20-481.21. Confidential records; consent to release; release without consent; information sharing

A. All documents, materials or other information that is in the possession or control of the department and that is obtained by or disclosed to the director or any other person in the course of a filing, an examination or an investigation made pursuant to sections 20-481.03, 20-481.10, 20-481.12, 20-481.19 and 20-481.20 is confidential and privileged, is not subject to title 39, chapter 1, article 2, is not subject to subpoena and shall not be subject to discovery or admissible as evidence in a 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 make the documents, materials or other information public without the prior written consent of the insurer to which it pertains unless the director determines, after giving the insurer and its affiliates who would be affected by the publication notice and an opportunity to be heard, that the interests of policyholders, shareholders or the public will be served by the publication. The director may then publish all or any part of the documents, materials or other information as the director deems appropriate.

B. The director may:

1. Share nonpublic documents, materials or other information with other state, federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries and with state, federal and international law enforcement authorities, including members of any supervisory college described in section 20-481.31, if the recipient agrees and warrants that it has the authority 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.

2. Receive documents, materials and other information from the national association of insurance commissioners and its affiliates and subsidiaries and from regulatory and law enforcement officials of other jurisdictions and shall maintain as confidential or privileged any document, material 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.

C. The director shall enter into written agreements with the national association of insurance commissioners that govern the sharing and use of information provided pursuant to this article and that are consistent with this section and that do all of the following:

1. Specify procedures and protocols regarding the confidentiality and security of information shared with the national association of insurance commissioners and its affiliates and subsidiaries pursuant to this article, including procedures and protocols for sharing information by the national association of insurance commissioners with other state, federal or international regulators.

2. Specify that the director has ownership of all information shared with the national association of insurance commissioners and its affiliates and subsidiaries pursuant to this article and the national association of insurance commissioners' use of the information is subject to the direction of the director.

3. Require prompt notice to be given to an insurer whose confidential information in the possession of the national association of insurance commissioners or its affiliates or subsidiaries pursuant to this article is subject to a request or subpoena to the national association of insurance commissioners or its affiliates or subsidiaries for disclosure or production.

4. Require the national association of insurance commissioners and its affiliates and subsidiaries to consent to intervention by an insurer in any judicial or administrative action in which the national association of insurance commissioners and its affiliates and subsidiaries may be required to disclose confidential information about the insurer shared with the national association of insurance commissioners and its affiliates and subsidiaries pursuant to this article.

D. Notwithstanding subsection B, paragraph 1 of this section, the director may share confidential and privileged documents, material or information reported pursuant to section 20-481.10, subsection D only with the directors or commissioners of insurance of other states having statutes or regulations substantially similar to subsection A of this section and who have agreed in writing not to disclose such information. The sharing of information by the director pursuant to this article does not constitute a delegation of regulatory authority by the director and the director is solely responsible for the administration, execution and enforcement of this article.

E. A disclosure to or by the director pursuant to this section or as a result of sharing information pursuant to subsection B of this section is not a waiver of any applicable privilege or claim of confidentiality in the documents, materials or other information disclosed or shared.

F. Documents, materials or other information in the possession or control of the national association of insurance commissioners or its affiliates or subsidiaries pursuant to this article is confidential by law and privileged, is not subject to title 39, chapter 1, article 2, is not subject to subpoena and is not subject to discovery or admissible in evidence in any private civil action.