Confidentiality and trade secrets in rate and form filings

Filings are public by default

Many rating laws say so directly. The NAIC's model rate and policy form law guideline (GL-1776) provides that a filing and any supporting information are open to public inspection upon receipt of the filing. North Carolina's statute for Rate Bureau filings, G.S. 58-36-15, makes a Bureau filing open to public inspection immediately upon submission.

California goes further for lines under Proposition 103. Insurance Code § 1861.07 makes all information provided to the commissioner under that article available for public inspection and states that two provisions that would otherwise limit disclosure do not apply to it. Filers in California should assume that what they submit in a Proposition 103 rate application will be public.

Timing varies even where content is public. Some states release a filing only after review closes; others make it available on receipt. Public access through SERFF Filing Access is governed by each state's settings, and older filings may be available only by records request. What is SERFF? covers SERFF Filing Access.

How filers request confidential treatment

In SERFF

SERFF has a Public Access Confidentiality feature. According to the SERFF help page, the filer uses the Set Confidentiality button to flag specific items, or the whole filing, as proprietary or confidential. The flags go to the state, which reviews each request under its own laws and regulations. If the state accepts, the flagged material is not available through SERFF's public access interface. If it overrides a request, SERFF notifies the filer in its Message Center and the item's confidentiality icon changes. Some states do not accept confidentiality requests through this feature at all; the selection window then shows the state's public access policy instead.

A SERFF flag is a request, not a determination. Most states that protect trade secrets also require something outside the flag: an affidavit, a written justification, a redacted public copy or a combination.

State procedures

Examples of what states require:

• Florida. Under § 624.4213, a person claiming that a required submission contains a trade secret files a notice of trade secret. Each page or portion claimed must be clearly marked "trade secret," the material must be separated from non-trade-secret material, and the notice must include an affidavit certifying under oath that the information has value and gives an advantage, that access is restricted, that it is not reasonably obtainable by others by legitimate means and that it is not publicly available elsewhere. Failing to file the notice waives the claim.
• Montana. The Commissioner of Securities and Insurance publishes affidavit forms for trade secret requests on rate and form filings. The general affidavit states that information given to the commissioner is presumptively public with narrow exceptions, that the filer must make a prima facie showing that the information is a trade secret under Montana's statutory definition, and that conclusory statements are not enough. A separate certification affidavit is required for each exhibit, identified by SERFF filing number and file name.
• The Insurance Compact. For Compact filings, the Commission's Filing Information Notice 2024-1 says trade secret requests are sent in writing to the Executive Director, not through SERFF, and must describe the information and explain how it meets the two-part definition. It also says an entire filing cannot be marked trade secret, that approved forms, rate schedules and rate manuals generally do not qualify, and that the request itself becomes public in a Note to Filer once the filing is approved.

Montana and the Compact both apply the two-part test found in state trade secret statutes: information that derives independent economic value from not being generally known or readily ascertainable, and that is the subject of reasonable efforts to keep it secret.

What is usually protected and what is not

No national rule decides this, and outcomes depend on the state, the line and how the request is supported. In general terms:

The reasoning is practical. Rates, rules and forms are what the insurer applies to the public, so regulators and consumers need to see them; the Compact's notice says approved forms, rate schedules and rate manuals generally do not qualify. Model documentation is different. The NAIC handbook's principles for reviewing predictive models include protecting the confidentiality of filed models and supporting information in accordance with state law. Even so, a state may keep enough public for the filing to be understood, and under California's § 1861.07 information provided in a Proposition 103 rate application is available for public inspection.

Public records requests

Material withheld from SERFF public access can still be the subject of a public records request. States handle these differently. In Florida, when the department receives a request for material certified as a trade secret, it must notify the person who certified it, who then has 30 days to file a circuit court action to determine whether it is a trade secret and to bar disclosure. If no action is filed, the claim is waived and the document is released.

Filers should keep a contact who can respond to these notices quickly and should keep the support for each claim on file, because the defense of a claim may fall to the filer rather than the department.

Researching other carriers' filings

Public filings are a primary source for competitive and regulatory research, with limits that follow from the rules above:

• What you see is what wasn't protected. A filing with no model documentation may have had it withheld, not omitted. Don't infer that a state accepted a model without support.
• Redactions vary by state. The same multistate filing can show different detail in different states, so comparing several states' copies can fill gaps.
• Correspondence may be public. Where it is, objections and responses show what the reviewer asked about the withheld material.
• Records requests are a legitimate route to filings not on SERFF Filing Access, subject to the same exemptions.
• Public is not license to copy. Forms and manuals, especially advisory organization material, are often copyrighted.

Good practice

• Assume public by default. Draft every exhibit as if a competitor and a consumer advocate will read it.
• Claim narrowly. Mark only the pages or portions that meet the definition. Blanket claims are refused in some places and weaken credibility everywhere.
• Prepare a public version. Provide a redacted copy alongside the confidential one where the state asks for it, and keep both consistent.
• Build the support before filing. Have the affidavit or justification ready when the filing goes in, following each state's procedure; a SERFF flag alone is often not enough.
• Track decisions by state. Record which states accepted which claims, and reuse the support in later filings.
• Separate what reviewers need from what the public sees. Withholding material from the public does not excuse withholding it from the reviewer; an insufficiently supported filing will draw objections.