49-1404. Exception; waiver; violation; classification

A. The privilege prescribed in section 49-1403 does not apply to the extent the privilege is expressly waived by the owner or operator who prepared the audit report or caused the report to be prepared.

B. Disclosure of an audit report or any information generated by an environmental audit does not waive the privilege established by section 49-1403, if the disclosure complies with any of the following:

1. Is made to address or correct a matter raised by the environmental audit and is made only to:

(a) A person employed by the owner or operator, including temporary and contract employees.

(b) A legal representative of the owner or operator.

(c) An officer or director of the regulated facility or operation or a partner of the owner or operator.

(d) An independent contractor retained by the owner or operator, including its independent external auditors.

2. Is made under the terms of a confidentiality agreement between the person for whom the audit report was prepared or the owner or operator of the audited facility or operation and any of the following:

(a) A partner or potential partner of the owner or operator of the regulated facility or operation.

(b) A transferee or potential transferee of the regulated facility or operation.

(c) A lender or potential lender for the regulated facility or operation.

(d) A governmental official of a state.

(e) A person or entity engaged in the business of insuring, underwriting or indemnifying the facility or operation.

3. Is made under a claim of confidentiality to a governmental official or agency by the person for whom the audit report was prepared or by the owner or operator.

C. A party to a confidentiality agreement described in subsection B, paragraph 2 of this section who violates that agreement is liable for damages caused by the disclosure and for any other penalties prescribed in the confidentiality agreement.

D. Information that is disclosed under subsection B, paragraph 3 of this section is confidential and is not subject to disclosure. An entity, employee or official of this state who discloses information in violation of this subsection is guilty of a class 1 misdemeanor. It is an affirmative defense to the clerical dissemination of a privileged audit report that the report was not clearly labeled " compliance report: privileged document" or labeled with words of similar import as prescribed by section 49-1402. The lack of labeling may not be raised as a defense if the entity, employee or official knew or had reason to know that the document was a privileged audit report.

E. This section shall not be construed to circumvent the protections provided by federal or state law for individuals who disclose information to law enforcement authorities.