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San Francisco�At least one California Supreme Court justice didn’t buy an insurance attorney’s argument last week that sensitive data collected by the state Department of Insurance should be kept from the public as “trade secrets.” “That, at first blush, doesn’t support your position at all,” Justice Joyce Kennard snapped after lobbing several quick questions at State Farm’s lawyer, Vanessa Wells of Heller Ehrman White & McAuliffe. The interaction came during oral arguments in State Farm Mut. Auto. Ins. Co. v. Garamendi, No. S102251. State Farm sued to block the insurance commissioner from releasing pricing and underwriting data publicly, arguing that the data are trade secrets exempt from public records laws. Under Proposition 103, the state is supposed to use the information to track insurers’ compliance with rules against redlining. After putting down Wells, Kennard read aloud the Insurance Code section that says insurers must provide the data in question and that the data are a matter of public record. Uncomfortable with arguments No other justice staked out territory as clearly as the outspoken Kennard, but several appeared uncomfortable with the insurers’ arguments. They focused on how their ruling will affect consumers. Justice Ming Chin seemed to be trying to throw Wells a bone when he asked how the disclosure of data would affect the cost and availability of insurance. Since the goal of Proposition 103 was to rein in California’s insurance market, it would make sense for State Farm to argue that a negative effect on its business would translate into disaster for consumers. But Wells wouldn’t bite, and Chin looked puzzled. Deputy Attorney General Kristian Whitten, who defended the insurance commissioner, had a much easier time of it. Kennard and Chin again led the questioning, with Kennard making a point to pose similar questions as she had asked of Whitten’s adversary. Whitten shared his allotted time with Mark Savage, a Consumers Union attorney. The justices wanted both men to explain whether they thought voters knew what they were doing when they passed Proposition 103. Savage argued that just as the California Public Records Act let sunshine into the workings of government, Proposition 103 was intended to do the same thing for the insurance industry. In her rebuttal, Wells disagreed, saying State Farm had no idea its trade secrets would not be protected. “103 is not a sunshine law,” she said.

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