Posted on Oct 12, 2016 in Formal Opinions

Opinion Letter No. F17-01
October 12, 2016
Collectively Bargained Workers’ Compensation
Agreement/Basic Trades

Requester, who was the prior Plan Administrator of a Collectively Bargained Workers’ Compensation (CBWC) program approved by the Department of Labor and Industrial Relations (DLIR), asked OIP whether the Disability Compensation Division of the DLIR (DLIR-DCD) properly denied his request made under the Uniform Information Practices Act (Modified) (UIPA) for copies of attachments to the approved CBWC Addendum submitted by the Successor Plan Administrator.   There were ten attachments, but the DLIR-DCD had disclosed the CBWC Addendum and only one of the attachments to Requester.  The attachments that were not disclosed (Other Attachments) included a description of the group that provides oversight for this CBWC program; limited lists of service providers for independent medical evaluations, vocational rehabilitation, mediation and arbitration; a list of cases which will be handled under the statutory workers’ compensation program; an explanation of the alternative dispute resolution program; and forms.

The Successor Plan Administrator asserted that the Other Attachments were protected from disclosure as being attorney work product.  The attorney work product doctrine, however, only applies to documents prepared or obtained in anticipation of litigation.  As the Successor Plan Administrator did not submit any facts or information to support the proposition the Other Attachments were prepared or obtained in anticipation of litigation, OIP concluded that the attorney work product doctrine does not apply to protect the Other Attachments from disclosure.

The Successor Plan Administrator also asserted that the DLIR-DCD had the authority to deny a record request if disclosure would frustrate a legitimate governmental objective because the Other Attachments were protected as confidential commercial and financial information.  The agency, and not the submitter, must raise the frustration of a legitimate government function argument to exclude a record from disclosure.  The DLIR-DCD did not agree with the Successor Plan Administrator’s arguments for non-disclosure and did not raise the argument.

Even if the DLIR-DCD had raised the frustration argument, OIP concluded that under the facts of this case the Other Attachments did not meet the test to qualify as confidential commercial and financial information, which requires a determination as to whether disclosure would either (1) impair the agency’s ability to obtain information in the future or (2) cause substantial harm to the competitive position of the submitter.

Under the impairment prong, protection from disclosure will be denied if the submitter technically provides the information voluntarily, but the submission is actually mandatory if the submitter wishes to enjoy the benefits of participation in an agency’s program.  In the instant case, submission of the Other Attachments was mandatory, as the DLIR stated that the CBWC Addendum would not have been approved if the Successor Plan Administrator had not submitted them.  Therefore, the Other Attachments were not protected from disclosure under the impairment prong of the test for confidential commercial and financial status.

In order to be protected from disclosure under the competitive harm prong, there must be a showing of both (1) actual competition and (2) competitive harm.  For the sake of argument, OIP accepted the Successor Plan Administrator’s position that it faced actual competition from the Requester.   As to competitive harm, however, OIP found that the Other Attachments contained no technical processes or proposals and contained no detailed information that could cause competitive harm.  Therefore, the Other Attachments did not meet the second prong for competitive harm, and OIP concluded that they are not confidential commercial or financial information.

The Successor Plan Administrator further claimed that the Other Attachments were trade secrets that should not be disclosed in order to avoid the frustration of a legitimate government function.  OIP again found that the DLIR-DCD did not raise the frustration argument, and thus, the Successor Plan Administrator could not raise it.  Even if the agency had raised this argument, OIP found that the Successor Plan Administrator will not be able to guard the secrecy of the Other Attachments because by the terms of the CBWC Addendum, a copy of the CBWC Addendum and all of its Attachments must be disclosed to all employee participants.  Consequently, OIP concluded that the Other Attachments cannot be protected from disclosure as trade secrets.

Because the Other Attachments are not protected from disclosure as attorney work product, confidential commercial and financial information, or trade secrets, OIP concluded that they must be disclosed to Requester.

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