F24-06
Posted on May 21, 2024 in Formal OpinionsOpinion Ltr. No. F24-06
May 21, 2024
Insurance Fraud Investigation Records
A record requester (Requester) sought copies of documents related to an insurance case against him from the Department of Commerce and Consumer Affairs (DCCA). DCCA denied Requester’s record request, asserting that the responsive records were part of an ongoing insurance fraud investigation.
For personal record requests, an agency that performs as a principal function an activity pertaining to the prevention, control, or reduction of crime may withhold from personal record requesters “information or reports prepared or compiled for the purpose of criminal intelligence or of a criminal investigation.” HRS § 92F-22(1) (2012). Here, the Office of Information Practices (OIP) found that DCCA’s Insurance Fraud Investigation Branch is such an agency. OIP further found that the responsive records were personal records of Requester and consist of information or reports compiled for the purpose of a criminal investigation. Therefore, OIP concluded that this exemption generally applied to the responsive records with the exception of correspondence to or from Requester.
An agency may also withhold “investigative reports and materials” in response to a personal record request while an investigation against the requester is still ongoing. HRS § 92F22(4). OIP found that the responsive records consisted of investigative reports and materials related to an ongoing investigation against Requester. Therefore, OIP concluded that this exemption also generally applies to the responsive records except for correspondence to or from Requester that was either submitted by Requester himself or previously provided to Requester. OIP concluded that the exemptions found in sections 92F22(1) and (4), HRS, do not apply to this correspondence.
An agency is also allowed to withhold records in response to a personal record request if such records are authorized to be withheld by statute. HRS § 92F-22(5). DCCA asserted that it was authorized to withhold the records by sections 431:2209 and 431:2-409(b), HRS, which authorize DCCA to withhold “complaints and investigation reports” and “working papers of examinations, complaints, and investigation reports” if the Insurance Commissioner (Commissioner) deems doing so prudent. Based on in camera review, OIP found that some of the responsive records consisted of reports and working papers of reports, but that the correspondence to or from Requester did not fall under the categories listed in section 431:2209(e), HRS. Therefore, OIP concluded that sections 92F22(b) and 431:2-409(b), HRS, provide additional justifications for DCCA to withhold some of the requested records, but do not allow DCCA to withhold the correspondence between Requester and GEICO. OIP thus further concluded that since no exemption to personal record disclosure applies, DCCA must disclose copies of the correspondence to or from Requester.