Many states provide insurance companies the option to request that certain documentation be considered proprietary and/or confidential and therefore, not subject to public disclosure requests. Other types of documents, by their very nature, are considered confidential by a state upon filing without any request being made by the insurer. The filing of credit scoring model information is an example of information that is often considered confidential. In the case of credit scoring, the algorithm, computer program, model or other process used in determining a credit score, along with underlying supporting data, can be considered a trade secret and therefore confidential. Similarly, sometimes rate information for life and health insurance are treated as confidential and not available for public disclosure. In fact, it is not uncommon to see provisions such as these which cover different types of information and lines of business:

• Alaska: Insurance scoring models are considered a trade secret and are not subject to public inspection. (21.39.035)
• Arkansas: Specific information must be submitted in connection with any filing of interest-indexed universal life insurance policies, with all such information being treated confidentially to the extent permitted by law. (Rule and Regulation 34 s 11)
• Colorado: The Division does not allow a company to designate an entire filing as confidential, except as permitted by law. If confidential information is being submitted within a filing, a Confidentiality Index must be submitted separately in SERFF and made available to the public for inspection. The confidential information must be submitted as a separate exhibit, report or attachment and clearly marked CONFIDENTIAL HANDLING REQUESTED. (Bulletin B-4.18; Bulletin B-1.15)
• Georgia: Any filing relating to credit information is considered to be a trade secret and proprietary information of the entity filing the information and not be subject to public disclosure. (33-24-95)
• Iowa: Insurers’ credit scoring models or other scoring processes filed are considered a confidential record and are recognized and protected as trade secrets. (515.103)
• Massachusetts: Small group rate filing materials submitted for review are deemed confidential and exempt from the definition of public records. (211 CMR 66.09)
• Oregon:  Health benefit plan rate filings for individual, small group and portability filings are available for public access and are posted when the filing is determined by the Oregon Insurance Division to be complete. Any other requests for confidentiality will be considered on a case-by-case basis and must meet the criteria for trade secret information pursuant to Oregon Public Records Laws ORS 192.501(2) and the Uniform Trade Secrets Act ORS 646.461(4) to be eligible for exemption from disclosure.
• Washington: Credit life and credit accident and health insurers, desiring the commissioner to withhold experience and proprietary rate development methods from public disclosure, must file that information in a separate actuarial memorandum and clearly identify the information that is confidential. (284-34-220)

Of course confidential documents may not be entirely “confidential” when their production is sought under a court order to release the information and there are states where confidentiality provisions do not exist due to public access laws. Included in that latter group of states are Arizona, with its open records law providing that all filings made in that state are public records, and Connecticut with its Freedom of Information Act.

There were changes in 2011 to regulatory requirements and procedures for gaining protected status for certain filed information. Alabama’s SB 395 enacted provisions for the confidentiality of certain homeowners rate filing information. Effective Sept. 1, 2011, the bill provides that proprietary actuarial risk analysis or forecasting information or information otherwise restricted by statute or regulation included in a rate filing or related actuarial information is considered to be a commercially valuable trade secret and held confidential. From a filing perspective, the Alabama Department of Insurance requires that filers submit what they consider confidential information under separate cover, clearly stating the desires of the party filing the information as to its confidentiality. The designated information is to be maintained by the Department in a manner that keeps it separate and distinct from all of the records available for public inspection, absent a court order. The Department also issued a Bulletin on Aug. 26, 2011, providing additional information on homeowners rate filings and the confidentiality provisions.

The most recent regulatory change regarding the confidentiality of various filing documents became effective Dec. 8, 2011 in Utah. The new requirements are set forth in R590-225-11 and address the “protected” classification of documents in property and casualty filings. The Department of Insurance indicates that it will not classify certain information in property and casualty rate filings as protected unless companies comply with the established procedures. The requirements to procure a label of “protected,” and therefore not open for public inspection, are directly related toUtah’s Government Records Access and Management Act (GRAMA.) Filing requirements include:

• Filer needs to request which specific document the filer believes qualifies under GRAMA when the filing is submitted
• The document must include a written statement of reasons supporting the request that the information should be classified as protected

Among other provisions and timeframes, the regulation further specifies that if the filer does not request the information in the document to be classified as protected, the document will be classified as public, with the Department neither automatically classifying any document in a filing as protected nor re-opening a filing to permit a company to request protected classification of previously filed documents.

Knowing of the availability of a confidential or protected status for certain information filed with the various departments of insurance, as well as adhering to any specific requirements that might be outlined by the states, are key steps required to achieve insurers’ goals of preserving the confidentiality of proprietary information.

Keep current with confidential and proprietary information filing requirements with AuthenticWeb for State Filing.