20-491.06. Confidentiality of ORSA documents; allowable uses

A. Documents, materials or other information, including the ORSA summary report, that is in the director's possession or control and that is obtained by, created by or disclosed to the director or any other person under this article, is recognized by this state as being proprietary and containing trade secrets. All such documents, materials or other information is confidential by law and privileged, is not considered a public record pursuant to title 39, chapter 1, is not subject to subpoena and is not subject to discovery or admissible in evidence in any private civil action. The director 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 director's official duties. The director may not otherwise make the documents, materials or other information public without the prior written consent of the insurer.

B. Neither the director nor any person who received documents, materials or other ORSA-related information, through examination or otherwise, while acting under the authority of the director or with whom such documents, materials or other information is shared pursuant to this article, is allowed or required to testify in any private civil action concerning any confidential documents, materials or other information that is subject to subsection A of this section.

C. In order to assist in the performance of the director's regulatory duties, the director:

1. May share documents, materials or other ORSA-related information, including the confidential and privileged documents, materials or other information subject to subsection A of this section, including proprietary and trade secret documents and materials, with other state, federal and international regulatory agencies, including members of any supervisory college as defined in section 20-481, with the national association of insurance commissioners and with any third-party consultants designated by the director, if the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA-related documents, materials or other information and has verified in writing the legal authority to maintain confidentiality.

2. May receive documents, materials or ORSA-related information, including otherwise confidential and privileged documents, materials or other information, including proprietary and trade secret information or documents, from regulatory officials of other foreign or domestic jurisdictions, including members of any supervisory college as defined in section 20-481, and from the national association of insurance commissioners 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.

3. Shall enter into written agreements with the national association of insurance commissioners or a third-party consultant governing sharing and use of information provided pursuant to this article, consistent with this subsection, that do all of the following:

(a) Specify procedures and protocols regarding the confidentiality and security of information shared with the national association of insurance commissioners or a third-party consultant pursuant to this article, including procedures and protocols for sharing by the national association of insurance commissioners with other state regulators from states in which the insurance group has domiciled insurers. The agreement shall provide that the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA-related documents, materials or other information and has verified in writing the legal authority to maintain confidentiality.

(b) Specify that ownership of information shared with the national association of insurance commissioners or a third-party consultant pursuant to this article remains with the director and that the national association of insurance commissioners' or a third-party consultant's use of the information is subject to the direction of the director.

(c) Prohibit the national association of insurance commissioners or a third-party consultant from storing the information shared pursuant to this article 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 national association of insurance commissioners or a third-party consultant pursuant to this article is subject to a request or subpoena to the national association of insurance commissioners or a third-party consultant for disclosure or production.

(e) Require the national association of insurance commissioners or a third-party consultant to consent to intervention by an insurer in any judicial or administrative action in which the national association of insurance commissioners or a third-party consultant may be required to disclose confidential information about the insurer shared with the national association of insurance commissioners or a third-party consultant pursuant to this article.

(f) In the case of an agreement involving a third-party consultant, provide the insurer's written consent.

D. The sharing of information by the director pursuant to this article does not constitute a delegation of regulatory authority or rulemaking, and the director is solely responsible for the administration, execution and enforcement of this article.

E. A waiver of any applicable privilege or claim of confidentiality in the documents, materials or other information does not occur as a result of disclosure to the director under this section or as a result of sharing as authorized in this article.

F. Documents, materials or other information in the possession or control of the national association of insurance commissioners or a third-party consultant pursuant to this article are confidential by law and privileged, are not considered public records pursuant to title 39, chapter 1, are not subject to subpoena and are not subject to discovery or admissible in evidence in any private civil action.