The Office of General Counsel issued the following opinion on June 26, 2003, representing the position of the New York State Insurance Department.
Re: Record Retention
Question Presented:
How long must an insurance agent keep the actual paper documents in her office after the paper documents have been converted into an electronic format?
Conclusion:
Once the paper documents have been properly converted to a durable medium such as an electronic format, then the Insurance Law has no requirement to retain the paper documents. Maintaining two sets of documents in two media is not required under the Insurance Law. It is within the possessors discretion as to whether one or two media will be maintained, keeping in mind that this Department does not hereby offer any advice as to any requirement that may be contained in laws other than the Insurance Law.
Facts:
An agency that is licensed as a property/casualty insurance agent pursuant to N.Y. Ins. Law Section 2103(b) (McKinney 2000) desires to be "paperless" because the insurer is promoting the electronic format.
Analysis:
There is no general prescription for record retention by insurance agencies under the N.Y. Insurance Law or Insurance Department regulations that are specific to such agencies. However, to the extent that agencies are maintaining records on an insurers behalf, such agencies are subject to the record retention requirements applicable to insurance companies in New York. An agent represents its principal, the insurer, and the agent is not subject to greater insurance regulatory requirements in maintaining records that an insurer must maintain than are imposed on the insurer. An exception is N.Y. Ins. Law § 2119(a) (McKinney 2000), which requires that an insurance agent retain every service fee agreement for at least three years.
N. Y. Comp. Codes R. & Regs. tit. 11, Part 243 (1996) (Regulation 152) is entitled "Standards of Records Retention by Insurance Companies." The term "Records " is defined in § 243.1(b) as " .books, records, files, securities, data compilations and other documents." Among other things, insurers are permitted to maintain their records in a "durable medium," which is defined in § 243.1(c) as:
. . . a medium for maintaining a record where the properties of such medium provide reasonable assurances against tampering with the information contained in the original and degradation of any reproduction generated, and where the reproduction is an exact copy of the original. The medium may include paper; facsimile; or photographic, micrographic, magnetic, optical, mechanical or electronic media. (emphasis added)
Specifically, § 243.3(a)(3) states: "Upon transfer of an original record to a durable medium, the insurer may destroy the original record after assuring that all information contained in the original record, including signatures, handwritten notations, or pictures, is contained in the durable medium."
Accordingly, under such circumstances, the agency may destroy the original paper documents but there is no such obligation under the Insurance Law to destroy the original documents and there may be reasons for litigation or other purposes to maintain them.
Recent letters on the duration that records must be retained can also be viewed on the Departments web site. The May 7, 2003 letter written by Robert Freedman, Esq. addresses record retention requirements for automobile insurance in particular, but the statutory and regulatory references therein would apply to the life, accident, and health insurance area, as well as other areas of property and casualty insurance. Also on the web site is another May 7, 2003 letter, written by Joan Siegel, Esq., referring to electronic transactions as governed under state and federal statutes.
For further information you may contact Associate Attorney Jeffrey A. Stonehill at the New York City Office.