(a) A court or administrative hearing officer with jurisdiction may require disclosure of confidential self-evaluation and analysis contained in an audit report in a civil or administrative proceeding if the court or administrative hearing officer determines, after an in camera review consistent with the appropriate rules of procedure, that the
(1) privilege is asserted for a criminal or fraudulent purpose;
(2) information for which the privilege is claimed is evidence of substantial injury, or the imminent or present threat of substantial injury, to one or more persons at the site audited or to persons, property, or the environment offsite or is evidence of the causes and circumstances leading to such injury or the imminent or present threat of such injury;
(3) audit report shows evidence of noncompliance with an environmental law and appropriate efforts to achieve compliance with the law were not promptly initiated and pursued with reasonable diligence after discovery of noncompliance;
(4) audit report was prepared for the purpose of avoiding disclosure of information required for an investigative, administrative, or judicial proceeding that, at the time of the report's preparation, was imminent or in progress; or
(5) privilege would result in a miscarriage of justice or the denial of a fair trial to the party challenging the privilege.
(b) A party seeking an in camera review as provided under (a) of this section shall provide to the court or administrative hearing officer a factual basis adequate to support a good faith belief by a reasonable person that the documents or communications for which disclosure is sought are likely to reveal evidence to establish that an exception in (a) of this section applies.
(c) A party seeking disclosure of confidential self-evaluation and analysis during an in camera review under this section has the burden of proving that an exception in (a) of this section applies.
Section: Previous 09.25.450 09.25.455 09.25.460 09.25.465 09.25.475 09.25.480 09.25.485 09.25.490 NextLast modified: November 15, 2016