Ohio § 3901.36

§ 3901.36.

(A)(1) Documents, materials, or other information in the possession or control of the department

of insurance that are obtained by or disclosed to the superintendent of insurance

or any other person in the course of an examination or investigation made pursuant

to section 3901.35 of the Revised Code , all information reported pursuant to divisions (C)(2), (3), and (5) of section 3901.321

of the Revised Code, and all information reported pursuant to section 3901.33 of the Revised Code are recognized by this state as being proprietary and to contain trade secrets and

shall be given confidential and privileged treatment and shall not be subject to section 149.43 of the Revised Code , subpoena, or discovery, and shall not be admissible in evidence in any private civil

action.  The superintendent shall not make the documents, materials, or other information

public unless one of the following applies: (a) The superintendent uses the documents, materials, or other information in furtherance

of any regulatory or legal action brought as a part of the superintendent's official

duties. (b) The superintendent has obtained the prior written consent of the insurer pertaining

to the disclosure of the documents, materials, or other information of the insurer. (c) The superintendent, after giving the insurer and those affiliates that are the subject

of the documents, materials, or other information notice and an opportunity to be

heard in accordance with Chapter 119. of the Revised Code, determines that the interests

of policyholders, shareholders, or the public will be served by the disclosure, in

which case the superintendent may make disclosures as the superintendent considers

appropriate. (2) For purposes of the information reported and provided to the superintendent of insurance

pursuant to the group capital calculation requirements prescribed in division (L) of section 3901.33 of the Revised Code , the superintendent shall maintain the confidentiality of the 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 United States federal

reserve board or any United States group-wide supervisor. (3) For purposes of the information reported and provided to the superintendent of insurance

pursuant to the liquidity stress test requirements prescribed in division (M) of section 3901.33 of the Revised Code , the superintendent 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 United States federal reserve

board and non-United States group-wide supervisors. (B) Neither the superintendent nor any person who receives documents, materials, or other

information while acting under the authority of the superintendent or with whom such

documents, materials, or other information are shared pursuant to this section shall

be permitted or required to testify in any private civil action concerning any confidential

documents, materials, or information subject to division (A) of this section. (C) In order to assist in the performance of the superintendent's duties under this section,

the superintendent may do either of the following: (1) Share documents, materials, or other information, including the confidential and

privileged documents, materials, or other information subject to division (A) of this

section, including proprietary and trade secret documents and materials, with other

local, state, federal, and international regulatory and law enforcement agencies,

with the national association of insurance commissioners, with third-party consultants

designated by the superintendent, and with members of any supervisory college described

in section 3901.351 of the Revised Code , provided that the recipient agrees to maintain the confidential or privileged status

of the confidential or privileged documents, materials, or other information and has

verified in writing the legal authority to do so.  The superintendent may share confidential and privileged documents, materials, or

other information reported pursuant to section 3901.33 of the Revised Code only with superintendents of states having statutes or regulations substantially

similar to division (A) of this section and who have agreed in writing not to disclose

such information. (2) Receive documents, materials, or information, including otherwise confidential and

privileged documents, materials, or information, including proprietary and trade-secret

information, from the national association of insurance commissioners and its affiliates

and subsidiaries and from regulatory and law enforcement officials of other foreign

or domestic jurisdictions.  The superintendent shall maintain as confidential or privileged any such document,

material, 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. (D) The superintendent shall enter into written agreements with the national association

of insurance commissioners, and any third-party consultant designated by the superintendent,

governing sharing and use of information provided pursuant to sections 3901.32 to 3901.37 of the Revised Code consistent with division (C) of this section.  The written agreements shall do all of the following: (1) Specify procedures and protocols regarding the confidentiality and security of information

shared with the national association of insurance commissioners or a third-party consultant

designated by the superintendent pursuant to sections 3901.32 to 3901.37 of the Revised Code , including procedures and protocols for sharing by the national association of insurance

commissioners 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 the documents, materials, or other information

and has verified in writing the legal authority to maintain such confidentiality. (2) Specify that ownership of information shared with the national association of insurance

commissioners or a third-party consultant pursuant to sections 3901.32 to 3901.37 of the Revised Code remains with the superintendent and the national association of insurance commissioners'

or a third-party consultant's, as designated by the superintendent, use of the information

is subject to the direction of the superintendent; (3)(a) Prohibit the national association of insurance commissioners or third-party consultant

designated by the superintendent from storing the information shared pursuant to this

section in a permanent database after the underlying analysis is completed; (b) Division (D)(3)(a) of this section does not apply to documents, material, or information

reported pursuant to the liquidity stress test requirements prescribed in division (M) of section 3901.33 of the Revised Code . (4) Require prompt notice to be given to an insurer whose confidential information is

in the possession of the national association of insurance commissioners or a third-party

consultant designated by the superintendent pursuant to this section is subject to

a request or subpoena to the national association of insurance commissioners or a

third-party consultant designated by the superintendent for disclosure or production; (5) Require the national association of insurance commissioners or a third-party consultant

designated by the superintendent to consent to intervention by an insurer in any judicial

or administrative action in which the national association of insurance commissioners

or a third-party consultant designated by the superintendent may be required to disclose

confidential information about the insurer shared with the national association of

insurance commissioners or a third-party consultant pursuant to sections 3901.32 to 3901.37 of the Revised Code ; (6) For documents, material, or information reporting pursuant to the liquidity stress

test requirements prescribed in division (M) of section 3901.33 of the Revised Code , in the case of an agreement involving a third-party consultant, provide for notification

of the identity of the consultant to the applicable insurers. (E) The sharing of information by the superintendent pursuant to sections 3901.32 to 3901.37 of the Revised Code shall not constitute a delegation of regulatory or rule-making authority.  The superintendent is solely responsible for the administration, execution, and

enforcement of the provisions of sections 3901.32 to 3901.37 of the Revised Code . (F) No waiver of any applicable privilege or claim of confidentiality in the documents,

materials, or other information described in this section shall occur as a result

of sharing or receiving documents and information as authorized in division (C) of

this section. (G) Documents, materials, or other information in the possession or control of the national

association of insurance commissioners or a third-party consultant designated by the

superintendent pursuant to this section shall be given confidential and privileged

treatment and shall not be subject to section 149.43 of the Revised Code , subpoena, or discovery, and shall not be admissible in evidence in any private civil

action. (H) The group capital calculation and resulting group capital ratio required under division (L) of section 3901.33 of the Revised Code and the liquidity stress test along with its results and supporting disclosures required

under division (M) of section 3901.33 of the Revised Code are regulatory tools for assessing group risks and capital adequacy and group liquidity

risks, respectively, and are not intended as a means to rank insurers or insurance

holding company systems generally. Therefore, except as otherwise may be required under the provisions of sections 3901.31 to 3901.37 of the Revised Code , the making, publishing, disseminating, circulating, or placing before the public,

or causing 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 group capital calculation, 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

would be misleading and is therefore prohibited;  provided, however, that if any materially

false statement with respect to the group capital calculation, resulting group capital

ratio, an inappropriate comparison of any amount to an insurer's or insurance group's

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 superintendent 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.