§ 23-84-118 — Confidentiality - Definition

(a) As used in this section, "confidential information" means: (1) A memorandum in support of an opinion submitted under § 23-84-112 and any other documents, materials, and other information, including without limitation all working papers and copies of working papers created, produced, or obtained by or disclosed to the Insurance Commissioner or any other person in connection with the memorandum; (2) (A) Except as provided in subdivision (a)(2)(B) of this section, all documents, materials, and other information, including without limitation all working papers and copies of working papers created, produced, or obtained by or disclosed to the commissioner or any other person in the course of an examination under § 23-84-115(d) . (B) To the extent that an examination report or other material prepared in connection with an examination under § 23-61-201 et seq. is not held as private and confidential information under § 23-61-207 , an examination report or other material prepared in connection with an examination made under § 23-84-115(d) is not confidential information under this section; (3) A report, document, material, and other information developed by a company in support of or in connection with an annual certification by the company under § 23-84-116(b)(2) evaluating the effectiveness of the company's internal controls with respect to a principle-based valuation and any other document, material, and other information, including without limitation all working papers and copies of working papers created, produced, or obtained by or disclosed to the commissioner or any other person in connection with the report, document, material, and other information; (4) A principle-based valuation report developed under § 23-84-116(b)(3) and any other document, material, and other information, including without limitation all working papers and copies of working papers created, produced, or obtained by or disclosed to the commissioner or any other person in connection with the report; (5) Experience data, including a document, material, data, and other information submitted by a company under § 23-84-117 , and any other document, material, data, and other information, including without limitation all working papers and copies of working papers created or produced in connection with the experience data that are created, produced, or obtained by or disclosed to the commissioner or any other person in connection with the experience data; and (6) Experience materials, including experience data under subdivision (a)(5) of this section, and any potentially company-identifying or personally identifiable information that is provided to or obtained by the commissioner and any other documents, materials, data, and other information, including without limitation all working papers and copies of working papers created, produced, or obtained by or disclosed to the commissioner or any other person in connection with the experience materials. (b) (1) (A) Except as provided in this section, a company's confidential information is confidential by law and privileged and shall not be subject to: (i) The Freedom of Information Act of 1967, § 25-19-101 et seq.; (ii) Subpoena; or (iii) Discovery or admissible in evidence in a private civil action. (B) However, the commissioner is authorized to use the confidential information in the furtherance of any regulatory or legal action brought against the company as a part of the commissioner's official duties. (2) The commissioner and any other person who received confidential information while acting under the authority of the commissioner shall not be permitted or required to testify in any private civil action concerning the confidential information. (3) (A) Except as provided in subdivision (b)(3)(B) of this section, in order to assist in the performance of the commissioner's duties, the commissioner may share confidential information: (i) With other state, federal, and international regulatory agencies and with the National Association of Insurance Commissioners and its affiliates and subsidiaries; (ii) In the case of confidential information specified in subdivision (a)(1) or subdivision (a)(4) of this section only, with the Actuarial Board for Counseling and Discipline or its successor upon request stating that the confidential information is required for the purpose of professional disciplinary proceedings; and (iii) With state, federal, and international law enforcement officials. (B) The commissioner shall not share confidential information with a recipient under subdivision (b)(3)(A)(i) or subdivision (b)(3)(A)(ii) of this section unless the recipient agrees and has the legal authority to agree to maintain the confidentiality and privileged status of the confidential information in the same manner and to the same extent as required of the commissioner. (4) The commissioner may receive documents, materials, data, and other information, including otherwise confidential and privileged documents, materials, data, or information, from the National Association of Insurance Commissioners and its affiliates and subsidiaries, from regulatory or law enforcement officials of other foreign or domestic jurisdictions, and from the Actuarial Board for Counseling and Discipline or its successor and shall maintain as confidential or privileged any document, material, data, or other information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or other information. (5) The commissioner may enter into agreements governing sharing and use of information consistent with this subsection. (6) A waiver of any applicable privilege or claim of confidentiality concerning confidential information shall not occur as a result of a disclosure of information to the commissioner under this section or as a result of sharing information authorized by this section. (7) A privilege established under the law of any state or jurisdiction that is substantially similar to the privilege established under this subsection shall be available and enforced in any administrative, civil, or criminal proceeding in this state. (8) This section applies to the employees, agents, consultants, and contractors of the National Association of Insurance Commissioners and a regulatory agency or law enforcement agency identified in this section. (c) Notwithstanding subsection (b) of this section, any confidential information of a company specified in subdivision (a)(1) or subdivision (a)(4) of this section: (1) May be subject to subpoena for the purpose of defending an action seeking damages from the appointed actuary submitting the related memorandum in support of an opinion submitted under § 23-84-112 or a principle-based valuation report developed under § 23-84-116(b)(3) based upon an action required of the appointed actuary by this chapter; (2) May otherwise be released by the commissioner with the written consent of the company; and (3) Is no longer confidential information protected by this section if any portion of a memorandum in support of an opinion submitted under § 23-84-112 or a principle-based valuation report developed under § 23-84-116(b)(3) is: (A) Cited by the company in its marketing; (B) Publicly volunteered to or before a governmental agency other than a state insurance department; or (C) Released by the company to the news media.

Legislative History

Added by Act 2015, No. 1223,§ 45, eff. 7/22/2015.