                                                                                  FILED
                                                                          Oct 24 2017, 9:48 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE –
Steven M. Badger                                           INDIANA COMPENSATION
Alexandra R. French                                        RATING BUREAU
Barnes & Thornburg LLP                                     E. Scott Treadway
Indianapolis, Indiana                                      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



                                            IN THE
    COURT OF APPEALS OF INDIANA

Risk Metrics Corporation,                                  October 24, 2017
Appellant,                                                 Court of Appeals Case No.
                                                           49A02-1609-PL-2083
        v.                                                 Appeal from the Marion Superior
                                                           Court
Indiana Compensation Rating                                The Honorable Timothy W.
Bureau and Indiana Worker’s                                Oakes, Judge
Compensation Board,                                        Trial Court Cause No.
Appellees.                                                 49D02-1408-PL-26675




Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017                           Page 1 of 23
      Najam, Judge.


                                          Statement of the Case
[1]   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”) 1 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.


                                   Facts and Procedural History2
[2]   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




      1
        The Rating Bureau is not an agency of the State but, rather, is a private entity created by Indiana statute.
      See Ind. Code § 27-7-2-3 (Supp. 2017).
      2
        We held oral argument in the Indiana Court of Appeals courtroom on August 24, 2017. We commend
      counsel for their excellent advocacy.

      Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017                         Page 2 of 23
      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.


[3]   Meanwhile, insurers certified to provide worker’s compensation coverage in

      Indiana 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 discriminatory rates.




      Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 3 of 23
              (3) To promote price competition among companies so as to
              provide rates that are responsive to competitive market
              conditions.


              (4) To provide regulatory procedures for the maintenance of
              appropriate data reporting systems.


              (5) To improve availability, fairness, and reliability of insurance.


              (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.


[4]   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.

      Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017    Page 4 of 23
[5]   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.


[6]   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 35-36.


[7]   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 Section 27-7-2-40:


              The [Rating Bureau] may collect data from its members under
              this chapter, including:



      Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 5 of 23
                       (1) claims data;


                       (2) policy data such as policy number, policy term, and
                           employer and employee identification information; and


                       (3) proof of coverage data such as employer identification
                           information, classification information, carrier
                           information, agency identification information,
                           premium information, and payroll data.


              Unless this chapter specifically states otherwise, all data collected
              by the [Rating Bureau] from its members is confidential and shall not be
              disclosed or disseminated to third parties unless consented to by the
              [Rating Bureau]. To the extent this chapter authorizes the [Rating
              Bureau] to share the data with the [IDOI] or the [Board], the data
              must remain confidential. The [IDOI] and the [Board] shall not
              publish the data or distribute the data to third parties.


      (Emphasis added.) On April 1, 2014, LexisNexis again requested the Board to

      provide access to the NCCI-collected policy data.3 The Board denied the

      request, citing Indiana Code Section 27-7-2-40. LexisNexis then filed a

      complaint with the Indiana Public Access Counselor (“PAC”).


[8]   While the PAC’s review of that complaint was pending, the Board terminated

      its contract with NCCI and entered into a new agreement with the Rating

      Bureau. Pursuant to that agreement, the Rating Bureau agreed to provide the

      Board with some of the statistical policy data NCCI had collected for the



      3
       There is no dispute that the policy data collected by NCCI on behalf of the Board was the same policy data
      NCCI collected on behalf of the Rating Bureau.

      Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017                    Page 6 of 23
Rating Bureau on the condition that the data remained confidential with the

Board. However, the contract further provided that the Board and the public

would be permitted to view the POC data necessary to verify a given

employer’s compliance with Indiana’s worker’s compensation insurance

requirement on a given date using a web portal. Specifically, the contract

provided that the Rating Bureau:


        A.     shall provide to the [Board] online internet based inquiry
        access to limited non-confidential data, which shall only include
        the name of the employer, the name of the worker’s
        compensation insurance coverage provider, the policy number,
        and the effective date of coverage (“Basic Coverage Data”);


        B.    shall provide internet based online inquiry access to the
        Basic Coverage Data to allow the general public to verify Indiana
        worker’s compensation coverage through a link on the [Board’s]
        website; and


        C.     may, in the [Rating Bureau’s] sole discretion, transmit to
        the [Board] additional confidential coverage and policy data the
        [Rating Bureau] collects from its members. For purposes of this
        Agreement, the additional data may include data elements or a
        portion thereof as the parties may agree, such as policy number,
        insured business name and address, additional business names
        and addresses on the policy, policy effective date, policy
        expiration date, name of insurance provider, employer FEIN
        number, and any notices of cancellation and reinstatement
        (“Additional Policy Data”). The Additional Policy Data shall be
        transmitted to the [Board] at such intervals as the parties may
        agree from time to time. The Additional Policy Data shall be
        transmitted to the [Board] in an electronic PDF file or such other
        format as the parties may agree. The Additional Policy Data
        transmitted by the [Rating Bureau] to the [Board] shall be

Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 7 of 23
               conspicuously marked as “CONFIDENTIAL” and “NOT
               AVAILABLE FOR DISTRIBUTION OR INSPECTION.” The
               [Rating Bureau] and the [Board] hereby acknowledge that the
               Additional Policy Data may be withheld by the [Rating Bureau].
               Further, the Additional Policy Data shall not be distributed to
               third parties.


       Appellant’s App. Vol. V at 119-20. Thereafter, the Rating Bureau and the

       Board instructed NCCI to cease electronic transfers of policy data directly to the

       Board.


[9]    After the Rating Bureau and the Board executed their contract, the PAC issued

       an informal opinion on the pending APRA request in LexisNexis’s favor.

       Following that opinion, the Rating Bureau filed its complaint for declaratory

       judgment against LexisNexis and the Board to prevent the Board from releasing

       the NCCI-collected policy data to LexisNexis. LexisNexis filed a counterclaim

       against the Rating Bureau and a cross-claim against the Board to compel public

       access to that data under APRA.


[10]   All parties then moved for summary judgment, and, after a hearing, the trial

       court granted the motions for summary judgment filed by the Board and the

       Rating Bureau and denied LexisNexis’s cross-motion. In entering its order, the

       trial court stated as follows:


               8. The Board does not presently create, receive, retain, or
               maintain the data or records sought by [LexisNexis]. Multiple
               Board employees, including the Board Chair, testified that the
               Board does not possess or have access to data and records
               collected by the [Rating Bureau]. Further, there is no evidence in

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 8 of 23
        the record that the data or records sought by [LexisNexis] is filed
        with the Board. Accordingly, the Board does not possess or
        control public records sought by [LexisNexis].


        9. To the extent the [Rating Bureau], either directly or through
        its vendor, NCCI, has elected to voluntarily share or provide data
        access to the Board, the Indiana Legislature has, as recently as
        2013, made clear such data is confidential, cannot be shared with
        third parties, and is not subject to APRA. . . . The plain language
        of this statute makes clear that [the Board-]collected [POC] data
        is confidential.


        10. [LexisNexis] attempts to circumvent Indiana Code § 27-7-2-
        40 by asserting the Board has a duty to accumulate additional
        [POC] data under Indiana law and[,] once in possession of this
        data, cannot refuse to disclose the same. The [c]ourt disagrees
        with [LexisNexis]. Multiple witnesses for the Board, including
        the Board Chairperson, testified the Board does not collect, need,
        or utilize the [POC] data sought by [LexisNexis]. Additionally,
        the statute relied upon by [LexisNexis] (Ind. Code § 22-3-5-2)
        does not mandate the Board to collect the extensive [POC] data
        sought by [LexisNexis].


        11. Moreover, the Board has agreed that the limited access website
        portal made available by the [Rating Bureau] fulfills the Board’s
        statutory needs. This [c]ourt cannot interfere with that determination.


        12. Accordingly, the [c]ourt hereby finds the Board is not in
        control or possession of records or documents subject to APRA
        sought by LexisNexis, that the Board is not required to collect the
        [POC] data sought by LexisNexis, and[,] to the extent the
        [Rating Bureau] causes data or records to be supplied to the
        Board, that data is confidential and is statutorily exempted from
        APRA.


Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017       Page 9 of 23
       Appellant’s App. Vol. II at 17-19 (emphasis added; internal citations omitted).4

       This appeal ensued.


                                        Discussion and Decision
[11]   LexisNexis appeals the trial court’s denial of its motion for summary judgment

       and the court’s entry of summary judgment for the Rating Bureau and the

       Board. Our standard of review is clear:


               We review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of



       4
         Although not relevant in light of our holding on appeal, following its order on the motions for summary
       judgment the trial court entered two subsequent orders even though the court had declared its order on the
       summary judgment motions to be a final judgment.

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017                     Page 10 of 23
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,
               916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
               omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (alterations original to

       Hughley).


[12]   Here, the trial court entered detailed findings of fact and conclusions thereon in

       its summary judgment order. While such findings and conclusions are not

       required in a summary judgment and do not alter our standard of review, they

       are helpful on appeal for us to understand the reasoning of the trial court. See

       Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015). We also

       note that the trial court had before it cross-motions for summary judgment, but

       that also does not alter our standard of review. Id.


[13]   This appeal presents questions of statutory interpretation. As the Indiana

       Supreme Court has stated:


               [S]tatutory interpretation is a question of law that we review de
               novo. In interpreting a statute, the first step is to determine
               whether the Legislature has spoken clearly and unambiguously
               on the point in question. When a statute is clear and
               unambiguous, we apply words and phrases in their plain,
               ordinary, and usual sense. When a statute is susceptible to more
               than one interpretation it is deemed ambiguous and thus open to
               judicial construction. When faced with an ambiguous statute,
               our primary goal is to determine, give effect to, and implement
               the intent of the Legislature with well-established rules of
               statutory construction. We examine the statute as a whole,

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 11 of 23
               reading its sections together so that no part is rendered
               meaningless if it can be harmonized with the remainder of the
               statute. And we do not presume that the Legislature intended
               language used in a statute to be applied illogically or to bring
               about an unjust or absurd result.


       Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015) (citations, alterations, and

       quotation marks omitted).


[14]   The dispute between the parties here centers around LexisNexis’s APRA

       request to the Board. APRA provides that “it is the public policy of the state

       that all persons are entitled to full and complete information regarding the

       affairs of government and the official acts of those who represent them as public

       officials and employees.” I.C. § 5-14-3-1. “Thus, in APRA our legislature

       declared that transparency in government is the public policy of the State of

       Indiana. But the public’s right of access to public records is also subject to well-

       recognized exceptions under APRA.” Groth v. Pence, 67 N.E.3d 1104, 1108

       (Ind. Ct. App. 2017), trans. denied.


[15]   We agree with the trial court that disclosure of the records sought by

       LexisNexis under APRA is prohibited by law. APRA expressly removes from

       public access those records “declared confidential by state statute.” I.C. § 5-14-

       3-4(a)(1). And Indiana Code Section 27-7-2-40 unambiguously declares that

       the insurance company records held by the Rating Bureau are “confidential and

       shall not be disclosed or disseminated to third parties” without the Bureau’s

       consent. The records sought by LexisNexis under APRA are the insurance

       records of the Rating Bureau’s members, which contain the statistical policy

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 12 of 23
       data collected by NCCI. As a matter of law, those records are held by the

       Rating Bureau. As such, the records sought are confidential and are not subject

       to disclosure under APRA.


[16]   Nonetheless, LexisNexis proffers two theories to avoid the result required under

       the Indiana Code. First, LexisNexis asserts that Indiana’s Worker’s

       Compensation Laws require the Board itself to collect and maintain POC data

       from Indiana’s employers. Thus, LexisNexis asserts, the vast array of statistical

       policy data collected by NCCI on behalf of the Board must also be held by the

       Board and, therefore, subject to public access. In support of that position,

       LexisNexis substantially relies on Indiana Code Section 22-3-5-2, which states

       that an “employer” in Indiana is “required to carry insurance” for worker’s

       compensation claims and “shall file with the worker’s compensation board, in

       the form prescribed by the board, within ten (10) days after the termination of

       the employer’s insurance by expiration or cancellation, evidence of the

       employer’s compliance . . . .”


[17]   Section 22-3-5-2 does not say what LexisNexis claims it says. The statute does

       not expressly direct the Board to do anything at all. Rather, Section 22-3-5-2

       places a burden on employers, not the Board, and it is a limited burden at that:

       employers “shall file” with the Board proof of their compliance, but only if

       existing insurance coverage is terminated. And even then, any manner of

       “evidence” of compliance suffices. I.C. § 22-3-5-2.




       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 13 of 23
[18]   Moreover, Section 22-3-5-2 does not require the Board to collect anything

       equivalent to the statistical policy data collected by NCCI that LexisNexis seeks

       under APRA. Indeed, even if Section 22-3-5-2 could be read to mean that the

       Board must collect POC data from Indiana’s employers, that POC data is

       nowhere near as comprehensive as the statistical policy data collected by NCCI

       and actually sought by LexisNexis. Rather, the POC data would be a very

       small subset of the statistical policy data that LexisNexis seeks to obtain. In

       other words, the statistical policy data that LexisNexis seeks from the Board

       reaches far beyond the limited data that employers are required to provide to

       the Board under Section 22-3-5-2.


[19]   And, significantly, that limited POC data is already accessible to the public, and

       LexisNexis, by way of the Board’s contract with the Rating Bureau. Again,

       according to the Board’s contract with the Rating Bureau, the Rating Bureau

       “shall provide” to both the Board and the public “internet based online inquiry

       access” to “limited non-confidential data, which shall only include the name of

       the employer, the name of the worker’s compensation insurance coverage

       provider, the policy number, and the effective date of coverage.” Appellant’s

       App. Vol. V at 119-20. Further, Indiana Code Section 22-3-5-2.5(a) states that

       the Board “is entitled to request that an employer provide the [B]oard with

       current proof of compliance . . . .” Thus, the Board may determine an

       employer’s compliance with the worker’s compensation insurance coverage

       requirement on a case-by-case basis, which the web portal enables the Board to




       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 14 of 23
       do. That same access to case-by-case information is already made available to

       the public—and to LexisNexis—through the web portal.5


[20]   LexisNexis’s APRA request also disregards the fact that Section 22-3-5-2

       expressly leaves the manner in which an employer complies with that statute’s

       filing requirement to the discretion of the Board. In particular, Section 22-3-5-2

       states that employers shall file, when required, their evidence of compliance “in

       the form prescribed by the [B]oard.” It is clear that the Board, in the exercise of

       its discretion under the statute, has deemed evidence of compliance through the

       records held by the Rating Bureau to be the form prescribed by the Board,

       which brings LexisNexis’s APRA request back to the confidentiality

       requirement of Section 27-7-2-40.


[21]   Still, LexisNexis contends that it would be “irrational” to allow the Board to

       use the Rating Bureau as a proxy to collect otherwise “required regulatory

       filing[s]” and thereby deny public access to those filings. Appellant’s Br. at 48.

       But that assertion is based on LexisNexis’s misinterpretation of Section 22-3-5-

       2, which does not require the Board to collect the vast array of statistical policy

       data LexisNexis seeks and does not require employers to file such data with the

       Board. Indeed, there are no required regulatory filings under Section 22-3-5-2

       other than an employer’s proof of compliance if existing insurance coverage is




       5
         Any other access the Board might seek to statistical policy data held by the Rating Bureau is only available
       to the Board in the Bureau’s discretion. That additional policy data is not required or even implicated by
       Section 22-3-5-2, which, again, only requires employers to report to the Board when their coverage has been
       terminated but does not otherwise require the Board to maintain POC data.

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017                      Page 15 of 23
       terminated, which information is already available to the public. Further, it is

       not irrational for the Board in the exercise of its statutory discretion to verify

       employer compliance by using a subset of the data held by the Rating Bureau,

       which the Bureau already collects by operation of law from insurers to support

       the IDOI. And the General Assembly has declared that the other Rating

       Bureau data are confidential.


[22]   LexisNexis also asserts that the statistical policy data is really held by NCCI,

       not the Rating Bureau, and that the Board’s previous releases of that data and

       previous contract with NCCI are relevant to the instant proceedings. But we

       reject those contentions. Whatever the Board’s prior decisions on the requested

       data, the instant case is substantially different in that the Rating Bureau is a

       party and has objected to the release of the data, which, as a matter of law, it

       collects from insurers on a confidential basis. Moreover, representatives for

       NCCI and the Board agreed that the Board’s prior contract with NCCI is no

       longer in force. The assertions of LexisNexis to the contrary are not persuasive.


[23]   In sum, LexisNexis asks that we impose a requirement on the Board to collect

       records and statistical policy data that the Indiana Code does not require the

       Board to collect; that we mandate that those records be filed directly with the

       Board when the Indiana Code leaves the form prescribed for such records to the

       discretion of the Board; and that we order the Board to maintain a database of

       those records that is redundant to the Rating Bureau’s database. We reject each

       of those propositions. We hold that the records sought by LexisNexis pursuant

       to APRA are confidential as a matter of law and, therefore, are not subject to

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 16 of 23
       disclosure, and we approve of the manner in which the Board has made POC

       data publicly available under its contract with the Rating Bureau. Accordingly,

       we affirm the trial court’s entry of summary judgment for the Board and the

       Rating Bureau and the court’s denial of LexisNexis’s motion for summary

       judgment.


[24]   Affirmed.


       Bradford, J., concurs.


       Riley, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 17 of 23
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Risk Metrics Corporation,                                  Court of Appeals Case No.
                                                                  49A02-1609-PL-2083
       Appellant-Defendant,
              v.

       Indiana Compensation Rating
       Bureau and Indiana Worker’s
       Compensation Board,
       Appellees-Plaintiffs.



       Riley, Judge dissenting.


[25]   I respectfully dissent from the majority’s opinion affirming the trial court’s

       judgment and holding that the insurance coverage policy data, as held by the

       Rating Bureau, are confidential and, therefore, not available for public

       dissemination under APRA. I specifically part ways with the majority’s

       insistence that LexisNexis’ statutory interpretation “does not say what

       LexisNexis claims it says.” See Slip Op. p. 13.



       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017            Page 18 of 23
[26]   Focusing on the “shall file with” language of I.C. § 22-3-5-2, LexisNexis

       contends that the Board is statutorily mandated to receive and collect an

       employer’s proof of insurance coverage. As this information is assembled by a

       public agency, LexisNexis maintains that the information is a public record

       which can be requested under APRA. Accordingly, LexisNexis alleges that the

       Board cannot ignore its statutory duty by outsourcing the collection of

       employer’s insurance information to a third party. Even if outsourced to a

       private agency, LexisNexis advocates that the record itself does not lose its

       characterization of public record for APRA purposes and should remain

       publicly available.


[27]   Unlike the majority, I find that I.C. § 22-3-5-2 unequivocally imposes on the

       Board a statutory duty to receive and collect the insurance information

       employers “shall file with” the Board. Although the Board now, in blatant

       disregard of its duty, asserts that it no longer “want[s] or need[s] a copy of the []

       data[,]” as it claims the limited access through the public web portal to be

       sufficient, the designated evidence of the T.R. 30(b)(6) witness confirms that the

       Board enjoys greater access to the proof of coverage data than the data

       accessible on the web portal. (Board Br. p. 19). The witness noted that the link

       on the Board’s website to access the web portal transferred users to an NCCI

       page. He admitted that, through his position on the Board, he had access to:


               effective dates of the policy, the employer’s name and address, or
               at least other business locations, because a lot of times there are
               policies that may cover more than one business, might give us
               information on the d/b/a, information regarding cancellation,

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 19 of 23
               renewal and reinstatement. I think it might have something
               about premium information.


               ****


               There’s probably a lot more information that I don’t completely
               understand, that I have access to, and generally doesn’t have any,
               you know, utility for what I do.


       (Appellant’s App. Vol. IV, p. 134). Also, the Board, in its appellate brief—and

       again during the oral argument—begrudgingly conceded that it “can view more

       data fields than the public through the online portal.” (Board’s Br. p. 14). The

       designated evidence shows that the Board continues to enjoy remote access to

       every data element sought by LexisNexis and collected by NCCI by order of the

       Rating Bureau. As such, all this material “received” by the public agency can

       potentially be characterized as a public record under APRA. See I.C. § 5-14-3-

       2(r).


[28]   Instead of allowing public access to this data as required by APRA, the Board

       and the Rating Bureau, as now condoned by the majority, rely on I.C. § 27-7-2-

       40 and the provisions of the data sharing agreement entered into on June 10,

       2014, to effectively shield this information behind a technological and

       contractual firewall. While I agree that I.C. § 27-7-2-40 confers confidentiality

       on the “data collected by the [Rating Bureau] from its members” and whose

       classified character must be maintained when the data is disseminated to the

       Board, this mandate, by its express language, does not encompass the data

       directly filed with the Board by employers, as contemplated by I.C. § 22-3-5-2.

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 20 of 23
       Similarly, although the data sharing agreement between the Board and the

       Rating Bureau clarifies that the proof of coverage data is owned by the Rating

       Bureau, a non-governmental agency, and therefore not subject to the provisions

       of the APRA, the data sought by LexisNexis relates only to information to

       verify the insurance coverage and policy rates, as filed directly with the Board.

       Specifically, LexisNexis only seeks a limited set of policy information about an

       employer’s insurance coverage and public contact information. Accordingly,

       LexisNexis is not requesting the elaborate information collected by the Rating

       Bureau, which also includes personal identifiable information and pricing

       structure, but is focused only on the proof of coverage data the Board is

       statutorily mandated to collect and which is not deemed confidential pursuant

       to I.C. § 22-3-5-2 or is included in I.C. § 27-7-2-40.


[29]   Despite the Board’s insistence that it is merely exercising its own discretionary

       power by limiting access to the data through the public web portal, in reality

       this discretion itself is a fallacy as the accessibility to the data is being

       determined by the Rating Bureau under the guise of the contractual provisions

       of the data sharing agreement. Essentially, a non-governmental third party is

       now dictating the public’s access to public records through a contract entered

       into with a governmental entity.


[30]   “Indiana, like other jurisdictions, recognizes the need for unfettered action by

       administrative agencies operating within the sphere of their authority.” Ind.

       Alcoholic Beverage Commission v. McShane, 354 N.E.2d 259, 268 (Ind. Ct. App.

       1976). Accordingly, it is generally acknowledged that a court may not

       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017     Page 21 of 23
       substitute its judgment for that of the agency in matters within the realm of the

       agency’s delegated authority, if the agency’s exercise of its discretionary powers

       is valid and justified. See id. Therefore, an agency may not exercise discretion

       in a manner that undermines the express will of the legislature. Ashlin Transp.

       Servs. v. Indiana Unemployment Ins. Bd., 637 N.E.2d 162, 165-66 (Ind. Ct. App.

       1994) (holding agency’s interpretation of statute was unreasonable given the

       plain meaning and not entitled to deference). Pursuant to its statutory mandate,

       the Board must collect an employer’s proof of coverage information. See I.C. §

       22-3-5-2. Checking compliance of one employer at a time, one date at a time,

       provides only a piecemeal view of the overall level of long-term compliance by

       Indiana’s employers that an insurance is designed to afford, and thus reveals

       nothing about the effectiveness of the Board’s compliance efforts and in fact

       essentially results in the elimination of a mandatory filing.


[31]   The APRA’s purpose is to enhance a government’s accountability and

       legitimacy by giving the public quasi unfettered access to its public records.

       Within this structure of APRA’s answerability, the data sharing agreement

       became a vehicle to effectuate an improper evasion of the applicability of

       APRA. Although a public agency may enter into a contract for the storage of

       public records, this contract cannot “unreasonably impair” the right of the

       public to inspect and copy the agency’s public records. See I.C. § 5-14-3-3(g);

       Knightstown Banner, LLC. v. Town of Knightstown, 838 N.E.2d 1127, 1133 (Ind.

       Ct. App. 2005), reh’g denied, trans. denied. Here, the data sharing agreement by

       which the public is accorded very limited access to public records through a


       Court of Appeals of Indiana | Opinion 49A02-1609-PL-2083 | October 24, 2017   Page 22 of 23
       web portal accomplishes exactly this unreasonable impairment which is

       prohibited under APRA.


[32]   By concluding that because the Board does not presently create, receive, retain,

       or maintain the data requested by LexisNexis the Board is not subject to

       APRA, the trial court—and now the majority—truncated and ignored the plain

       statutory language of I.C. § 22-3-5-2, which mandates the Board to receive an

       employer’s proof of coverage filings. Unlike the Rating Bureau which “may”

       collect proof of coverage data, the legislature has placed an affirmative legal

       obligation on the Board to collect the proof of coverage. See I.C. § 27-7-2-40.

       Although the exigencies of today’s technological advances have replaced the

       traditional paper filings with the more modern electronic storage options

       provided by third parties, the legal construct of the Board’s statutory duty or the

       requirements of APRA have not changed. I find that the piecemeal access to

       the information via the public web portal is not a viable enforcement of the

       statute and is insufficient to check an employer’s compliance with worker’s

       compensation insurance.


[33]   In sum, the majority’s conclusion today amounts to an open invitation to erode

       the transparency of governmental affairs which is one of the fundamental

       bedrocks of the American constitutional form of representative government. I

       would reverse the trial court’s judgment and enter summary judgment in favor

       of LexisNexis on its Complaint for violation of APRA.




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