SCS/SB 809 - This act makes information collected in the course of an insurance compliance audit privileged information and not discoverable in civil, criminal or administrative proceedings unless an exception applies.

Insurance compliance self-evaluative documents submitted to the Director of Department of Insurance in conjunction with other examinations are confidential. Audit documents submitted to the department of insurance remain property of the insurer and are not subject to disclosure under the Sunshine Law. Persons preparing the audit documents shall not be examined in civil, criminal or administrative hearings unless the documents are not privileged (Section 375.1064).

The privilege established in this act shall not apply to documents which are expressly waived. In a civil or administrative proceeding, a court may require disclosure of materials, after in-camera review, if it determines that the privilege was asserted for a fraudulent purpose or that the privilege does not apply. A court may order disclosure of materials in a criminal proceeding, after in-camera review, if it determines that the privilege was asserted for a fraudulent purpose, that the privilege does not apply or that material contains relevant evidence of a crime which is not otherwise available (Section 375.1065).

The privilege is deemed to be waived by the insurer 30 days after receiving a request for disclosure of a self- evaluative audit by a prosecutor or the attorney general, unless the insurer files a petition for an in camera examination. After conducting an in-camera review of the insurance compliance audit document, the court may require disclosure of any portion of the document it determines is not privileged. Any compelled disclosure of an audit will not make the audit a public document or be deemed a waiver of the privilege for any other civil, criminal or administrative proceeding (Section 375.1066).

An insurer has the burden of demonstrating the applicability of the privilege (Section 375.1067).

The privilege shall not apply to:

(1) Documents expressly required to be collected, maintained or reported to regulatory agencies pursuant to law;

(2) Information obtained by observation or monitoring by any regulatory agency; or

(3) Information obtained from an independent source. The privilege created by this act shall apply to all litigation or administrative proceedings pending on the effective date of this act (section 375.1069).

This act is similar to SB 406 (2003), SB 1157 (2002) and HB 927 (2001).
STEPHEN WITTE