LETTER: Insurance Commissioner responds to Jan. 26 Citizen editorial

Staff Writer
Gonzales Weekly Citizen

Dear Editor:

What you characterized as defiance of the Legislative Auditor and “an audit avoidance dance” is really my standing up as an executive branch agency to protect information that is private, protected and/or proprietary under Louisiana law. That law is spelled out in two legal decisions that are directly applicable to this controversy.

One is the holding in Kyle vs. Public Service Commission in which the Legislative Auditor attempted to get access to similar records and was told by the First Circuit Court of Appeal that he does not have the legal right to obtain such records as the Legislative Auditor is not an investigatory body such as the Attorney General, Inspector General or District Attorney.

Additionally, the holding in Varnado vs. Department of Labor held the head of that department personally liable for the seizure of privacy protected data from a state owned computer he was allowed to use in his office. The head of that department was held personally liable for $90,000 as a result of that violation of Mr. Varnado’s privacy. Although the attorneys for the Legislative Auditor refuse to recognize the First Circuit’s decision in Kyle that court stated that it was not his “function to evaluate, verify and analyze communications between employees of an executive branch agency, the entities it regulates or the citizens it serves. To do so raises constitutional issues of the separation of powers of the branches of government.”

In my instance, the auditor has requested thousands of constitutionally protected e-mails for Department of Insurance employees and consumers, as well as proprietary private businesses records and department documents protected under attorney/client and deliberative process privileges. These issues were also litigated in Kyle where the court affirmed that the Public Service Commission could rightfully assert those privileges to prevent access to its records.

This case is not about me withholding e-mails. It is about determining the right and the authority of the Commissioner to release totally personal and confidential documents that are protected by the U.S. Constitution, state constitution, federal and state laws. The court’s decision in this disagreement between a legislative agency and an executive branch agency will also give valuable insight into the applicability of the constitutionally guarded separation of powers doctrine, which is intended to prevent lawmakers from having power as law enforcers, an executive branch duty.

Your editorial would have me violate laws and disregard the privacy rights of those whose information I possess as the regulator of the insurance industry of Louisiana. I urge you to consider that violating these laws will carry serious repercussions and severe penalties. For example, people who ask the Department of Insurance to intercede for them in disputes with their health insurers have a right to trust that we won’t tell the world about their mental illness, HIV infection, drug abuse or hernia operation. The same expectation for privacy applies to companies which turn their trade secrets over to the department.

The Department of Insurance and I, personally, commit sanctionable civil rights violations if we cause private information to be released to the public. Documents given to a third party, including the Legislative Auditor, create that exposure and personal liability for me, and current law would prohibit the state treasury from reimbursing me the cost of the fines or damages resulting from these violations.

Indeed these laws may conflict with state government’s audit laws, so I have turned to the court for guidance. Fortunately, the court is willing to review this dispute without first causing my agency to close its doors and stop regulating the insurance industry.

If the court orders me to turn over any and/or all copies, I will do so immediately while pursuing an appeal after surrender of such documents. This fight debated in court by two government agencies is far better than leaving the fight to an unsuspecting, trusting private individual or public employee damaged by disclosure of his or her personal information. Additionally, state agencies need to know what attorney/client privilege they retain as well as what deliberative process privilege is protected under Louisiana law.

With best wishes and kindest personal regards, I remain,

Very truly yours,

James J. Donelon

Commissioner of Insurance