§ 7-106

(a) Except as provided in subsections (b) and (c) of this section or otherwise by law, all information and documents that are filed with the Commissioner in compliance with the requirements of this title or that are reported to, obtained by, or otherwise disclosed to the Commissioner or any other person in the course of an examination or investigation made under this title:

(1) are confidential material;

(2) are not subject to subpoena;

(3) may not be made public by the Commissioner, the NAIC, or any other person; and

(4) are not subject to discovery or admissible in evidence in any civil action.

(b) Material that otherwise is confidential under subsection (a) of this section may be made public by any person who has received the prior written consent of the person to whom the material relates.

(c) If, after giving the person to whom the material relates notice and an opportunity to be heard, the Commissioner determines that it is in the interest of the policyholders, stockholders, or the public to make public any material relating to the person that otherwise is confidential under subsection (a) of this section, the Commissioner may make public all or part of the material in an appropriate manner.

(d) (1) In addition to the protections afforded confidential information filed under this title and § 2–209 of this article, the following provisions apply expressly to confidential information that is in the control or possession of the Commissioner and reported or provided to the Commissioner in accordance with § 7–603(i) and (j) of this title.

(2) Except as provided in paragraph (3) of this subsection, the document, material, or information:

(i) is recognized as being proprietary and to contain trade secrets;

(ii) is confidential and privileged;

(iii) is not subject to the Public Information Act;

(iv) is not subject to subpoena; and

(v) is not subject to discovery or admissible in evidence in any private civil action.

(3) The Commissioner may use any document, material, or information that is subject to this subsection to further any regulatory or legal action brought as part of the duties of the Commissioner.

(4) The Commissioner and any person that receives a document, material, or information that is subject to this subsection while acting under the authority of the Commissioner may not be allowed or required to testify in any private civil action concerning the document, material, or information.

(5) Except as provided in paragraph (3) of this subsection, for purposes of the information reported and provided to the Commissioner under § 7–603(i) of this title, 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 U.S. group–wide supervisor.

(6) Except as provided in paragraph (3) of this subsection, for purposes of the information reported and provided to the Commissioner under § 7–603(j) of this title, 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–U.S. group–wide supervisors.

(7) In order to assist in the performance of the Commissioner’s duties, the Commissioner:

(i) except as provided in item (ii) of this paragraph, may share documents, materials, or other information, including confidential and privileged information, that may include proprietary and trade secret documents and materials with other state, federal, and international regulatory agencies, the NAIC, any third–party consultants designated by the Commissioner, and state, federal, and international law enforcement authorities, including members of any supervisory college described in § 2–209.1 of this article, if the recipient:

1. agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information; and

2. has verified in writing the legal authority to maintain confidentiality;

(ii) may share only confidential and privileged documents, material, or information reported under § 7–603(h) of this title with the commissioners of states having statutes or regulations substantially similar to this section and who have agreed in writing not to disclose the information;

(iii) 1. may receive documents, materials, or information, including otherwise confidential and privileged documents, materials, and information, that may include 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

2. shall maintain as confidential and 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

(iv) 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 in accordance with this title and consistent with this section.

(8) An agreement entered into under paragraph (7)(iv) of this subsection shall:

(i) specify procedures and protocols regarding confidentiality and security of information shared with the NAIC or a third–party consultant designated by the Commissioner under this title, including procedures and protocols for the sharing of the information by the NAIC with other state, federal, or international regulators;

(ii) 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 the confidentiality;

(iii) specify that ownership of information shared with the NAIC or a third–party consultant under this title remains with the Commissioner and the use of the information is subject to the direction of the Commissioner;

(iv) excluding documents, material, or information reported under § 7–603(j) of this title, prohibit the NAIC or a third–party consultant designated by the Commissioner from storing the information shared under this title in a permanent database after the underlying analysis is completed;

(v) 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 is subject to a request or subpoena to the NAIC or a third–party consultant designated by the Commissioner for disclosure or production;

(vi) 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 by the NAIC or a third–party consultant designated by the Commissioner; and

(vii) for documents, material, or information reported under § 7–603(j) of this title, provide for the notification of the identity of the consultant to the applicable insurers, in the case of an agreement involving a third–party consultant.

(9) (i) The sharing of information by the Commissioner under this title may not constitute a delegation of regulatory authority or rulemaking.

(ii) The Commissioner is solely responsible for the administration, execution, and enforcement of this title.

(10) A waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information may not occur as a result of disclosure to the Commissioner or as a result of sharing as authorized in this section.

(11) The group capital calculation and resulting group capital ratio required under § 7–603(i) of this title and the liquidity stress test along with its results and supporting disclosures required under § 7–603(j) of this title 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.

(12) Disclosure of group capital calculation, group capital ratio, liquidity stress test results, or supporting disclosures by any insurer, broker, or other person engaged in any manner of the insurance business is subject to the following:

(i) except as provided in item (ii) of this paragraph or as otherwise required by this title, the direct or indirect disclosure, in any written, electronic, or other manner as an advertisement, an announcement or a statement containing a representation, or a 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 would be misleading and is therefore prohibited; and

(ii) the insurer may publish announcements in a written publication if:

1. 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 the statement or the inappropriateness of the comparison; and

2. the sole purpose of the announcements is to rebut the materially false statement or inappropriate comparison.