The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


FREEDOM OF INFORMATION ACT:

INSURANCE:

Copyrighted Insurance Bureau filings subject to disclosure



The state Insurance Bureau, in response to a request made under the Freedom of Information Act, 1976 PA 442, must provide copies of copyrighted manuals of rules and rates which are in its possession and are required by law to be filed by insurers with the bureau, without first obtaining the permission of the copyright holder.


Opinion No. 6965

January 16, 1998


Honorable Christopher D. Dingell
State Senator
The Capitol
Lansing, Michigan 48909

D. A. D'Annunzio
Acting Commissioner
Insurance Bureau
P.O. Box 30220
Lansing, MI 48909


You have asked whether the state Insurance Bureau, in response to a request under the Freedom of Information Act, 1976 PA 442, must provide copies of copyrighted insurance manuals of rules and rates which are in its possession and are required by law to be filed by insurers with the bureau, without first obtaining the permission of the copyright holder.

The purpose of the Freedom of Information Act, 1976 PA 442, MCL 15.231 et seq; MSA 4.1801(1) et seq (FOIA), is recited in section 1(2) of that Act as follows:

It is the public policy of this state that all persons, except those incarcerated in state or local correctional facilities, 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 public employees, consistent with this act. The people shall be informed so that they may fully participate in the democratic process.

The FOIA was enacted to afford to citizens full and complete information about the activities of state government, its officers and employees. Booth Newspapers, Inc v University of Michigan Bd of Regents, 444 Mich 211, 231; 507 NW2d 422 (1993).

Under the FOIA, a person has the right, on request, to inspect, copy, or receive copies of public records of a public body. Section 3(1). The term "public record" means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, which is not exempted from disclosure under section 13. Section 2(e). The Legislature, through the FOIA, has commanded "full disclosure" of public records, Swickard v Wayne County Medical Examiner, 438 Mich 536, 543; 475 NW2d 304 (1991), unless it has exempted the record from disclosure and statutory exemptions are to be "interpreted narrowly." Evening News Ass'n v Troy, 417 Mich 481, 503; 339 NW2d 421 (1983).

The Insurance Code of 1956, 1956 PA 218, MCL 500.100 et seq; MSA 24.1100 et seq, regulates the insurance business in this state. Section 2406 of the Code, which requires Michigan insurers to file rule and rate manuals with the Insurance Bureau, provides as follows:

(1) Except for worker's compensation insurance, every insurer shall file with the commissioner every manual of classification, every manual of rules and rates, every rating plan, and every modification of any of the foregoing that it proposes to use. Every such filing shall state the proposed effective date thereof and shall indicate the character and extent of the coverage contemplated. . . . A filing and any supporting information shall be open to public inspection after the filing becomes effective.

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(3) For worker's compensation insurance in this state the insurer shall file with the commissioner all rates and rating systems.

(emphasis added).

The FOIA creates twenty-five categories of public records which are expressly exempted from disclosure. Section 13. However, the FOIA provides no specific exemption for copyrighted rule and rate manuals filed with the Insurance Bureau. Research discloses no reported Michigan case involving disclosure, under the FOIA, of rule and rate manuals filed with the Insurance Bureau. However, documents filed by a health insurer with the Insurance Bureau in support of a contested rate adjustment petition are subject to disclosure under the FOIA and are not exempted as trade secrets, particularly since the price information contained in the records is readily ascertainable directly from vendors. Blue Cross and Blue Shield of Michigan v Ins Bureau, 104 Mich App 113, 131; 304 NW2d 499 (1981), lv den 412 Mich 932 (1982). Manuals of rules and rates filed by insurers with the Insurance Bureau pursuant to the Insurance Code are not exempt from disclosure under the FOIA.

It is possible that some manuals of insurance rules and rates required by law to be filed by insurers with the Insurance Bureau constitute copyrighted works. Pursuant to US Const, art 1, 8, Congress enacted the federal copyright act, 90 Stat. 2541 (1976); 17 USC 101 et seq. Section 106 of the copyright act limits the copying of copyrighted material as follows:

[T]he owner of a copyright . . . has the exclusive rights to do and to authorize any of the following:

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(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

The question, therefore, remains whether manuals of rules and rates required by law to be filed by insurers with the Insurance Bureau, if copyrighted, are subject to disclosure pursuant to the FOIA.

Shortly after the enactment of the FOIA, this office rendered an omnibus opinion responding to inquiries concerning the FOIA. OAG, 1979-1980, No 5500, p 255 (July 23, 1979). That opinion, inter alia, addressed whether the FOIA exempts copyrighted materials filed by insurers pursuant to the Insurance Code of 1956, and concluded at p 267 as follows:

It is my opinion, therefore, that copyrighted materials may not be copied and distributed in violation of the Copyright Act.

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It is, therefore, my opinion that the Commissioner should refuse to accept and treat as non-compliance with section 2406 an offer of a manual of classification of a copyrighted manual of rules and rates unless the copyright owner agrees to waive the copyright.

The Michigan Legislature, in enacting the FOIA, did so in relation to the federal FOIA legislative history. Evening News Ass'n v Troy, supra, 417 Mich at 494. In that case, the court noted that the exemptions created in the Michigan FOIA generally mirror the exemptions found in the federal FOIA. Id. at 495. See also, Kestenbaum v MSU, 414 Mich 510, 525; 327 NW2d 783 (1982), which held as follows:

The similarity between the FOIA and the federal act invites analogy when deciphering the various sections and attendant judicial interpretations.

Federal cases interpreting the analogous federal FOIA are highly persuasive in construing the Michigan FOIA. Capitol Information Assoc v Ann Arbor Police, 138 Mich App 655, 658; 360 NW2d 262 (1984).

OAG, 1979-1980, No 5500, supra, was issued before the U.S. Court of Appeals, D.C. Circuit, in Weisberg v United States, 203 US App DC 242; 631 F2d 824 (1980), decided the issue of whether copyrighted materials are exempt from disclosure under the federal FOIA. In Weisberg, the plaintiff brought a federal FOIA action to compel disclosure of photographs in the government's possession that were taken at the scene of Dr. Martin Luther King, Jr's. assassination. Some of the requested file photos were taken and copyrighted by Life Magazine. Id. at 825. The government argued that, based upon federal FOIA exemptions 31 and 42, copyrighted materials should never be subject to mandatory disclosure. Id. at 828. The court, however, rejected the government's argument and held as follows:

We hold that mere existence of copyright, by itself, does not automatically render FOIA inapplicable to materials that are clearly agency records.

Id. at 825.

The court recognized that under the government's interpretation of the federal FOIA, an agency would be permitted to mask its processes or functions from public scrutiny by merely asserting a third party's copyright. Id. at 828.

Manuals of insurance rules and rates required by law to be filed with the Insurance Bureau are public records of that state agency. Under the Insurance Code of 1956, these mandated filings are, by statute, expressly made open for public inspection. Section 2406(1). Under the Weisberg decision, supra, a government agency's public records, even if copyrighted, are subject to disclosure under the federal FOIA. A similar result should prevail under the Michigan FOIA.

It is my opinion, therefore, that the state Insurance Bureau, in response to a request made under the Freedom of Information Act, 1976 PA 442, must provide copies of copyrighted manuals of rules and rates which are in its possession and are required by law to be filed by insurers with the bureau, without first obtaining the permission of the copyright holder. To the extent that this conclusion is inconsistent with OAG, 1979-1980, No 5500, p 255 (July 23, 1979), that opinion is superseded.



FRANK J. KELLEY
Attorney General

1 5 USC 552(b)(3) (disclosure mandate not applicable to matter "specifically exempted from disclosure by statute").

2 5 USC 552(b)(4) (disclosure mandate not applicable to "commercial . . . information obtained from a person and privileged or confidential").