(1) (a) Documents, materials, or other
information in the possession or control of the division that are obtained by or
disclosed to the commissioner or any other person in the course of an examination
or investigation made pursuant to section 10-3-806 and all information reported
pursuant to section 10-3-803 (2)(l) and (2)(m), 10-3-804, or 10-3-805 are proprietary
and contain trade secrets and are confidential by law and privileged; are not subject
to the Colorado Open Records Act, part 2 of article 72 of title 24; are not subject
to subpoena; and are not subject to discovery or admissible in evidence in any
private civil action. However, the commissioner is authorized to use the documents,
materials, or other information in the furtherance of any regulatory or legal action
brought as a part of the commissioner's official duties. The commissioner shall not
otherwise make the documents, materials, or other information public without the
prior written consent of the insurer to which they pertain unless the commissioner,
after giving the insurer and its affiliates who would be affected notice and
opportunity to be heard, determines that the interest of policyholders,
shareholders, or the public will be served by the publication, in which event the
commissioner may publish all or any part of the documents, materials, or other
information in such manner as the commissioner deems appropriate.
(b) For purposes of the information reported and provided to the division
pursuant to section 10-3-804 (12)(b), the commissioner shall maintain the
confidentiality of the group capital calculation and group capital ratio produced
within the calculation and any group capital information received from an insurance
holding company supervised by the federal reserve board or any United States
group-wide supervisor.
(c) For the purposes of the information reported and provided to the division
pursuant to section 10-3-804 (12)(f), the commissioner shall maintain the
confidentiality of the liquidity stress test results and supporting disclosures and
any liquidity stress test information received from an insurance holding company
supervised by the federal reserve board and non-United States group-wide
supervisors.
(2) Neither the commissioner nor any person who received documents,
materials, or other information while acting under the authority of the commissioner
or with whom the documents, materials, or other information are shared pursuant to
this part 8 shall be permitted or required to testify in any private civil action
concerning any confidential documents, materials, or information subject to
subsection (1) of this section.
(3) In order to assist in the performance of the commissioner's duties, the
commissioner:
(a) May share documents, materials, or other information, including the
confidential and privileged documents, materials, or information subject to
subsection (1) of this section and proprietary and trade secret documents and
materials, with other state, federal, and international regulatory agencies, with the
NAIC, with any third-party consultants designated by the commissioner, and with
state, federal, and international law enforcement authorities, including members of
a supervisory college described in section 10-3-807, if the recipient agrees in
writing to maintain the confidentiality and privileged status of the document,
material, or other information or proprietary and trade secret document and
material and has verified in writing the legal authority to maintain confidentiality;
(b) Notwithstanding paragraph (a) of this subsection (3), shall share
confidential and privileged documents, material, or information reported pursuant
to section 10-3-804 (12) only with commissioners of states having statutes or
regulations substantially similar to subsection (1) of this section and who have
agreed in writing not to disclose such information;
(c) May receive documents, materials, or information, including otherwise
confidential and privileged documents, materials, or information and proprietary
and trade secret information, from the NAIC and its affiliates and subsidiaries and
from regulatory and law enforcement officials of other foreign or domestic
jurisdictions and shall maintain as confidential or privileged any document,
material, or information or proprietary and trade secret documents and materials
received with notice or the understanding that they are confidential or privileged
under the laws of the jurisdiction that is the source of the document, material, or
information or proprietary and trade secret document and material; and
(d) Shall enter into written agreements with the NAIC and any third-party
consultant designated by the commissioner governing the sharing and use of
information provided pursuant to this part 8 consistent with this subsection (3) that
must:
(I) Specify procedures and protocols regarding the confidentiality and
security of information shared with the NAIC or a third-party consultant designated
by the commissioner pursuant to this part 8, including procedures and protocols for
sharing by the NAIC with other state, federal, or international regulators. The
agreement must state that the recipient agrees to maintain the confidentiality and
privileged status of the documents, materials, or other information or proprietary
and trade secret documents and materials and has verified in writing the legal
authority to maintain such confidentiality.
(II) Specify that ownership of information shared with the NAIC or a third-party consultant pursuant to this part 8 remains with the commissioner and that the
use of the information by the NAIC or the third-party consultant as designated by
the commissioner is subject to the direction of the commissioner;
(II.5) Excluding documents, material, or information reported pursuant to
section 10-3-804 (12)(f), prohibit the NAIC or a third-party consultant designated by
the commissioner from storing the information shared pursuant to this section in a
permanent database after the underlying analysis is completed;
(III) Require prompt notice to be given to an insurer whose confidential
information in the possession of the NAIC or third-party consultant designated by
the commissioner pursuant to this part 8 is subject to a request or subpoena to the
NAIC or third-party consultant designated by the commissioner for disclosure or
production;
(IV) Require the NAIC or a third-party consultant designated by the
commissioner to consent to intervention by an insurer in any judicial or
administrative action in which the NAIC or a third-party consultant designated by
the commissioner may be required to disclose confidential information about the
insurer shared with the NAIC or a third-party consultant designated by the
commissioner pursuant to this part 8; and
(V) For documents, materials, or information reported pursuant to section 10-3-804 (12)(f), where there is an agreement involving a third-party consultant,
provide for notification of the identity of the consultant to the applicable insurers.
(4) The sharing of information by the commissioner pursuant to this part 8
does not constitute a delegation of regulatory authority or rule-making, and the
commissioner is solely responsible for the administration, execution, and
enforcement of this part 8.
(5) No waiver of any applicable privilege or claim of confidentiality in the
documents, materials, or information occurs as a result of disclosure to the
commissioner under this section or as a result of sharing as authorized in
subsection (3) of this section.
(6) Documents, materials, or other information or proprietary and trade
secret documents and materials in the possession or control of the NAIC or a third-party consultant designated by the commissioner pursuant to this part 8 are
confidential by law and privileged; are not subject to the Colorado Open Records
Act, part 2 of article 72 of title 24; are not subject to subpoena; and are not subject
to discovery or admissible in evidence in any private civil action.
(7) (a) The group capital calculation and resulting group capital ratio
required by section 10-3-804 (12)(b) and the liquidity stress test along with its
results and supporting disclosures required by section 10-3-804 (12)(f) are
regulatory tools for assessing group risks and capital adequacy and group liquidity
risks, respectively, and are not intended as a means to rank insurers or insurance
holding company systems generally.
(b) (I) Except as provided in subsection (7)(b)(II) of this section, any insurer,
broker, or other person engaged in any manner in the insurance business shall not
advertise, announce, or state a representation regarding the group capital
calculation, group capital ratio, liquidity stress test results, or supporting
disclosures for the liquidity stress test of any insurer or any insurer group, or of any
component derived in the calculation by directly or indirectly making, publishing,
disseminating, circulating, or placing the representation before the public:
(A) In a newspaper, a magazine, or other publication; or
(B) In the form of a notice, circular, pamphlet, letter, or poster; or
(C) Over any radio or television station or any electronic means of
communication available to the public; or
(D) In any other way as an advertisement.
(II) An insurer may publish an announcement, advertisement, or statement
described in subsection (7)(b)(I) of this section in a written publication if the sole
purpose of the announcement is to rebut the materially false statement when the
announcement, advertisement, or statement was published in a written publication
and the insurer is able to demonstrate to the commissioner with substantial proof
the falsity or inappropriateness of such announcement, advertisement, or
statement.