(a) Documents, materials, or other information, including the ORSA Summary Report, ("ORSA-related information") in the possession or control of the Department that are obtained by, created by, or disclosed to the Commissioner or other person acting under the authority of the Commissioner shall be deemed by the District as proprietary, to contain trade secrets, confidential, and privileged, not subject to subchapter II of Chapter 5 of Title 2, not subject to subpoena, and not subject to discovery or admissible in evidence in any private civil action.
(b) Notwithstanding subsection (a) of this section, the Commissioner may use the ORSA-related information in the furtherance of any regulatory or legal action brought as part of the Commissioner's official duties; provided, that the Commissioner shall not otherwise make the ORSA-related information public without the prior written consent of the insurer.
(c) Neither the Commissioner nor any other person acting under the authority of the Commissioner who has received ORSA-related information, through examination or otherwise, shall be permitted or required to testify in any private civil action concerning any ORSA-related information.
(d)(1) To assist in the performance of the Commissioner's regulatory duties, the Commissioner may:
(A) Upon request, share ORSA-related information with other District, state, federal, or international financial regulatory agencies, including members of any supervisory college in accordance with the Holding Company System Act, with NAIC, or a third-party consultant designated by the Commissioner; provided, that the recipient agrees in writing to maintain the confidentiality and privileged status of the ORSA-related information and verifies in writing that it has the legal authority to maintain the confidentiality and privileged status of the ORSA-related information under all applicable laws and regulations; and
(B) Receive ORSA-related information, including otherwise confidential and privileged documents, materials or information, from state, federal, or international financial regulatory agencies, including members of any supervisory college in accordance with the Holding Company System Act and from NAIC, and shall maintain as confidential or privileged any documents, materials, or information received with notice that it is confidential or privileged under the laws of the jurisdiction that is the source of the ORSA-related information.
(2) The Commissioner shall enter into a written agreement with NAIC or a third-party consultant ("recipient") governing the sharing and use of this information provided pursuant to this chapter, which shall:
(A) Specify procedures and protocols to be used to protect the confidentiality and security of information, and, in the case of an agreement with NAIC, including procedures and protocols for sharing the information with other state regulators from states in which an insurance group has domiciled insurers;
(B) Require the recipient to maintain the confidentiality and privileged status of the ORSA-related information or other information and to verify that the recipient has the legal authority to maintain confidentiality and privileged status of the ORSA-related information or other information under all applicable laws and regulations;
(C) Specify that the Commissioner retains ownership of the information and that the use of the information is subject to the direction of the Commissioner;
(D) Prohibit the recipient from storing the information in a permanent database after the underlying analysis is completed;
(E) Require the Department to give prompt notice to an insurer whose confidential information is in the possession of the recipient and is subject to a request or subpoena for disclosure or production in a judicial or administrative action;
(F) Require the recipient to consent to intervention by an insurer in a judicial or administrative action in which the recipient may be required to disclose confidential information about the insurer shared with the recipient; and
(G) In the case of an agreement with a third-party consultant, provide for the insurer's written consent.
(e) The Commissioner is solely responsible for the administration and execution of this chapter and sharing ORSA-related information by the Commissioner with another regulatory authority shall not constitute a delegation of regulatory authority.
(f) No waiver of any applicable privilege or claim of confidentiality in the ORSA-related information shall occur as a result of disclosure of the ORSA-related information to the Commissioner under this section or as a result of sharing the ORSA-related information, as authorized in this chapter. The ORSA-related information shall retain the confidential status specified in subsection (a) of this section notwithstanding its lawful disclosure to the Commissioner, NAIC, or a third-party consultant.
(Mar. 28, 2019, D.C. Law 22-269, § 8, 66 DCR 1438.)