(1)For purposes of this section, confidential information
means:
(a)A memorandum in support
of an opinion submitted under section 44-8905 and any other documents, materials,
and other information, including, but not limited to, all working papers,
and copies thereof, created, produced, or obtained by or disclosed to the
director or any other person in connection with such memorandum;
(b)All documents, materials,
and other information, including, but not limited to, all working papers,
and copies thereof, created, produced, or obtained by or disclosed to the
director or any other person in the course of an examination made under subsection
(6)of section 44-8908 , except that if an examination report or other material
prepared in connection with an examination made under the Insurers
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(1) For purposes of this section, confidential information
means:
(a) A memorandum in support
of an opinion submitted under section 44-8905 and any other documents, materials,
and other information, including, but not limited to, all working papers,
and copies thereof, created, produced, or obtained by or disclosed to the
director or any other person in connection with such memorandum;
(b) All documents, materials,
and other information, including, but not limited to, all working papers,
and copies thereof, created, produced, or obtained by or disclosed to the
director or any other person in the course of an examination made under subsection
(6) of section 44-8908 , except that if an examination report or other material
prepared in connection with an examination made under the Insurers Examination
Act is not held as private and confidential information under the act, an
examination report or other material prepared in connection with an examination
made under subsection (6) of section 44-8908 shall not be confidential information
to the same extent as if such examination report or other material had been
prepared under the Insurers Examination Act;
(c) Any reports, documents, materials,
and other information developed by a company in support of, or in connection
with, an annual certification by the company under subdivision (2)(b) of section 44-8909
evaluating the effectiveness of the company's internal controls with respect
to a principle-based valuation and any other documents, materials, and other
information, including, but not limited to, all working papers, and copies
thereof, created, produced, or obtained by or disclosed to the director or
any other person in connection with such reports, documents, materials, and
other information;
(d)
Any principle-based valuation report developed under subdivision (2)(c) of
section 44-8909 and any other documents, materials, and other information,
including, but not limited to, all working papers, and copies thereof, created,
produced, or obtained by or disclosed to the director or any other person
in connection with such report; and
(e) Any data, documents, materials, and other information
submitted by a company under section 44-8910 , known as experience data, and
any other data, documents, materials, and information, including, but not
limited to, all working papers, and copies thereof, created or produced in
connection with such experience data, known as experience materials, in each
case that includes any potentially company-identifying or personally identifiable
information, that is provided to or obtained by the director and any other
documents, materials, data, and other information, including, but not limited
to, all working papers, and copies thereof, created, produced, or obtained
by or disclosed to the director or any other person in connection with such
experience data and experience materials.
(2)(a) Except as provided in this section, a company's
confidential information is confidential by law and privileged and shall not
be a public record subject to disclosure by the director pursuant to sections 84-712 to 84-712.09 , shall not be subject to subpoena, and shall not be subject
to discovery or admissible in evidence in any private civil action, except
that the director may use the confidential information in the furtherance
of any regulatory or legal action brought against the company as a part of
the director's official duties.
(b) Neither the director nor any person who received
confidential information while acting under the authority of the director
shall be permitted or required to testify in any private civil action concerning
any confidential information.
(c)
In order to assist in the performance of the director's duties, the director
may share confidential information (i) with other state, federal, and international
regulatory agencies and with the National Association of Insurance Commissioners
and its affiliates and subsidiaries and (ii) in the case of confidential information
specified in subdivisions (1)(a) and (b) of this section, with the Actuarial
Board for Counseling and Discipline or its successor upon request stating
that the confidential information is required for the purpose of professional
disciplinary proceedings. The recipient must agree, and must have the legal
authority to agree, to maintain the confidentiality and privileged status
of such data, documents, materials, and other information in the same manner
and to the same extent as required for the director.
(d) The director may receive data, documents,
materials, and other information, including otherwise confidential and privileged
data, documents, materials, or information, from the National Association
of Insurance Commissioners and its affiliates and subsidiaries, from regulatory
or law enforcement officials of other foreign or domestic jurisdictions, and
from the Actuarial Board for Counseling and Discipline or its successor and
shall maintain as confidential or privileged any data, document, material,
or other 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 data, document, material, or other information.
(e) The director may enter
into agreements governing sharing and use of information consistent with this
subsection.
(f)
No waiver of any applicable privilege or claim of confidentiality in the confidential
information shall occur as a result of disclosure to the director under this
section or as a result of sharing as authorized in subdivision (2)(c) of this
section.
(g)
A privilege established under the law of any state or jurisdiction that is
substantially similar to the privilege established under subsection (2) of
this section shall be available and enforced in any proceeding in, and in
any court of, this state.
(h)
Regulatory agency, law enforcement agency, and the National Association of
Insurance Commissioners include employees, agents, consultants, and contractors
of such entities.
(3)
Notwithstanding subsection (2) of this section, any confidential information
specified in subdivisions (1)(a) and (d) of this section:
(a) May be subject to subpoena
for the purpose of defending an action seeking damages from the appointed
actuary submitting the related memorandum in support of an opinion submitted
under section 44-8905 or principle-based valuation report developed under
subdivision (2)(c) of section 44-8909 by reason of an action required by the
Standard Valuation Act or by rule and regulation;
(b) May otherwise be released by the
director with the written consent of the company; and
(c) Once any portion of a memorandum
in support of an opinion submitted under section 44-8905 or a principle-based
valuation report developed under subdivision (2)(c) of section 44-8909 is
cited by the company in its marketing or is publicly volunteered to or before
a governmental agency other than a state insurance department or is released
by the company to the news media, all portions of such memorandum or report
shall no longer be confidential.