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> Document 167 : INS 99-14 : Hearing Decision
DEPARTMENT OF PROFESSIONAL AND FINANCIAL REGULATION BUREAU OF INSURANCE
In response to the Second Discovery Request of the Superintendent ("Request"), Applicants Anthem Insurance Companies, Inc., on behalf of its subsidiary to be formed, Anthem Health Plans of Maine, Inc., d/b/a Anthem Blue Cross and Blue Shield (collectively "Anthem"), identified documents and responses that warrant confidential treatment and submitted those materials to the Superintendent labeled as such. Pursuant to the October 19, 1999 Protective Order, parties requesting confidential treatment generally are to designate confidential materials and submit a memorandum of law in support of such treatment at the time the materials are filed with the Superintendent. By agreement with counsel for the Superintendent, however, Anthem was permitted to designate confidential materials and file its memorandum seven (7) days after the last of the responses to the Superintendent’s Request were filed. Consistent with its practice when designating confidential materials in the Initial Consolidated Filing, Anthem’s goal was to make as many of the responses to the Request public as possible. The result is that of the four boxes of documents and written responses provided to the Superintendent by Anthem ("Responses"), Anthem requests confidential treatment for only a small number of documents and the substance of 1 written response. All of the information for which Anthem seeks protection is sensitive because its public disclosure would (1) benefit Anthem’s competitors, (2) reveal confidential litigation/settlement strategies and evaluations, or (3) invade Anthem’s subscribers’ privacy. As such, the Responses designated by Anthem should be protected. Specifically, after reviewing Responses, Anthem hereby requests that the following Responses should be designated confidential and disclosed only in the manner permitted under the Protective Order:
Response # Document Numbers Category/Description
B. Written Responses Response # Category
DISCUSSION The Maine Freedom of Access Act, 1 M.R.S.A. §§ 401-410 (the "FOAA") exempts from disclosure several types of records, including "records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records thereof were sought in the course of a court proceeding." Id. § 402(3)(B). The scope of this exemption includes any privilege recognized by Maine law and the rules that courts and statutes have developed to define the scope of a particular privilege. See Moffett v. City of Portland, 400 A.2d 340, 346-47 (Me. 1979). Both Maine Rule of Civil Procedure 26(c)(7) and Maine Rule of Evidence 507 protect entities’ trade secrets. The Supreme Judicial Court of Maine has held that Rule of Evidence 507 is within the scope of this exemption from the FOAA. See Guy Gannett Pub. Co. v. University of Me., 555 A.2d 470, 472 (Me. 1989). To govern trade secrets in Maine, Maine has adopted the Uniform Trade Secrets Act, codified at 10 M.R.S.A. §§ 1541-1548. That Act provides that:
10 M.R.S.A. § 1542(4). Beyond "trade secrets", Rule 26(c)(7) contemplates protection also for "other confidential research, development, or commercial information." Applying these standards, the information designated by Anthem should be deemed confidential and subject to disclosure only under the terms of the Protective Order. First, the Superintendent has already determined that Anthem’s financial projections should be deemed confidential and that public disclosure of such projections would inhibit Anthem’s ability to compete in the industry. See October 19, 1999 Protective Order (granting confidential status to financial projections). The financial projections and business plans provided in response to Question Numbers 28, 29 & 30 (AN-02036 to AN-02048, AN-00600 to AN-00621, and projections pursuant to Question 29 to be submitted) warrant the same treatment and would have the same adverse impact if disclosed to the general public. If known to competitors, this information could enable them to determine specific information about the profitability, cost, and pricing of products and services and give them an unfair ability to manage their own businesses to Anthem’s detriment. For the same reasons, Anthem’s risk based capital calculations for, and specifics regarding its intercompany services agreements with, its subsidiaries (Response Numbers 14&24, Document Numbers AN- 01614 to AN-01621, AN-00278 to AN-00576, AN-01650 to AN-01887, and AN-01986 to AN-02011) warrant confidential treatment. Public disclosure of this information would give competitors the ability to see Anthem’s cost structures, and with that determine Anthem’s pricing pressures. The BCBSA Capital Benchmark worksheets (Response Number 26, AN- 01888 to AN-01965 and AN-02012 to AN-02035) are confidential for the same reasons as the financial projections, but also because BCBSA’s calculation formula is a confidential formula exclusive to BCBSA. Third, certain of the documents responsive to Question Number 57 (AN- 01969 to AN-01985) contain confidential settlements and/or valuations of pending cases. Public disclosure of this information would give the individual litigants, and the plaintiffs’ bar at large, an unfair advantage by allowing them to understand Anthem’s internal evaluation of cases and its overall litigation strategies. Moreover, the public does not need this specific information in order to evaluate the transaction that is before the Superintendent – the financial statements provided by Anthem clearly reveal Anthem’s financial strength and the relative insignificance of the pending actions against it. Additionally, the voluminous information provided publicly allows all to judge whether Anthem’s management is qualified in character to do an effective job if the transaction is approved by the Superintendent. Next, Anthem’s response to Question Number 59 (AN-01460 to AN-01482) discloses information about specific individual Anthem subscribers. Anthem’s subscribers have an expectation of privacy and that alone should prevent public disclosure of the referenced documents. Moreover, although the documents as a whole are responsive to the Superintendent’s request, the personal information contained in those documents has little, if any, probative value to the substantive inquiries involved in this proceeding. Finally, Question Number 70 itself is confidential because it deals with confidential analysis from the CPRA. The response is also confidential because it discusses that same confidential analysis within the CPRA. For these reasons, Anthem respectively requests that the Superintendent designate the above-referenced materials as confidential, subject to disclosure only under the terms of the Protective Order and exempt from disclosure under the FOAA. DATED: December 23, 1999
CERTIFICATE OF SERVICE The undersigned hereby certifies that on December 23, 1999, a copy of Anthem’s Memorandum in Support of Confidential Treatment was served by electronic mail on each of the persons listed below.
Robert S. Frank, Esq. Harvey & Frank Two City Center P.O. Box 126 Portland, Maine 04112 e-mail: frank@harveyfrank.com (Blue Cross/Blue Shield of Maine)
Judith Chamberlain, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: judy.chamberlain@state.me.us (Bureau of Insurance)
William H. Laubenstein, Esq. State of Maine Department of the Attorney General 6 State House Station Augusta, Maine 04333-0006 e-mail: bill.laubenstein@state.me.us (Office of the Attorney General)
Gregory A. Brodek, Esq. Duane, Morris & Heckscher, LLP 15 Columbia Street, 4th Floor Bangor, Maine 04401-6355 e-mail: gabrodek@duanemorris.com (Maine Health Alliance)
Joseph P. Ditre, Esq. Consumer Health Law Program One Weston Court, Level One P.O. Box 2490 Augusta, Maine 04338-2490 e-mail: jditre@mainecahc.org (Consumers for Affordable Health Care Foundation/Coalition)
Michele M. Garvin, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 e-mail: Mgarvin@Ropesgray.com (Central Maine Healthcare Corporation; Central Maine Partners Health Plan)
Robert I. Goldman Maine Council of Senior Citizens 27 Bowery Beach Road Cape Elizabeth, Maine 04107 e-mail: Rgoldma1@maine.rr.com (Maine Council of Senior Citizens)
Bonnie Post Executive Director of the Maine Ambulatory Care Coalition P.O. Box 390 Manchester, Maine 04351 e-mail: bdpmacc@mint.net (Sacopee Valley Health Center, Regional Medical Center at Lubec, Eastport Health Care, Inc., and the Maine Ambulatory Care Coalition)
John Dieffenbacher-Krall Executive Director Maine People’s Alliance 192 State Street Portland, Maine 04101 e-mail: MPA@gwi.net (Maine People’s Alliance)
Gordon H. Smith, Esq. Maine Medical Association 30 Association Drive P.O. Box 190 Manchester, Maine 04351 e-mail: gsmith@ctel.net (Thomas D. Hayward, M.D., Maroulla S. Gleaton, M.D., And the Maine Medical Association)
Donald E. Quigley, Esq. General Counsel 465 Congress Street, Suite 600 Portland, Maine 04101-3537 e-mail: quigld@mail.mmc.org (Maine Medical Center)
Sandra L. Parker, Esq. Attorney for MHA, Inc. 150 Capitol Street Augusta, Maine 04330 e-mail: sparker@themha.org (MHA, Inc.)
Kellie P. Miller, M.S. Executive Director Maine Osteopathic Association 693 Western Avenue Manchester, Maine 04351 e-mail: meosteo@mint.net (Maine Osteopathic Association)
Edward Miller Executive Director American Lung Association of Maine 122 State Street Augusta, Maine 04330 e-mail: emiller@mainelung.org (American Lung Association of Maine) DATED: December 23, 1999
Last Updated: July 16, 2008 |
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