Cigna - Indiana Department of Insurance (follow up)

Mr. Sirota,

You recently requested:

Pursuant to the Indiana Access to Public Records Act, I hereby request the following records:

All notes from conference calls about the proposed Anthem-Cigna merger that were organized by the National Association of Insurance Commissioners on behalf of the Connecticut Insurance Department. According to emails previously provided to International Business Times by the Indiana Department of Insurance's Tina L. Korty on 6/14/16, such conference calls took place on the following dates:

9/30/15
11/4/15
11/9/15
12/7/15
2/17/16
3/18/16
4/14/16
5/24/16

Several of the emails to and from employees of the Connecticut Insurance Department included attachments with notes from these calls. The emails provided to Internatonal Business Times on 6/13/16 from the Indiana Department of Insurance prove that the Indiana Department of Insurance is in possession of these attachments. They include -- but are not limited to -- the following:

- A December 3, 2015 email with an attachment called "Cigna_Anthem survey question.docx"

- A December 15, 2015 email from Joan Nakano (Joan.Nakano@ct.gov<mailto:Joan.Nakano@ct.gov>) that included attachments called "Anthem Cigna Regulator Call Notes 127 15.docx" and "Anthem Acquisition of CIGNA State Status Report Call 12 7 15.docx"

- A January 20, 2016 email from Joan Nakano (Joan.Nakano@ct.gov<mailto:Joan.Nakano@ct.gov>) that included attachments called "Anthem Regulator Only Call Notes 1 12 16.docx" and "Anthem Acquisition of CIGNA State Status Report Calli 12 16.docx"

- A March 23, 2016 email from Joan Nakano (Joan.Nakano@ct.gov<mailto:Joan.Nakano@ct.gov>) that included attachments called "letter Anthem affiliation with Blues to WI CT Insurance Commissioners 3 9 16.pdf," "Anthem Cigna Regulator Call Notes 3 18 16.docx" and "Anthem Acquisition of CIGNA State Status Report Call 3 18 16.docx"

I hereby request these specific attachments.

As you likely know, Indiana's Access to Public Records Act, Ind. Code § 5-14-3 (the "APRA"), exempts some records from disclosure. Specifically, Ind. Code § 5-14-3-4(1) specifies that records declared confidential by state statute are excepted from disclosure and may not be disclosed.

Indiana's review of the acquisition of CIGNA Healthcare of Indiana, Inc., by Anthem, Inc., was performed pursuant to Ind. Code § 27-1-23 (the "Holding Company Act"). Section six of the Holding Company Act specifically addresses confidentiality:

27-1-23-6. Confidentiality of insurers' records.
(a) Documents, materials, and other information in the possession or control of the department that are obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to section 5 [IC 27-1-23-5] of this chapter and all information reported pursuant to sections 2(c)(17), 2(c)(18), 3, and 4 [IC 27-1-23-2(c)(17), IC 27-1-23-2(c)(18), IC 27-1-23-3, and IC 27-1-23-4] of this chapter are confidential and privileged and shall not be subject to subpoena, discoverable, or admissible in evidence in a private civil action. However, the commissioner may use the documents, materials, and other information in the performance of the commissioner's duties as described in subsections (c) and (d). The commissioner shall not make the materials, documents, or other information public without the prior written consent of the insurer to which it pertains unless the commissioner, after giving the insurer and its affiliates who would be affected thereby notice and opportunity to be heard, determines that the interests of policyholders or the public will be served by the publication thereof, in which event the commissioner may publish all or any part thereof in such manner as the commissioner considers appropriate.
(b) The commissioner and any other person:
(1) who receives documents, materials, or other information while acting under the authority of the commissioner; or
(2) with whom the documents, materials, or other information are shared;
under this chapter is not permitted or required to testify in a private civil action concerning any documents, materials, or other information that is confidential under subsection (a).
(c) The commissioner may do the following:
(1) Except as provided in subdivision (2), share documents, materials, and other information described in this section with the following if the recipient agrees in writing, and provides written verification that the recipient has the legal authority, to maintain the confidential and privileged status of the documents, materials, and other information:
(A) Other state, federal, and international regulatory agencies.
(B) The NAIC and affiliates and subsidiaries of the NAIC.
(C) State, federal, and international law enforcement authorities.
(D) Members of a supervisory college described in section 5.1 [IC 27-1-23-5.1] of this chapter.
(2) With respect to confidential and privileged documents, materials, and other information reported under section 3(l) [IC 27-1-23-3(l)] of this chapter, share the documents, materials, and other information with commissioners who:
(A) regulate insurance in states with a law that is substantially similar to subsection (a); and
(B) have agreed in writing not to disclose the documents, materials, or other information.
(3) Receive documents, materials, or other information from:
(A) the NAIC and affiliates and subsidiaries of the NAIC;
(B) regulatory and law enforcement officials of domestic or foreign jurisdictions;
if the commissioner maintains the confidential or privileged status of the documents, materials, and other information that are received with notice or the understanding that the documents, materials, and other information are confidential or privileged under the laws of the jurisdiction that is the source of the documents, materials, and other information.
(d) The commissioner shall enter into written agreements with the NAIC governing sharing and use of information provided under this chapter, including the following:
(1) Procedures and protocols concerning the confidentiality and security of information shared:
(A) with the NAIC and affiliates and subsidiaries of the NAIC under this chapter; and
(B) by the NAIC with other state, federal, and international regulators.
(2) A statement that, with respect to information shared with and used by the NAIC and affiliates and subsidiaries of the NAIC under this chapter:
(A) the commissioner maintains ownership of the information; and
(B) the use of the information is subject to the direction of the commissioner.
(3) A requirement that, if confidential information of an insurer that is in the possession of the NAIC under this chapter is subject to a request or subpoena to the NAIC for production or disclosure, the NAIC will provide prompt notice to the insurer.
(4) A requirement that the NAIC and affiliates and subsidiaries of the NAIC will allow intervention by an insurer in a judicial or administrative action under which the NAIC or affiliates or subsidiaries of the NAIC may be required to disclose confidential information concerning the insurer that has been shared with the NAIC or affiliates or subsidiaries of the NAIC under this chapter.
(e) The sharing of information by the commissioner under this chapter is not considered to be a delegation of regulatory authority. The commissioner is solely responsible for the administration, implementation, and enforcement of this chapter.
(f) Disclosure to or sharing by the commissioner of documents, materials, or other information under this chapter is not a waiver of any applicable privilege or claim of confidentiality in the documents, materials, or other information.
(g) Documents, materials, and other information in the possession or control of the NAIC under this section are:
(1) confidential;
(2) privileged;
(3) not subject to subpoena; and
(4) not discoverable or admissible in evidence in a private civil action.

The documents we previously provided to you are the ones disclosable under the APRA. Because of the confidentiality of the documents, we will not be able to fulfill your request for these additional documents.

Sincerely,
Tina Korty
--
Tina L. Korty, General Counsel
Indiana Department of Insurance
phone 317.232.2417 | fax 317.232.5251