La. DOI Files Petition in Response to Citizens Probe Subpoena

Attorneys for the Louisiana Department of Insurance filed a Petition for Declaratory Judgment and a Request for Expedited Hearing in response to a subpoena related to an investigation into Louisiana Citizens Property Insurance Corporation (Citizens). The subpoena was issued to the Commissioner of Insurance by the Legislative Audit Advisory Council (LAAC) on Nov. 7, 2007.

According to the department’s announcement, the subpoena seeks all DOI employee e-mails beginning Oct. 1, 2003, to date. The DOI asserts the subpoena as drafted is overly broad because the work of most of the 289 employees at the DOI has nothing to do with Citizens, the Property Insurance Association of Louisiana (PIAL) and/or the Louisiana Automobile Insurance Plan (LAIP).

For approximately the past six weeks, the Legislative Auditor (LA) has sought records relative to Citizens, PIAL or LAIP from the DOI. The DOI has had no objection to the LA accessing the records of the above mentioned entities. In fact, the DOI has already waived all privileges it has regarding these three entities and has begun the transmittal of those records to the LA. The DOI does, however, object to the council having access to records, including those which:

(1) Are protected from disclosure to the LA under Dr. Daniel G. Kyle, Louisiana State Legislative Auditor vs. Louisiana Public Service Commission and Jack “Jay” Blossman, in his capacity as Chairman of the Louisiana Public Service Commission East Baton Rouge Parish, et al. (878 So.2d 650, 2003-0584 (La.App. 1 Cir. 4/2/04)),

(2) Are protected from disclosure to the LA under Robert Varnado, Jr., and Edgar K. Corey v. Department of Employment and Training, Office of Workers’ Compensation, State of Louisiana, 95-0787 (La.App. 1 Cir. 6/28/96), 687 So.2d 1013, writ denied, 3/27/97,

(3) Have absolutely nothing to do with Citizens, PIAL or LAIP,

(4) Are proprietary in nature,

(5) Are protected from disclosure even under subpoena,

(6) Are subject to privileges, including but not limited to:
a. the attorney-client privilege
b. the deliberative process privilege
c. Constitutionally protected privacy interests

Many DOI records should be protected, including health-related consumer information from the DOI Office of Health and DOI employee health information in the DOI’s Office of Management and Finance. Some records are protected from even subpoena and cannot be disclosed to the LA, including certain financial solvency records. Releasing this confidential information could risk the accreditation of the DOI by the National Association of Insurance Commissioners.

The release of proprietary and confidential business plans and disaster recovery plans of insurance companies are also at stake. Release of this information could have a chilling affect on the department’s efforts to attract insurers to the Louisiana market.

There are also certain records in the DOI that cannot even be shared with other divisions in the agency, including numerous fraud, actuarial and receivership division records.

The DOI Petition respectfully asks the court to declare:

(1) Whether the DOI must turn over every single record of the DOI to the Legislative Auditor (LA), and if not, declare with specificity which records, if any, must be turned over to the LA,

(2) Whether the DOI may assert privileges, including attorney-client, deliberative process, and privacy, to prevent the LA from having access to certain protected communications within the DOI, and

(3) Whether the LA has followed proper procedures.

The DOI suggests to the court that the final disposition of this matter has far-reaching effects for all branches of and each agency in Louisiana government.

Source: Louisiana Department of Insurance