§ 3687. Confidential treatment
(a) 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 section 3686 of this title and all information reported pursuant to subdivisions 3683(b)(12) and (13), section
3684, and section 3685 of this chapter are recognized by this State as being proprietary
and to contain trade secrets and shall be given confidential treatment, shall not
be subject to subpoena, shall not be subject to public inspection and copying under
the Public Records Act, shall not be subject to discovery or admissible in evidence
in any private civil action, and shall not be made public by the Commissioner or any
other person. 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 to which it pertains unless the Commissioner, after giving
the insurer and its affiliates who would be affected thereby notice and opportunity
to be heard, determines that the interests of policyholders, shareholders, or the
public will be served by the publication thereof, in which event the Commissioner
may publish all or any part thereof in such manner as the Commissioner may deem appropriate.
(1) For purposes of the information reported and provided to the Department pursuant to
subdivision 3684(m)(2) of this chapter, 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. groupwide supervisor.
(2) For purposes of the information reported and provided to the Department pursuant to
subdivision 3684(m)(3) of this chapter, 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. groupwide supervisors.
(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 chapter shall
be permitted or required to testify in any private civil action concerning any confidential
documents, materials, or information subject to subsection (a) of this section.
(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) of this
section, including proprietary and trade secret documents and materials, with other
state, federal, and international regulatory agencies, with the NAIC, with third-party
consultants designated by the Commissioner, and with state, federal, and international
law enforcement authorities, including members of any supervisory college described
in section 3695 of this title, 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 (1) of this subsection, may only share confidential and
privileged documents, material, or information reported pursuant to subdivision 3684(m)(1)
of this chapter with commissioners of states having statutes or regulations substantially
similar to subsection (a) of this section 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, 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.
(4) Shall enter into written agreements with the NAIC and any third-party consultant designated
by the Commissioner governing sharing and use of information provided under 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 Commissioner pursuant
to this subchapter, including procedures and protocols for sharing by the NAIC with
other state, federal, or international regulators. 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 such confidentiality.
(B) Specify that ownership of information shared with the NAIC or a third-party consultant
pursuant to this section remains with the Commissioner and the NAIC’s use of the information
is subject to the direction of the Commissioner.
(C) Excluding documents, materials, or information reported pursuant to subdivision 3684(m)(3) of this title, prohibit the NAIC or third-party consultant designated by the Commissioner from
storing the information shared pursuant to this subchapter in a permanent database
after the underlying analysis is completed.
(D) Require prompt notice be given to an insurer whose confidential information in the
possession of the NAIC or third-party consultant designated by the Commissioner under
this subchapter is subject to a request or subpoena to the NAIC or a third-party consultant
designated by the Commissioner for disclosure or production.
(E) 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 third-party consultant designated by the Commissioner may be required to disclose
confidential information about the insurer shared with the NAIC or third-party consultant
designated by the Commissioner pursuant to this section.
(F) For documents, materials, or information report pursuant to subdivision 3684(b)(3)
of this chapter, 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 Commissioner pursuant to this section shall not
constitute a delegation of regulatory authority or rulemaking, and the Commissioner
is solely responsible for the administration, execution, and enforcement of the provisions
of this section.
(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) of this
section.
(f) Documents, materials, or other information in the possession or control of the NAIC
or third-party consultant designated by the Commissioner pursuant to this subchapter
shall be confidential by law and privileged, shall not be subject to public inspection
and copying under the Public Records Act, shall not be subject to subpoena, shall
not be subject to discovery or admissible in evidence in any private civil action,
and shall not be made public by the Commissioner or any other person.
(g) The group capital calculation and resulting group capital ratio required under subdivision
3684(m)(2) of this subchapter and the liquidity stress test along with its results
and supporting disclosures required under subdivision 3684(m)(3) of this subchapter
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 chapter, 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 therefore prohibited.
However, 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 Commissioner 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. (Added 1971, No. 72, § 2; amended 2013, No. 29, § 33, eff. May 13, 2013; 2023, No. 110 (Adj. Sess.), § 27, eff. July 1, 2024.)