§691.10. Confidential treatment
A.(1) Documents, materials, or other information in the possession or control of the
department that are obtained by or disclosed to the commissioner or any other person in the
course of an examination or investigation made pursuant to R.S. 22:691.8 and all information
reported or provided to the commissioner pursuant to R.S. 22:691.4(B)(12) and (13), 691.6,
691.7, and 691.9.1 shall be recognized as proprietary information containing trade secrets,
shall be confidential by law and privileged, shall not be subject to subpoena, and shall not
be 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 his 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 it pertains unless the commissioner,
after giving the insurer and its affiliates who would be affected thereby notice and
opportunity to be heard, determines that the interest of policyholders, shareholders, or the
public will be served by the publication thereof, in which event the commissioner may
publish all or any part in such manner as may be deemed appropriate.
(2) For purposes of the information reported and provided to the department pursuant
to R.S. 22:691.6(M), 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 United States
Federal Reserve Board or any U.S. group-wide supervisor.
(3) For purposes of the information reported and provided to the department pursuant
to R.S. 22:691.6(N), the commissioner shall maintain the confidentiality of the liquidity
stress test results, supporting disclosures, and any liquidity stress test information received
from an insurance holding company supervised by the United States Federal Reserve Board
and group-wide supervisors not based in the United States.
B. Neither the commissioner nor any person who received documents, materials, or
other information while acting under the authority of the commissioner or with whom such
documents, materials, or other information are shared pursuant to this Subpart shall be
permitted or required to testify in any private civil action concerning any confidential
documents, materials, or information subject to Subsection A of this Section.
C. In order to assist in the performance of the commissioner's duties, the
commissioner:
(1) May share documents, materials, or other information, including the confidential
and privileged documents, materials, or information subject to Subsection A of this Section,
including proprietary information and trade secret documents and materials, with other state,
federal, and international regulatory agencies with the NAIC and with state, federal, and
international law enforcement authorities, including members of any supervisory college
described in R.S. 22:691.9, provided that the recipient agrees in writing to maintain the
confidentiality and privileged status of the document, material, or other information, and has
verified in writing the legal authority to maintain confidentiality.
(2) Notwithstanding the provisions of Paragraph (1) of this Subsection, the
commissioner may share confidential and privileged documents, material, or information
reported pursuant to R.S. 22:691.6(L) only with commissioners of states having statutes or
regulations substantially similar to Subsection A of this Section and who have agreed in
writing not to disclose such information.
(3) May receive documents, materials, or information, including otherwise
confidential and privileged documents, materials, or information, including 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 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 information.
(4) 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 Subpart consistent with this Subsection that shall:
(a) 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 Subpart, including procedures and protocols for sharing by the
NAIC with other state, federal, or international regulators. The agreement shall provide that
the recipient agrees in writing to maintain the confidentiality and privileged status of the
documents, materials, and other information and has verified, in writing, the legal authority
to maintain such confidentiality.
(b) Specify that ownership of information shared with the NAIC or a third-party
consultant pursuant to this Subpart remains with the commissioner and the use of the
information by the NAIC or a third-party consultant designated by the commissioner is
subject to the direction of the commissioner.
(c) Excluding documents, materials, and information reported pursuant to R.S.
22:691.6(N), 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.
(d) Require prompt notice to be given to an insurer whose confidential information
in the possession of the NAIC or a third-party consultant designated by the commissioner
pursuant to this Subpart is subject to a request or subpoena to the NAIC or a third-party
consultant designated by the commissioner for disclosure or production.
(e) 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 Subpart.
(f) For documents, materials, and information reporting, pursuant to R.S.
22:691.6(N), in the case of an agreement involving a third-party consultant, provide for
notification of the identity of the consultant to the applicable insurers.
D. The sharing of information by the commissioner pursuant to this Subpart shall
not constitute a delegation of regulatory authority or rulemaking, and the commissioner is
solely responsible for the administration, execution, and enforcement of the provisions of this
Subpart.
E. No waiver of any applicable privilege or claim of confidentiality in the
documents, materials, or information shall occur as a result of disclosure to the commissioner
under this Section or as a result of sharing as authorized in Subsection C of this Section.
F. Documents, materials, or other information in the possession or control of the
NAIC or a third-party consultant designated by the commissioner pursuant to this Subpart
shall be confidential by law and privileged, shall not be subject to subpoena, and shall not
be subject to discovery or admissible in evidence in any private civil action.
G. Except as otherwise may be required under the provisions of this Subpart, the
making, publishing, disseminating, circulating, or placing before the public, or causing
directly or indirectly to be made, published, disseminated, circulated, or placed before the
public in a newspaper, magazine, or other publication, or in the form of a notice, circular,
pamphlet, letter, or poster, or broadcasted over any radio station, television station, or by any
other electronic means of communication available to the public, or in any other way as an
advertisement, announcement, or statement containing a representation or statement with
regard to the group capital calculation, group capital ratio, the 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 any insurer, broker, or other person engaged in
any manner in the insurance business is prohibited. However, if any materially false
statement with respect to the group capital calculation, resulting group capital ratio, an
inappropriate comparison of any amount to an insurer's or insurance group’s group capital
calculation or resulting group capital ratio, liquidity stress test result, supporting disclosures
for the liquidity stress test, or an inappropriate comparison of any amount to an insurer's or
insurance group’s liquidity stress test result or supporting disclosures is published in any
written publication and the insurer is able to demonstrate to the commissioner, with
substantial proof, the falsity of such statement or its inappropriateness, the insurer may
publish announcements in a written publication, if the sole purpose thereof is to rebut the
materially false statement.