(a) For purposes of this section, “confidential information” means all of the following:

(1) A memorandum in support of an opinion submitted under § 1113 of this this title and any other documents, materials and other information, including, but not limited to, all working papers, and copies thereof, created, produced or obtained by or disclosed to the Commissioner or any other person in connection with such memorandum;

(2) All documents, materials and other information, including, but not limited to, all working papers, and copies thereof, created, produced or obtained by or disclosed to the Commissioner or any other person in the course of an examination made under § 1121(f) of this title; provided, however, that if an examination report or other material prepared in connection with an examination made under Chapter 3 of this title is not held as private and confidential information under Chapter 3 of this title, an examination report or other material prepared in connection with an examination made under § 1121(f) of this title shall not be confidential information to the same extent as if such examination report or other material had been prepared under Chapter 3 of this title;

(3) Any reports, documents, materials and other information developed by a company in support of, or in connection with, an annual certification by the company under § 1122(b)(2) of this title evaluating the effectiveness of the company’s internal controls with respect to a principle-based valuation and any other documents, materials and other information, including, but not limited to, all working papers, and copies thereof, created, produced or obtained by or disclosed to the Commissioner or any other person in connection with such reports, documents, materials and other information;

(4) Any principle-based valuation report developed under § 1122(b)(3) of this title and any other documents, materials and other information, including, but not limited to, all working papers, and copies thereof, created, produced or obtained by or disclosed to the Commissioner or any other person in connection with such report; and

(5) Any documents, materials, data and other information submitted by a company under § 1123 of this title (collectively “experience data”) and any other documents, materials, data and other information, including, but not limited to, all working papers, and copies thereof, created or produced in connection with such experience data, in each case that include any potentially company-identifying or personally identifiable information, that is provided to or obtained by the Commissioner (together with any experience data, the “experience materials”) and any other documents, materials, data and other information, including, but not limited to, all working papers, and copies thereof, created, produced or obtained by or disclosed to the Commissioner or any other person in connection with such experience materials.

(b) Privilege for, and confidentiality of, confidential information. — (1) Except as provided in this section, a company’s confidential information is confidential by law and privileged, and shall not be subject to this State’s Freedom of Information Act (Chapter 100 of Title 29), 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 Commissioner is authorized to use the confidential information in the furtherance of any regulatory or legal action brought against the company as a part of the Commissioner’s official duties.

(2) Neither the Commissioner nor any person who received confidential information while acting under the authority of the Commissioner 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 Commissioner’s duties, the Commissioner may share confidential information:

(A) With other state, federal and international regulatory agencies and with the NAIC and its affiliates and subsidiaries; and

(B) In the case of confidential information specified in paragraphs (a)(1) and (a)(4) of this section 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 paragraph (b)(3)(A) of this section and this paragraph (b)(3)(B), 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 Commissioner.

(4) The Commissioner 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 Commissioner may enter into agreements governing sharing and use of information consistent with this subsection (b) of this section.

(6) No waiver of any applicable privilege or claim of confidentiality in the Confidential Information shall occur as a result of disclosure to the Commissioner under this section or as a result of sharing as authorized in paragraph (b)(3) of this section.

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

(8) For purposes of this section, “regulatory agency,” “law-enforcement agency” and the “NAIC” include, but are not limited to, their employees, agents, consultants and contractors.

(c) Notwithstanding subsection (b) of this section, any confidential information specified in paragraphs (a)(1) and (a)(4) of this section:

(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 § 1113 of this title or principle-based valuation report developed under § 1122(b)(3) of this title by reason of an action required by this Act or by regulations promulgated hereunder;

(2) May otherwise be released by the Commissioner with the written consent of the company; and

(3) Once any portion of a memorandum in support of an opinion submitted under § 1113 of this title or a principle-based valuation report developed under § 1122(b)(3) of this title is cited by the company in its marketing or is publicly volunteered to or before a governmental agency other than a state insurance department or is released by the company to the news media, all portions of such memorandum or report shall no longer be confidential.

80 Del. Laws, c. 117, § 1.