Section 31A-16-109 - Confidentiality of information obtained by commissioner(1)(a) Documents, materials, or information obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made under Section 31A-16-107.5, and all information reported or provided to the department under Section 31A-16-105 or 31A-16-108.6, is proprietary, contains trade secrets, and is confidential.(b) Any confidential document, material, or information described in Subsection (1)(a) is not subject to subpoena and may not be made public by the commissioner or any other person without the permission of the insurer, except the confidential document, material, or information may be provided to the insurance departments of other states, without the prior written consent of the insurer to which the confidential document, material, or information pertains.(c) The commissioner shall maintain the confidentiality of the following received in accordance with Section 31A-16-105 from an insurance holding company supervised by the Federal Reserve Board or any United States group-wide supervisor:(i) a group capital calculation;(ii) a group capital ratio produced within the group capital calculation; or(iii) group capital information.(d) The commissioner shall maintain the confidentiality of the liquidity stress test results, supporting disclosures, and any liquidity stress test information received in accordance with Section 31A-16-105 from an insurance holding company supervised by the Federal Reserve Board and non-United States group-wide supervisors.(2) The commissioner and any person who receives documents, materials, or other information while acting under the authority of the commissioner or with whom the documents, materials, or other information are shared pursuant to this chapter shall keep confidential any confidential documents, materials, or information subject to Subsection (1).(3) To assist in the performance of the commissioner's duties, the commissioner: (a) may share documents, materials, proprietary and trade secret documents, or other information, including the confidential documents, materials, or information subject to Subsection (1), with the following if the recipient agrees in writing to maintain the confidentiality status of the document, material, or other information, and has verified in writing the legal authority to maintain confidentiality: (i) a state, federal, or international regulatory agency;(iii) a third-party consultant designated by the commissioner; or(iv) a state, federal, or international law enforcement authority, including a member of a supervisory college described in Section 31A-16-108.5;(b) notwithstanding Subsection (1), may only share confidential documents, material, or information reported pursuant to Section 31A-16-105 or 31A-16-108.6 with a commissioner of a state having statutes or regulations substantially similar to Subsection (1) and who has agreed in writing not to disclose the documents, material, or information;(c) may receive documents, materials, proprietary and trade secret information, or other information, including otherwise confidential documents, materials, or information from: (i) the NAIC or an NAIC affiliate or subsidiary; or(ii) a regulatory or law enforcement official of a foreign or domestic jurisdiction;(d) shall maintain as confidential any document, material, or information received under this section with notice or the understanding that it is confidential under the laws of the jurisdiction that is the source of the document, material, or information; and(e) shall enter into written agreements with the NAIC or a third-party consultant designated by the commissioner governing sharing and use of information provided pursuant to this chapter consistent with this Subsection (3) that shall: (i) specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC and NAIC affiliates and subsidiaries pursuant to this chapter, including procedures and protocols for sharing by the NAIC with other state, federal, or international regulators;(ii) specify that ownership of information shared with the NAIC and NAIC affiliates and subsidiaries pursuant to this chapter remains with the commissioner and the NAIC's use of the information is subject to the direction of the commissioner;(iii) require prompt notice to be given to an insurer whose confidential information in the possession of the NAIC pursuant to this chapter is subject to a request or subpoena to the NAIC for disclosure or production; and(iv) require the NAIC and NAIC affiliates and subsidiaries to consent to intervention by an insurer in any judicial or administrative action in which the NAIC and NAIC affiliates and subsidiaries may be required to disclose confidential information about the insurer shared with the NAIC and NAIC affiliates and subsidiaries pursuant to this chapter.(4) The sharing of information by the commissioner pursuant to this chapter does not constitute a delegation of regulatory authority or rulemaking, and the commissioner is solely responsible for the administration, execution, and enforcement of this chapter.(5) A waiver of any applicable claim of confidentiality in the documents, materials, or information does not occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in Subsection (3).(6) Documents, materials, or other information in the possession or control of the NAIC pursuant to this chapter are: (a) confidential, not public records, and not open to public inspection; and(b) not subject to Title 63G, Chapter 2, Government Records Access and Management Act.(7)(a) The group capital calculation, including the resulting group capital ratio, and the liquidity stress test, including the liquidity stress test results and supporting disclosures, are:(i) regulatory tools for assessing risk and capital adequacy; and(ii) not a method to rank insurers or insurance holding company systems generally.(b) Except as provided in Subsection (7)(c), an insurer, broker, or other person engaged in the business of insurance may not make, disseminate, or circulate to the public a materially false or misleading statement relating to an insurer's or insurer group's, or a component of an insurer's or insurer group's: (i) group capital calculation;(ii) group capital ratio;(iii) liquidity stress test results; or(iv) liquidity stress test supporting disclosures.(c) If an insurer provides to the commissioner substantial proof that a statement described in Subsection (7)(b) is materially false or misleading, the insurer may publish an announcement in a written publication for the sole purpose of rebutting the materially false or misleading statement.Amended by Chapter 198, 2022 General Session ,§ 12, eff. 5/4/2022.Amended by Chapter 193, 2019 General Session ,§ 6, eff. 5/14/2019.Amended by Chapter 163, 2016 General Session ,§ 1, eff. 5/10/2016.Amended by Chapter 244, 2015 General Session ,§ 15, eff. 10/1/2015.Amended by Chapter 91, 1987 General Session