The Recorder, San Francisco

2/12/04

Court Questions State Farm's 'Trade Secrets'

By Jeff Chorney

At least one state Supreme Court justice didn't buy an insurance attorney's argument Wednesday that sensitive data collected by the Department of Insurance should be kept from the public as "trade secrets."

"That, at first blush, doesn't support your position at all," Justice Joyce Kennard snapped after lobbing several quick questions at State Farm's lawyer, Vanessa Wells of Heller Ehrman White & McAuliffe.

The interaction came during oral arguments in State Farm Automobile Insurance v. Garamendi, S102251, on the third day of the court's latest visit to Sacramento.

State Farm sued to block the insurance commissioner from releasing pricing and underwriting data publicly, arguing it's a trade secret exempt from public records laws. Under Proposition 103, the state is supposed to use the information to track insurer's compliance with rules against redlining.

After putting down Wells, Kennard read aloud the Insurance Code section that says insurers must provide the data in question and that the data is public record.

No other justice staked out territory as clearly as the outspoken Kennard, but several appeared uncomfortable with the insurers' arguments. Uninterested in nitpicking the various statutes regarding the records, they instead focused on how their ruling will affect consumers.

After Kennard's initial assault, Justice Ming Chin seemed to be trying to throw Wells a bone when he asked how the disclosure of data would affect the cost and availability of insurance.

Since the goal of Prop. 103 was to rein in California's insurance market, it would make sense for State Farm to argue that a negative effect on their business would translate into disaster for consumers.

But Wells wouldn't bite, and Chin looked puzzled.

Deputy Attorney General Kristian Whitten, who defended the insurance commissioner, had a much easier time of it. Kennard and Chin again led the questioning, with Kennard making a point to pose similar questions as she had asked his adversary.

Whitten shared his allotted time with Mark Savage, a Consumers Union attorney. The justices wanted both men to explain whether they thought voters knew what they were doing when they passed Prop. 103.

Savage argued that just as the California Public Records Act let sunshine into the workings of government, Prop. 103 was intended to do the same thing for the insurance industry.

In her rebuttal, Wells disagreed, saying her client had no idea its trade secrets would not be protected. "103 is not a sunshine law," she said.

For insurers, the case is about guarding their business interests by keeping sensitive data out of the hands of competitors. But the state and Consumers Union, which represents an intervenor in the case, want the court to consider broader questions about the insurance commissioner's duty and ability to protect the public.

Consumer advocates say the information is essential to track redlining -- the term they use to describe alleged discrimination in insurances rates and policies based on where people live.

The case ended up at the state's highest court after the Department of Insurance released some of State Farm's information about coverage in different Zip codes. State Farm sued but lost in both San Francisco Superior Court and the First District Court of Appeal.