2018 Massachusetts General Laws
PART I ADMINISTRATION OF THE GOVERNMENT
TITLE XXII CORPORATIONS
Chapter 176V OWN RISK AND SOLVENCY ASSESSMENT
Section 7 Proprietary nature of reports and documents; confidentiality; testimony regarding reports in private civil actions; sharing of information
Section 7. (a) Documents, materials or other information, including the ORSA summary report, in the possession or control of the commissioner that are obtained by, created by or disclosed to the commissioner or any other person pursuant to this chapter, shall be proprietary and recognized to contain trade secrets. Such documents, materials or other information shall be confidential and privileged, shall not be subject to chapter 66, or clause Twenty-sixth of section 7 of chapter 4 and shall not be subject to subpoena, discovery or introduction into 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.
(b) Neither the commissioner nor any person who receives 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 chapter shall be permitted or required to testify in any private civil action concerning confidential documents, materials or information subject to subsection (a).
(c) To assist in the performance of the commissioner's regulatory duties, the commissioner may:
(i) if requested, share documents, materials or other ORSA–related information including, but not limited to, confidential and privileged documents, materials or information subject to subsection (a) which may include proprietary and trade secret materials, with other state, federal and international financial regulatory agencies, including, but not limited to, members of a supervisory college, as defined in this chapter, NAIC and third-party consultants designated by the commissioner; provided, however, that the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA–related documents, materials or other information and provides written verification of the recipient's legal authority to maintain confidentiality;
(ii) receive documents, materials or other ORSA–related information, including otherwise confidential and privileged documents, materials or information which may include proprietary and trade-secret information or documents from regulatory officials of other foreign or domestic jurisdictions including, but not limited to, members of a supervisory college as defined in this chapter and NAIC; provided, however, that the commissioner shall maintain as confidential or privileged any documents, materials or information received that are considered confidential or privileged pursuant to the laws of the jurisdiction that is the source of the document, material or information; and
(iii) enter into a written agreement with NAIC or a third-party consultant which shall govern the sharing and use of information provided pursuant to this chapter, consistent with this subsection, and shall: (A) specify procedures and protocols for maintaining the confidentiality and security of information shared with NAIC or a third-party consultant pursuant to this chapter, including, but not limited to, procedures and protocols for NAIC to share information with other state regulators from states in which the insurance group has domiciled insurers; provided, however, that the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA–related documents, materials or other information and verifies in writing the recipient's legal authority to maintain confidentiality; (B) specify that ownership of information shared with NAIC or a third-party consultant pursuant to this chapter remains with the commissioner and the NAIC's or a third-party consultant's use of the information is subject to the direction of the commissioner; (C) prohibit NAIC or a third-party consultant from storing the information shared pursuant to this chapter in a permanent database after the underlying analysis is completed; (D) require prompt notice to be given to an insurer whose confidential information, in the possession of NAIC or a third-party consultant pursuant to this chapter, is subject to a request or subpoena issued to the NAIC or a third-party consultant for disclosure or production of the confidential information; (E) require 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 shared with the NAIC or a third-party consultant pursuant to this chapter; and (F) provide for the insurer's written consent, in the case of an agreement involving a third-party consultant.
(d) The sharing of information and documents by the commissioner pursuant to this chapter shall not constitute a delegation of regulatory authority or rulemaking, and the commissioner is solely responsible for the administration, execution and enforcement of this chapter.
(e) 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 such ORSA–related information or documents to the commissioner pursuant to this section or as a result of sharing authorized in this chapter.
(f) Documents, materials or other information in the possession or control of NAIC or a third-party consultant pursuant to this chapter shall be confidential by law and privileged, shall not be subject to chapter 66 or clause Twenty-sixth of section 7 of chapter 4 and shall not be subject to subpoena, discovery or introduction into evidence in any private civil action.
