2018 Kentucky Revised Statutes CHAPTER 304 - INSURANCE CODE Subtitle 3 - Authorization of Insurers and General Requirements 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.
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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
(4)
(5)
(6)
governing the sharing and use of information provided pursuant to this section
that shall:
1.
Specify procedures and protocols regarding the confidentiality and
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 thirdparty 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 thirdparty 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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