N3. 92-044 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

MONTANA HEALTH CARE ASSOCIATION: a Montana nonprofit corp.; DISCOVERY CARE CENTRE; a Montana Corporation;AND VALLEY NURSING, INC., d/b/a VALLEY HEALTH CARE CENTER, a Minnesota Corporation, >w>y Plaintiffs and Appellants,

,,. F~r: %' 

### , ~. MONTANA BOARD OF DIRECTORS OF THE STATE COMPENSATION MUTUAL INSURANCE FUND; PATRICK SWEENEY, Executive ~irector of the State 

### IAN

## 4

# -1993 CompensationMutual Insurance Fund; and STATE COMPENSATION MUTUAL INSURANCE FUND, -I

# 3Lid

'L- LIFSIJPREMECOURT 5' ATE OFMONTANA Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD: For Appellants: G. Steven Brown argued, Attorney at Law, Helena, Montana For Respondents: John T. Alke argued, Hughes, Kellner, Sullivan & Alke, Helena, Montana Nancy Butler, General Counsel, State Compensation Mutual Insurance Fund, Helena, Montana

Filed: submitted: September 10, 1992 Decided: January 4, 1993Justice John Conway Harrisondelivered the Opinion of the Court.

This is an appeal from a declaratory judgment of the First Judicial District Court, County of Lewis and Clark, the Honorable Thomas C. Honzel presiding. The original actionwas a request for writs of mandamus and prohibition and a declaratory judgment that the respondents (State Fund) had illegally adopted workers1 compensationrates,includinga substantial increase inappellants1 premium, andhadviolated theMontana Open Meeting Act, theMontana Public ParticipationAct, theMontana Administrative ProcedureAct

(MAPA) and Article 11, sections 8 and 9 of the Montana Constitution. We affirm in part and reverse in part. The District Court decided that even though State Fund had violated thenotice provisions of the Public Participation Act, it would not be appropriate to set aside the rate increases,or issue

awrit of mandamus or prohibition, I1because of the requirement that the state insurance program be adequately funded." Instead, the court issued adeclaratory judgment that State Fund isnot required toreleaseemployer-specific data onpayroll and claimsexperience; that State Fund must comply with MAPA in amending a rule that incorporatestheUnderwriting Manual; and that StateFundmust make

an llassociation plan1'available to every policy holder. The court also ruled that State Fund is not required to follow MAPA rulemaking procedureswhen it changes its schedule for premium payments or adopts portions of the UnderwritingManual, and that State Fund isnot required tomail packets of Board of Directorsmaterials to the public in advance of meetings, as long as the materials are

2available for review at State Fund's office. Attorney's fees were awarded to appellants. The State Compensation Mutual Insurance Fund is the workers' compensation insurer for 27,000 Montana employers. It collects approximately 64 percent of the premiums paid for workers' compensation insurance in Montana. Patrick Sweeney is its executive director. The Montana Health Care Association (MHCA) is a Montana nonprofit corporation whose members provide long-term health care throughout the state. Discovery Care Centre andValley Health Care Center are members of MHCA and hold State Fund workers' compensation insurance policies. DISCLOSURE OF EMPLOYER-SPECIFIC INFORK%TION The first issue on appeal is whether State Fund must make available to the public the employer-specific payroll and claims information that is used to calculateworkersfcompensationrates. InMay 1991,State Fund notified MHCA members that the fiscal 1992workersfcompensationrate for class code 8829 (nursinghomes) would be increased from $10.67 to $13.33. Although State Fund had already advised MHCA of the generalmethod used to calculate these rates, MHCA requested employer-specific information, in a letter dated May 21, 1991. State Fund provided some but not all of the requested information, and on June 19, 1991, State Fund informed MHCA that it would not provide this information without a signed release from each policy holder. MHCA filed the District Court action on June 21, 1991.Appellants rely on Article 11, section 9 of the Montana Constitution, which provides that no one may be deprived of the right to examine documents or observe the deliberations of public bodies except when the demand of individual privacy "clearly exceeds the merits of public disclosure." State Fund relies on Article 11, section 10 of the Montana Constitution,which provides that the rightof individualprivacy shall not be infringed without the showing of a compelling state interest, and on 

### 5 39-71-224, MCA,which exempts fromdisclosurepublic records of theDepartment of Labor that contain information of a personal nature. This Court has held that the only limit on the public's right to receive information is the constitutional right to privacy. Allstate Insurance Co. v. City of Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188. We have adopted the following two-tier test for determining whether a person has a constitutionally protected privacy interest: (a) Whether theperson has a subjective or actual expectation of privacy; and (b)whether societyrecognizesthatexpectationasreasonable. Great Falls Tribune Co. v. Cascade County Sheriff (1989), 238 Mont. 103, 105, 775 P.2d 1267, 1268, citing Montana Human Rights Div. v. City of Billings (1982), 199 Mont. 434, 441, 649 P.2d 1283, 1287. If we determine that a constitutionally protected privacy right exists, we then balance it against the constitutional right to know. Most of the cases inwhichwe have balanced thepublic's rightto know against the right to privacy concerned the privacy of individuals. In Great Falls Tribune, for example,we held that when lawenforcement officershave engaged in conduct that subjects them to disciplinary action, the public's right to know outweighs lawenforcement officers' privacy interests. Similarly, we held in Montana Human Riahts Division that the State's interest in prohibiting employment discrimination outweighs the privacy interest of city employees who had not complained of discrimination,but whose employment records were critical to the Human Rights Division investigation of a complaint. In Engrav v. Cragun (1989), 236Mont. 260, 769 P.2d 1224, on the other hand,we found that the public's right to know about county law enforcement operations does

### not outweigh the privacy interest of people whose

names appeared in telephone logs and case files. Here, we must balance the public's right to know against the privacy interest of employees and employers insured by State Fund. Appellants concede that employer-specific payroll information meets our criteria for a right to privacy, but they contend that the merits of public disclosure are more important, and that the District Court wrongly held that the insured employees' and employers' right to privacy outweighs appellants1right to know. To support this contention, appellants assert that MHCA cannot assess the accuracy of State Fund classifications without accessto employer-specific data. This assessment is critical, they argue, because a State Fund error regarding one employer in a class affects the workers' compensation rate for every member of thatclass. State Fund argues that appellants can detect errors and illegal actions on the part of State Fund by reviewing published aggregate data: therefore,no compelling state interest justifies an invasion of the insured employees1and employers' privacy. In other words, State Fund asserts, employer-specific information should not be released merely to allow MHCA to check State Fund's arithmetic. Our cases establish that corporations have a right to privacy and that a state agencymay assert the privacy interest of others, including corporations. Belth v. Bennett (1987), 227 Mont. 341, 345, 740 P.2d 638, 641;Mountain States Telephoneand Telegraph Co.

v. Dept. of Pub. Sen. Reg. (1981), 194 Mont. 277, 634 P.2d 181. The questionhere is whether the privacy interests of State Fund's insured employees and employers outweigh the right of the public,

as representedby appellants,to inspect aggregate payroll data and claims experience for individual employers. State Fund points to our decision, in Belth, that public

access to insurance companies1 financial statements should be denied because the demands of privacy outweighed the merits of public disclosure. In Belth, however,we found that the insurance companieshad provided the information with theunderstanding that it was confidential and that comparable informationwas available to the public elsewhere. Here, it has not been argued that the insured employees and employers were assured of confidentiality, and comparable information is not available elsewhere. Employer-specific claimsdata are not available fromany source,though some of the payroll data soughtby appellants have been reported to the Department of Healthand Environmental Sciences for healthplanning purposes. The District Court found that appellantst purpose in requesting employer-specific claims and payroll information is essentially an "audit fun~tion,'~ because an employer has no right to a contested case hearing when its premium rate is changed. The court concluded, therefore, that the insured employees' and employers' right toprivacy outweighs appellantstright to knowand that State Fund therefore is not required to release employerspecific claims or payroll information. We reverse, holding that in this case employees' and employerstright to privacy does not clearly exceed the merits of public disclosure, and that the public's right to know therefore outweighs the privacy interest. We believe, as we suggested in Mountain States Telephone and Teleqraph, 634 P.2d at 187, that

an order can be fashioned in suchmanner that the state public agencies canperform theirdutieswith the fullest available information and at the same time disclose to thepublic all information requiredto enable citizensto determine thepropriety ofgovernmentalactionsaffecting them. We remand this case to the District Court for an order that meets this standard. RULEMAKING The second issue on appeal is whether State Fund must adopt the following as rules under MAPA: provisions of State Compensation Mutual Insurance Fund Policy Service Underwriting Manual

7(Underwriting Manual); criteria for "association plans;" and policies regarding the payment of premiums. Since different considerations govern each of these areas, we address them separately. First, however, we emphasize that the State Compensation Mutual Insurance Fund (the state fund) is subject, as the District Court recognized, to laws that apply generally to state agencies, including MAPA and the Montana Public Participation and Open Meetings Acts. Section 39-71-2314(2), MCA. In particular, the state fundmust followMAPA rulemaking procedureswhen it adopts "a process, a procedure, formulas, and factors" for setting or changing premium rates, under 

### 5 39-71-2316(6), MCA, though it is exempt from MAPA rulemaking procedures when it chanaes classifications and premium rates. In other words, once the state fund has promulgated rules for establishing premium rates, it need not go throughMAPA rulemaking procedures to change those rates.

The Underwritinq Manual On May 6, 1991, State Fund published a Notice of Proposed Amendment of ARM 2.55.301, which prescribes the method of classifying occupations for the purpose of assessing workers' compensation rates. The proposed amendment incorporated by reference the lgClassifications't sectionoftheUnderwriting Manual, effective July 1, 1991. This section is the only portion of the UnderwritingManual that State Fundhas adopted formallyas a rule. Patrick Sweeney adopted the amendment for the state fund on June17, 1991.' MHCA requested a copy of the July 1991Underwriting Manual in June but was told that it had not been prepared or printed and probably would not be available until September 1991. On July 8, MHCA was given a draft version of the revised classification section. This draft was not available to Patrick Sweeney when he adopted the amended rule on June 17. Comment on the proposed amendment was invited on May 6,but as the District Court pointed out, it was not possible at that time for an employer to know whether it was affected by the changes. As the District Court said, "for an agency to adopt as a rule something which isnot available for reviewand comment isdirectly contraryto the requirements of MAPA." We agree. Since State Fund adopted the classification section of the Underwriting Manual as a rule, itmay amend that section only through the process described in Title 2, chapter 4,MCA. Appellants contend that the District Court should have required State Fund to adopt the "General Rules" section of the Underwriting Manual, which is incorporated in its insurance contracts, as a formal rule under MAPA, because this section implements and prescribes law and policy in ways that affect employerst substantive rights. State Fund argues that its 

# ' The District Court found that the state fund's rulemaking power must be exercised by the State Fund Board of Directors, not by the state fund's executive director. State Fund has not appealed this decision, and the Board of Directors has adopted rules that are identical in effect to those previously adopted by the executive director.insurancepolicy is a contract and that the "GeneralRulesMsection of theUnderwritingManual merely states someof the contract terms and does not implement, interpret, or prescribe law or policy. The District Court found that State Fund's failure to adopt the "General Rules" section of the Underwriting Manual in accordance with MAPA was not critical to this lawsuit, and that in any case State Fund is not required to adopt this section of the Underwriting Manual as a formal rule. Finding that the District Court interpretedMAPA correctly, we affirm.

Association Plans State Fund has agreements with three trade associations (loggers, food distributors, and motor carriers) under which it reimburses the association for providing safety inspectors in lieu of State Fund safety inspectors. These agreements are called "associationplans." Appellants complain that State Fund has no policies or criteria regarding the creation or administration of association plans, and that State Fund has never met with MHCA, as it promised it would in March 1990, to determine whether MHCA is eligible for

an association plan. Appellants assert that association plans provide substantial benefits to the employers that have them, and that all State Fund policy holders pay indirectly for the safety inspectors hired under these plans. Therefore, appellants argue, State Fund should be ordered to adopt as formal rules its criteria and standards for awarding and administering the plans.

### State Fund asserts that it has 

### no policy of general application with respect to associationplans and that formal rule

### making isnot appropriate because each t~planl~ is aunique contract, with provisions that depend on the nature of the 

### trade association involved. State Fund also implies, though it does not state directly, that it intends to make association plans available to 

### all trade associations, including MHCA 

### if it is "willing and able to enter into the 

### contract." The 

### District Court 

### held that State Fund must make 

### association plans available to all associations and must let associations and employers know that such plans are available, but 

### it was ltnot 

### convinced'l that State Fund must adopt rules setting forth uniform standards for such plans. We 

### agree. The 

### intent of the 1989 

### act that created the state fund was that 

### the state fund must, as the Itprimary means" of insuring its solvency, Iginstitute safety programs and set 

### rates in a manner that rewards employers who 

### provide a safeworking environmentandpenalizes 

### thosewho do not. Statement of 

### Intent, 1989 

### Mont. Laws, Ch. 613. 

### So long as 

### State Fund 

### administers its association plans consistently 

### with this intent, formal rulemaking is 

### not required. Indeed, State Fund probably can fulfill the intent 

### of the 

### Act only by entering into contracts tailored to the 

### needs and circumstances of each trade 

### association 

### or class of employers.

Premium Payment Schedule Until early 1991, 

### State Fund's practice was 

### to requireemployers to submitpayroll informationat the end of each quarter and then to pay thepremium due for that quarter thirty days later. In mid-1991 State Fund combined payroll reporting and premium payment on a single form,which in effect accelerated the premium payment by thirty days. This change inprocedure was initiatedby staff and apparently accepted by the Board at its meeting of May 24, 1991. No notice of this changewas sent to MHCA or to policy holders. Appellants argue that MAPA applies because State Fund's decision to change the premium date affects parties' rights and obligations, and that State Fund's decision therefore should be subject topublic noticeand comment. The District Court held that the obligation to pay a premium arises when the coverage is provided, and tbat the timing of billing for that coverage is not

a matter that requires a rule. We affirm. State Fund's billing schedule does not alter the obligation incurred by employers who enroll with State Fund. PUBLIC PARTICIPATION AND THE BOARD PACKET ISSUE The third issue on appeal is whether State Fund should be required to mail a copy of the agenda and the meeting materials or "Boardpacket" to anyone who requests it,prior to ameeting of the State Fund Board of Directors (Board). Board agendasandpackets ofmaterials are generallymailed to Board members a week to ten days in advance of meetings. On June 3, 1991, MHCA requested advance notice of Board meetings and advance copies of the agenda and other materials sent to Boardmembers. Patrick Sweeneypromised to ask his receptionist to call MHCA two or three days before each Board meeting, but he declined to provide packets on the grounds that the materials would be available at the State Fund office to anyone who wished to inspect them. Appellants contend that agenda materials sent to members of the Board must be mailed to interested members of the public in advance of Board meetings. They argue that Article 11, section 8 of the Montana Constitution, which establishes a right to "such reasonable opportunity for citizenparticipationv1 in the operation of governmental agencies Itasmay be provided by law," and the Public ParticipationAct that implements it, require State Fund to provide any interestedperson with advancenotice of the agenda and copies of materials distributed to Board members. See 

### 55 2-3-101 through -114,MCA. In short,appellants assert thatby refusing to mail Board packets tomembers of thepublic who request them,State Fund denies the public a reasonable opportunity for meaningful public participation before final decisions are made. State Fund contends thatMHCAVsright topublic participation is not impaired by State Fund's refusal to mail advance Board packets on request because the material is available at State Fund's office,which is across the street from MHCA's office. No one elsehas requested an advance Board packet. TheDistrictCourt agreed, holding that State Fund is not required to mail Board packets. We affirm. As we held in Kadillak v. Anaconda Co. (1979), 184 Mont. 127,141, 602 P.2d 147, 155, "the right to participate is limited to those instanceswhere that right is provided by law." Neither the Public ParticipationAct nor the OpenMeetingsAct requires advance mailings. Making Board agenda materials available to thepublic at State Fundls office, in our view, provides a "reasonable opportunity" for participation. The Public Participation Act does require advance notice of final agency action, however, and the District Court pointed out that State Fund has not always complied with thisprovision 

### (5 2-3- 103,MCA). Further, 

### 5 2-3-103 requires state agencies, including State Fund, to develop procedures forpublic participation. State Fund has adopted only one rule providing forpublic participation, and it provides that the date, time and place of a Board meeting may be obtainedby contacting the State Fund office. The District Court found that this provision is not adequate, and we agree. StateFund,however,did not appeal the DistrictCourt's conclusion that it must adopt rules that comply with 

### 5 2-3-103, MCA. ATTORNEY'S FEES Appellantshave requested reasonableattorney's feesand costs incurred in this appeal. This Court has adopted the "American Rule" regardingattorney's fees. Department of Fish,Wildlife and Parksv. Montana StockgrowersAss'n, Inc. (1989), 240Mont. 39, 782 P.2d 898. Under the American Rule, a party in a civil action is generally not entitled to fees absent a specific contractual or statutory provision. Section 25-10-711(1), MCA, provides for attorney's fees in civil actions towhich the state is aparty,butonly when the party seeking attorney's fees has prevailed the court finds that the state's claim or defense is frivolous or pursued in bad faith. See Armstrong v. Dept. of Justice (1991), 250Mont. 468, 820 P.2d 1273; Myersv. Dept. of Agriculture (l988), 232 Mont. 286, 756 P.2d 1144. Here, there is no indication that State Fund's defense was frivolous or in bad faith. Appellants therefore are not entitled to attorney's fees for this appeal. CONCLUSION We reverse the judgment of the District Collrt that State Fund isnot requiredtoprovide employer-specific informationand remand to the District Court for entry of an appropriate order. We affirm the judgment of the DistrictCourtwith respect to all other issues addressed herein.

We concur:

--ices v-January4, 1993 CERTIFICATEOFSERVICE Iherebycertifythat thefollowingorderwas sentby United Statesmail,prepaid, tothe followingnamed:



### G.StevenBrown AttorneyatLaw 1313EleventhAve. Helena,MT 59601 JohnT.Alke Hughes, Kellner,Sullivan&Alke P.O. Box 1166 Helena,MT 59624-1166 NancyButler,GeneralCounsel StateComp.MutualIns.Fund P.O. Box4759 Helena,MT 59604

EDSMITH CLERKOFTHESUPREME COURT STATE

### OFMONTANA 

### BY: Deputy