NEW BRITAIN, CT — The Freedom of Information Commission will be given another opportunity to decide whether merger documents the Insurance Department had previously refused to share for review should be made available.

Two weeks ago, Superior Court Trial Judge Referee Lois Tanzer concluded that the Freedom of Information Commission went too far in fining former Insurance Department Commissioner Katharine Wade for refusing to comply with its order to turn over documents for a closed-door review.

However, the court also found nothing that would prohibit the Insurance Department from turning some documents over for an “in-camera” inspection.

In her decision, Tanzer upheld the commission’s ability to review confidential documents and make necessary redactions if they are warranted.

“Where the legislature has seen fit to prohibit the disclosure of information even for in camera review, it has done so explicitly,” Tanzer wrote.

The Insurance Department, which refused to turn over the merger documents, argued that the request to make them available was the equivalent of an “investigatory subpoena.” Tanzer disagreed.

“Had the legislature meant for a request for in-camera inspection to constitute a subpoena, it could have easily written that statute to empower the commission ‘to subpoena witnesses, books, and papers’,” Tanzer wrote.

A Republican Senator and the Connecticut Campaign for Consumer Choice filed a complaint with the Freedom of Information Commission in 2017 when the Insurance Department refused to give them information related to the proposed mergers of Aetna with Humana and Anthem with Cigna. Neither merger ended up happening, but the fight to figure out how decisions were made to approve them has continued to this day.

“While the court acknowledged the Connecticut Insurance Department should have made information available, we fear it has further weakened Connecticut’s Freedom of Information law and allowed Katie Wade to run out the clock and show public officials how they avoid accountability,” said Tom Swan, head of the Connecticut Citizens Action Group and a member of the Connecticut Campaign for Consumer Choice. “It is very disappointing.”

When the Insurance Department refused in 2017 to allow the commission to inspect the documents in question privately, the commission sought a rare $500 fine against Wade.

However, Tanzer felt the $500 fine was an “abuse of discretion” and refused to uphold it when she sent the case back to the Freedom of Information Commission for another hearing.

The Freedom of Information Commission declined at its meeting Wednesday to appeal the decision since it will get another chance to hear arguments in the case.

“The court upheld the Commission’s position on the in-camera point, concluding that the department MUST provide the records to the Commission, in camera, for analysis and review,” Colleen Murphy, executive director of the Freedom of Information Commission, said. “That is a fundamental victory for the Commission, as it went to the heart of what we do — reviewing the actual documents claimed to be confidential.”