The Office of General Counsel issued the following informal opinion on April 10, 2001, representing the position of the New York State Insurance Department.
RE: Interpretation of Regulation 169 and Financial Guaranty Insurers
Questions Presented:
1 Are financial guaranty insurers subject to Regulation 169?
2. Do financial guaranty insurers have to complete the survey required by Circular Letter No. 7 (2001)?
Conclusions:
1. Financial guaranty insurers are subject to Regulation 169. However, Regulation 169 will not apply except where individuals obtain, seek to obtain, or are claimants or beneficiaries of products or services primarily for personal, family or household purposes.
2. All insurers must complete the survey required by the Circular Letter. However, where an insurer maintains no information subject to the privacy requirements of Regulation 169, the insurer should merely state such.
Analysis:
N.Y. Comp. Codes R. & Regs. tit. 11, Part 420.3(p) (2000) defines "licensee" very broadly to include "a person licensed, or required to be licensed pursuant to the Insurance Law of this State". This includes all kinds of insurers, and since no exception applies for financial guaranty insurers, the Regulation applies to them as well.
N.Y. Comp. Codes R. & Regs. tit. 11, Part 420.1(b)(1) (2000) states that Regulation 169 applies to:
Nonpublic personal financial information about individuals who obtain, seek to obtain or are claimants or beneficiaries of products or services primarily for personal, family or household purposes from licensees. This Part does not apply to information about companies or about individuals who obtain products or services for business, commercial, or agricultural purposes. (emphasis supplied.)
Financial guaranty insurance is typically purchased by or for companies or individuals for business or commercial use, and we are not aware of any financial guaranty insurer having ever issued a policy for personal, family or household purposes. However, nothing in the financial guaranty law would preclude a financial guaranty insurer from doing so, and in such cases, the insurer would have to comply with Regulation 169.
Every insurer must respond to the survey contained in Circular Letter No. 7 (2001). If the insurer has no nonpublic personal financial information, however, then it should respond accordingly rather than complete the survey.
For further information you may contact Supervising Attorney Paul A. Zuckerman at the New York City Office.