by Saint Petersblog’s Michael Moline
January 26, 2017
The Associated Press, Florida Press Association, and Florida First Amendment Foundation have entered the legal battle over whether the state’s Sunshine Law covered the organization behind the state’s workers’ compensation premium increase.
In a friend-of-the-court brief, the three accused the National Council on Compensation Insurance, or NCCI, of employing “an evasive device” to get around its legal obligation to calculate premiums in the sunshine.
They pointed to a section of the insurance code requiring organizations like NCCI, which proposes rates to the Office of Insurance Regulation, to open deliberations and documents to the public.
“NCCI’s construction of (the law) turns the statute on its head and, through the evasive act of delegation, writes transparency out of the statute. It is for this reason that Florida courts have rejected efforts to skirt Florida’s vaunted Sunshine Law and have held that sunshine follows delegation,” the amicus brief says.
“Otherwise, public officials would be incentivized to avoid transparency through the fiction of allowing one individual, through a series of meetings with numerous others, to perform a public function behind closed doors even though the Legislature decreed that very function should be open to the public.”
The organizations are not attacking the rate increase itself, said Barbara Peterson, president of the First Amendment Foundation.
“We are not interested in the substantive decision. We want to make sure they comply with the (open government) process, and they did not,” she said.
The argument tracks those by lawyers for James Fee, a Miami workers’ compensation attorney challenging the 14.5 percent rate increase that began taking effect in December.
He complained he was denied access to NCCI’s internal deliberations and some documents.
The insurance office subjected NCCI’s proposed 19.6 percent rate increase to a public hearing in September before approving a scaled-back increase.
A Leon County trial judge in December sided with Fee and against NCCI and the insurance office. That ruling is now under appeal to the 1st District Court of Appeal, which let the increase begin taking effect pending the outcome of the case.
NCCI and the insurance office argued the law applies only to internal rating committees — and NCCI disbanded its own such committee in 1991 over antitrust concerns.
“At the end of the day, it matters not whether the rate determination is made by a committee or one individual, or whether they are private or public. It is the public function performed — rate filing — under an explicit statutory provision that requires it to be in the Sunshine.” [READ MORE]