Markowitz v. Serio

In Markowitz v. Serio, 11 NY3d 43 (2008) the Brooklyn Borough President sought disclosure pursuant to FOIL of information filed by automobile insurers with the Department of Insurance. Specifically, he sought "for each Kings County zip code, including, by carrier, the number of voluntary [automobile] policies issued, renewed, cancelled (other than for nonpayment of premium) or nonrenewed." The Borough President sought this information to investigate whether the insurers were engaged in "redlining," i.e., an insurer's refusal to issue or renew, or its cancellation of a policy premised exclusively on the geographic location of the risk. 11 NY3d at 47-48. He asserted that the information he sought was available in "Regulation 90 reports" which, according to insurance regulation 11 NYCRR 218.7(d), "shall be public record." The Department declined to release the Regulation 90 reports as exempt, claiming the disclosure "would cause substantial injury to the competitive position" of insurers. While finding that the above-quoted insurance regulation did not automatically override the FOIL exemption, the Court directed disclosure because the Department and insurers had failed to meet their burden of justifying the exemption under POL 87(2)(d). The Court explained its conclusion as follows (at p. 51):The evidence suggesting [the insurers] will suffer a competitive disadvantage is theoretical at best. The insurers' key argument is that if they are forced to reveal zip codes of areas where relatively few policies are issued, competitors could use this information to exploit an insurer's geographic weak spot. It has not been shown that zip code data, without more, would necessarily put the insurer at a competitive disadvantage. In Markowitz, the disclosure was warranted because the information was sought by a public official on an industry-wide basis to investigate a claimed violation of law by insurers.