Date:
10/18/2018
Subject:
Howard Prossnitz/Iowa Insurance Division - Dismissal Order
Opinion:
The Iowa Public Information Board
|
In re the Matter of: Howard Prossnitz, Complainant And Concerning: Iowa Insurance Division, Respondent |
Case Number: 18FC:0058 Dismissal Order |
COMES NOW Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order.
On July 16, 2018, Howard Prossnitz filed this formal complaint against the Iowa Insurance Division (IID) alleging that the IID had violated Iowa Code chapter 22 by not providing the records he requested.
Mr. Prossnitz requested copies of “public records that are consumer complaints received about Bankers Life and Casualty Company in the last four years.” He noted that the record request was in connection with a putative class action pending in federal court in Illinois. In his complaint, he stated that the records were not released by the IID “on the erroneous application of the investigation exemption.”
Mr. Prossnitz further stated that other states had provided similar records to him and that he specifically excluded any investigative files from his request.
In response, the IID provided a copy of an email sent to Mr. Prossnitz on July 16, 2018, which stated that these records are confidential under Iowa Code sections 505.8(8)(a), 507E.5, and 502.607(2).
The IID response continued:
Information submitted by the public and received by the Division as a complaint shall be kept confidential by the commissioner according to Iowa Code § 505.8(8). Specifically, this statute states that "the commissioner shall keep confidential the information submitted to the insurance division or obtained by the insurance division in the course of an investigation or inquiry pursuant to subsection 6, including all notes, work papers, or other documents related to the investigation." Subsection 6 refers to the Division's acceptance of "inquiries and complaints from the public regarding the business of insurance." Any and all complaints that consumers may have submitted to the Division are maintained as confidential. As such, the Division has no records to produce in response to your request.
Subsection 505.8(8)(a), the provision relied upon by the IID in this response, is part of the enabling authority of the IID. It provides an independent grant of authority to the IID to hold confidential or release information related to an investigation of a complaint or inquiry regarding the insurance business notwithstanding the requirements of Chapter 22. Only the Commissioner of Insurance, in his or her sole discretion, is empowered under this provision to release such information and such disclosure does not waive the confidentiality afforded such records.
Subsection 505.8(8)a. provides:
8. a. Notwithstanding chapter 22, the commissioner shall keep confidential the information submitted to the insurance division or obtained by the insurance division in the course of an investigation or inquiry pursuant to subsection 6, including all notes, work papers, or other documents related to the investigation. Information obtained by the commissioner in the course of investigating a complaint or inquiry may, in the discretion of the commissioner, be provided to the insurance company or insurance producer that is the subject of the complaint or inquiry, to the consumer who filed the complaint or inquiry, and to the individual insured who is the subject of the complaint or inquiry, without waiving the confidentiality afforded to the commissioner or to other persons by this subsection. The commissioner may disclose or release information that is otherwise confidential under this subsection, in the course of an administrative or judicial proceeding.
The IID has interpreted this broad authority in its administrative rules. Iowa Administrative rule 191-1.3(11)f. defines confidential files to include “(c)omplaint files, investigation files, other investigative reports and other investigative information of the agency relating to discipline of licensed insurance agents, except as allowed under Iowa Code section 505.8(6), 505.17, 507A.10, or 507B.3.” (Emphasis added.)
The IID also suggested that Iowa Code section 22.7(18) could apply to hold the records confidential as the complaints were made by persons outside of government and complainants might be discouraged if their records were subject to general public release. Mr. Prossnitz disputes that analysis, stating that in Florida, all the complainants in similar cases indicated a willingness to testify in court to support each complaint.
The IPIB defers to the IID’s interpretation of Subsection 505.8(8)(a) and finds that the complaints are not subject to release as public records under Iowa Code Chapter 22.
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and could have merit before the IPIB accepts a complaint. This complaint does not meet all of those requirements.
IT IS SO ORDERED: Formal complaint 18FC:0058 is dismissed as beyond the jurisdiction of the IPIB pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on October 18, 2018. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
_________________________________
Margaret E. Johnson, J.D.
Dated this ____ day of October, 2018.
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of October, 2018, to:
Howard Prossnitz
Chance McElhaney, Iowa Insurance Division