A. All documents, materials or other information in the possession or control of the office of superintendent of insurance that are obtained by or disclosed to the superintendent or any other person in the course of an examination or investigation made pursuant to Sections 59A-37-20 through 59A-37-22 NMSA 1978, and all information reported pursuant to Section 59A-37-4 NMSA 1978, shall be confidential and shall not be subject to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978]. Nothing in this section shall be construed as a grant of privilege or confidentiality or a bar to production of that information by an insurer in a civil suit, whether or not the office of superintendent of insurance is a party; provided that the superintendent may use the documents, materials or other information in a regulatory or legal action brought in the course of the superintendent's official duties. The documents, materials or other information shall not be made public by the superintendent 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 superintendent, after giving the insurer and its affiliates that would be affected by them, notice and an opportunity to be heard, determines that the interests of the policyholders, shareholders or the public will be served by the publication of them, in which case the superintendent may publish all or any part of them in the manner the superintendent deems appropriate.

B. Neither the superintendent nor a person who receives documents, materials or other information while acting pursuant to the authority of the superintendent or with whom such documents, materials or other information are shared pursuant to the Insurance Holding Company Law shall be permitted or required in a private civil action to testify on the confidential documents, materials or information identified in Subsection A of this section.

C. To assist in the performance of the superintendent's duties, the superintendent:

1. (1) may share documents, materials or other information, including the confidential and privileged documents, materials or information subject to Subsection A of this section, with other state, federal and international regulatory agencies, with the national association of insurance commissioners, its affiliates or its subsidiaries and with state, federal and international law enforcement authorities, including members of a supervisory college described in Section 59A-37-32 NMSA 1978, if the recipient agrees in writing to maintain the confidentiality and privilege of the document, materials or other information and has cited in writing the legal authority to maintain the confidentiality;
2. (2) in the case of confidential and privileged documents, materials or information reported pursuant to Section 59A-37-30 NMSA 1978, and notwithstanding Paragraph (1) of this subsection, may share that information only with insurance supervisory officials of states that have statutes or regulations substantially similar to Subsection A of this section and that have agreed in writing not to disclose that information;
3. (3) may receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners, its affiliates or its subsidiaries and from regulatory and law enforcement officials of foreign or domestic jurisdictions but shall maintain as confidential or privileged documents, materials or other information received with notice or the understanding that the content is confidential or privileged pursuant to the laws of the jurisdiction from which the information originates; and

4. (4) shall, pursuant to the Insurance Holding Company Law, enter into written agreements with the national association of insurance commissioners that govern the sharing and use of information, that are consistent with this subsection and that:

   1. (a) specify procedures and protocols for maintaining the confidentiality and security of information shared with the national association of insurance commissioners, its affiliates or its subsidiaries, including procedures and protocols for the sharing between the national association of insurance commissioners and other state, federal or international regulators;
   2. (b) provide that the superintendent retains ownership and governs the use of information shared with the national association of insurance commissioners, its affiliates or its subsidiaries;
   3. (c) require that the national association of insurance commissioners promptly notify an insurer whose confidential information it possesses when that information is the subject of a request or subpoena for disclosure or production; and

   4. (d) require that, in a judicial or administrative action in which the national association of insurance commissioners, its affiliates or its subsidiaries may be required to disclose shared confidential information about the insurer, the national association of insurance commissioners, its affiliates or its subsidiaries consent to intervention by the insurer.

      D. The sharing of information by the superintendent pursuant to the Insurance Holding Company Law is not a delegation of regulatory authority or rulemaking. The superintendent alone is responsible for the administration, execution and enforcement of the provisions of the Insurance Holding Company Law.

      E. The disclosure of documents, materials or information to the superintendent pursuant to this section or the sharing authorized by Subsection C of this section does not constitute a waiver of an applicable privilege or a claim of confidentiality.

History: Laws 1984, ch. 127, § 639; 2014, ch. 59, § 41.

ANNOTATIONS

The 2014 amendment, effective July 1, 2014, clarified the terms of confidentiality and sharing of certain information under the control of the superintendent; in Subsection A, in the first sentence, after "All", deleted "information", after "All documents", deleted "and copies thereof" and added "materials or other information in the possession or control of the office of superintendent of insurance that are", after "made pursuant to Sections", deleted "635 through 637 of this article" and added "59A-37-20 through 59A-37-22 NMSA 1978", after "reported pursuant to Section", deleted "619 of this article" and added "59A-37-4 NMSA 1978", after "NMSA 1978 shall be", deleted "given", after "NMSA 1978 shall be confidential", deleted "treatment, shall not be subject to subpoena and" and added "and shall not be subject to the Inspection of Public Records Act", added the second sentence, and in the third sentence, added "The documents, materials or other information", and after "superintendent or any other person", added "except to insurance departments of other states"; added Subsections B, C, D and E.

Severability. — Laws 2014, ch. 59, § 54 provided that if any part or application of the provisions of Laws 2014, ch. 59 is held invalid, the remainder or its application to other situations or persons shall not be affected.