Reporter files legal action seeking release of Division of Insurance emails on ACA decision

By Jeffrey A. Roberts
CFOIC Executive Director

A reporter for the Independence Institute, a libertarian think tank, asked for a court order Thursday that compels the state Division of Insurance to justify its refusal to release emails discussing the one-year renewal of health insurance policies not in compliance with the Affordable Care Act.

In a complaint filed in Denver District Court, Todd Shepherd argues that the DOI improperly used the “deliberative process” privilege to withhold 30 of 46 emails he requested in May under the Colorado Open Records Act (CORA).

The “deliberative process” privilege allows governments and state agencies to suppress records “if the material is so candid or personal that public disclosure is likely to stifle honest and frank discussion within the government” and disclosure “may cause substantial injury to the public interest.”

However, the Colorado Supreme Court has ruled that the privilege protects only material that is both deliberative and “predecisional,” meaning it was generated before the adoption of a policy or decision. Shepherd alleges that most of the emails withheld by the DOI were written after the agency finalized its decision to allow the sale of non-compliant health insurance policies through 2015.

Shepherd asked the DOI to waive the privilege, but the department declined to do so. In requesting that the DOI be ordered to release the emails, his complaint quotes the section of CORA that requires the court to weigh “the public interest in honest and frank discussion in government” against “the beneficial effects of public scrutiny upon the quality of governmental decision-making and public confidence therein.”

In July, relying on other documents he obtained through open-records requests, Shepherd wrote an article for The Complete Colorado questioning the legality of the DOI’s decision to allow the continued sale of older health care policies that do not meet the ACA’s minimum requirements.

In June, The Denver Post published a story in which Rep. Bob Gardner, R-Colorado Springs, said the insurance division was violating the 2013 state law that implemented the ACA in Colorado. The article also quoted Senate President Morgan Carroll, D-Aurora, as saying the DOI had discretion under the law to determine which plans are “grandfathered.”

Asked about Shepherd’s legal action Thursday, DOI communications manager Vincent Plymell said the division cannot comment on a lawsuit that has been filed.

Note: The Independence Institute is a member organization of the Colorado Freedom of Information Coalition.

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