                                 CODE OF VIRGINIA

CONFIDENTIALITY (§ 38.2-1382)

A. For purposes of this section, &#8220;confidential information&#8221; means:

   1. A memorandum in support of an opinion submitted under &#xA7; 38.2-1367 and
   any other documents, materials, and other information, including all working
   papers, and copies thereof, created, produced, or obtained by or disclosed to
   the Commission or any other person in connection with such memorandum;

   2. All documents, materials, and other information, including all working
   papers and copies thereof created, produced, or obtained by or disclosed to
   the Commission or any other person in the course of an examination made under
   subsection F of &#xA7; 38.2-1379, provided, however, that if an examination
   report or other material prepared in connection with an examination made under
   Article 4 (&#xA7; 38.2-1317 et seq.) of Chapter 13 is not held as private and
   confidential information under Article 4, an examination report or other
   material prepared in connection with an examination made under subsection F of
   &#xA7; 38.2-1379 shall not be &#8220;confidential information&#8221; to the
   same extent as if such examination report or other material had been prepared
   under Article 4;

   3. Any reports, documents, materials, and other information developed by an
   insurer in support of, or in connection with, an annual certification by the
   insurer under subdivision B 2 of &#xA7; 38.2-1380 evaluating the effectiveness
   of the insurer&#8217;s internal controls with respect to a principle-based
   valuation and any other documents, materials, and other information, including
   all working papers and copies thereof created, produced, or obtained by or
   disclosed to the Commission or any other person in connection with such
   reports, documents, materials, and other information;

   4. Any principle-based valuation report developed under subdivision B 3 of
   &#xA7; 38.2-1380 and any other documents, materials, and other information,
   including all working papers and copies thereof created, produced, or obtained
   by or disclosed to the Commission or any other person in connection with such
   report; and

   5. Any documents, materials, data, and other information submitted by an
   insurer under &#xA7; 38.2-1381 (which are collectively referred to in this
   section as &#8220;experience data&#8221;) and any other documents, materials,
   data, and other information, including all working papers and copies thereof
   created or produced in connection with such experience data, in each case that
   includes any potentially company-identifying or personally identifiable
   information, that is provided to or obtained by the Commission (which,
   together with any experience data, are referred to in this section as the
   &#8220;experience materials&#8221;), and any other documents, materials, data,
   and other information, including all working papers and copies thereof
   created, produced, or obtained by or disclosed to the Commission or any other
   person in connection with such experience materials.

B. Privilege for, and confidentiality of, confidential information shall be
governed by the following provisions:

   1. Except as provided in this section, an insurer&#8217;s confidential
   information is confidential by law and privileged, and shall not be subject to
   subpoena and shall not be subject to discovery or admissible in evidence in
   any private civil action, provided, however, that the Commission is authorized
   to use the confidential information in the furtherance of any regulatory or
   legal action brought against an insurer as a part of the Commission&#8217;s
   official duties;

   2. Neither the Commission nor any person who received confidential information
   while acting under the authority of the Commission shall be permitted or
   required to testify in any private civil action concerning any confidential
   information;

   3. In order to assist in the performance of the Commission&#8217;s duties, the
   Commission may share confidential information (i) with other state, federal,
   and international regulatory agencies and with the NAIC and its affiliates and
   subsidiaries and (ii) in the case of confidential information specified in
   subdivisions A 1 and A 4 only, with the Actuarial Board for Counseling and
   Discipline or its successor upon request stating that the confidential
   information is required for the purpose of professional disciplinary
   proceedings and with state, federal, and international law-enforcement
   officials; in the case of clauses (i) and (ii), provided that such recipient
   agrees, and has the legal authority to agree, to maintain the confidentiality
   and privileged status of such documents, materials, data, and other
   information in the same manner and to the same extent as required for the
   Commission;

   4. The Commission may receive documents, materials, data, and other
   information, including otherwise confidential and privileged documents,
   materials, data, or information, from the NAIC and its affiliates and
   subsidiaries, from regulatory or law-enforcement officials of other foreign or
   domestic jurisdictions, and from the Actuarial Board for Counseling and
   Discipline or its successor and shall maintain as confidential or privileged
   any document, material, data, 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;

   5. The Commission may enter into agreements governing sharing and use of
   information consistent with this subsection;

   6. No waiver of any applicable privilege or claim of confidentiality in the
   confidential information shall occur as a result of disclosure to the
   Commission under this section or as a result of sharing as authorized in
   subdivision 3;

   7. A privilege established under the law of any state or jurisdiction that is
   substantially similar to the privilege established under this subsection shall
   be available and enforced in any proceeding in, and in any court of, the
   Commonwealth; and

   8. As used in this section, &#8220;regulatory agency,&#8221;
   &#8220;law-enforcement agency,&#8221; and &#8220;NAIC&#8221; include their
   employees, agents, consultants, and contractors.

C. Notwithstanding subsection B, any confidential information specified in
subdivisions A 1 and A 4:

   1. May be subject to subpoena for the purpose of defending an action seeking
   damages from the appointed actuary submitting the related memorandum in
   support of an opinion submitted under &#xA7; 38.2-1367 or principle-based
   valuation report developed under subdivision B 3 &#xA7; 38.2-1380 by reason of
   an action required by this article or by regulations adopted hereunder;

   2. May otherwise be released by the Commission with the written consent of the
   insurer; and

   3. Once any portion of a memorandum in support of an opinion submitted under
   &#xA7; 38.2-1367 or a principle-based valuation report developed under
   subdivision B 3 &#xA7; 38.2-1380 is cited by an insurer in its marketing or is
   publicly volunteered to or before a governmental agency other than a state
   insurance department or is released by an insurer to the news media, all
   portions of such memorandum or report shall no longer be confidential.

HISTORY: 2014, c. 571.