§ 3791q. Confidentiality
(a) As used in this subchapter, “confidential information” means:
(1) a memorandum in support of an opinion submitted under section 3791c of this subchapter
and any other documents, materials, and information, including all working papers
and copies thereof, created, produced, or obtained by or disclosed to the Commissioner
or any other person in connection with such memorandum;
(2) all documents, materials, and other information, including all working papers and
copies thereof, created, produced, or obtained by or disclosed to the Commissioner
or any other person in the course of an examination made under subsection 3791n(f)
of this subchapter; provided, however, that if an examination report or other material
prepared in connection with an examination made under chapter 101, subchapter 7 of
this title is not held as private and confidential information under such subchapter,
an examination report or other material prepared in connection with an examination
made under subsection 3791n(f) of this subchapter shall not be “confidential information”
to the same extent as if such examination report or other material had been prepared
under chapter 101, subchapter 7 of this title;
(3) 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
3791o(b)(2) of this subchapter 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 all working papers and copies thereof, created, produced,
or obtained by or disclosed to the Commissioner or any other person in connection
with such reports, documents, materials, and other information;
(4) any principle-based valuation report developed under subdivision 3791o(b)(3) of this
subchapter and any other documents, materials, and other information, including all
working papers and copies thereof, created, produced, or obtained by or disclosed
to the Commissioner or any other person in connection with such report; and
(5) any documents, materials, data, and other information submitted by a company under
section 3791p of this subchapter—collectively, “experience data”—and any other documents,
materials, data, and other information, including all working papers and copies thereof,
created or produced in connection with such experience data, in each case that include
any potentially company-identifying or personally identifiable information, that is
provided to or obtained by the Commissioner, together with any experience data, and
other experience materials, and any other documents, materials, data, and other information,
including all working papers and copies thereof, created, produced, or obtained by
or disclosed to the Commissioner or any other person in connection with such experience
materials.
(b) Except as provided in this section, a company’s confidential information is confidential
by law and privileged, and shall be exempt from public inspection and copying under
the Public Records Act, shall not be subject to subpoena, and shall not be subject
to discovery or admissible in evidence in any private civil action; provided, however,
that the Commissioner is authorized to use the confidential information in the furtherance
of any regulatory or legal action brought against the company as a part of the Commissioner’s
official duties.
(c) Neither the Commissioner nor any person who received confidential information while
acting under the authority of the Commissioner shall be permitted or required to testify
in any private civil action concerning any confidential information.
(d) In order to assist in the performance of the Commissioner’s duties, the Commissioner
may share confidential information:
(1) with other state, federal, and international regulatory agencies and with the NAIC
and its affiliates and subsidiaries; and
(2) in the case of confidential information specified in subdivisions (a)(1) and (a)(4)
of this section only, 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 and with State, federal, and international
law enforcement officials; in the case of this subdivision and subdivision (1) of
this subsection (d), provided that such recipient agrees, and has the legal authority
to agree, to maintain the confidentiality and privileged status of such documents,
materials, data, and other information in the same manner and to the same extent as
required for the Commissioner.
(e) The Commissioner may receive documents, materials, data, and other information, including
otherwise confidential and privileged documents, materials, data, or information,
from the NAIC 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 document, material, data, 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 document, material, or other information.
(f) The Commissioner may enter into agreements governing sharing and use of information
consistent with subsection (b) of this section.
(g) No waiver of any applicable privilege or claim of confidentiality in the confidential
information shall occur as a result of disclosure to the Commissioner under this section
or as a result of sharing as authorized in subdivision (b)(3) of this section.
(h) A privilege established under the law of any state or jurisdiction that is substantially
similar to the privilege established under subsection (b) of this section shall be
available and enforced in any proceeding in, and in any court of, this State.
(i) As used in this section, “regulatory agency,” “law enforcement agency,” and the NAIC
include their employees, agents, consultants, and contractors.
(j) Notwithstanding any provision in this section to the contrary, any confidential information
specified in subdivision (a)(1) or (a)(4) of this section:
(1) 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 3791c of this subchapter or principle-based valuation report
developed under subdivision 3791o(b)(3) of this subchapter by reason of an action
required by this subchapter or by rules adopted hereunder;
(2) may otherwise be released by the Commissioner with the written consent of the company;
and
(3) once any portion of a memorandum in support of an opinion submitted under section
3791c of this subchapter or a principle-based valuation report developed under subdivision
3791o(b)(3) of this subchapter 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. (Added 2015, No. 63, § 1, eff. June 17, 2015.)