Section 09.25.450. Audit report privilege.

   (a) Except as provided in AS 09.25.460, an owner or operator who prepares an audit report or causes an audit report to be prepared has a privilege to refuse to disclose, and to prevent another person from disclosing, the parts of the report that consist of confidential self-evaluation and analysis of the owner's or operator's compliance with environmental laws. Except as provided in AS 09.25.455 - 09.25.480, the privileged information is not admissible as evidence or subject to discovery in
        (1) a civil action, whether legal or equitable; or
        (2) an administrative proceeding, except for workers' compensation proceedings.
   (b) With respect to confidential self-evaluation and analysis in an environmental audit, in order to qualify for the privilege under this section and the immunity under AS 09.25.475, at least 15 days before conducting the audit, the owner or operator conducting the audit must give notice by electronic filing that complies with an ordinance or regulation authorized under (j) of this section or by certified mail with return receipt requested to the commissioner's office of the department, and, when the audit includes an assessment of compliance with a municipality's ordinances, to the municipal clerk, of the fact that it is planning to commence the audit. The notice must specify the facility, operation, or property or portion of the facility, operation, or property to be audited, the date the audit will begin and end, and the general scope of the audit. The notice may provide notification of more than one scheduled environmental audit at a time. Once initiated, an audit shall be completed within a reasonable time, but no longer than 90 days, unless a longer period of time is agreed upon between the owner or operator and the department or the municipality, as appropriate. The audit report must be completed in a timely manner.
   (c) The following persons may claim the privilege available under (a) of this section:
        (1) the owner or operator who prepared the audit report or caused the audit report to be prepared;
        (2) a person who conducted all or a portion of the audit but did not personally observe or participate in the relevant instances or events being reviewed for compliance;
        (3) a person to whom confidential self-evaluation or analysis is disclosed under AS 09.25.455(b); or
        (4) a custodian of the audit results.
   (d) A person who conducts or participates in the preparation of an audit report and who actually observed or participated in conditions or events being reviewed for compliance may testify about those conditions or events but may not, in a proceeding covered by (a) of this section, be compelled to testify about or produce documents consisting of confidential self-evaluation and analysis.
   (e) A person claiming the privilege described in this section has the burden of establishing the applicability of the privilege.
   (f) To facilitate identification, each document in an audit report that contains confidential self-evaluation or analysis shall be labeled "AUDIT REPORT: PRIVILEGED DOCUMENT."
   (g) A government agency or its employees or agents may not, as a condition of a permit, license, or approval issued under an environmental law, require an owner or operator to waive the privilege available under this section.
   (h) Except when the privilege is waived under AS 09.25.455(a) or disclosure is made under AS 09.25.455(b)(3) or 09.25.475 or 09.25.480, neither a government agency nor its employees or agents may review or otherwise use the part of an audit report consisting of confidential self-evaluation or analysis during an inspection of a regulated facility, operation, or property or an activity of a regulated facility, operation, or property.
   (i) This section may not be construed to
        (1) prevent a government agency from issuing an emergency order, seeking injunctive relief, independently obtaining relevant facts, conducting necessary inspections, or taking other appropriate action regarding implementation and enforcement of an applicable environmental law, except as otherwise provided in AS 09.25.475; or
        (2) authorize a privilege for uninterrupted or continuous environmental audits.
   (j) The department or municipality may, by regulation or ordinance, respectively, allow the notice required under (b) of this section to be filed by facsimile or other electronic means if the means ensures adequate proof of
        (1) submittal of the notice by the owner or operator; and
        (2) receipt by the department or municipality.
   (k) There is no privilege under this section for documents or communications in a criminal proceeding.

Authorities

9.25.455; 9.25.460; 9.25.475; 9.25.485; 9.25.490;46.03.475

Notes

References

AS 9.25.455 .455">Sec. 09.25.455. Waiver and disclosure.
AS 9.25.460 .460">Sec. 09.25.460. Nonprivileged materials.
AS 9.25.475 .475">Sec. 09.25.475. Voluntary disclosure; immunity.
AS 9.25.485 .485">Sec. 09.25.485. Relationship to other recognized privileges.
AS 9.25.490 .490">Sec. 09.25.490. Definitions.
AS 46.03.475 Reporting requirements.

History

(Sec. 2 ch 29 SLA 1997)