2000 Legislation
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HOUSE BILL NO. 659 – Insurance/self-evaluatn/disclosure

HOUSE BILL NO. 659

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Daily Data Tracking History



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

Bill Text


 H0659
                                                                        
                                                                        
  ||||              LEGISLATURE OF THE STATE OF IDAHO             ||||
 Fifty-fifth Legislature                  Second Regular Session - 2000
                                                                        
                                                                        
                              IN 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 / Fiscal Impact


     
                           
                 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