(1) (a) Market conduct surveillance
personnel have free and full access to the following documents of and persons
associated with the company during regular business hours:
(I) Books;
(II) Records, including any self-evaluation or voluntary compliance program
documents;
(III) Employees;
(IV) Officers; and
(V) Directors.
(b) Upon request of market conduct surveillance personnel, a company
utilizing a third-party model or product for any of the activities being reviewed shall
make the details of the models or products available to the personnel.
(c) (I) The commissioner and any other person in the course of market
conduct surveillance shall keep confidential all documents, including working
papers, third-party models or products, complaint logs, and copies of any
documents created, produced, obtained by, or disclosed to the commissioner,
market conduct surveillance personnel, or any other person in the course of market
conduct surveillance conducted pursuant to this part 3, and all documents obtained
by the NAIC as a result of this part 3. The documents remain confidential beyond
the termination of the market conduct surveillance, are not subject to subpoena,
and must not be made public at any time or used by the commissioner or any other
person, except as provided in subsections (2), (3), and (5) of this section and section
10-1-312.
(II) The commissioner, the division, and any other person in the course of
market conduct surveillance shall keep confidential any self-evaluation or
voluntary compliance program documents disclosed to the commissioner or other
person by a company and the data collected via the NAIC market conduct annual
statement. The documents are not subject to subpoena and shall not be made
public or used by the commissioner or any other person, except as provided in
subsections (2), (3), and (5) of this section and section 10-1-312.
(2) Notwithstanding subsection (1) of this section, and consistent with
subsection (3) of this section, in order to assist in the performance of the
commissioner's duties, the commissioner may:
(a) Share documents, materials, communications, or other information,
including the confidential and privileged documents, materials, or information
specified in subsection (1) of this section, with other state, federal, and international
regulatory agencies and law enforcement authorities and the NAIC, its affiliates,
and subsidiaries, if the recipient agrees to and has the legal authority to maintain
the confidentiality and privileged status of the document, material, communication,
or other information;
(b) Receive documents, materials, communications, or information, including
otherwise confidential and privileged documents, materials, or information, from
the NAIC and its affiliates or subsidiaries, and from regulatory and law enforcement
officials of other foreign or domestic jurisdictions, and shall maintain as
confidential or privileged any document, material, communication, or 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,
communication, or information; and
(c) Enter into agreements governing the sharing and use of information
consistent with this section.
(3) Nothing in this part 3 limits:
(a) The commissioner's authority to use, if consistent with section 10-3-414,
any final or preliminary examination report, any market conduct surveillance or
company work papers or other documents, or any other information discovered or
developed during the course of any market conduct surveillance, in the furtherance
of any legal or regulatory action initiated by the commissioner that the
commissioner may, in the commissioner's sole discretion, deem appropriate; or
(b) The ability of a company to conduct discovery in accordance with section
10-1-305 (6)(c)(III).
(4) Disclosure to the commissioner of documents, materials,
communications, or information required as part of any type of market conduct
surveillance does not waive any applicable privilege or claim of confidentiality in
the documents, materials, communications, or information.
(5) Notwithstanding the confidentiality requirements in subsection (1)(c) of
this section, when the commissioner performs any type of market conduct
surveillance that does not rise to the level of a market conduct examination, the
commissioner may make the final results of the market conduct surveillance, in an
aggregated format, available for public inspection in a manner deemed appropriate
by the commissioner.