A. As used in this section, "confidential information" includes:

(1) memoranda in support of opinions submitted pursuant to Sections 59A-8A-4 and 59A-8A-5 NMSA 1978 and other documents, materials and information, including all working papers and copies of those papers, that are produced or obtained by or disclosed to the superintendent or another person in connection with those memoranda;

(2) documents, materials and other information, including all working papers and copies of those papers, that are produced or obtained by or disclosed to the superintendent or another person in the course of an examination conducted pursuant to Subsection E of Section 59A-8A-8 NMSA 1978; provided, however, that if an examination report or other material prepared in connection with an examination pursuant to Sections 59A-4-5 through 59A-4-13 NMSA 1978 is not held as private and confidential information pursuant to Sections 59A-4-5 through 59A-4-13 NMSA 1978, an examination report made under Subsection E of Section 59A-8A-8 NMSA 1978 shall not be confidential information to the same extent as if the examination report or other material had been prepared pursuant to Sections 59A-4-5 through 59A-4-13 NMSA 1978;

(3) reports, documents, materials and other information that are developed by a company in support of or in connection with an annual certification by a company pursuant to Paragraph (3) of Subsection B of Section 59A-8A-9 NMSA 1978 and that evaluate the effectiveness of the company's internal controls with respect to a principle-based valuation and any other documents, materials and other information, including working papers and copies of those papers that are produced by, obtained by or disclosed to the superintendent or another person in connection with those reports, documents, materials or other information;

(4) principle-based valuation reports developed pursuant to Paragraph (4) of Subsection B of Section 59A-8A-9 NMSA 1978 and other documents, materials and other information, including all working papers and copies of those papers that are produced or obtained by or disclosed to the superintendent or another person in connection with those reports; and

(5) documents, materials, data and other information that are submitted by a company pursuant to Section 59A-8A-10 NMSA 1978 and all other documents, materials, data and other information, including all working papers and copies of those papers, that are created or produced in connection with experience data that include any potentially company- or person-identifying information and that is provided to or obtained by the superintendent or another person in connection with the submissions required by Section 59A-8A-10 NMSA 1978.

B. Except as provided in this section, a company's confidential information is confidential and is not subject to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978]. Nothing in this section shall be construed as a grant of privilege or confidentiality or a bar to production of that information by an insurer in a civil suit, whether or not the office of superintendent of insurance is a party; provided that the superintendent may use the documents, materials or other information in the furtherance of a regulatory or legal action brought as a part of the superintendent's official duties. Neither the superintendent nor another person who received documents, materials or other information while acting pursuant to the authority of the superintendent shall be permitted or required in a private civil action to testify on the confidential documents, materials or information subject to this subsection.

C. In order to assist in the performance of the superintendent's duties, the superintendent may share confidential information:

(1) with another state, federal or international regulatory agency and with the national association of insurance commissioners, its affiliates or its subsidiaries; and

(2) in the case of confidential information specified in Paragraphs (1) and (4) of Subsection A of this section:

(a) with the actuarial board for counseling and discipline or its successor if the actuarial board for counseling and discipline or its successor requests the confidential information and states that it is required for a professional disciplinary proceeding; and

(b) with a state, federal or international law enforcement official if that official has the legal authority to agree and does agree to maintain the confidentiality and privilege of the documents, materials, data and other information in the same manner and to the same extent as the superintendent.

D. The superintendent may receive documents, materials, data and other information, including otherwise confidential and privileged documents, materials, data and other information, from the national association of insurance commissioners, its affiliates or its subsidiaries, from regulatory or law enforcement officials of foreign or domestic jurisdictions and from the actuarial board for counseling and discipline or its successor. The superintendent shall maintain as confidential or privileged a document, materials, data or other information received with notice or the understanding that the content is confidential or privileged pursuant to the laws of the jurisdiction from which the information originates.

E. The superintendent may enter into agreements governing the sharing and use of information that are consistent with Subsections B through H of this section.

F. No waiver of an applicable privilege or claim of confidentiality in confidential information results from a disclosure to the superintendent pursuant to the provisions of this section or as a result of the sharing authorized by Subsection C of this section.

G. A privilege established by the laws of a state or jurisdiction that is substantially similar to the privilege established by Subsections B through H of this section shall be available and enforced in any official proceeding in, and in any court of, New Mexico.

H. For the purposes of this section, "regulatory agency", "law enforcement agency" and "national association of insurance commissioners" include the employees, agents, consultants and contractors of the entity.

I. Notwithstanding Subsections B through H of this section, the confidential information specified in Paragraphs (1) and (4) of Subsection A of this section:

(1) may be subject to subpoena for the purpose of defending an action seeking damages from an appointed actuary who submits a related memorandum in support of an opinion pursuant to Sections 59A-8A-4 and 59A-8A-5 NMSA 1978 or who submits a principle-based valuation report developed pursuant to Paragraph (4) of Subsection B of Section 59A-8A-9 NMSA 1978 if the submission is required by the Standard Valuation Law or the rules promulgated in furtherance of that law;

(2) may, with the written consent of the company, be released by the superintendent; and

(3) ceases to be confidential once a portion of a memorandum in support of an opinion submitted pursuant to Sections 59A-8A-4 and 59A-8A-5 NMSA 1978 or a principle-based valuation report developed pursuant to Paragraph (4) of Subsection B of Section 59A-8A-9 NMSA 1978 is cited by the company in its marketing, publicly volunteered to a governmental agency other than a state insurance department or released by the company to the news media.

History: 1978 Comp., § 59A-8A-11, enacted by Laws 2014, ch. 59, § 25.

Compiler's notes. — Pursuant to Laws 2014, ch. 59, § 55, the effective date of Laws 2014, ch. 59, §§ 15 through 27 was January 1, 2017. On June 30, 2016, the superintendent of insurance certified to the New Mexico compilation commission and the director of the legislative council service that:

(1) the most recent version of the manual of valuation instructions adopted by the national association of insurance commissioners has been adopted by the national association of insurance commissioners by an affirmative vote of at least forty-two members or three-fourths of the members voting, whichever is greater;

(2) the Standard Valuation Law of the national association of insurance commissioners, as amended in 2009, or legislation including substantially similar terms and provisions, has been enacted by states that collectively represent more than seventy-five percent of written direct premiums, as reported in the life, accident and health annual statements, the health annual statements and the fraternal annual statements submitted for 2008; and

(3) the Standard Valuation Law of the national association of insurance commissioners, as amended in 2009, or legislation including substantially similar terms and provisions, has been enacted by at least forty-two of the following fifty-five jurisdictions:

(a) the fifty states of the United States;

(b) American Samoa;

(c) the Virgin Islands of the United States;

(d) the District of Columbia;

(e) Guam; and

(f) Puerto Rico.

Severability. — Laws 2014, ch. 59, § 54 provided that if any part or application of the provisions of Laws 2014, ch. 59 is held invalid, the remainder or its application to other situations or persons shall not be affected.