Effective 01 Jan 2016, see footnote

382.535. Information and ORSA summary report is proprietary and contains trade secrets, confidentiality — permissible acts by director — no waiver of confidentiality or privilege. — 1. Documents, materials, or other information, including the ORSA summary report, in the possession of or control of the department of commerce and insurance that are obtained by, created by, or disclosed to the director or any other person under sections 382.500 to 382.550 are* recognized by this state as being proprietary and to contain trade secrets. All such documents, materials, or other information shall be confidential by law and privileged, shall not be subject to disclosure under chapter 610, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action; except that, the director is authorized to use such 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 otherwise make such documents, materials, or other information public without the prior written consent of the insurer.

2. Neither the director nor any person who receives 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 ORSA-related information are shared under sections 382.500 to 382.550 shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or other ORSA-related information subject to subsection 1 of this section.

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

(1) May, upon request, share documents, materials, or other ORSA-related information, including the confidential and privileged documents, materials, or other ORSA-related information subject to subsection 1 of this section, including proprietary and trade secret documents and materials with other state, federal, and international financial regulatory agencies, including members of any supervisory college authorized under this chapter, with the NAIC, and with any third-party consultants designated by the director; provided that, the recipient agrees in writing prior to receiving any such documents, materials, or other ORSA-related information to maintain the confidentiality and privileged status of such documents, materials, or other ORSA-related information and has verified in writing the legal authority to maintain confidentiality; and

(2) May receive documents, materials, or other ORSA-related information, including otherwise confidential and privileged documents, materials, or information, including proprietary and trade secret information or documents, from regulatory officials of other foreign or domestic jurisdictions, including members of any supervisory college authorized under this chapter, and from the NAIC, and shall maintain as confidential or privileged any documents, materials, or other ORSA-related 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 ORSA-related information; and

(3) Shall enter into a written agreement with the NAIC or a third-party consultant governing sharing and use of ORSA-related information provided under sections 382.500 to 382.550 that is consistent with this subsection and that shall:

(a) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC or a third-party consultant under sections 382.500 to 382.550, including procedures and protocols for sharing by the NAIC 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 ORSA-related documents, materials, or other ORSA-related information and has verified in writing the legal authority to maintain confidentiality;

(b) Specify that ownership of information shared with the NAIC or third-party consultant under sections 382.500 to 382.550 remains with the director and that the NAIC's or a third-party consultant's use of such information is subject to the direction of the director;

(c) Prohibit the NAIC or third-party consultant from storing any information shared under sections 382.500 to 382.550 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 NAIC or a third-party consultant under sections 382.500 to 382.550 is subject to a request or subpoena to the NAIC or a third-party consultant for disclosure or production;

(e) Require the NAIC or a third-party consultant to consent to intervention by an insurer in any judicial or administrative action in which the NAIC or a third-party consultant may be required to disclose confidential information about the insurer shared with the NAIC or a third-party consultant under sections 382.500 to 382.550; and

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

4. The sharing of information and documents by the director under sections 382.500 to 382.550 shall not constitute a delegation of regulatory or rulemaking authority, and the director is solely responsible for the administration, execution, and enforcement of the provisions of sections 382.500 to 382.550.

5. No waiver of any applicable privilege or claim of confidentiality in the documents, proprietary and trade secret materials, or other ORSA-related information shall occur as a result of disclosure of such documents, materials, or ORSA-related information to the director under this section or as a result of sharing as authorized in sections 382.500 to 382.550.

6. Documents, materials, or other ORSA-related information in the possession or control of the NAIC or third-party consultants under sections 382.500 to 382.550 shall be confidential by law and privileged, shall not be subject to disclosure under chapter 610, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action.

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(L. 2015 H.B. 50)

Effective 1-01-16

*Word "is" appears in original rolls.