Judges: Paul J. Morrison, Attorney General of Kansas.
Filed Date: 1/23/2008
Status: Precedential
Modified Date: 7/5/2016
John W. Campbell, General Counsel Kansas Insurance Department 420 S.W. 9th Street Topeka, Kansas 66612
Dear Mr. Campbell:
As General Counsel for the Kansas Insurance Department, you request our opinion whether the Kansas Open Records Act (KORA) allows the Kansas Insurance Department (KID) to restrict public access to the rate filings submitted by insurance companies when the Committee on Surety Bonds and Insurance (Committee) negotiates with bidders pursuant to K.S.A. 2006 Supp.
The Committee, comprised of the State Treasurer, the Attorney General and the Commissioner of Insurance, is charged with purchasing insurance and surety bonds for all state agencies.1 The negotiation method was created by statute in 2004 and patterned after the Kansas State Employees Health Care Commission as an alternative to the traditional "sealed bid" approach to provide insurance coverage for state property.2 The Committee may negotiate more competitive terms and conditions for a maximum term of three years.
As we understand the facts, in order for an insurance company to submit either a bid or proposal for consideration and potential negotiation, it must first file its proposed rates with KID for review and approval before any policy is issued or delivered.3 Rate filings for coverage of state property are unique and would only be used by an insurance company preparing a bid or proposal. To illustrate, a recent request for proposal for automobile liability insurance for the Department of Transportation specifies the "rates and rating plans used in the computation of the final premiums for the policy shall have been filed with and approved by the Commissioner of Insurance pursuant to K.S.A. Ch. 40, Art. 11, prior to the bid opening."4 After approval by KID, companies responding to the proposal are required to complete their submission on forms provided by the Department of Administration and those rates become a part of the sealed bid. You are concerned that if rate filings are open any bidder could request a copy of the proposed rate structure and know the rate portion of the bid of a competitor.
The Commissioner of Insurance has jurisdiction over all insurance companies in Kansas.5 Insurance companies are defined in K.S.A.
The required information about an insurance company and the rates it files for approval are expressly discussed in a statute that states "[a] filing and any supporting information shall be open to publicinspection after it is filed with the commissioner."8 Therefore, rate filings, once in the possession of KID, are open records and subject to disclosure. The Commissioner's approval is not a necessary condition for releasing the filing information, only that the filing is made. The statute contains no language that would allow the Commissioner to close this type of record.
Next, we consider the application of the KORA to the rate filings, when submitted as a part of a bid or proposal, and whether such filings may be closed during the time period between submittal to KID and the final disposition of the bid or proposal award. The KORA applies to all public records9 and it is the public policy of Kansas that "public records shall be open for inspection by any person unless otherwise provided, and this act shall be liberally construed and applied to promote such policy."10 Unless closed pursuant to specific legal authority or subject to discretionary closure pursuant to K.S.A. 2006 Supp.
K.S.A. 2006 Supp.
As you have noted in your letter, K.S.A. 2006 Supp.
Bid documents as contemplated in K.S.A. 2006 Supp.
In summary, we find that the plain language of K.S.A. 2006 Supp.
Sincerely,
Paul J. Morrison
Attorney General of Kansas
Michael J. Smith
Assistant Attorney General