(1) [Editor's note: This version of subsection (1) is effective until January 1, 2025.] Documents, materials, or other information in the possession or control of the division that are obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to section 10-3-806 and all information reported pursuant to section 10-3-803 (2)(l) and (2)(m), 10-3-804, or 10-3-805 are confidential by law and privileged, are not subject to the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S., are not subject to subpoena, and are not subject to discovery or admissible in 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 to which they pertain unless the commissioner, after giving the insurer and its affiliates who would be affected notice and opportunity to be heard, determines that the interest of policyholders, shareholders, or the public will be served by the publication, in which event the commissioner may publish all or any part in such manner as the commissioner deems appropriate. (1) [Editor's note: This version of subsection (1) is effective January 1, 2025.] (a) Documents, materials, or other information in the possession or control of the division that are obtained by or disclosed to the commissioner or any other person in the course of an examination or investigation made pursuant to section 10-3-806 and all information reported pursuant to section 10-3-803 (2)(l) and (2)(m), 10-3-804, or 10-3-805 are proprietary and contain trade secrets and are confidential by law and privileged; are not subject to the "Colorado Open Records Act", part 2 of article 72 of title 24; are not subject to subpoena; and are not subject to discovery or admissible in 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 to which they pertain unless the commissioner, after giving the insurer and its affiliates who would be affected notice and opportunity to be heard, determines that the interest of policyholders, shareholders, or the public will be served by the publication, in which event the commissioner may publish all or any part of the documents, materials, or other information in such manner as the commissioner deems appropriate. (b) For purposes of the information reported and provided to the division pursuant to section 10-3-804 (12)(b), the commissioner shall maintain the confidentiality of the group capital calculation and group capital ratio produced within the calculation and any group capital information received from an insurance holding company supervised by the federal reserve board or any United States group-wide supervisor. (c) For the purposes of the information reported and provided to the division pursuant to section 10-3-804 (12)(f), 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 supervised by the federal reserve board and non-United States group-wide supervisors. (2) Neither the commissioner nor any person who received 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 part 8 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. (3) In order to assist in the performance of the commissioner's duties, the commissioner: (a) [Editor's note: This version of subsection (3)(a) is effective until January 1, 2025.] May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to subsection (1) of this section, with other state, federal, and international regulatory agencies, with the NAIC and its affiliates and subsidiaries, and with state, federal, and international law enforcement authorities, including members of any supervisory college described in section 10-3-807, if the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information and has verified in writing the legal authority to maintain confidentiality; (a) [Editor's note: This version of subsection (3)(a) is effective January 1, 2025.] May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to subsection (1) of this section and proprietary and trade secret documents and materials, with other state, federal, and international regulatory agencies, with the NAIC, with any third-party consultants designated by the commissioner, and with state, federal, and international law enforcement authorities, including members of a supervisory college described in section 10-3-807, if the recipient agrees in writing to maintain the confidentiality and privileged status of the document, material, or other information or proprietary and trade secret document and material and has verified in writing the legal authority to maintain confidentiality; (b) Notwithstanding paragraph (a) of this subsection (3), shall share confidential and privileged documents, material, or information reported pursuant to section 10-3-804 (12) only with commissioners of states having statutes or regulations substantially similar to subsection (1) of this section and who have agreed in writing not to disclose such information; (c) [Editor's note: This version of subsection (3)(c) is effective until January 1, 2025.] May receive documents, materials, or information, including otherwise confidential and privileged documents, materials, or information from the NAIC and its affiliates and subsidiaries and from regulatory and law enforcement officials of other foreign or domestic jurisdictions and shall maintain as confidential or privileged any document, material, 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) [Editor's note: This version of subsection (3)(c) is effective January 1, 2025.] May receive documents, materials, or information, including otherwise confidential and privileged documents, materials, or information and proprietary and trade secret information, from the NAIC and its affiliates and subsidiaries and from regulatory and law enforcement officials of other foreign or domestic jurisdictions and shall maintain as confidential or privileged any document, material, or information or proprietary and trade secret documents and materials received with notice or the understanding that they are confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or information or proprietary and trade secret document and material; and (d) [Editor's note: This version of subsection (3)(d) is effective until January 1, 2025.] Shall enter into written agreements with the NAIC governing the sharing and use of information provided pursuant to this part 8 consistent with this subsection (3) that must: (I) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC and its affiliates and subsidiaries pursuant to this part 8, 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 its affiliates and subsidiaries pursuant to this part 8 remains with the commissioner and that 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 part 8 is subject to a request or subpoena to the NAIC for disclosure or production; and (IV) Require the NAIC and its affiliates and subsidiaries to consent to intervention by an insurer in any judicial or administrative action in which the NAIC and its affiliates and subsidiaries may be required to disclose confidential information about the insurer shared with the NAIC and its affiliates and subsidiaries pursuant to this part 8. (d) [Editor's note: This version of subsection (3)(d) is effective January 1, 2025.] Shall enter into written agreements with the NAIC and any third-party consultant designated by the commissioner governing the sharing and use of information provided pursuant to this part 8 consistent with this subsection (3) that must: (I) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC or a third-party consultant designated by the commissioner pursuant to this part 8, including procedures and protocols for sharing by the NAIC with other state, federal, or international regulators. The agreement must state that the recipient agrees to maintain the confidentiality and privileged status of the documents, materials, or other information or proprietary and trade secret documents and materials and has verified in writing the legal authority to maintain such confidentiality. (II) Specify that ownership of information shared with the NAIC or a third-party consultant pursuant to this part 8 remains with the commissioner and that the use of the information by the NAIC or the third-party consultant as designated by the commissioner is subject to the direction of the commissioner; (II.5) Excluding documents, material, or information reported pursuant to section 10-3- 804 (12)(f), prohibit the NAIC or a third-party consultant designated by the commissioner from storing the information shared pursuant to this section in a permanent database after the underlying analysis is completed; (III) Require prompt notice to be given to an insurer whose confidential information in the possession of the NAIC or third-party consultant designated by the commissioner pursuant to this part 8 is subject to a request or subpoena to the NAIC or third-party consultant designated by the commissioner for disclosure or production; (IV) Require the NAIC or a third-party consultant designated by the commissioner to consent to intervention by an insurer in any judicial or administrative action in which the NAIC or a third-party consultant designated by the commissioner may be required to disclose confidential information about the insurer shared with the NAIC or a third-party consultant designated by the commissioner pursuant to this part 8; and (V) For documents, materials, or information reported pursuant to section 10-3-804 (12)(f), where there is an agreement involving a third-party consultant, provide for notification of the identity of the consultant to the applicable insurers. (4) The sharing of information by the commissioner pursuant to this part 8 does not constitute a delegation of regulatory authority or rule-making, and the commissioner is solely responsible for the administration, execution, and enforcement of this part 8. (5) No waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information occurs as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (3) of this section. (6) [Editor's note: This version of subsection (6) is effective until January 1, 2025.] Documents, materials, or other information in the possession or control of the NAIC pursuant to this part 8 are confidential by law and privileged, are not subject to the "Colorado Open Records Act", part 2 of article 72 of title 24, C.R.S., are not subject to subpoena, and are not subject to discovery or admissible in evidence in any private civil action. (6) [Editor's note: This version of subsection (6) is effective January 1, 2025.] Documents, materials, or other information or proprietary and trade secret documents and materials in the possession or control of the NAIC or a third-party consultant designated by the commissioner pursuant to this part 8 are confidential by law and privileged; are not subject to the "Colorado Open Records Act", part 2 of article 72 of title 24; are not subject to subpoena; and are not subject to discovery or admissible in evidence in any private civil action. (7) [Editor's note: Subsection (7) is effective January 1, 2025.] (a) The group capital calculation and resulting group capital ratio required by section 10-3-804 (12)(b) and the liquidity stress test along with its results and supporting disclosures required by section 10-3-804 (12)(f) are regulatory tools for assessing group risks and capital adequacy and group liquidity risks, respectively, and are not intended as a means to rank insurers or insurance holding company systems generally. (b) (I) Except as provided in subsection (7)(b)(II) of this section, any insurer, broker, or other person engaged in any manner in the insurance business shall not advertise, announce, or state a representation regarding the group capital calculation, group capital ratio, liquidity stress test results, or supporting disclosures for the liquidity stress test of any insurer or any insurer group, or of any component derived in the calculation by directly or indirectly making, publishing, disseminating, circulating, or placing the representation before the public: (A) In a newspaper, a magazine, or other publication; or (B) In the form of a notice, circular, pamphlet, letter, or poster; or (C) Over any radio or television station or any electronic means of communication available to the public; or (D) In any other way as an advertisement. (II) An insurer may publish an announcement, advertisement, or statement described in subsection (7)(b)(I) of this section in a written publication if the sole purpose of the announcement is to rebut the materially false statement when the announcement, advertisement, or statement was published in a written publication and the insurer is able to demonstrate to the commissioner with substantial proof the falsity or inappropriateness of such announcement, advertisement, or statement.
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