2014 Kentucky Revised Statutes CHAPTER 304 - INSURANCE CODE Subtitle 3 - Authorization of Insurers and General Requirements 3.3-635 ORSA Summary Report and other information confidential, privileged, and exempt from Open Records Act and private civil action subpoena, discovery, and testimony -- Powers of commissioner.
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304.3-635
ORSA Summary Report and other information confidential,
privileged, and exempt from Open Records Act and private civil action
subpoena, discovery, and testimony -- Powers of commissioner.
(1)
(2)
(3)
Documents, materials, or other information, including the ORSA Summary
Report, in the possession of or control of the department that are obtained by,
created by, or disclosed to the commissioner or any other person pursuant to
KRS 304.3-600 to 304.3-635 and 304.99-055, are recognized as being
proprietary and containing trade secrets. All documents, materials, or other
information shall be confidential by law and privileged, and shall not be subject
to disclosure under the Kentucky Open Records Act, KRS 61.872 to 61.884,
and shall not be subject to subpoena, discovery, or admission as evidence in
any private civil action. However, the commissioner is authorized to 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.
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 KRS 304.3-600 to
304.3-635 and 304.99-055, shall be permitted or required to testify in any
private civil action concerning any confidential documents, materials, or
information subject to subsection (1) of this section.
To assist in the performance of the commissioner's regulatory duties, the
commissioner:
(a) May share documents, materials, or information, upon request, subject to
subsection (1) of this section, including proprietary information or trade
secrets, with other state, federal, and international financial regulatory
agencies, including members of any supervisory college, as defined in
KRS 304.37-010, the NAIC, and any third-party consultants designated by
the commissioner, provided 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;
(b) May receive documents, materials, or other ORSA-related information,
including 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 KRS 304.37-010, and
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; and
(c) Shall enter into a written agreement with the NAIC or a third-party
consultant governing the sharing and use of information provided
pursuant to this section that shall:
1.
Specify procedures and protocols regarding the confidentiality and
(4)
(5)
(6)
security of information shared with the NAIC or a third-party
consultant pursuant to this section, 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 shall 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;
2.
Specify that ownership of information shared with the NAIC or a
third-party consultant pursuant to this section shall remain 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;
3.
Prohibit the NAIC or third-party consultant from storing the shared
information pursuant to this section in a permanent database after
the analysis is completed;
4.
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 section is subject to a request or subpoena to the
NAIC or a third-party consultant for disclosure or production;
5.
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 a third-party consultant may be required to
disclose confidential information about the insurer that was shared
with the NAIC or a third-party consultant pursuant to this section;
and
6.
If an agreement involves a third-party consultant, provide for the
insurer's written consent.
The sharing of information and documents by the commissioner pursuant to
this section shall not constitute a delegation of regulatory authority, and the
commissioner shall be solely responsible for the administration, execution, and
enforcement of the provisions of this section.
No waiver of any applicable privilege or claim of confidentiality in the
documents, proprietary and trade-secret materials, or other ORSA-related
information shall occur as a result of disclosure of the ORSA-related
information or documents to the commissioner under this section or as a result
of sharing as authorized in this section.
Documents, materials, or other information in the possession or control of the
NAIC or a third-party consultant pursuant to this section shall be confidential by
law and privileged, shall not be subject to the Kentucky Open Records Act,
KRS 61.872 to 61.884, shall not be subject to subpoena, and shall not be
subject to discovery or admissible in evidence in any private civil action.
Effective:January 1, 2015
History: Created 2014 Ky. Acts ch. 119, sec. 8, effective January 1, 2015.
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