from the Marion Superior Court The Honorable Timothy W.
Oakes, Judge Trial Court Cause No. 49D02-1408-PL-26675
ATTORNEYS FOR APPELLANT Steven M. Badger Alexandra R. French
Barnes & Thornburg LLP Indianapolis, Indiana
ATTORNEY FOR APPELLEE - INDIANA COMPENSATION RATING BUREAU E.
Scott Treadway EST Law, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE - INDIANA WORKER'S COMPENSATION
BOARD Curtis T. Hill, Jr. Attorney General of Indiana Kyle
Hunter Deputy Attorney General Indianapolis, Indiana
of the Case
Risk Metrics Corporation, n/k/a LexisNexis Risk Solutions,
Inc., ("LexisNexis") appeals the trial court's
entry of summary judgment for the Indiana Compensation Rating
Bureau ("the Rating Bureau") and the Indiana
Worker's Compensation Board ("the Board") on
the Rating Bureau's complaint for declaratory judgment.
LexisNexis raises a single issue for our review, which we
restate as whether the trial court erred when it concluded
that certain insurance coverage policy data held by the
Rating Bureau that were accessible by the Board are not
subject to public access pursuant to Indiana's Access to
Public Records Act, Ind. Code §§ 5-14-3-1 to -10
(Supp. 2017) ("APRA"). We hold that the records of
that data held by the Rating Bureau are confidential records
and, therefore, are not available under APRA. Accordingly, we
affirm the trial court's judgment.
and Procedural History
The Board is the state agency that is charged with
administering Indiana's Worker's Compensation Laws,
I.C. §§ 22-3-2-2 to -6-3. Those laws require, in
relevant part, that every employer in Indiana carry insurance
to cover worker's compensation claims, unless the
employer is exempt. An employer required to carry such
insurance "shall file with [the Board], in the form
prescribed by the [B]oard, within ten (10) days after the
termination of the employer's insurance by expiration or
cancellation, evidence of the employer's compliance . . .
." I.C. § 22-3-5-2. However, at any time the Board
"is entitled to request that an employer provide the
[B]oard with current proof of compliance, " and if the
employer "fails or refuses to provide current proof of
compliance" the Board "may assess a civil penalty
against the employer . . . ." I.C. § 22-3-5-2.5(a),
(b). Prior to 1998, the Board received and maintained
employer proof of compliance data ("POC data") in
accordance with Section 22-3-5-2 in the form of paper filings
submitted by employers directly to the Board.
Meanwhile, insurers certified to provide worker's
compensation coverage in
are, as a matter of law, members of the Rating Bureau. I.C.
§ 27-7-2-3. Although created by statute, the Rating
Bureau is a private entity regulated by the Indiana
Department of Insurance ("IDOI"). I.C. §
27-7-2-28.2. According to the Indiana Code, the Rating Bureau
exists to achieve the following purposes:
(1) To prohibit price fixing agreements and other
anticompetitive behavior by companies.
(2) To protect policyholders and the public against the
adverse effects of excessive, inadequate, or unfairly
(3) To promote price competition among companies so as to
provide rates that are responsive to competitive market
(4) To provide regulatory procedures for the maintenance of
appropriate data reporting systems.
(5) To improve availability, fairness, and reliability of
(6) To authorize essential cooperative action among companies
in the ratemaking process and to regulate such activity to
prevent practices that tend to substantially lessen
competition or create a monopoly.
(7) To encourage the most efficient and economic marketing
practices. I.C. § 27-7-2-1.1.
Pursuant to those purposes, one of the key functions of the
Rating Bureau is to collect statistical policy data from its
members, which the Rating Bureau then uses to recommend
minimum premiums and rates to the Commissioner of the IDOI.
I.C. § 27-7-2-4(a). And to facilitate the collection of
that data, since December 31, 1997, the Rating Bureau has
used as its vendor the National Council on Compensation
Insurance ("NCCI"). NCCI is a nongovernmental,
not-for-profit company based in Florida. NCCI collects a vast
array of statistical policy data, including POC data, from
worker's compensation insurance providers throughout the
United States, which NCCI then reports to various
jurisdictions as required on behalf of those providers.
On January 1, 1998, the Board implemented a new system in
which the paper proof-of-compliance filings from employers
under Section 22-3-5-2 were replaced with electronic policy
data from insurers. In particular, the Board entered into a
contract with NCCI pursuant to which NCCI, acting as the
Board's agent, would "report . . . to the
Board" the policy data NCCI had collected on
Indiana's certified worker's compensation insurance
providers. Appellant's App. Vol. V at 40. Between January
of 1998 and August of 2014, NCCI provided the Indiana policy
data directly to the Board electronically.
LexisNexis is in the business of compiling and selling
business data that it collects through public records
requests. Between 1999 and 2011, LexisNexis and the Board had
several APRA disputes with respect to the policy data NCCI
had collected and provided to the Board. In 2012, LexisNexis
filed a complaint against the Board under APRA for access to
that policy data. In January of 2013, LexisNexis and the
Board settled that complaint pursuant to an agreement in
which the Board agreed to make the policy data available for
public access "so long as no change of law"
occurred to make that data "confidential or exempted
from disclosure in any way . . . ." Id. at
Thereafter, effective July 1, 2013, the Indiana General
Assembly enacted a new statute codified at Indiana Code
Section 27-7-2-40. P.L. 275-2013 § 20. According to
The [Rating Bureau] may collect data from its members under
this chapter, including:
(1) claims data;
(2) policy data such as policy number, policy term, and
employer and employee ...