Colorado § 10-3-1508 - Confidentiality.

§ 10-3-1508. Confidentiality.

(1) Documents, materials, or other information, including the ORSA summary report, in the possession or control of the division of insurance that are obtained by, created by, or disclosed to the commissioner or any other person under this part 15, are recognized by this state as being proprietary and containing trade secrets. All documents, materials, or other information, including the ORSA summary report, are confidential by law and privileged; are not subject to the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S., or other open records, freedom of information, sunshine, or other similar law of this state; are not subject to subpoena; and are not subject to discovery or admissible in evidence in any private civil action. However, the commissioner may use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner shall not otherwise make the documents, materials, or other information public without the prior written consent of the insurer.

(2) Neither the commissioner nor any person who received documents, materials, or other ORSA-related information, through examination or otherwise, while acting under the authority of the commissioner or with whom such documents, materials, or other information are shared pursuant to this part 15 is permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to subsection (1) of this section.

(3) In order to assist in the performance of the commissioner's regulatory duties, the commissioner:

(a) May, upon request, share documents, materials, or other ORSA-related information, including the confidential and privileged documents, materials, or information subject to subsection (1) of this section, including 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 section 10-3-807, with the NAIC and with any third-party consultants designated by the commissioner, if the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA-related documents, materials, or other information and has verified in writing the legal authority to maintain confidentiality; and

(b) May receive documents, materials, or other ORSA-related 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 section 10-3-807, and from the NAIC, and 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;

(c) Shall enter into a written agreement with the NAIC or a third-party consultant governing sharing and use of information provided pursuant to this part 15, consistent with this subsection (3), which agreement must:

(I) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC or a third-party consultant pursuant to this part 15, including procedures and protocols for sharing by the NAIC with other state regulators from states in which the insurance group has domiciled insurers. The agreement must provide that the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA-related documents, materials, or other information and has verified in writing the legal authority to maintain confidentiality.

(II) Specify that ownership of information shared with the NAIC or a third-party consultant pursuant to this part 15 remains with the commissioner and that the NAIC's or third-party consultant's use of the information is subject to the direction of the commissioner;

(III) Prohibit the NAIC or third-party consultant from storing the information shared pursuant to this part 15 in a permanent database after the underlying analysis is completed;

(IV) Require prompt notice be given to an insurer whose confidential information in the possession of the NAIC or a third-party consultant pursuant to this part 15 is subject to a request or subpoena to the NAIC or third-party consultant for disclosure or production;

(V) Require the NAIC or a third-party consultant to consent to intervention by an insurer in any judicial or administrative action in which the NAIC or third-party consultant may be required to disclose confidential information about the insurer shared with the NAIC or third-party consultant pursuant to this part 15; and

(VI) In the case of an agreement involving a third-party consultant, provide for the insurer's written consent.

(4) The sharing of information and documents by the commissioner under this part 15 does not constitute a delegation of regulatory authority or rule-making, and the commissioner is solely responsible for the administration, execution, and enforcement of this part 15.

(5) No waiver of any applicable privilege or claim of confidentiality in the documents, proprietary and trade-secret materials, or other ORSA-related information may occur as a result of disclosure of such ORSA-related information or documents to the commissioner under this section or as a result of sharing as authorized in this part 15.

(6) Documents, materials, or other information in the possession or control of the NAIC or a third-party consultant under this part 15 is confidential by law and privileged; is not subject to the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S., or other open records, freedom of information, sunshine, or other similar law of this state; is not subject to subpoena; and is not subject to discovery or admissible in evidence in any private civil action.

Source: L. 2016: Entire part added, (SB 16-029), ch. 32, p. 76, § 2, effective March 18.