(1) (a) Market conduct surveillance personnel have free and full access to the following documents of and persons associated with the company during regular business hours: (I) Books;
(II) Records, including any self-evaluation or voluntary compliance program documents; (III) Employees; (IV) Officers; and (V) Directors.
Upon request of market conduct surveillance personnel, a company utilizing a thirdparty model or product for any of the activities being reviewed shall make the details of the models or products available to the personnel.
(I) The commissioner and any other person in the course of market conduct surveillance shall keep confidential all documents, including working papers, third-party models or products, complaint logs, and copies of any documents created, produced, obtained by, or disclosed to the commissioner, market conduct surveillance personnel, or any other person in the course of market conduct surveillance conducted pursuant to this part 3, and all documents obtained by the NAIC as a result of this part 3. The documents remain confidential beyond the termination of the market conduct surveillance, are not subject to subpoena, and must not be made public at any time or used by the commissioner or any other person, except as provided in subsections (2), (3), and (5) of this section and section 10-1-312.
(II) The commissioner, the division, and any other person in the course of market conduct surveillance shall keep confidential any self-evaluation or voluntary compliance program documents disclosed to the commissioner or other person by a company and the data collected via the NAIC market conduct annual statement. The documents are not subject to subpoena and shall not be made public or used by the commissioner or any other person, except as provided in subsections (2), (3), and (5) of this section and section 10-1-312.
(2) Notwithstanding subsection (1) of this section, and consistent with subsection (3) of this section, in order to assist in the performance of the commissioner's duties, the commissioner may:
Share documents, materials, communications, or other information, including the confidential and privileged documents, materials, or information specified in subsection (1) of this section, with other state, federal, and international regulatory agencies and law enforcement authorities and the NAIC, its affiliates, and subsidiaries, if the recipient agrees to and has the legal authority to maintain the confidentiality and privileged status of the document, material, communication, or other information;
Receive documents, materials, communications, or information, including otherwiseconfidential and privileged documents, materials, or information, from the NAIC and its affiliates or subsidiaries, and from regulatory and law enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material, communication, 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, communication, or information; and
Enter into agreements governing the sharing and use of information consistent withthis section.
(3) Nothing in this part 3 limits:
The commissioner's authority to use, if consistent with section 10-3-414, any final orpreliminary examination report, any market conduct surveillance or company work papers or other documents, or any other information discovered or developed during the course of any market conduct surveillance, in the furtherance of any legal or regulatory action initiated by the commissioner that the commissioner may, in the commissioner's sole discretion, deem appropriate; or
The ability of a company to conduct discovery in accordance with section 10-1-305 (6)(c)(III).
Disclosure to the commissioner of documents, materials, communications, or information required as part of any type of market conduct surveillance does not waive any applicable privilege or claim of confidentiality in the documents, materials, communications, or information.
Notwithstanding the confidentiality requirements in subsection (1)(c) of this section,when the commissioner performs any type of market conduct surveillance that does not rise to the level of a market conduct examination, the commissioner may make the final results of the market conduct surveillance, in an aggregated format, available for public inspection in a manner deemed appropriate by the commissioner.
Source: L. 2017: Entire part added, (HB 17-1231), ch. 284, p. 1571, § 10, effective January 1, 2018.