§ 31–708. Confidential treatment.

(a) Documents, materials, or other information in the possession or control of the Department of Insurance, Securities, and Banking that are obtained by or disclosed to the Commissioner or any other person in the course of an examination or investigation made under § 31-707, and all information reported under §§ 31-705 and 31-706, shall be confidential and privileged; shall not be subject to subchapter II of Chapter 5 of Title 2; shall not be subject to subpoena; and shall not be subject to discovery or admissible in evidence in a private civil action; provided, that:

(1) 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.

(2) The Commissioner may make the documents, materials, or other information public with the prior written consent of the insurer to which it pertains.

(3) If 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 of the documents, materials, or other information, the Commissioner may publish all or any part of the documents, materials, or other information in the manner that the Commissioner considers appropriate.

(b) The Commissioner or any person who received documents, materials, or other information while acting under the authority of the Commissioner or any person with whom such documents, materials, or other information are shared pursuant to this subchapter shall not be permitted or required to testify in a private civil action concerning confidential documents, materials, or other information subject to subsection (a) of this section.

(1) May share documents, materials, or other information, including confidential and privileged documents, materials, or other information subject to subsection (a) of this section, with other state, federal, and international regulatory agencies; with the National Association of Insurance Commissioners, including its affiliates and subsidiaries; and with state, federal, and international law enforcement authorities, including members of any supervisory college as described in § 31-707.01; provided, that the recipient agrees in writing, and has the legal authority, to maintain the confidentiality and privileged status of the documents, materials, or other information, and has verified in writing the legal authority to maintain confidentiality;

(1A) Notwithstanding paragraph (1) of this subsection, the Commissioner may only share confidential and privileged documents, material, or information reported pursuant to § 31-705 or § 31-706 with commissioners of states having statutes or regulations substantially similar to the provisions set forth in subsection (a) of this section and who have agreed in writing not to disclose such information.

(2) May receive documents, materials, or other information, including confidential and privileged documents, materials, or other information, from the National Association of Insurance Commissioners, including 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 other 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 other information; or

(3) Shall enter into written agreements with the National Association of Insurance Commissioners (“NAIC”) governing the sharing and use of information provided pursuant to this subchapter and consistent with this subsection that shall:

(A) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC and its affiliates and subsidiaries pursuant to this chpater, including procedures and protocols for sharing that information by the NAIC with other state, federal, or international regulators;

(B) Specify that ownership of information shared with the NAIC and its affiliates and subsidiaries pursuant to this subchapter remains with the Mayor and that the use of the information by the NAIC shall be subject to the direction of the Mayor;

(C) Require prompt notice to be given to an insurer whose confidential information in the possession of the NAIC pursuant to this subchapter is subject to a request or subpoena to the NAIC for disclosure or production; and

(D) 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 subchapter.

(c-1) The sharing of information by the Mayor pursuant to this subchapter shall not constitute a delegation of regulatory authority or rulemaking. The Mayor shall be solely responsible for the administration, execution. and enforcement of the provisions of this subchapter.

(d) No waiver of an applicable privilege or claim of confidentiality in the documents, materials, or other information shall occur as a result of disclosure to the Commissioner under this section or of sharing as authorized in subsection (c) of this section. Nothing in this section shall require an insurer to disclose documents, materials, or other information that is not otherwise required by law to be disclosed.

(d-1) Documents, materials, or other information in the possession or control of the NAIC pursuant to this subchapter shall be confidential by law and privileged, shall not be subject to subchapter II of Chapter 5 of Title 2 [§ 2-531 et seq.], shall not be subject to subpoena, and shall not be subject to discovery or admissible into evidence in any private civil action.

(Oct. 21, 1993, D.C. Law 10-44, § 9, 40 DCR 6027; Oct. 21, 2000, D.C. Law 13-191, § 3, 47 DCR 7311; June 11, 2004, D.C. Law 15-166, § 4(e), 51 DCR 2817; Mar. 11, 2015, D.C. Law 20-235, § 2(h), 62 DCR 461.)

Prior Codifications

1981 Ed., § 35-3708.

Section References

This section is referenced in § 31-704.

Effect of Amendments

D.C. Law 13-191 rewrote this section which formerly provided: “All information, documents, and copies obtained by or disclosed to the Mayor or any other person in the course of an examination or investigation made pursuant to § 35-3707 and all information reported pursuant to §§ 35-3705 and 35-3706 shall be given confidential treatment, shall not be subject to subpoena, and shall not be made public by the Mayor, the National Association of Insurance Commissioners, or any other person, except to insurance departments of other states, without the prior written consent of the insurer to which it pertains, unless the Mayor, 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 publication, in which event the Mayor may publish all or any part in such a manner as he or she deems appropriate.”

D.C. Law 15-166, in subsec. (a), substituted “Department of Insurance, Securities, and Banking” for “Department of Insurance and Securities Regulation”.

The 2015 amendment by D.C. Law 20-235 substituted “Commissioner or any person with whom such documents, materials, or other information are shared pursuant to this chapter” for “Commissioner” in (b); in (c)(1), added “including members of any supervisory college as described in § 31-707.01,” substituted “recipient agrees in writing” for “recipient agrees” and added “and has verified in writing the legal authority to maintain confidentiality”; added (c)(1A); rewrote (c)(3); and added (c-1) and (d-1).

Emergency Legislation

For temporary (90 day) amendment of section, see § 4(e) of Consolidation of Financial Services Emergency Amendment Act of 2004 (D.C. Act 15-381, February 27, 2004, 51 DCR 2653).