§ 44-9010 — Confidentiality; director; powers; sharing and use of information; written agreement; contents

(1) Documents, materials,
or other information, including the own risk and solvency assessment summary
report, in the possession or control of the director that are obtained by,
created by, or disclosed to the director or any other person under the Risk
Management and Own Risk and Solvency Assessment Act, is recognized by this
state as being proprietary and to contain trade secrets. All such documents,
materials, or other information shall be confidential by law and privileged,
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. The director may use the documents, materials, or other information
in the furtherance of any regulatory or legal action brought as a part of
the director's official duties. The director shall not otherwise make the
documents, materials, or other information public without the prior written
consent of the insurer.
(2) Neither
the director nor any person who received documents, materials, or other own
risk and solvency assessment related information through examination or otherwise
while acting under the authority of the director or with whom such documents,
materials, or other information are shared pursuant to the act 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 director's regulatory duties, the director:
(a) May, upon
request, share documents, materials, or other own risk and solvency assessment
information, including the confidential and privileged documents, materials,
or information subject to subsection (1) of this section, including proprietary
and trade secret documents and materials, with other state, federal, and international
financial regulatory agencies, including members of any supervisory college
under section 44-2137.01 , with the National Association of Insurance Commissioners,
and with any third-party consultants designated by the director, if the recipient
agrees in writing to maintain the confidentiality and privileged status of
the documents, materials, or other information and has verified in writing
the legal authority to maintain confidentiality; and
(b) May receive documents,
materials, or other own risk and solvency assessment information, including
otherwise confidential and privileged documents, materials, or information,
including proprietary and trade secret documents and materials, from regulatory
officials of other foreign or domestic jurisdictions, including members of
any supervisory college under section 44-2137.01 , and from the National Association
of Insurance Commissioners, and shall maintain as confidential or privileged
any documents, materials, 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) The director
shall enter into a written agreement with the National Association of Insurance
Commissioners or a third-party consultant governing sharing and use of information
provided pursuant to the act that:
(a) Specifies procedures and protocols regarding
the confidentiality and security of information shared with the National Association
of Insurance Commissioners or a third-party consultant pursuant to the act,
including procedures and protocols for sharing by the National Association
of Insurance Commissioners with other state regulators from states in which
the insurance group has domiciled insurers. The agreement shall provide that
the recipient agrees in writing to maintain the confidentiality and privileged
status of the documents, materials, or other information and has verified
in writing the legal authority to maintain confidentiality;
(b) Specifies
that ownership of information shared with the National Association of Insurance
Commissioners or a third-party consultant pursuant to the act remains with
the director and that the National Association of Insurance Commissioners'
or a third-party consultant's use of the information is subject to the direction
of the director;
(c) Prohibits the National Association of Insurance Commissioners
or a third-party consultant from storing the information shared pursuant to
the act in a permanent database after the underlying analysis is completed;
(d) Requires
prompt notice to be given to an insurer whose confidential information in
the possession of the National Association of Insurance Commissioners or a
third-party consultant pursuant to the act is subject to a request or subpoena
to the National Association of Insurance Commissioners or a third-party consultant
for disclosure or production;
(e) Requires the National Association of
Insurance Commissioners or a third-party consultant to consent to intervention
by an insurer in any judicial or administrative action in which the National
Association of Insurance Commissioners or a third-party consultant may be
required to disclose confidential information about the insurer shared with
the National Association of Insurance Commissioners or a third-party consultant
pursuant to the act; and
(f) As part of the retention process, requires a third-party consultant
to verify to the director, with notice to the insurer, that it is free of
any conflict of interest and that it has internal procedures in place to monitor
compliance with any conflicts and to comply with the act's confidentiality
standards and requirements. The retention agreement with a third-party consultant
shall require prior written consent of the insurer before making public any
information provided pursuant to the act as required in subsection (1) of
this section.
(5) The sharing of information and documents by the director pursuant
to the act shall not constitute a delegation of regulatory authority or rulemaking,
and the director is solely responsible for the administration, execution,
and enforcement of the provisions of the act.
(6) No waiver of any applicable
privilege or claim of confidentiality in the documents, materials, or other
own risk and solvency assessment information shall occur as a result of disclosure
of such documents, materials, or other information to the director under this
section or as a result of sharing as authorized in the act.
(7) Documents,
materials, or other information in the possession or control of the National
Association of Insurance Commissioners or a third-party consultant pursuant
to the act shall be confidential by law and privileged, 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.

Legislative History

Source: Laws 2014, LB700, § 10.