Facts and Procedural History:

On January 21, 2005, IPAD received a letter dated same, from Jeff Leyk. In his letter, Mr. Leyk asked the Commissioner to issue an advisory opinion regarding his right to gain access to certain data that Resource Training and Solutions (RTS), a Minnesota service cooperative, maintains.

IPAD, on behalf of the Commissioner, wrote to Robert Cavanna, Executive Director of RTS, in response to Mr. Leyk's request. The purposes of this letter, dated January 25, 2005, were to inform him of Mr. Leyk's request and to ask him to provide information or support for RTS' position. On February 4, 2005, IPAD received a response, dated same, from Thomas Pursell, an attorney representing RTS.

A summary of the facts as provided by Mr. Leyk is as follows. In a letter dated September 29, 2004, Mr. Leyk wrote to Mr. Cavanna:

I am requesting a copy of all financial documents pertaining to the health insurance pool at [RTS]. Please include ledgers containing all income and expenditures, listing the names, amounts, and services provided by each vendor or entity.

In a letter dated October 8, 2004, Mr. Leyk wrote again to Mr. Cavanna.

Let me clarify what I would like to receive. I am NOT interested in the individual claims data of each school district. I am only interested in receiving the financial records pertaining to the health insurance pool. The financial records I am requesting should show all inflows and expenditures pertaining to the health pool, as well as all stabilization accounts. The focus of my inspection will be identifying how much and whom is receiving monies from the premiums charged to the school districts. I would also like the worksheet or a statement from Blue Cross/Blue Shield that will match and verify the amounts paid during the same period as the dates on the financial records. (Emphasis provided.)

In a letter dated October 26, 2004, Mark Kinney, an attorney representing RTS wrote to Mr. Leyk. He cited Minnesota Statutes, section 13.203, which classifies certain service cooperative data as nonpublic. Mr. Kinney wrote:

We have carefully considered your request, and have determined that you are requesting either claims experience or related information...

The statute provides that the Executive Director of a Minnesota Service Cooperative may release nonpublic data not on individuals if he or she determines that release of the data will not be detrimental to the plan or program. It is our understanding that you are a licensed insurance broker, and that you are not requesting this information on behalf of an employer that is a member of the pool. Accordingly, I have advised [RTS] that the release of the data requested will likely be detrimental to the pool.

... Also note that [RTS] has offered and will make available to you at no cost its audited financial statements, which may contain summary information on the health pools, as those statements are already in the public domain.

In an October 28, 2004, letter to Mr. Cavanna, Mr. Leyk noted that he received the denial letter from Mr. Kinney. Mr. Leyk further wrote:

I would like a copy of the audit performed on the health pool and again, I am requesting a copy of the health pool financials.

Also, let me clarify what I would like to receive. Minnesota Statute 13.203 only applies to the information received from carriers and administrators. I am not interested in the claims information for which this statute applies. I would like to inspect the financials of [RTS] that pertain to the health pool, NOT claims information. The transactions that occur within [RTS] are not protected information and are subject to public inspection under [Chapter 13].

In a letter dated November 3, 2004, Mr. Kinney wrote to Mr. Leyk:

Contrary to your assertion, claims experience is not limited to information received from carriers and claims administrators. [Section 13.203] protects claims experience and all related information received from carriers and claims administrators. Applying its ordinary commercial meaning, claims experience includes individual claims (which would be protected without regard to Section 13.203), and claims that are aggregated at both the employer and pool level. Claims experience is the central component of the health pool audit, and is inextricably intertwined with health pool financials. [Emphasis provided.]

In response to your request, [RTS] has retained an actuary to assist it in determining whether public data contained in the health pool audit, if any, may be separated from claims experience and all related information received from carriers and claims administrators. We will contact you when that determination is complete, and make any resulting public data available for inspection.

Mr. Leyk and Mr. Kinney exchanged additional emails.

In his opinion request, Mr. Leyk wrote, Although I have requested several documents, my primary interest is in the financials and the annual audit. These are the requests on which I would like an advisory opinion at this time.

The Commissioner notes that RTS provides a number of services, including software training, professional development, and parenting workshops, in addition to a group health purchasing coalition.

Issue:

Based on Mr. Leyk's request for an opinion, the Commissioner agreed to address the following issue:

Did Resource Training and Solutions comply with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the following data: all financial documents pertaining to the health insurance pool and the annual audit of Resource Training and Solutions?

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Discussion:

Pursuant to Minnesota Statutes, Chapter 13, government data are public unless otherwise classified. Section 13.203 states:

Claims experience and all related information received from carriers and claims administrators participating in a group health or dental plan, including any long-term disability plan, offered through the Minnesota service cooperatives to Minnesota school districts and other political subdivisions, and survey information collected from employees and employers participating in these plans and programs, except when the executive director of a Minnesota service cooperative determines that release of the data will not be detrimental to the plan or program, are classified as nonpublic data not on individuals.

In the case of this opinion, there appears to be no dispute that RTS is a service cooperative pursuant to Minnesota Statutes, section 123A.21, and as such, is subject to the provisions of Chapter 13.

In his comments to the Commissioner, Mr. Pursell wrote:

With respect to the other part of Mr. Leyk's request - all financial documents pertaining to the health insurance pool - this request is impossibly vague in light of the fact that claims experience is nonpublic data under Minn. Stat. section 13.203. The health insurance pool is an important function of [RTS], which is one of the State's service cooperatives. Virtually every bit or byte of information generated by the insurance pooling function [sic] derived from or related to claims experience. In order to be responsive to Mr. Leyk's request, [RTS] has retained an actuarial firm to determine whether financial documents pertaining to the health insurance pool (or portions thereof) are public data. [RTS] will provide information pursuant to an appropriately articulated request. Until then, a substantive response on all financial documents is premature.

[RTC] has engaged an actuarial firm at considerable expense to separate public from protected information if an appropriate Data Practices request is received.

Regarding Mr. Leyk's request for the audit of the health pool, Mr. Purcell referred to Mr. Kinney's October 26, 2004, letter (see Facts and Procedural History above).

The Commissioner has the following comments. First, there appears to be a disagreement between the attorneys representing RTS and Mr. Leyk regarding the language in section 13.203. Mr. Kinney, in his November 3, 2004, letter, asserted that the term claims experience discussed in section 13.203 is not limited to information received from carriers and claims administrators. Conversely, Mr. Leyk, in his opinion request, argued that section 13.203 does not protect financial data within the service coop. The classification of 'nonpublic data' only applies, as stated in the statute, to claims experience and related information received FROM THE CARRIERS AND CLAIMS ADMINISTRATORS. (Emphasis provided.)

In the Commissioner's opinion, the first phrase in section 13.203 classifies the following data received from carriers and claims administrators: claims experience and all related information. Thus, data that RTS collects, creates, and maintains that are not claims experience and all related information from carriers and claims administrators are not protected pursuant to section 13.203. The Commissioner's interpretation is buttressed by the legislative intent behind section 13.203. Mr. Kinney, in his October 26, 2004, letter wrote:

The Minnesota State Legislature categorized claims experience and all related information as nonpublic in order to protect the Service Cooperative pools from being forced to reveal data that could be used by competitors to lure away employers with good experience, or to undercut competitive bids that are made on the pool as a whole through the public bidding process.

Based on the plain language of section 13.203 and the legislative intent provided by Mr. Kinney, it seems highly likely that the Legislature did not intend for section 13.203 to protect all of the financial data relating to RTS' health insurance pool. For example, it does not appear that competitors could use data such as financial ledgers showing income and expenses associated with the pool to lure away certain employers or undercut competitive bids. Thus, it seems probable that RTS maintains some financial data responsive to Mr. Leyk's request. Mr. Leyk began making requests for data in October of 2004. The Commissioner urges RTS promptly to provide Mr. Leyk with copies of all public financial documents relating to the health insurance pool. If, for some reason, RTS does not understand Mr. Leyk's request, RTS should obtain clarification promptly.

Regarding the copy of the health pool audit Mr. Leyk asked for in his October 28, 2004, letter, it is not clear whether RTS has provided any of the data or informed Mr. Leyk that the data are not public (see section 13.03, subdivision 3(f)). Mr. Kinney, in his November 3, 2004, letter, stated that RTS had retained an actuary to review the audit and separate any public from not public data. Mr. Kinney wrote, We will contact you when that determination is complete, and make any resulting public data available for inspection. If RTS has not either provided the data or informed Mr. Leyk that the data are not public, it should do so promptly. The Commissioner notes that government entities may not charge for separating public from not public data.

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Opinion:

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

It does not appear that Resource Training and Solutions complied with Minnesota Statutes, Chapter 13, in responding to a request for a copy of the following data: all financial documents pertaining to the health insurance pool and the annual audit of Resource Training and Solutions.

Signed:

Dana B. Badgerow
Commissioner

Dated: March 14, 2005

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