(a)(1) Documents, materials, or other information in the possession or control of the department that are obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to § 56-11-107 , and all information reported or provided to the department pursuant to §§ 56-11-103(b)(13)-
(15), 56-11-105 , 56-11-106 , and 56-11-116(d) , are confidential by law and privileged, are not subject to § 10-7-503 or § 56-1-602 , are not subject to subpoena, and are not subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties.
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(a) (1) Documents, materials, or other information in the possession or control of the department that are obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to § 56-11-107 , and all information reported or provided to the department pursuant to §§ 56-11-103(b)(13)-(15) , 56-11-105 , 56-11-106 , and 56-11-116(d) , are confidential by law and privileged, are not subject to § 10-7-503 or § 56-1-602 , are not subject to subpoena, and are not subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner shall not otherwise make the documents, materials, or other information public without the prior written consent of the insurer or health maintenance organization to which it pertains unless the commissioner, after giving the insurer or health maintenance organization and its affiliates who would be affected thereby notice and opportunity to be heard, determines that the interest of policyholders, enrollees, providers, shareholders, or the public will be served by the publication thereof, in which event the commissioner may publish all or any part thereof, in the manner the commissioner may deem appropriate. (2) For purposes of the information reported and provided to the commissioner pursuant to § 56-11-105 ( l )(2), the group capital calculation and group capital ratio produced within the calculation and group capital information received from an insurance holding company supervised by the federal reserve board or a United States group-wide supervisor are confidential by law and privileged. (3) For purposes of the information reported and provided to the commissioner pursuant to § 56-11-105 ( l )(3), the liquidity stress test results and supporting disclosures and liquidity stress test information received from an insurance holding company supervised by the federal reserve board and non-United States group-wide supervisors are confidential by law and privileged. (b) Neither the commissioner nor any person who received documents, materials or other information while acting under the authority of the commissioner or with whom such documents, materials or other information are shared pursuant to this part shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to subsection (a). (c) In order to assist in the performance of the commissioner's duties, the commissioner: (1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a), with other state, federal and international regulatory agencies, with the National Association of Insurance Commissioners (NAIC) and its affiliates and subsidiaries, and with state, federal, and international law enforcement authorities, including members of any supervisory college described in § 56-11-116 ; 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) Notwithstanding subdivision (c)(1), may only share confidential and privileged documents, material, or information reported pursuant to § 56-11-105 ( l ) 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 otherwise confidential and privileged documents, materials or 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) Shall enter into written agreements with the NAIC governing sharing and use of information provided pursuant to this part consistent with this subsection (c) that shall: (A) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC and its affiliates and subsidiaries pursuant to this part, 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 and its affiliates and subsidiaries pursuant to this part remains with the commissioner and the NAIC's use of the information is subject to the direction of the commissioner; (C) Require prompt notice to be given to an insurer whose confidential information in the possession of the NAIC pursuant to this part is subject to a request or subpoena to the NAIC for disclosure or production; (D) Require the NAIC and its affiliates and subsidiaries 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 part; (E) Excluding documents, material, or information reported pursuant to § 56-11-105 ( l )(3), prohibit the NAIC and its affiliates and subsidiaries from storing the information shared pursuant to this part in a permanent database after the underlying analysis is completed; and (F) For documents, material, or information reported pursuant to § 56-11-105 ( l )(3), in the case of an agreement involving an affiliate or subsidiary, provide for notification of the identity of the affiliate or subsidiary to the applicable insurers. (d) The sharing of information by the commissioner pursuant to this part shall not constitute a delegation of regulatory authority or rulemaking, and the commissioner is solely responsible for the administration, execution and enforcement of this part. (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 commissioner 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 part shall be confidential by law and privileged, shall not be subject to § 10-7-503 or § 56-1-602 , shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. (g) The group capital calculation and resulting group capital ratio required under § 56-11-105 ( l )(2) and the liquidity stress test, along with its results and supporting disclosures required under § 56-11-105 ( l )(3), 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 provided under this part, 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 a radio or television station or an electronic means of communication available to the public, or in another 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 an insurer or an insurer group, or of a component derived in the calculation by an insurer, broker, or other person engaged in the insurance business would be misleading and is therefore prohibited; provided, however, that if a materially false statement with respect to the group capital calculation, resulting group capital ratio, an inappropriate comparison of an 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 to an insurer's or insurance group's liquidity stress test result or supporting disclosures is published in a written publication and the insurer is able to demonstrate to the commissioner with substantial proof the falsity of such statement or the inappropriateness of such comparison, then the insurer may publish announcements in a written publication if the sole purpose of the announcement is to rebut the materially false statement or inappropriate comparison.