(A)Documents, materials, or other information in the possession or control of the department that are obtained by or disclosed to the director or his designee or any other person in the course of an examination or investigation made pursuant to Section 38-21-280 and all information reported pursuant to Section 38-21-70(A)(13) and (14) and Sections 38-21-130 through 38-21-270 are recognized by the State as being proprietary and must be confidential by law and privileged, shall not be subject to disclosure, may not be subject to subpoena, and may not be disclosed under the Freedom of Information Act and may not be subject to discovery or admissible in evidence in any private civil action. However, the director or his designee may use the documents, materials, or other information in the fur
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(A) Documents, materials, or other information in the possession or control of the department that are obtained by or disclosed to the director or his designee or any other person in the course of an examination or investigation made pursuant to Section 38-21-280 and all information reported pursuant to Section 38-21-70(A)(13) and (14) and Sections 38-21-130 through 38-21-270 are recognized by the State as being proprietary and must be confidential by law and privileged, shall not be subject to disclosure, may not be subject to subpoena, and may not be disclosed under the Freedom of Information Act and may not be subject to discovery or admissible in evidence in any private civil action. However, the director or his designee may 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 director or his designee otherwise shall not make the documents, materials, or other information public without obtaining the prior written consent of the insurer to which it pertains unless the director or his designee, after giving the insurer and its affiliates who would be affected by it, notice and opportunity to be heard, determines that the interest of policyholders, shareholders, or the public will be served by the publication of it, in which event the director or his designee may publish all or any part. (1) For purposes of the information reported and provided to the department pursuant to Section 38-21-225(C), the director must 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. (2) For purposes of the information reported and provided to the department pursuant to Section 38-21-225(C) the director must 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. (B) Neither the director or his designee nor a person who received documents, materials, or other information while acting under the authority of the director or his designee or with whom such documents, materials, or other information are shared pursuant to this chapter may be permitted or required to testify in a private civil action concerning any confidential documents, materials, or information subject to subsection (A). (C) In order to assist in the performance of the director or his designee's duties, the director or his designee: (1) may share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to subsection (A), including proprietary and trade secret documents and materials with other state, federal, and international regulatory agencies, with the NAIC and any third-party consultants designated by the director or his designee, and with state, federal, and international law enforcement authorities, including members of any supervisory college described in Section 38-21-285, 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) only may share confidential and privileged documents, material, or information reported pursuant to Section 38-21-225 with commissioners of states having statutes or regulations substantially similar to subsection (A) and who have agreed in writing not to disclose such information; (3) may receive 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; and (4) must enter into written agreements with the NAIC and any third-party consultant designated by the director or his designee governing sharing and use of information provided pursuant to this chapter 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 director or his designee pursuant to this chapter, including procedures and protocols for sharing by the NAIC with other state, federal, or international regulators. The agreement must 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 such confidentiality; (b) specify that ownership of information shared with the NAIC or third-party consultant pursuant to this chapter remains with the director or his designee and the NAIC's use of the information is subject to the direction of the director or his designee; (c) excluding documents, materials, or information reported pursuant to Section 38-21-225(C) prohibit the NAIC or third-party consultant designated by the commissioner from storing the information shared pursuant to this act 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 third-party consultant designated by the director or his designee pursuant to this chapter is subject to a request or subpoena to the NAIC or a third-party consultant designated by the director or his designee for disclosure or production; (e) require the NAIC or third-party consultant designated by the director or his designee to consent to intervention by an insurer in any judicial or administrative action in which the NAIC and its affiliates and subsidiaries may be required to disclose confidential information about the insurer shared with the NAIC and its affiliates and subsidiaries pursuant to this chapter; and (f) for documents, materials, or information reporting pursuant to Section 38-21-255(C), 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 director or his designee pursuant to this chapter may not constitute a delegation of regulatory authority or rulemaking, and the director or his designee is solely responsible for the administration, execution, and enforcement of the provisions of this chapter. (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 director or his designee under this section or as a result of sharing as authorized in subsection (C). (F) Documents, materials, or other information in the possession or control of the NAIC pursuant to this chapter shall be confidential by law and privileged, may not be disclosed under the Freedom of Information Act, may not be subject to subpoena, and may not be subject to discovery or admissible in evidence in a private civil action. (G) The Group Capital Calculation and resulting Group Capital Ratio required pursuant to Section 38-21-225(B) and the Liquidity Stress Test along with its results and supporting disclosures required pursuant to Section 38-12-225(C) 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. Therefore, except as otherwise may be required under the provisions of this act, 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 over any radio or television station or any 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 would be misleading and is prohibited; provided, however, that 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 director with substantial proof the falsity of such statement or the inappropriateness, as the case may be, then the insurer may publish announcements in a written publication if the sole purpose of the announcement is to rebut the materially false statement.