Section 991.1407 - Confidential Treatment(a) All information, documents, materials and copies thereof in the possession or control of the department that are produced by, obtained by or disclosed to the department or any other person in the course of an examination or investigation made pursuant to section 1406 or investigation made pursuant to section 1406.1 or 1406.2 and all information reported pursuant to sections 1402(b)(11.1) and (11.2), 1404 and 1405 are recognized as being proprietary and constituting intellectual property, and shall be privileged and given confidential treatment and shall not be: (1) Subject to discovery or admissible in evidence in a private civil action.(3) Subject to the act of February 14, 2008 ( P.L. 6, No.3), known as the "Right-to-Know Law."(4) Made public by the department or any other person, except to regulatory or law enforcement officials of other jurisdictions or group supervisors or members of a supervisory college in accordance with subsection (c), without the prior written consent of the insurer to which it pertains unless the department, after giving the insurer and its affiliates who would be affected thereby notice and opportunity to be heard, determines that the interest of policyholders, shareholders or the public will be served by the publication thereof, in which event it may publish all or any part thereof in such manner as it may deem appropriate.(a.1) For purposes of the information reported and provided to the department under section 1404(k.1)(2), the commissioner shall maintain the confidentiality of the group capital calculation report and supporting disclosures and any group capital information received from an insurance holding company system supervised by the Federal Reserve Board or any United States group-wide supervisor.(a.2) For purposes of the information reported and provided to the department under section 1404(k.1)(6), the commissioner 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 system supervised by the Federal Reserve Board and and a group-wide supervisor located outside the United States.(b) The commissioner, department or any individual or person who receives documents, materials or other information while acting under the authority of the commissioner or department or with whom such documents, materials or other information are shared under this article shall not be permitted or required to testify in any private civil action concerning any confidential documents, materials or information covered under this section.(c) In order to assist in the performance of its duties, the department may do any of the following:(1) Share confidential and privileged documents, materials or other information covered under this section, including proprietary and intellectual property, documents, materials and information, with regulatory or law enforcement officials of this Commonwealth or other jurisdictions, the IAIS, the NAIC and its affiliates and subsidiaries, group supervisors and members of any supervisory college under section 1406.1, and any third party consultants retained by the commissioner, enforcement officials, the IAIS, the NAIC, group-wide supervisor or members of a supervisory college, provided that prior to receiving the documents, materials or other information, the recipient demonstrates by written statement the necessary authority and intent to provide the same confidential treatment to the documents, materials and information as required by this article. The department may only share confidential and privileged documents, materials or information reported under section 1404(k.1) with state insurance regulators having statutes or regulations substantially similar to subsection (a) and who have agreed in writing not to disclose such confidential and privileged documents, materials and information.(2) Receive and maintain as confidential and privileged any documents, materials or other information, including proprietary and intellectual property, documents materials and information, from the IAIS or the NAIC and its affiliates and subsidiaries or from regulatory and law enforcement officials of this Commonwealth or other jurisdictions in which the documents, materials or other information are confidential by law in those jurisdictions. Documents, materials or other information obtained under this section shall be given confidential treatment, may not be subject to subpoena and may not be made public by the department, commissioner or any other person.(d) The department shall enter into written agreements with the IAIS or the NAIC and any third-party consultant retained by the commissioner, the IAIS or the NAIC governing the sharing and use of information provided under this article, that include all of the following: (1) Specific procedures and protocols regarding the confidentiality and security of information shared with the IAIS or the NAIC or a third-party consultant retained by the commissioner, the IAIS or the NAIC under this article, including procedures and protocols for sharing by the IAIS or the NAIC or a third-party consultant retained by the commissioner, the IAIS or the NAIC with other Federal, state 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 the confidentiality.(2) Provisions specifying that ownership of information shared with the IAIS or the NAIC or a third-party consultant under this article remains with the department and that the use of the information by the IAIS or the NAIC or a third-party consultant retained by the commissioner, the IAIS or the NAIC is subject to the approval of the department.(2.1) A provision specifying that, with the exception of documents, material or information under section 1404(k.1)(6), the NAIC, or a third-party consultant under this article, is prohibited from storing information shared under this article in a permanent database after the underlying analysis is completed.(3) A provision providing that the IAIS or the NAIC and its affiliates and subsidiaries, or a third-party consultant under this article, will, where permitted by law, give prompt notice to the department and the insurer regarding any subpoena, request for disclosure or request for production of the insurer's confidential information in the possession of the IAIS or the NAIC or a third-party consultant under this article.(4) A requirement that the IAIS or the NAIC and its affiliates and subsidiaries, or a third-party consultant under this article, will consent to intervention by an insurer in any judicial or administrative action in which the IAIS or the NAIC and its affiliates and subsidiaries, or a third-party consultant under this article may be required to disclose confidential information about the insurer that was shared with the IAIS or the NAIC and its affiliates and subsidiaries, or a third-party consultant under this article.(5) For documents, materials or information reporting under section 1404(k.1)(6), in the case of an agreement involving a third party consultant, a provision for the notification of the identity of the consultant to the department and applicable insurers.(e) The sharing of information by the department under this article shall not constitute a delegation of regulatory authority or rulemaking.(f) The department is solely responsible for the administration, execution and enforcement of the provisions of this article.(g) The sharing of information by the department as authorized by subsection (c) shall not constitute a waiver of any applicable privilege or claim of confidentiality in the documents, materials or information.(h) Documents, materials or other information in the possession or control of the IAIS or the NAIC or a third-party consultant as provided under this article shall:(1) Be confidential and privileged.(2) Not be subject to the "Right-to-Know Law."(3) Not be subject to subpoena.(4) Not be subject to discovery or admissible in evidence in any private civil action.(i) The group capital calculation results and supporting disclosures and any group capital calculation information required under section 1404(k.1)(2) and the liquidity stress test results and supporting disclosures and any liquidity stress test information required under section 1404(k.1)(7) are regulatory tools for assessing group capital adequacy, group liquidity and associated risks. These tools are not intended as a means to rank insurers or insurance holding company systems generally and will be used in accordance with the following standards:(1) Except as otherwise required under this article, directly or indirectly, making, publishing, disseminating, circulating or placing 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 results, the liquidity stress test results and associated supporting disclosures and information 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, is misleading and prohibited.(2) 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 commissioner with substantial proof the falsity of such statement or the inappropriateness, as the case may be, then the insurer may publish announcements in any written publication if the sole purpose of the announcement is to rebut the materially false statement.Amended by P.L. TBD 2022 No. 93, § 5, eff. 9/9/2022.Amended by P.L. 1111 2012 No. 136, § 8, eff. 9/3/2012.1921, May 17, P.L. 682, No. 284, art. XIV, § 1407, added 1992, Dec. 18, P.L. 1519, No. 178, § 19, effective in 120 days.