The New York Appellate Division, the state's intermediate appellate court, has reversed a trial court order that had required the public disclosure of zip code data provided by insurers to the Insurance Department. The case grew out of highly publicized allegations and hearings by Brooklyn Borough President Marty Markowitz accusing auto insurers of discriminating against Brooklyn residents.
After the Department refused to release the data, Markowitz commenced litigation, which resulted in the trial court order directing disclosure of the information. The Appellate Division, however, sided with the Department and insurers. Wiley Rein's amicus brief for the industry played a major role in the victory by presenting the legal rationale for the Department's original decision and facilitating the Attorney General's ultimate advocacy of the Department's position during a high-stakes election season.
Specifically, the appellate court found that annual reports submitted by insurers to the New York Insurance Department required under an anti-"redlining" statute were subject to the exceptions to public disclosure under the New York Freedom of Information Law. This judicial determination is particularly important to insurers because their zip code reports detail the number of policies written or cancelled by each carrier on a zip code-by-zip code basis, Markowitz v. Serio, No. 404120/04, 2007 NY Slip Op 02969 (1st Dep't Apr. 5, 2007). The appellate court's ruling (reprinted on next page) upholds the Department's original determination that disclosure of such information would result in substantial competitive injury to insurers.