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H0659...........................................................by BUSINESS INSURANCE - Adds to and amends existing law to establish a privilege from disclosure for insurance self-evaluative programs. 02/22 House intro - 1st rdg - to printing 02/23 Rpt prt - to Bus
H0659|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature Second Regular Session - 2000IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 659 BY BUSINESS COMMITTEE 1 AN ACT 2 RELATING TO PRIVILEGE FROM DISCLOSURE FOR INSURANCE SELF-EVALUATIVE PROGRAMS; 3 AMENDING CHAPTER 3, TITLE 41, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 4 41-349, IDAHO CODE, TO SET FORTH A PRIVILEGE FROM DISCLOSURE FOR VOLUNTARY 5 INTERNAL AUDITS OF COMPLIANCE PROGRAMS AND MANAGEMENT SYSTEMS FOR INSUR- 6 ERS; AND AMENDING SECTION 9-340D, IDAHO CODE, TO INCLUDE THE EXEMPTION IN 7 RECORDS EXEMPT FROM DISCLOSURE. 8 Be It Enacted by the Legislature of the State of Idaho: 9 SECTION 1. That Chapter 3, Title 41, Idaho Code, be, and the same is 10 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 11 ignated as Section 41-349, Idaho Code, and to read as follows: 12 41-349. INSURANCE COMPLIANCE SELF-EVALUATIVE PRIVILEGE. (1) To encourage 13 insurers and other persons conducting activities regulated under title 41, 14 Idaho Code, both to conduct voluntary internal audits of their compliance pro- 15 grams and management systems and to assess and improve compliance with state 16 and federal statutes, rules and orders, an insurance compliance self- 17 evaluative privilege is recognized to protect the confidentiality of communi- 18 cations relating to voluntary internal compliance audits. The Idaho legisla- 19 ture hereby finds and declares that protection of insurance consumers is 20 enhanced by insurers' and persons' voluntary compliance with this state's 21 insurance and other laws and that the public will benefit from incentives to 22 identify and remedy insurance and other compliance issues. It is further 23 declared that limited protection against disclosure will encourage voluntary 24 compliance and improve insurance market conduct quality and that the voluntary 25 provisions of this section will not inhibit the exercise of the regulatory 26 authority by those entrusted with protecting insurance consumers. 27 (2) (a) An insurance compliance self-evaluative audit document is privi- 28 leged information and is not admissible as evidence in any legal action in 29 any civil, criminal or administrative proceeding, except as provided in 30 subsections (3) and (4) of this section. Documents, communications, data, 31 reports or other information created as a result of a claim involving per- 32 sonal injury or worker's compensation made against an insurance policy are 33 not insurance compliance self-evaluative audit documents and are admissi- 34 ble as evidence in civil proceedings as otherwise provided by applicable 35 rules of evidence or civil procedure, subject to all applicable statutory 36 or common law privileges. 37 (b) If any insurer or other person performs or directs the performance of 38 an insurance compliance audit, an officer or employee involved with the 39 insurance compliance audit, or any consultant who is hired for the purpose 40 of performing the insurance compliance audit, may not be examined in any 41 civil, criminal or administrative proceeding as to the insurance compli- 42 ance audit or any insurance compliance self-evaluative audit document, as 43 defined in this section. This subsection (2)(b) does not apply if the 2 1 privilege set forth in subsection (2)(a) of this section is determined 2 under subsections (3) or (4) not to apply. 3 (c) An insurer may voluntarily submit, in connection with examinations 4 conducted under title 41, Idaho Code, an insurance compliance self- 5 evaluative audit document to the director of the department of insurance, 6 or his or her designee, as a confidential document under subsection (10) 7 of section 41-227, Idaho Code, without waiving the privilege set forth in 8 this section to which the insurer would otherwise be entitled. Nothing 9 contained in this subsection shall give the director any authority to com- 10 pel an insurer to disclose involuntarily or otherwise provide an insurance 11 compliance self-evaluative audit document, section 41-223, Idaho Code, 12 notwithstanding. 13 (3) (a) The privilege set forth in subsection (2) of this section does 14 not apply to the extent that it is expressly waived by the insurer that 15 prepared or caused to be prepared the insurance compliance self-evaluative 16 audit document. 17 (b) In a civil or administrative proceeding, a court of record may, after 18 an in camera review, require disclosure of material for which the privi- 19 lege set forth in subsection (2) of this section is asserted, if the court 20 determines one (1) of the following: 21 (i) The privilege is asserted for a fraudulent purpose; 22 (ii) The material is not subject to the privilege; or 23 (iii) Even if subject to the privilege, the material shows evidence 24 of noncompliance with state and federal statutes, rules and orders 25 and the insurer failed to undertake reasonable corrective action or 26 eliminate the noncompliance within a reasonable time. 27 (c) In a criminal proceeding, a court of record may, after an in camera 28 review, require disclosure of material for which the privilege described 29 in subsection (2) of this section is asserted, if the court determines one 30 (1) of the following: 31 (i) The privilege is asserted for a fraudulent purpose; 32 (ii) The material is not subject to the privilege; 33 (iii) Even if subject to the privilege, the material shows evidence 34 of noncompliance with state and federal statutes, rules and orders 35 and the insurer failed to undertake reasonable corrective action or 36 eliminate the noncompliance within a reasonable time; or 37 (iv) The material contained evidence relevant to commission of a 38 criminal offense under the Idaho Code and all of the following fac- 39 tors are present: 40 1. The director of the department of insurance, a prosecuting 41 attorney or the attorney general has a compelling need for the 42 information; 43 2. The information is not otherwise available; and 44 3. The director of the department of insurance, a prosecuting 45 attorney or the attorney general is unable to obtain the sub- 46 stantial equivalent of the information by any means without 47 incurring unreasonable cost and delay. 48 (4) (a) Within thirty (30) days after the director, prosecuting attorney, 49 or attorney general makes a written request by certified mail for disclo- 50 sure of an insurance compliance self-evaluative audit document under this 51 subsection, the insurer that prepared or caused the document to be pre- 52 pared may file with the appropriate court a petition requesting an in cam- 53 era hearing on whether the insurance compliance self-evaluative audit doc- 54 ument or portions of the document are privileged under this section or 55 subject to disclosure. The court has jurisdiction over a petition filed by 3 1 an insurer under this subsection requesting an in camera hearing on 2 whether the insurance compliance self-evaluative audit document or por- 3 tions of the document are privileged or subject to disclosure. Failure by 4 the insurer to file a petition waives the privilege. 5 (b) An insurer asserting the insurance compliance self-evaluative privi- 6 lege in response to a request for disclosure under this subsection shall 7 include in its request for an in camera hearing all of the information set 8 forth in subsection (4)(e) of this section. 9 (c) Upon the filing of a petition under this subsection, the court shall 10 issue an order scheduling, within forty-five (45) days after the filing of 11 the petition, an in camera hearing to determine whether the insurance com- 12 pliance self-evaluative audit document or portions of the document are 13 privileged under this section or subject to disclosure. 14 (d) The court, after an in camera review, may require disclosure of mate- 15 rial for which the privilege in subsection (2) of this section is asserted 16 if the court determines, based upon its in camera review, that any one (1) 17 of the conditions set forth in subsection (3)(b)(i) through (iii) of this 18 section is applicable to a civil or administrative proceeding or that any 19 one (1) of the conditions set forth in subsection (3)(c)(i) through (iv) 20 of this section is applicable as to a criminal proceeding. Upon making 21 such a determination, the court may only compel the disclosure of those 22 portions of an insurance compliance self-evaluative audit document rele- 23 vant to issues in dispute in the underlying proceeding. Any compelled dis- 24 closure will not be considered to be a public document or be deemed to be 25 a waiver of the privilege for any other civil, criminal or administrative 26 proceeding. A party unsuccessfully opposing disclosure may apply to the 27 court for an appropriate order protecting the document from further dis- 28 closure. 29 (e) An insurer asserting the insurance compliance self-evaluative privi- 30 lege in response to a request for disclosure under this subsection (4) 31 shall provide to the director of the department of insurance, a prosecut- 32 ing attorney or the attorney general, as the case may be, at the time of 33 filing any objection to the disclosure, all of the following information: 34 (i) The date of the insurance compliance self-evaluative audit doc- 35 ument; 36 (ii) The identity of the entity conducting the audit; 37 (iii) The general nature of the activities covered by the insurance 38 compliance audit; and 39 (iv) An identification of the portions of the insurance compliance 40 self-evaluative audit document for which the privilege is being 41 asserted. 42 (5) (a) An insurer asserting the insurance compliance self-evaluative 43 privilege set forth in subsection (2) of this section has the burden of 44 demonstrating the applicability of the privilege. Once an insurer has 45 established the applicability of the privilege, a party seeking disclosure 46 under subsections (3)(b)(i) through (iii) of this section has the burden 47 of proving that the privilege is asserted for a fraudulent purpose or that 48 the insurer failed to undertake reasonable corrective action or eliminate 49 the noncompliance within a reasonable time. The director, prosecuting 50 attorney or attorney general seeking disclosure under subsection (3)(c) of 51 this section has the burden of proving the elements set forth in subsec- 52 tion (3)(c) of this section. 53 (b) The parties may at any time stipulate in proceedings under subsection 54 (3) or (4) of this section to entry of an order directing that specific 55 information contained in an insurance compliance self-evaluative audit 4 1 document is or is not subject to the privilege provided under subsection 2 (2) of this section. 3 (6) The privilege set forth in subsection (2) of this section shall not 4 extend to any of the following: 5 (a) Documents, communications, data, reports or other information 6 required to be collected, developed, maintained, reported or otherwise 7 made available to a regulatory agency pursuant to the Idaho Code, or other 8 federal or state law, rule or order; 9 (b) Information obtained by observation or monitoring by any regulatory 10 agency; or 11 (c) Information obtained from a source independent of the insurance com- 12 pliance audit. 13 (7) As used in this section: 14 (a) "Insurance compliance audit" means a voluntary, internal evaluation, 15 review, assessment or audit which is not otherwise expressly required by 16 law of an insurer of an activity regulated under title 41, Idaho Code, or 17 other state or federal law, rule or order applicable to an insurer, or of 18 management systems related to the insurer or such activity, that is 19 designed to identify and prevent noncompliance and to improve compliance 20 with those statutes, rules or orders. An insurance compliance audit may be 21 conducted by the insurer, its employees or by independent contractors. 22 (b) "Insurance compliance self-evaluative audit document" means documents 23 prepared as a result of or in connection with, but not prior to, an insur- 24 ance compliance audit. An insurance compliance self-evaluative audit docu- 25 ment may include a written response to the findings of an insurance com- 26 pliance audit. An insurance compliance self-evaluative audit document may 27 include, but is not limited to, as applicable, field notes and records of 28 observations, findings, opinions, suggestions, conclusions, drafts, memo- 29 randa, drawings, photographs, computer-generated or electronically 30 recorded information, phone records, maps, charts, graphs and surveys, 31 provided this supporting information is collected or developed for the 32 primary purpose and in the course of an insurance compliance audit. An 33 insurance compliance self-evaluative audit document may also include any 34 of the following: 35 (i) An insurance compliance audit report prepared by an auditor, 36 who may be an employee of the insurer or an independent contractor, 37 which may include the scope of the audit, the information gained in 38 the audit, and conclusions and recommendations, with exhibits and 39 appendices; 40 (ii) Memoranda and documents analyzing portions or all of the insur- 41 ance compliance audit report and discussing potential implementation 42 issues; 43 (iii) An implementation plan that addresses correcting past noncom- 44 pliance, improving current compliance, and preventing future noncom- 45 pliance; or 46 (iv) Analytic data generated in the course of conducting the insur- 47 ance compliance audit. 48 (c) "Insurer" and "person" shall have the same meaning as provided in 49 sections 41-103 and 41-104, Idaho Code. 50 (8) Nothing in this section shall limit, waive or abrogate the scope or 51 nature of any statutory or common law privilege including, but not limited to, 52 the work product doctrine, the attorney client privilege or the subsequent 53 remedial measures exclusion. 54 SECTION 2. That Section 9-340D, Idaho Code, be, and the same is hereby 5 1 amended to read as follows: 2 9-340D. RECORDS EXEMPT FROM DISCLOSURE -- TRADE SECRETS, PRODUCTION 3 RECORDS, APPRAISALS, BIDS, PROPRIETARY INFORMATION. The following records are 4 exempt from disclosure: 5 (1) Trade secrets including those contained in response to public agency 6 requests for proposal, requests for clarification, requests for information 7 and similar requests. "Trade secrets" as used in this section means informa- 8 tion, including a formula, pattern, compilation, program, computer program, 9 device, method, technique, process, or unpublished or in progress research 10 that: 11 (a) Derives independent economic value, actual or potential, from not 12 being generally known to, and not being readily ascertainable by proper 13 means by other persons who can obtain economic value from its disclosure 14 or use; and 15 (b) Is the subject of efforts that are reasonable under the circumstances 16 to maintain its secrecy. 17 (2) Production records, sale or purchase records, catch records, mortgage 18 portfolio loan documents, or similar business records of a private concern or 19 enterprise required by law to be submitted to or inspected by a public agency. 20 Nothing in this subsection shall limit the use which can be made of such 21 information for regulatory purposes or its admissibility in any enforcement 22 proceeding. 23 (3) Records relating to the appraisal of real property, timber or mineral 24 rights prior to its acquisition, sale or lease by a public agency. 25 (4) Any estimate prepared by a public agency that details the cost of a 26 public project until such time as disclosed or bids are opened, or upon award 27 of the contract for construction of the public project. 28 (5) Examination, operating or condition reports and all documents relat- 29 ing thereto, prepared by or supplied to any public agency responsible for the 30 regulation or supervision of financial institutions including, but not limited 31 to, banks, savings and loan associations, regulated lenders, business and 32 industrial development corporations, credit unions, and insurance companies, 33 or for the regulation or supervision of the issuance of securities. 34 (6) Records gathered by a local agency or the Idaho department of com- 35 merce, as described in chapter 47, title 67, Idaho Code, for the specific 36 purpose of assisting a person to locate, maintain, invest in, or expand busi- 37 ness operations in the state of Idaho. 38 (7) Shipping and marketing records of commodity commissions used to eval- 39 uate marketing and advertising strategies and the names and addresses of grow- 40 ers and shippers maintained by commodity commissions. 41 (8) Financial statements and business information and reports submitted 42 by a legal entity to a port district organized under title 70, Idaho Code, in 43 connection with a business agreement, or with a development proposal or with a 44 financing application for any industrial, manufacturing, or other business 45 activity within a port district. 46 (9) Names and addresses of seed companies, seed crop growers, seed crop 47 consignees, locations of seed crop fields, variety name and acreage by vari- 48 ety. Upon the request of the owner of the proprietary variety, this informa- 49 tion shall be released to the owner. Provided however, that if a seed crop has 50 been identified as diseased or has been otherwise identified by the Idaho 51 department of agriculture, other state departments of agriculture, or the 52 United States department of agriculture to represent a threat to that particu- 53 lar seed or commercial crop industry or to individual growers, information as 54 to test results, location, acreage involved and disease symptoms of that par- 6 1 ticular seed crop, for that growing season, shall be available for public 2 inspection and copying. This exemption shall not supersede the provisions of 3 section 22-436, Idaho Code. 4 (10) Information obtained from books, records and accounts required in 5 chapter 47, title 22, Idaho Code, to be maintained by the Idaho canola and 6 rapeseed commission and pertaining to the individual production records of ca- 7 nola or rapeseed growers. 8 (11) Records of any risk retention or self-insurance program prepared in 9 anticipation of litigation or for analysis of or settlement of potential or 10 actual money damage claims against a public entity and its employees or 11 against the industrial special indemnity fund except as otherwise discoverable 12 under the Idaho or federal rules of civil procedure. These records shall 13 include, but are not limited to, claims evaluations, investigatory records, 14 computerized reports of losses, case reserves, internal documents and corre- 15 spondence relating thereto. At the time any claim is concluded, only statisti- 16 cal data and actual amounts paid in settlement shall be deemed a public record 17 unless otherwise ordered to be sealed by a court of competent jurisdiction. 18 Provided however, nothing in this subsection is intended to limit the attorney 19 client privilege or attorney work product privilege otherwise available to any 20 public agency. 21 (12) Records of laboratory test results provided by or retained by the 22 Idaho food quality assurance laboratory. Nothing in this subsection shall 23 limit the use which can be made, or availability of such information if used, 24 for regulatory purposes or its admissibility in any enforcement proceeding. 25 (13) Reports required to be filed under chapter 13, title 62, Idaho Code, 26 identifying electrical or natural or manufactured gas consumption data for 27 an individual customer or account. 28 (14) Voluntarily prepared environmental audits, and voluntary disclosures 29 of information submitted on or before December 31, 1997, to an environmental 30 agency as defined in section 9-803, Idaho Code, which are claimed to be confi- 31 dential business information. 32 (15) Computer programs developed or purchased by or for any public agency 33 for its own use. As used in this subsection, "computer program" means a series 34 of instructions or statements which permit the functioning of a computer sys- 35 tem in a manner designed to provide storage, retrieval and manipulation of 36 data from the computer system, and any associated documentation and source 37 material that explain how to operate the computer program. Computer program 38 does not include: 39 (a) The original data including, but not limited to, numbers, text, 40 voice, graphics and images; 41 (b) Analysis, compilation and other manipulated forms of the original 42 data produced by use of the program; or 43 (c) The mathematical or statistical formulas that would be used if the 44 manipulated forms of the original data were to be produced manually. 45 (16) Active investigative records and trademark usage audits of the Idaho 46 potato commission specifically relating to the enforcement of chapter 12, 47 title 22, Idaho Code, until the commencement of formal proceedings as provided 48 by rules of the commission; purchase and sales information submitted to the 49 Idaho potato commission during a trademark usage audit, and investigation or 50 enforcement proceedings. Inactive investigatory records shall be disclosed 51 unless the disclosure would violate the standards set forth in subsections 52 (1)(a) through (f) of section 9-335, Idaho Code. Nothing in this subsection 53 shall limit the use which can be made, or availability of such information if 54 used, for regulatory purposes or its admissibility in any enforcement proceed- 55 ing. 7 1 (17) Insurance compliance self-evaluative privilege as exempted pursuant 2 to section 41-349, Idaho Code.
STATEMENT OF PURPOSE RS 10098C1 This legislation modifies Chapter 3 of Title 41, Idaho Code, by creating a new code section, Section 41-349, Idaho Code. It provides a limited privilege from disclosure for documents and information developed in the course of an internal compliance or procedure audit by an insurer. The purpose is to encourage insurers to regularly examine and improve their compliance procedures voluntarily. FISCAL IMPACT There is no fiscal impact on the general fund of this state. Contact: Rep. Bill Deal 332-1000 Allyn Dingel 343-5454 Phil Barber 371-8484 STATEMENT OF PURPOSE/FISCAL NOTE H 659