the MJUA is regulated by the Department of Commerce in the same manner as any other insurance company. For instance, the MJUA is required to file an Annual Statement, the Commissioner approves all of the MJUA's rates and the Commissioner has the right to inspect MJUA's books. Perhaps, most tellingly, the MJUA is required to pay premium taxes to the State just like any other insurer.

State and federal law prohibits an insurer or insurance company from disclosing private information concerning its policyholders....

Under federal law, the Gramm-Leach-Bliley Act prohibits an insurer from disclosing private policyholder information....

In 1996 the Commissioner provided the MJUA with an Advisory Opinion 96-005, on the very issue raised by this request. The opinion found the MJUA was subject to [Chapter 13] and that all information gathered by the MJUA is public unless otherwise classified in statute, federal law or by temporary classification. The advisory opinion ultimately concluded that the MJUA was required to disclose the names and addresses of its policyholders because the Commissioner is not aware of any other Minnesota statute or federal law which would classify the data in question as private or non-public. The MJUA questions the continuing applicability of the 1996 advisory opinion for two reasons. First, the advisory opinion does not reference Minn. Stat. section 72A.502 and the MJUA is concerned the Commissioner may not have considered that statute. Second, the Gramm-Leach-Bliley Act was not enacted until well after the Commissioner's 1996 advisory opinion and we believe the Act may impact the opinion.

Issue:

In Mr. Bjorkman's request for an opinion, he asked the Commissioner to address the following issue:

Discussion:

In Advisory Opinion 96-005, the Commissioner took the position that the MJUA is a state agency for purposes of Minnesota Statutes, Chapter 13. The Commissioner wrote:

...Section 13.02, subdivision 17, defines state agency as the state, the University of Minnesota, and any office, officer, department, division, bureau, board, commission, authority, district, or agency of the state. Given the [MJUA] is an association created by Minnesota statute, it is the Commissioner's position that the [MJUA] is a state agency, for purposes of Chapter 13, and is, therefore, subject to the requirements of Chapter 13.

All data subject to Chapter 13 are presumed to be public unless those data are otherwise classified in statute, in federal law, or by a temporary classification....

Therefore, because the data relating to Dram Shop liquor liability insureds do not appear to be classified as anything other than public, those data are public by operation of...Section 13.03, subdivision 1.

In his opinion request, Mr. Bjorkman noted that both state statute and federal law appear to prohibit the MJUA, a state agency, from disseminating certain data. Pursuant to Minnesota Statutes, section 72A. 502, subdivision 1, An insurer...must not disclose any personal or privileged information about a person collected or received in connection with an insurance transaction without the written authorization of that person except as authorized by this section. Section 72A.491, subdivision 14, defines insurer as any insurance company... Section 60A.02, subdivision 4, states that insurance company includes every insurer, corporation, business trust, or association engaged in insurance as principal.

Further, the privacy provisions of the Gramm-Leach-Bliley Act state, It is the policy of the Congress that each financial institution has an affirmative and continuing obligation to respect the privacy of its customers and to protect the security and confidentiality of those customers' nonpublic personal information. (See 15 U.S.C. section 6801.) The Gramm-Leach-Bliley Act defines financial institutions to include insurers. (See 12 U.S.C. section 1843(k)(4) and 15 U.S.C. section 6809.)

As stated above, section 13.03, subdivision 1, provides that government data are public unless otherwise classified in statute, federal law, or by temporary classification (not relevant here).

Although neither the language in Chapter 72A nor federal law provides an explicit classification of data, i.e., private, it appears to operate as the functional equivalent. Therefore, in the Commissioner's opinion, the MJUA is prohibited from disclosing the names and addresses of certain of its policyholders without consent. (See below for a discussion of the difference in the treatment of data about individual policyholders and other types of policy holders, e.g., corporations, partnerships, etc.) However, the Commissioner urges the MJUA to seek change to its enabling legislation, Chapter 62I, so that its policyholder data specifically are classified as private. This would remove any question about whether its policyholders are entitled to other rights of subjects of private data, such as the right to receive a Tennessen warning notice (see section 13.04, subdivision 2.)

Finally, the Commissioner adds the following. Ms. Watz, on behalf of the Commerce Department wrote:

The Department agrees with the conclusions reached by Mr. Bjorkman...We concur that Minn. Stat. section72A.502 and the Gramm-Leach-Bliley Act should prohibit the [MJUA] from disclosing personal information about its individual policyholders without the approval of the policyholder. As a point of clarification, we note that Minn. Stat. section72A.502 and the Gramm-Leach-Bliley Act pertain to personal information on individuals and do not address the privacy classification for information about companies or other entities that are policyholders....

The Commissioner agrees. In state law, section 72A.491, subdivision 17, defines personal information as any individually identifiable information gathered in connection with an insurance transaction from which judgments can be made about an individual's character, habits, avocations, finances, occupation, general reputation, credit, health, or any other personal characteristics. In federal law, 15 U.S.C. section 6809 (4), defines nonpublic personal information as that provided by a consumer to a financial institution. Further, 15 U.S.C. section 6809 (9) defines consumer as an individual who obtains...financial products or services which are to be used primarily for personal, family, or household purposes... Therefore, the names and addresses of MJUA's policyholders who are individuals cannot be released without consent, but the names and addresses of other types of policyholders are public pursuant to section 13.03, subdivision 1.

Opinion:

Based on the facts and information provided, my opinion on the issue that Mr. Bjorkman raised is as follows:

Signed:

Dana B. Badgerow
Commissioner

Dated: November 3, 2004