44-2138.

Information; confidential treatment; sharing of information; restrictions.

(1)(a) All information, documents, and copies thereof obtained by or disclosed to the director or any other person in the course of an examination or investigation made pursuant to section 44-2137 and all information reported or provided to the director pursuant to sections 44-2132 to 44-2136 and 44-2155 shall be recognized by this state as being proprietary and containing trade secrets, shall be given confidential treatment, shall not be subject to subpoena, and shall not be made public by the director, the National Association of Insurance Commissioners and its affiliates and subsidiaries, or any other person, except to other state, federal, foreign, and international regulatory and law enforcement agencies if the recipient agrees in writing to maintain the confidentiality of the information, without the prior written consent of the insurer to which it pertains unless the director, after giving the insurer and its affiliates who would be affected thereby notice and opportunity to be heard, determines that the interest of policyholders, shareholders, or the public will be served by the publication thereof, in which event he or she may publish all or any part thereof in such manner as he or she may deem appropriate.

(b) For purposes of the information filed with the Director of Insurance pursuant to subsection (13) of section 44-2132, the director shall maintain the confidentiality of the annual group capital calculation and group capital ratio produced within the calculation and any group capital information received from an insurance holding company supervised by the Federal Reserve Board or by any United States group-wide supervisor.

(c) For purposes of the information filed with the Director of Insurance pursuant to subsection (17) of section 44-2132, the director shall maintain the confidentiality of the liquidity stress test results and supporting disclosures and any liquidity stress test information received from an insurance holding company supervised by the Federal Reserve Board and non-United-States group-wide supervisors.

(2) The director may receive information, documents, and copies of information and documents, including proprietary and trade secret information, disclosed to other state, federal, foreign, or international regulatory and law enforcement agencies and from the National Association of Insurance Commissioners and its affiliates and subsidiaries pursuant to an examination of an insurance holding company system. The director shall maintain information, documents, and copies of information and documents received pursuant to this subsection as confidential or privileged if received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the information. Such information shall not be a public record subject to disclosure by the director pursuant to sections 84-712 to 84-712.09, subject to subpoena, subject to discovery, or admissible in evidence in any private civil action, except that the director may use such information in any regulatory or legal action brought by the director. The director, and any other person while acting under the authority of the director who has received information pursuant to this subsection, may not, and shall not be required to, testify in any private civil action concerning any information subject to this section. Nothing in this section shall constitute a waiver of any applicable privilege or claim of confidentiality in the information received pursuant to this subsection as a result of information sharing authorized by this section.

(3) In order to assist in the performance of the director's duties, the director may share information, including any proprietary or trade secret document or material, with state, federal, and international regulatory agencies, with the National Association of Insurance Commissioners, with any third-party consultant designated by the director, and with state, federal, and international law enforcement authorities, including members of any supervisory college described in section 44-2137.01, with the International Association of Insurance Supervisors, and with the Bank for International Settlements under the conditions set forth in section 44-154 if the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material, or information and has verified in writing the legal authority to maintain confidentiality. The director may only share any confidential and privileged document, material, or information filed pursuant to subsection (12) of section 44-2132 with directors or commissioners of states having statutes or regulations substantially similar to subsection (1) of this section and who have agreed in writing not to disclose such document, material, or information.

(4) The director shall enter into written agreements with the National Association of Insurance Commissioners and any third-party consultant designated by the director governing sharing and use of any document, material, or information provided pursuant to this section that shall:

(a) Specify procedures and protocols regarding the confidentiality and security of information shared with the National Association of Insurance Commissioners or any third-party consultant designated by the director pursuant to this section, including procedures and protocols for sharing by the association or any third-party consultant designated by the director with other state, federal, or international regulators. The agreement shall provide that the recipient agrees in writing to maintain the confidentiality and privileged status of any such document, material, or information and has verified in writing the legal authority to maintain such confidentiality;

(b) Specify that ownership of any document, material, or information shared with the National Association of Insurance Commissioners or any third-party consultant designated by the director pursuant to this section remains with the director and use of any document, material, or information by the association or any third-party consultant designated by the director is subject to the direction of the director;

(c) Prohibit the National Association of Insurance Commissioners or any third-party consultant designated by the director from storing any document, material, or information shared pursuant to this section in a permanent database after the underlying analysis is completed. This subdivision does not apply to any document, material, or information filed pursuant to subsection (17) of section 44-2132;

(d) Require prompt notice to be given to an insurer whose confidential document, material, or information in the possession of the National Association of Insurance Commissioners or any third-party consultant designated by the director pursuant to this section is subject to a request or subpoena to the association or any third-party consultant designated by the director for disclosure or production;

(e) Require the National Association of Insurance Commissioners or any third-party consultant designated by the director to consent to intervention by an insurer in any judicial or administrative action in which the association or any third-party consultant designated by the director may be required to disclose confidential information about the insurer shared with the association or any third-party consultant designated by the director pursuant to this section; and

(f) For any document, material, or information filed pursuant to subsection (17) of section 44-2132, in the case of an agreement involving any third-party consultant designated by the director, provide for notification to the applicable insurers of the identity of such third-party consultant.

(5) The sharing of any document, material, or information by the director pursuant to this section shall not constitute a delegation of regulatory authority or rulemaking, and the director is solely responsible for the administration, execution, and enforcement of this section.

(6) No waiver of any applicable privilege or claim of confidentiality in any document, material, or information shall occur as a result of disclosure to the director under this section or as a result of sharing as authorized by this section.

(7) Any document, material, or information in the possession or control of the National Association of Insurance Commissioners or any third-party consultant designated by the director pursuant to this section shall be confidential and privileged, shall not be subject to public disclosure under section 84-712, shall not be subject to subpoena, and shall not be subject to discovery or admissible as evidence in any private civil action.

(8) The annual group capital calculation and resulting group capital ratio required under subsection (13) of section 44-2132 and the liquidity stress test along with its results and supporting disclosures required under subsection (17) of section 44-2132 shall be considered regulatory tools for assessing group risks and capital adequacy and group liquidity risks, respectively, and shall not be used as a means to rank insurers or insurance holding company systems. Except as otherwise may be required under the Insurance Holding Company System Act, it is unlawful to make, publish, disseminate, circulate, place before the public, or cause directly or indirectly to be made, published, disseminated, circulated, or placed before the public in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio or television station or any electronic means of communication available to the public, or in any other way as an advertisement, announcement, or statement containing a representation or statement with regard to the annual group capital calculation, the group capital ratio, the liquidity stress test results, or supporting disclosures for the liquidity stress test of any insurer or any insurer group, or of any component derived in the calculation by any insurer, broker, or other person engaged in any manner in the insurance business, except that if any materially false statement with respect to the annual group capital calculation, the resulting group capital ratio, an inappropriate comparison of any amount to an insurer's or insurance group's annual group capital calculation or resulting group capital ratio, liquidity stress test result, supporting disclosures for the liquidity stress test, or an inappropriate comparison of any amount to an insurer's or insurance group's liquidity stress test result or supporting disclosures is published in any written publication and the insurer is able to demonstrate to the director with substantial proof the falsity of such statement or the inappropriateness, as the case may be, then the insurer may publish announcements in a written publication if the sole purpose of the announcement is to rebut the materially false statement.