49-1403. Privilege

A. Except as provided in sections 49-1404, 49-1405 and 49-1406, any part of an audit report is privileged and is not admissible as evidence or subject to discovery in any of the following:

1. A civil action, whether legal or equitable.

2. An administrative proceeding.

B. When called or subpoenaed as a witness, a person cannot be compelled to testify or produce a document related to an audit if both of the following apply:

1. The testimony or document discloses any privileged part of an audit report or any item listed in section 49-1402.

2. For the purposes of this subsection only, the person is:

(a) A person who conducted any portion of the audit but who did not personally observe the physical events.

(b) A person to whom the audit results are disclosed under section 49-1404, subsection B.

(c) A custodian of the audit results.

C. A person who conducts or participates in the preparation of an environmental audit and who has actually observed physical events of violation may testify regarding those events but may not be compelled to testify about or produce documents related to any privileged part of an audit or any item listed in section 49-1402.

D. A state agency employee may not request, review or otherwise use an audit report during an agency inspection of a regulated facility or operation or an activity of a regulated facility or operation.

E. A party asserting the privilege prescribed in this section has the burden of establishing the applicability of the privilege.