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(1) A document, material, or other information, including a corporate governance annual disclosure, is considered proprietary and to contain a trade secret if the document, material, or other information is:
(a) in the control or possession of the department; and
(b) obtained by, created by, or disclosed to the commissioner or any other person in accordance with this chapter.
(2) A document, material, or other information described in Subsection (1) is:
(a) confidential and privileged;
(b) classified as a protected record under Title 63G, Chapter 2, Government Records Access and Management Act;
(c) not subject to:
(i) subpoena; or
(ii) discovery; and
(d) not admissible as evidence in any private civil action.
(3)
(a) The commissioner may use a document, material, or other information described in Subsection (1) in the furtherance of a regulatory or legal action brought as a part of the commissioner's duties.
(b) Except as described in Subsection (3)(a), the commissioner may not make a document, material, or other information described in Subsection (1) public without the prior written consent of the insurer or insurance group.
(4) Nothing in this section requires written consent of the insurer or insurance group before the commissioner shares or receives, in accordance with Subsection (6), a document, material, or other information described in Subsection (1) to assist in the performance of the commissioner's duties.
(5) The following may not testify in any private civil action regarding a document, material, or other information described in Subsection (1):
(a) the commissioner; or
(b) a person:
(i) who receives the document, material, or other information, through examination or otherwise, while acting under the authority of the commissioner; or
(ii) with whom the document, material, or other information is shared in accordance with this chapter.
(6) To carry out the commissioner's duties, the commissioner may:
(a) upon request, share a document, material, or other information described in Subsection (1) with:
(i) a state, federal, or international financial regulatory agency, including a member of a supervisory college as defined in Section 31A-16-108.5; or
(ii) the NAIC or a third-party consultant retained in accordance with Section 31A-16b-107, if the recipient:
(A) agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information; and
(B) verifies in writing the legal authority to maintain confidentiality; or
(b) receive documents, materials, or other information related to a corporate governance annual disclosure, including:
(i) otherwise confidential and privileged documents, materials, or other information; and
(ii) proprietary and trade secret information or documents from:
(A) a regulatory official of a state, federal, or international financial regulatory agency, including a member of a supervisory college as defined in Section 31A-16-108.5; or
(B) the NAIC.
(7) A written agreement governing the sharing of a document, material, or other information described in Subsection (1) with the NAIC or a third-party consultant shall contain the following:
(a) specific procedures and protocols for maintaining the confidentiality and privileged status of the document, material, or other information in accordance with this chapter;
(b) procedures and protocols ensuring the NAIC shares information only with a state regulator from a state in which the insurance group has a domiciled insurer;
(c) verification that the recipient has legal authority to maintain the confidentiality and privileged status of the document, material, or other information;
(d) a provision specifying that:
(i) ownership of the document, material, or other information remains with the department; and
(ii) the NAIC's or third-party consultant's use of the document, material, or other information shared with the NAIC or third-party consultant is subject to the direction of the commissioner;
(e) a provision prohibiting the NAIC or third-party consultant from storing the document, material, or other information in a permanent database after the underlying analysis is complete;
(f) a provision requiring the NAIC or third-party consultant to provide prompt notice to the commissioner and to the insurer or insurance group regarding any subpoena, request for disclosure, or request for production of the document, material, or other information;
(g) a provision requiring the NAIC or third-party consultant consent to the insurer or insurance group intervening in any judicial or administrative action in which the NAIC or third-party consultant may be required to disclose the document, material, or other information; and
(h) a provision requiring the written consent of the insurer or insurance group before making public the document, material, or other information.
(8)
(a) The commissioner shall maintain as confidential or privileged any documents, materials, or other information received with notice or with the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or other information.
(b) The NAIC and a third-party consultant are subject to the same confidentiality standards and requirements as the commissioner.
(9) The sharing of a document, material, or other information described in Subsection (1) by the commissioner in accordance with this chapter is not a delegation of regulatory authority or rulemaking.
(10) Disclosing or sharing a document, material, or other information described in Subsection (1) in accordance with this chapter does not waive any privilege or claim of confidentiality, propriety, or trade secret related to the document, material, or other information.