January 10, 2012

Ms. Cynthia Villarreal-Reyna

Director, Office of Agency Counsel

Legal Section, General Counsel Division MC 110-1A

Texas Department of Insurance

P.O. Box 149104

Austin, Texas 78714-9104

OR2012-00450

Dear Ms. Villarreal-Reyna:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 442705 (TDI# 119054).

The Texas Department of Insurance (the "department") received a request for information regarding 22 named companies' rate increases of their Medicare supplements for the state of Texas for specified years, including information related to starting premiums for designated groups and ages. ⁽¹⁾ You state some of the requested information has been released. Although you take no position on the public availability of the rest of the requested information, you believe the information at issue may implicate the interests of Aetna Life Insurance Company ("Aetna"), BlueCross BlueShield of Texas ("BlueCross"), Conseco Life Insurance Company ("Conseco"), Genworth Life & Annuity Insurance ("Genworth"), Gerber Life Insurance Company ("Gerber"), and United of Omaha Life Insurance ("United"). You inform us the interested parties were notified of this request for information and of their right to submit arguments to this office as to why the information at issue should not be released. ⁽²⁾ We received correspondence from attorneys for BlueCross. We have considered their comments and reviewed the information you submitted.

We first note the requestor does not appear to seek access to the identification numbers you have highlighted in the submitted documents. Thus, the identification numbers do not appear to be responsive to the present request for information. This decision does not address the public availability of any information that is not responsive to the request, and the department need not release any such information in response to the request.

We next note, and you acknowledge, the department did not comply with its deadlines under subsections 552.301(b) and 552.301(e) of the Government Code in requesting this decision. See Gov't Code § 552.301(a), (b), (e). The responsive information is therefore presumed to be subject to required public disclosure and must be released, unless there is a compelling reason to withhold any of the information. See id. § 552.302; Simmons v. Kuzmich, 166 S.W.3d 342 (Tex. App.--Fort Worth 2005, no pet.); Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ). This statutory presumption can generally be overcome when information is confidential by law or third-party interests are at stake. See Open Records Decision Nos. 630 at 3 (1994), 325 at 2 (1982). Therefore, we will determine whether the department must withhold any of the responsive information to protect the interests of the third parties.

An interested third party is allowed ten business days from the date of its receipt of the governmental body's notice under section 552.305 of the Government Code to submit its reasons, if any, as to why information relating to the party should not be released. See Gov't Code § 552.305(d)(2)(B). As of the date of this decision, this office has received no correspondence from Aetna, Conseco, Genworth, Gerber, or United. Although BlueCross was initially opposed to the release of responsive information related to the company, BlueCross's attorneys have since informed us of the company's decision not to submit arguments against disclosure. Thus, because none of the third parties has demonstrated any of the information at issue is proprietary for purposes of the Act, the department may not withhold any of the responsive information on the basis of any interest any of the third parties may have in the information. See id. § 552.110(a)-(b); Open Records Decision Nos. 552 at 5 (1990), 661 at 5-6 (1999). Therefore, as the department does not claim an exception to disclosure, the responsive information must be released.

This letter ruling is limited to the particular information at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free, at (888) 672-6787.

Sincerely,

James W. Morris, III

Assistant Attorney General

Open Records Division

JWM/em

Ref: ID# 442705

Enc: Submitted documents

c: Requestor

(w/o enclosures)