2006 Kansas Code - 60-3334

      60-3334.   Same; waiver of privilege; exceptions; burden of proof to assert privilege. (a) The privilege recognized in K.S.A. 60-3333 does not apply to the extent that the privilege is waived by the person who owns or operates the facility at which the audit was conducted and who prepared or caused to be prepared the audit report.

      (b)   The audit report and information generated by the audit may be disclosed to any person employed by the owner or operator of the audited facility, any legal representative of the owner or operator or any independent contractor retained by the owner or operator to address an issue or issues raised by the audit, without waiving the privilege recognized in K.S.A. 60-3333.

      (c)   Disclosure of the audit report or any information generated by the audit under the following circumstances shall not waive the privilege recognized in K.S.A. 60-3333:

      (1)   Disclosure under the terms of an agreement which expressly provides that the information provided be kept confidential between the owner or operator of the facility audited and a potential purchaser of the operation or facility; or

      (2)   disclosure under the terms of a confidentiality agreement between governmental officials and the owner or operator of the facility audited, which expressly provides that the information provided be kept confidential.

      (d)   In a civil, criminal or administrative proceeding, a court or administrative tribunal of record shall require disclosure of material for which the privilege recognized in K.S.A. 60-3333 is asserted, after in camera review consistent with the code of civil procedure, if such court or administrative tribunal determines that:

      (1)   The privilege is asserted for a fraudulent purpose;

      (2)   the party asserting the privilege has not implemented a management system to assure compliance with environmental laws. Depending on the nature of the entity including its size, its financial resources and assets and the environmental risks posed by its operations, and based on a qualitative assessment of the totality of circumstances, a management system shall be deemed to satisfy the requirements of this act if it contains the following primary characteristics:

      (A)   A system that covers all parts of the entity's operations regulated under one or more environmental laws;

      (B)   a system that regularly takes steps to prevent and remedy noncompliance;

      (C)   a system that has the support of senior management;

      (D)   the entity implements a system that has policies, entity standards and procedures that highlight the importance of assuring compliance with all environmental laws;

      (E)   the entity's policies, standards and procedures are communicated effectively to all in the entity whose activities could affect compliance achievement;

      (F)   specific individuals within both high-level and plant- or operation-level management are assigned responsibility to oversee compliance with such standards and procedures;

      (G)   the entity undertakes regular review of the status of compliance, including routine evaluation and periodic auditing of day-to-day monitoring efforts, to evaluate, detect, prevent and remedy noncompliance;

      (H)   the entity has a reporting system which employees can use to report unlawful conduct within the organization without fear of retribution; and

      (I)   the entity's standards and procedures to ensure compliance are enforced through appropriate employee performance, evaluation and disciplinary mechanisms;

      (3)   the material is not subject to the privilege; or

      (4)   even if subject to the privilege, the material shows evidence of noncompliance with the environmental laws, and appropriate efforts to achieve compliance with such laws were not promptly initiated and pursued with reasonable diligence upon discovery of noncompliance.

      (e) (1)   Subject to the provisions of subsection (2), a party asserting the audit privilege recognized in K.S.A. 60-3333 has the burden of demonstrating the applicability of the privilege. If there is evidence of noncompliance with environmental laws, such party must prove that appropriate efforts to achieve compliance were promptly initiated upon discovery and pursued with reasonable diligence.

      (2)   A party seeking disclosure under subsection (d)(1) has the burden of proving that the privilege is asserted for a fraudulent purpose or to prevent disclosure of past noncompliance and, in a criminal proceeding, the state has the burden of proving the conditions for disclosure under subsection (d)(3).

      History:   L. 1995, ch. 204, § 3; July 1.