Current through Register Vol. 35, No. 6, March 26, 2024
A. Documents,
materials or other information, including the summary report, in the possession
or control of the office of superintendent of insurance that are obtained by,
created by or disclosed to the superintendent or any other person pursuant to
this rule contain confidential and sensitive information related to an insurer
or insurance group's identification of risks material and relevant to the
insurer or insurance group filing the report. This information includes
proprietary and trade secret information that has the potential for harm and
competitive disadvantage to the insurer or insurance group if the information
is made public. Any such documents, materials or other information, including
the summary report, shall be treated as confidential trade secrets under the
Uniform Trade Secrets Act, and as authorized by Subsection B of Section
59A-2-12
NMSA 1978, are deemed confidential by the superintendent as specifically
defined by Subsection D of Section
57-3A-2
NMSA 1978.
B. The documents,
materials or other information, including the summary report, submitted
pursuant to this rule, shall remain confidential as long as the documents,
materials or other information, including the summary report are in the
possession or control of the superintendent. The superintendent may use the
documents, materials or other information in the furtherance of any regulatory
or legal action brought as a part of the superintendent's official duties. The
superintendent may not otherwise make the documents, materials or other
information public without prior written notice to the insurer.
C. In order to assist in the performance of
the superintendent's regulatory duties, the superintendent:
(1) may, upon request, share documents,
materials or other information related to an own risk and solvency assessment,
including the confidential documents, materials or information subject to
Subsection A of this section and including proprietary and trade-secret
documents and materials, with other state, federal and international financial
regulatory agencies, with the NAIC, and with any third-party consultants
designated by the superintendent; provided that the recipient agrees in writing
to maintain the confidential status of the documents, materials or other
information related to an own risk and solvency assessment and has verified in
writing the legal authority to maintain confidentiality;
(2) may receive documents, materials or other
information related to an own risk and solvency assessment, including
confidential documents, materials or information and including proprietary and
trade-secret information or documents, from regulatory officials of other
foreign or domestic jurisdictions and from the national association of
insurance commissioners, and shall maintain as confidential any documents,
materials or information received 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
(3) shall enter into a written agreement with
the NAIC or a third-party consultant governing sharing and use of information
provided pursuant to this rule consistent with this subsection that shall:
(a) specify procedures and protocols
regarding the confidentiality and security of information shared with the
national association of insurance commissioners or a third-party consultant
pursuant to this rule, 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 confidential status of the documents, materials or
other information related to an own risk and solvency assessment and has
verified in writing the legal authority to maintain confidentiality;
(b) specify that ownership of information
shared with the NAIC or a third-party consultant pursuant to this rule remains
with the insurer and that the NAIC's or a third-party consultant's use of the
information is subject to the direction of the superintendent;
(c) prohibit the NAIC or third-party
consultant from storing the information shared pursuant to this rule 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 the NAIC or a
third-party consultant pursuant to this rule when subject to a request or
subpoena;
(e) 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 has been
shared with the NAIC or a third-party consultant pursuant to this rule;
and
(f) in the case of an agreement
involving a third-party consultant, provide for the insurer's written
consent.
D. The
sharing of information and documents by the superintendent pursuant to this
rule shall not constitute a delegation of regulatory authority or rulemaking,
and the superintendent is solely responsible for the administration, execution
and enforcement of the provisions of this rule.
E. No waiver of any applicable privilege or
claim of confidentiality of documents, proprietary and trade-secret materials
or other information related to an own risk and solvency assessment shall occur
as a result of disclosure of that related information, materials or documents
to the superintendent under this section or as a result of sharing as described
in this rule.
