(a) Any documents, materials, or other information, including an own risk and solvency assessment summary report, in the possession of or under the control of the State Insurance Department that are obtained by, created by, or disclosed to the Insurance Commissioner or any other person under this subchapter is recognized as being proprietary and containing trade secrets.
(b)
(1) Any documents, materials, or other information submitted under this subchapter shall be confidential by law and privileged.
(2) The information required under this subchapter is not subject to:
(A) The Freedom of Information Act of 1967, § 25-19-101 et seq.;
(B) Subpoena; or
(C) Discovery or admissible in evidence in any private civil action.
(c)
(1) Notwithstanding the limitations under this section, the commissioner may use the documents, materials, or other information to further any regulatory or legal action brought on behalf of the commissioner.
(2) The commissioner shall not otherwise make the documents, materials, or other information public without the prior written consent of the insurer.
(d) The commissioner or any person operating on behalf of the commissioner shall not be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information under this subchapter.
(e) In order to assist in the performance of the regulatory duties of the commissioner, upon request, the commissioner:
(1) If the recipient agrees in writing to maintain the confidentiality and privileged status of the own risk and solvency assessment documents, materials, or other information and verifies in writing the legal authority to maintain confidentiality, may share:
(A) Documents, materials, or other information of an own risk and solvency assessment, including confidential and privileged information, with other state, federal, and international financial regulatory agencies, including members of any supervisory college as defined in § 23-63-531;
(B) Proprietary and trade secret documents and materials with other state, federal, and international financial regulatory agencies, including members of any supervisory college as defined in § 23-63-531; and
(C) Any relevant information with the National Association of Insurance Commissioners or any third-party consultants designated by the commissioner;
(2) May receive documents, materials, or other own risk and solvency assessment 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 as defined in § 23-63-531, and from the National Association of Insurance Commissioners;
(3) Shall maintain as confidential or privileged any documents, materials, or 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 information;
(4)
(A) Shall enter into a written agreement with the National Association of Insurance Commissioners or a third-party consultant to govern the sharing and use of information provided under this subchapter.
(B) The written agreement shall:
(i) Specify procedures and protocols regarding the confidentiality and security of information shared with the National Association of Insurance Commissioners or a third-party consultant under this subchapter, 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;
(ii) Provide that the recipient has agreed in writing to maintain the confidentiality and privileged status of the own risk and solvency assessment documents, materials, or other information, and has verified in writing the legal authority to maintain confidentiality;
(iii) Specify that ownership of information shared with the National Association of Insurance Commissioners or a third-party consultant under this subchapter remains with the commissioner and the National Association of Insurance Commissioners, or that a third-party consultant's use of the information is subject to the authority of the commissioner;
(iv) Prohibit the National Association of Insurance Commissioners or third-party consultant from storing the information shared under this subchapter in a permanent database after the underlying analysis is completed;
(v) Require prompt notice be given to an insurer whose confidential information is in the possession of the National Association of Insurance Commissioners or a third-party consultant under this subchapter that the confidential information is subject to a request or subpoena to the National Association of Insurance Commissioners or a third-party consultant for disclosure or production; and
(vi) 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 that 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 under this subchapter; and
(5) If an agreement involves a third-party consultant, shall provide that an insurer's written consent is required before sharing the requested information.
(f) The sharing of information and documents by the commissioner under this subchapter does not constitute a delegation of regulatory authority or rulemaking, and the commissioner is solely responsible for the administration, execution, and enforcement of this subchapter.
(g) A waiver of any applicable privilege or claim of confidentiality in the documents, proprietary and trade-secret materials, or other own risk and solvency assessment information shall not occur as a result of disclosure of the own risk and solvency assessment information or documents to the commissioner under this section or as a result of sharing under this subchapter.
(h) Documents, materials, or other information in the possession or control of the National Association of Insurance Commissioners or third-party consultants under this subchapter:
(1) Shall be confidential by law and privileged; and
(2) Shall not be subject to:
(A) The Freedom of Information Act of 1967, § 25-19-101 et seq.;
(B) Subpoena; or
(C) Discovery or admissible in evidence in any private civil action.