§ 5 — Powers of commissioner

Section 5. (a) The operation of the association shall be subject to the supervision and regulation of the commissioner. The commissioner or any person designated to act for the commissioner shall have the power to examine and investigate the operation of the association and shall have access to all the books, records, files, papers and documents that relate to its operations, may summon and qualify witnesses under oath, and may examine directors, officers, agents or employees or any other person having knowledge of the operations for the purpose of determining if the purposes of this chapter are being fulfilled.Notwithstanding any other provision of the General Laws, including clause Twenty-sixth of section 7 of chapter 4 and chapter 66, documents, materials or other information, including but not limited to, all working papers and copies thereof created, produced or obtained by or disclosed to the commissioner or any other person in the course of an examination made pursuant to this subsection or in the course of analysis by the commissioner of the financial condition or market conduct of the association shall be confidential by law and privileged, shall not be a public record under said clause Twenty-sixth, shall not be subject to subpoena and shall not be subject to discovery or admissible in evidence in any private civil action. The commissioner may use the documents, materials or other information in the furtherance of any regulatory or legal action brought as part of the commissioner's official duties.Documents, materials or other information, including but not limited to, all working papers and copies thereof in the possession or control of the National Association of Insurance Commissioners and its affiliates and subsidiaries 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 if they are:(i) created, produced, obtained by or disclosed to the National Association of Insurance Commissioners and its affiliates and subsidiaries in the course of the National Association of Insurance Commissioners and its affiliates and subsidiaries assisting an examination made pursuant to this subsection or assisting the commissioner in the analysis of the financial condition or market conduct of the association; or(ii) disclosed to the National Association of Insurance Commissioners and its affiliates and subsidiaries pursuant to this subsection by any member of the National Association of Insurance Commissioners.Neither the commissioner nor any person who received the documents, material or other information while acting under the authority of the commissioner, including the National Association of Insurance Commissioners and its affiliates and subsidiaries, shall be permitted to testify in any private civil action concerning any confidential documents, materials or information subject to this subsection.In order to assist in the performance of the commissioner's duties, the commissioner:(i) may share documents, materials or other information, including the confidential and privileged documents, materials or information subject to this subsection, with other state, federal and international regulatory agencies, the National Association of Insurance Commissioners and its affiliates and subsidiaries and state, federal and international law enforcement authorities provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material, communication or other information;(ii) may receive documents, materials, communications or information, including otherwise confidential and privileged documents, materials or information, from the National Association of Insurance Commissioners and its affiliates and subsidiaries and 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; and(iii) may enter into agreements governing sharing and use of information consistent with this subsection.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 subsection or as a result of sharing as authorized in this subsection.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 proceeding in and in any court of the commonwealth.(b) The association may make rate filings in accordance with chapter 174A and chapter 175A; provided, however, that the filing shall be subject to the prior approval of the commissioner, after proper notice and hearing, subject to the adjudicatory procedures of chapter 30A; and provided, further, that in reviewing the rates for the association, the commissioner shall give consideration, in addition to all other relevant factors, to the loss experience of insurers in the voluntary market, as well as the experience of the association and to the intent of this chapter to make basic property insurance available at reasonable cost to eligible applicants in large share territories.(c) The commissioner shall approve all rates for the association for homeowners insurance in territories other than large share territories if the commissioner finds that the proposed rates for the territories comply with the requirements of the General Laws; but, the commissioner may disapprove the rate upon a finding that it exceeds a rate equal to the ninetieth percentile of the rates then in use in the territory by the 10 insurers with the largest market shares of homeowners insurance written in the commonwealth on a statewide basis. The commissioner shall approve all rates for the association for homeowners insurance in large share territories only if the commissioner finds that: (1) the proposed rates for the association for the territories comply with the requirements of the General Laws; and (2) no rate for the territory in any calendar year increases over the lowest rate for that product charged by the association during the prior calendar year in the territory by more than the overall statewide average percentage increase in rates charged from December 31 of the year preceding the prior calendar year to December 31 of that prior calendar year for homeowners insurance by the 10 insurers with the largest market shares of such insurance written in the commonwealth on a statewide basis. Notwithstanding clause (2), the commissioner shall consider the effects of predicted hurricane losses and the cost of catastrophe reinsurance on the rates charged by voluntary market insurers and the cost of catastrophe reinsurance and the predicted hurricane losses on the association approving rates for homeowners insurance in all territories. Whenever the average market share of the association during the most recent 3 years shall reach a level which newly qualifies a territory as a large share territory, the association shall analyze the rates of companies in that territory and shall file a report with the commissioner who shall, in turn, either re-certify the current rate or approve a revised rate for the territory filed by the association which bears a relationship to the rates in the voluntary market in the territory which is consistent with the average relationship between the rates charged by the association in all territories in which it has a similar market share and the rates in the voluntary market in those territories. As used in this subsection, the term ''homeowners insurance'' shall apply only to the types of products sold by the association on the effective date of this section. All other types of homeowners products subsequently sold by the association shall have a rate based on a factor approved by the commissioner that reflects the relative value of the coverage provided by the types of products to those for which rates have been approved by the commissioner.