AS Title 9, Chapter 25: Evidence, Presumptions, and Privileges

Article 1. Evidence and Presumptions. Chapter 25. Evidence, Presumptions, and Privileges. Sec. 09.25.010. Statute of frauds. (a) In the following cases and under the following conditions an agreement, promise, or undertaking is unenforceable unless it or some note or memorandum of it is in writing and subscribed by the party charged or by an agent of that party: (1) an agreement that by its terms is not to be performed within a year from the making of it; (2) an agreement the performance of which is not to be completed by the end of a lifetime; this provision includes a contract to bequeath property or make a testamentary disposition of any kind, a contract to assign or an assignment, with or without consideration to the promisor, of a life or health or accident insurance policy, or a promise, with or without consideration to the promisor, to name a beneficiary of that type of policy; but this provision does not include an insurer's promise to issue a policy of insurance, or any promise or assignment with respect to a policy of industrial life or health or accident insurance; (3) a special promise to answer for the debt of another; (4) an agreement by an executor or administrator to pay the debts of the testator or intestate out of the personal estate of the executor or administrator; (5) an agreement made upon consideration of marriage other than mutual promises to marry; (6) an agreement for leasing for a longer period than one year, or for the sale of real property, or of any interest in real property, or to charge or encumber real property; (7) an agreement concerning real property made by an agent of the party sought to be charged unless the authority of the agent is in writing; (8) an agreement authorizing or employing an agent or broker to sell or purchase real estate for compensation or commission; however, if the note or memorandum of the agreement is in writing, subscribed by the party to be charged or by a lawfully authorized agent, contains a description of the property sufficient for identification, authorizes or employs the agent or broker named in it to sell the property, and expresses with reasonable certainty the amount of the commission or compensation to be paid the agent or broker, the agreement of authorization or employment is not unenforceable for failure to state a consideration; (9) an agreement to establish a trust; (10) a subsequent or new promise to pay a debt discharged in bankruptcy; (11) a conveyance or assignment of a trust in personal property; (12) an agreement to pay compensation for services rendered in negotiating a loan, effecting the procurement of a business opportunity, or the purchase and sale of a business, its good will, inventory, fixtures, or an interest in it, including a majority of the voting stock interest in a corporation and including the creating of a partnership interest, other than an agreement to pay compensation to an auctioneer or an attorney at law; (13) an agreement to lend more than $50,000 or to grant or extend credit of more than $50,000, if the loan or grant or extension of credit is not primarily for personal, family, or household purposes and if the person who agrees to lend or grant or extend credit is engaged in the business of lending or arranging for the lending of money or the granting or extension of credit; in this paragraph a loan secured solely by residential property consisting of one to four dwelling units is considered to be a loan primarily for personal, family, or household purposes. (b) No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning the property may be created, transferred, or declared, otherwise than by operation of law, or by a conveyance or other instrument in writing subscribed by the party creating, transferring, or declaring it or by that party's agent under written authority and executed with the formalities that are required by law. If the estate or interest in real property is created, transferred, or declared to a nonresident alien or for the benefit of a nonresident alien, the instrument shall so state and shall contain the name and address of the alien. This subsection does not affect the power of a testator in the disposition of real property by will, nor prevent a trust's arising or being extinguished by implication or operation of law, nor affect the power of a court to compel specific performance of an agreement in relation to the property. Sec. 09.25.020. Exceptions to statute of frauds. A contract, promise, or agreement that is subject to AS 09.25.010 , that does not satisfy the requirements of that section, but that is otherwise valid is enforceable if (1) there has been full performance on one side accepted by the other in accordance with the contract; (2) there is a memorandum that would satisfy the requirements of AS 09.25.010 except for error or omission in the recital of past events; (3) there is a memorandum that would satisfy the requirements of AS 09.25.010 except for error or omission that could be corrected by reformation if it occurred in a formal contract; (4) the party against whom enforcement is sought admits, voluntarily or involuntarily, in pleadings or at any other stage of this or any other action or proceeding the making of an agreement; or (5) it is a contract of employment for a period not exceeding one year from the commencement of work under its terms. Sec. 09.25.030. Representations as to credit, skill, or character of a third person. Evidence is not admissible to charge a person upon a representation as to the credit, skill, or character of a third person unless the representation or some memorandum of it is in writing, and either subscribed by or in the handwriting of the party to be charged. Sec. 09.25.040. Rules for construing real estate descriptions. The following are the rules for construing the descriptive part of a conveyance of real property when the construction is doubtful and there are no other sufficient circumstances to determine it: (1) where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false does not frustrate the conveyance, but it is to be construed by those particulars if they constitute a sufficient description to ascertain its application: (2) when permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount: (3) between different measurements which are inconsistent with each other, that of angles is paramount to that of surfaces, and that of lines paramount to both: (4) when a road or stream of water not navigable is the boundary, the rights of the grantor to the middle of the road or the thread of the stream are included in the conveyance, except where the road or bed of the stream is held under another title: (5) when tidewater is the boundary, the rights of the grantor to low-water mark are included in the conveyance: (6) when the description refers to a map and that reference is inconsistent with other particulars, it controls them if it appears that the parties acted with reference to the map; otherwise the map is subordinate to other definite and ascertained particulars. Sec. 09.25.050. [Renumbered as AS 09.45.052 .] Sec. 09.25.051. Admissibility of DNA profiles. (a) In a civil action or proceeding, evidence of a DNA profile is admissible to prove or disprove any relevant fact if the court finds that the technique underlying the evidence is scientifically valid. The admission of the DNA profile does not require a finding of general acceptance in the relevant scientific community of DNA profile evidence. (b) In this section, (1) “deoxyribonucleic acid” means the molecules in all cellular forms that contain genetic information in a patterned chemical structure for each individual; (2) “DNA profile” (A) means an analysis of blood, semen, tissue, or other cells bearing deoxyribonucleic acid resulting in the identification of the individual's patterned chemical structure of genetic information; (B) includes statistical population frequency comparisons of the patterned chemical structures described in (A) of this paragraph. Sec. 09.25.060. Fraud presumed from retention of possession. Every sale or assignment of personal property unless accompanied by the immediate delivery and the actual and continued change of possession of the thing sold or assigned is presumed prima facie to be a fraud against the creditors of the vendor or assignor, and subsequent purchasers in good faith and for a valuable consideration during the time the property remains in the possession of the vendor or assignor, except that retention of possession in good faith and current course of trade by a merchant seller for a commercially reasonable time after a sale or identification is not fraudulent, and nothing contained in this section shall supersede the provisions of AS 45.01 — AS 45.08 , AS 45.12 , AS 45.14 , and AS 45.29 (Uniform Commercial Code). Sec. 09.25.070. Evidence of publication. Evidence of the publication of a document or notice required by law to be published in a newspaper may be given by the affidavit of the printer, foreman, or business manager of the newspaper, annexed to a copy of the document or notice, specifying the times when and the paper in which the publication was made. Sec. 09.25.080. Right to receipt upon payment or delivery. A person who pays money or delivers an instrument or property is entitled to a receipt for it from the person to whom the payment or delivery is made, and may demand a proper signature to the receipt as a condition of the payment or delivery. Sec. 09.25.090. Objections to tender. The person to whom a tender is made shall at the time specify any objection the person may have to the money, instrument, or property, or the person waives it. If the objection is to the amount of money, the terms of the instrument, or the amount or kind of property, the person shall specify the amount, terms, or kind that the person requires, or is precluded from objecting later. This section may not be construed to modify or change in any manner corresponding provisions of AS 45.01 — AS 45.08 , AS 45.12 , AS 45.14 , and AS 45.29 (Uniform Commercial Code). Sec. 09.25.095. Effect of private seals and scrolls. Private seals and scrolls as a substitute for seals are abolished. They are not required to an instrument, but when used their effect remains unchanged. Secs. 09.25.100 — 09.25.125. [Renumbered as AS 40.25.110 — 40.25.125.] Sec. 09.25.130. [Renumbered as AS 09.25.095 .] Sec. 09.25.140. [Renumbered as AS 40.25.140 .] Sec. 09.25.150. [Renumbered as AS 09.25.300 .] Sec. 09.25.160. [Renumbered as AS 09.25.310 .] Sec. 09.25.170. [Renumbered as AS 09.25.320 .] Sec. 09.25.180. [Renumbered as AS 09.25.330 .] Sec. 09.25.190. [Renumbered as AS 09.25.340 .] Sec. 09.25.200. [Renumbered as AS 09.25.350 .] Sec. 09.25.210. [Renumbered as AS 09.25.360 .] Sec. 09.25.220. [Renumbered as AS 40.25.220 .] Sec. 09.25.230. [Renumbered as AS 09.25.400 .] Article 2. Privilege of Public Officials and Reporters. Sec. 09.25.300. Claiming of privilege by public official or reporter. Except as provided in AS 09.25.300 — 09.25.390, a public official or reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a public official or reporter. Sec. 09.25.310. Challenge of privilege before superior or supreme court. (a) When a public official or reporter claims the privilege in a cause being heard before the supreme court or a superior court of this state, a person who has the right to question the public official or reporter in that proceeding, or the court on its own motion, may challenge the claim of privilege. The court shall make or cause to be made whatever inquiry the court thinks necessary to a determination of the issue. The inquiry may be made instanter by way of questions put to the witness claiming the privilege and a decision then rendered, or the court may require the presence of other witnesses or documentary showing or may order a special hearing for the determination of the issue of privilege. (b) The court may deny the privilege and may order the public official or the reporter to testify, imposing whatever limits upon the testimony and upon the right of cross-examination of the witness as may be in the public interest or in the interest of a fair trial, if it finds the withholding of the testimony would (1) result in a miscarriage of justice or the denial of a fair trial to those who challenge the privilege; or (2) be contrary to the public interest. Sec. 09.25.320. Challenge of privilege before other bodies. (a) This section is applicable to a hearing held under the laws of this state (1) before a court other than the supreme or a superior court; (2) before a court commissioner, referee, or other court appointee; (3) in the course of legislative proceedings or before a commission, agency, or committee created by the legislature; (4) before an agency or representative of an agency of the state, borough, city or other municipal corporation, or other body; or (5) before any other forum of this state. (b) If, in a hearing, a public official or a reporter should refuse to divulge the source of information, the agency body, person, official, or party seeking the information may apply to the superior court for an order divesting the official or reporter of the privilege. When the issue is raised before the supreme or a superior court, the application must be made to that court. (c) Application for an order shall be made by verified petition setting out the reasons why the disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest. Upon application, the court shall determine the notice to be given to the public official or reporter and fix the time and place of hearing. The court shall make or cause to be made whatever inquiry the court thinks necessary, and make a determination of the issue as provided for in AS 09.25.310 . Sec. 09.25.330. Order subject to review. An order of the superior court entered under AS 09.25.300 — 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide. During the pendency of the appeal, the privilege shall remain in full force and effect. Sec. 09.25.340. Extent of privilege. When a public official or reporter claims the privilege conferred by AS 09.25.300 — 09.25.390 and the public official or reporter has not been divested of the privilege by order of the supreme or superior court, neither the public official or reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court. Sec. 09.25.350. Application of privilege in other courts. AS 09.25.300 — 09.25.390 also apply to proceedings held under the laws of the United States or any other state where the law of this state is being applied. Sec. 09.25.360. AS 09.25.300 — 09.25.390 do not abridge other privileges. AS 09.25.300 — 09.25.390 may not be construed to abridge any of the privileges recognized under the laws of this state, whether at common law or by statute. Sec. 09.25.390. Definitions for AS 09.25.300 — 09.25.390. In AS 09.25.300 — 09.25.390, unless the context otherwise requires, (1) “news organization” means (A) an individual, partnership, corporation, or other association regularly engaged in the business of (i) publishing a newspaper or other periodical that reports news events, is issued at regular intervals, and has a general circulation; (ii) providing newsreels or other motion picture news for public showing; or (iii) broadcasting news to the public by wire, radio, television, or facsimile; (B) a press association or other association of individuals, partnerships, corporations, or other associations described in (A)(i) — (iii) of this paragraph engaged in gathering news and disseminating it to its members for publication; (2) “privilege” means the conditional privilege granted to public officials and reporters to refuse to testify as to a source of information; (3) “public official” means a person elected to a public office created by the Constitution or laws of this state, whether executive, legislative, or judicial, and who was holding that office at the time of the communication for which privilege is claimed; (4) “reporter” means a person regularly engaged in the business of collecting or writing news for publication, or presentation to the public, through a news organization; it includes persons who were reporters at the time of the communication, though not at the time of the claim of privilege. Article 3. Other Privileges. Sec. 09.25.400. Privilege relating to domestic violence and sexual assault counseling. Confidential communications between a victim of domestic violence or sexual assault and a victim counselor are privileged under AS 18.66.200 — 18.66.250. Article 4. Privileges and Immunities Related to Disclosure of Certain Self-Audits and Violations. Sec. 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. Sec. 09.25.455. Waiver and disclosure. (a) The privilege in AS 09.25.450 does not apply to the extent the privilege is expressly waived in writing by the owner or operator who prepared the audit report or caused the report to be prepared. (b) Disclosure of the part of an audit report or information consisting of confidential self-evaluation or analysis does not waive the privilege established by AS 09.25.450 if the disclosure is made (1) to address or correct a matter raised by the environmental audit and is made to (A) a person employed by the owner or operator, including temporary and contract employees; (B) the owner's or operator's lawyer or the lawyer's representative; (C) an officer or director of the regulated facility, operation, or property; (D) a partner of the owner or operator; (E) an independent contractor retained by the owner or operator; or (F) the principal of the independent contractor who conducted an audit on the principal's behalf; (2) under the terms of a confidentiality agreement between the owner or operator who prepared the audit report or caused the audit report to be prepared and (A) a partner or potential partner of the owner or operator of the facility, operation, or property; (B) a transferee or potential transferee of an interest in the facility, operation, or property; (C) a lender or potential lender for the facility, operation, or property; (D) a person engaged in the business of insuring, underwriting, or indemnifying the facility, operation, or property; or (E) a person who, along with the person who prepared the audit report or caused the audit report to be prepared, also is an owner or operator of part or all of the facility, operation, or property; or (3) under a written claim of confidentiality to a government official or agency by the owner or operator who prepared the audit report or who caused the audit report to be prepared. (c) Documents consisting of confidential self-evaluation and analysis that are disclosed under (b)(3) of this section are required to be kept confidential and are not subject to disclosure under AS 40.25.110 — 40.25.220. (d) A party to a confidentiality agreement described in (b)(2) of this section who violates the agreement is liable for damages caused by the violation and for other penalties stipulated in the agreement. Sec. 09.25.460. Nonprivileged materials. (a) There is no privilege under AS 09.25.450 for that part of an audit report that contains the following: (1) a document, communication, datum, report, or other information required by a government agency to be collected, developed, maintained, or reported under an environmental law, under a permit issued under an environmental law, as a requirement for obtaining, maintaining, or renewing a license, as a requirement under a contract or lease with the state or a municipality, or as a requirement under an administrative order or court order or decree; (2) information that a government agency obtains by observation, sampling, or monitoring; (3) information that a government agency obtains from a source that was not involved in compiling, preparing, or conducting the environmental audit report; (4) a document, communication, datum, report, or other information collected, developed, or maintained in the course of a regularly conducted business activity or regular practice other than an environmental audit; (5) a document, communication, datum, report, or other information that is independent of the environmental audit, whether prepared or existing before, during, or after the audit; and (6) a document, communication, datum, report, or other information, including an agreement or order between a government agency and an owner or operator, regarding a compliance plan or strategy. (b) An audit report is not privileged and is admissible as evidence and subject to discovery and use in a proceeding relating to pipeline rates, tariffs, fares, or charges. The owner or operator who prepared the audit report or caused the report to be prepared is entitled to a protective order in a proceeding relating to pipeline rates, tariffs, fares, or charges to maintain the confidentiality of the audit from discovery, use, or admission in evidence in other types of proceedings. Discovery, use, or admission in evidence in a proceeding relating to pipeline rates, tariffs, fares, or charges is not considered to have waived the privilege for any other purpose. Sec. 09.25.465. Exception: disclosure required by court. (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. Sec. 09.25.475. Voluntary disclosure; immunity. (a) Except as provided by this section, an owner or operator who makes a voluntary disclosure of a violation of an environmental law, or of circumstances, conditions, or occurrences that constitute or may constitute such a violation, is immune from an administrative or civil penalty for the violation disclosed, for a violation based on the facts disclosed, and for a violation discovered because of the disclosure that was unknown to the owner or operator making the disclosure. (b) Immunity is not available under this section if the violation resulted in, or poses or posed an imminent or present threat of, substantial injury to one or more persons at the site audited or to persons, property, or the environment offsite. (c) A disclosure is voluntary for the purposes of this section only if (1) the disclosure is made promptly after knowledge of the information disclosed is obtained by the owner or operator; (2) the disclosure is made in writing by certified mail to the department or a municipality with enforcement jurisdiction with regard to the violation disclosed; (3) an investigation of the violation was not initiated or the violation was not independently detected by the department or a municipality with enforcement jurisdiction before the disclosure was made using certified mail; under this paragraph, the department or municipality has the burden of proving that an investigation of the violation was initiated or the violation was detected before receipt of the certified mail; and (4) the disclosure arises out of a voluntary environmental audit. (d) To qualify for immunity under this section, the owner or operator making the disclosure must (1) promptly initiate appropriate efforts to achieve compliance and remediation and pursue those efforts with due diligence; (2) promptly initiate appropriate efforts to discontinue, abate, or mitigate any conditions or activities causing injury or likely to cause imminent injury to one or more persons at the site audited or to person, property, or the environment offsite; (3) correct the violation within 90 days or enter into a compliance agreement with the department or the municipality, as appropriate, that provides for completion of corrective and remedial measures within a reasonable time; (4) implement appropriate measures designed to prevent the recurrence of the violation; and (5) cooperate with the department or municipality, as appropriate, in connection with an investigation of the issues identified in the disclosure; the department or municipality may request that the owner or operator allow the department or municipality to review, under a written claim of confidentiality as described in AS 09.25.455 (b)(3), the part of the audit report that describes the implementation plan or tracking system developed to correct past noncompliance, improve current compliance, or prevent future noncompliance. (e) A disclosure is not voluntary for purposes of this section if it is a disclosure to the department or municipality expressly required by an environmental law, a permit, a license, or an enforcement order or decree. (f) Immunity under this section for violation of an environmental law is available only for a violation that is discovered as a result of information or documents first produced or obtained during the time period specified in the notice required under AS 09.25.450 (b). (g) During the period between receipt of the audit notice required under AS 09.25.450 (b) and the specified end date of the audit, the department or municipality may not initiate an inspection, monitoring, or other investigative activity concerning the audited facility, operation, or property based on the receipt of a notice under AS 09.25.450 . The department or municipality has the burden of proving that an inspection, monitoring, or other investigative activity concerning the audited facility, operation, or property initiated after receiving a notice under AS 09.25.450 was not initiated based on receiving the notice. (h) A violation that has been voluntarily disclosed and to which immunity applies under this section shall be identified by the department or municipality in its compliance history report as having been voluntarily disclosed. (i) This section may not be construed to prevent the department or municipality from (1) seeking injunctive relief; or (2) issuing an emergency order in a situation involving an imminent and substantial danger to public health or welfare or the environment. Sec. 09.25.480. Exceptions to immunity; mitigation. (a) There is no immunity under AS 09.25.475 if a court or administrative hearing officer finds that (1) the owner or operator claiming the immunity has (A) intentionally, knowingly, or recklessly committed or authorized the violation; (B) within the 36 months preceding the violation, committed, at the same facility or associated facilities located in the state, a pattern of violations that are the same as or closely related to the violation for which the immunity is sought; or (C) not attempted to bring the facility, operation, or property into compliance so as to constitute a pattern of disregard of environmental laws; (2) the violation was authorized or committed intentionally, knowingly, or recklessly by a member of the owner's or operator's management and the owner's or operator's policies contributed materially to the occurrence of the violation; or (3) the owner or operator, after taking into account the cost of completing corrective and remedial measures within a reasonable time and implementing appropriate measures to prevent recurrence of the violation, realized substantial economic savings in not complying with the requirement for which a violation is charged; the exception to immunity in this paragraph applies only to that portion of a penalty that reflects the economic savings of noncompliance after taking into account the cost of completing the corrective, remedial, and preventive measures necessary to qualify for immunity. (b) There is no immunity under AS 09.25.475 from an administrative or civil penalty for the violation of an administrative or court order or for violation of a term or condition of an administrative or court order. (c) An administrative or civil penalty that is imposed on an owner or operator for violation of an environmental law when the owner or operator has made a voluntary disclosure under AS 09.25.475 (a) but is not granted immunity because of (a) of this section may, to the extent appropriate and not prohibited by law, be mitigated by (1) the good faith actions of the owner or operator in disclosing the violation; (2) efforts by the owner or operator to conduct environmental audits and to complete any resulting implementation plan or tracking system for corrective and preventive action; (3) remediation; (4) cooperation with government officials investigating the disclosed violation; (5) the nature of the violation; and (6) other relevant considerations. Sec. 09.25.485. Relationship to other recognized privileges. AS 09.25.450 — 09.25.490 do not limit, waive, or abrogate the scope or nature of a statutory or common law privilege, including the work product doctrine, the attorney-client privilege, and any other privilege recognized by a court with appropriate authority in this state. Sec. 09.25.490. Definitions. (a) In AS 09.25.450 — 09.25.490, (1) “audit report” means a report that includes each document and communication, other than those set out in AS 09.25.460 , produced from an environmental audit; general components that may be contained in a completed audit report include (A) a report, prepared by an auditor, monitor, or similar person, including the scope of the audit, the dates the audit began and ended, the information gained in the audit, findings, conclusions, recommendations, exhibits, and appendices; the types of exhibits and appendices that may be contained in an audit report include supporting information that is collected or developed for the primary purpose and in the course of an environmental audit, including (i) interviews with current or former employees; (ii) field notes and records of observations; (iii) findings, opinions, suggestions, conclusions, guidance, notes, drafts, and memoranda; (iv) legal analyses; (v) drawings; (vi) photographs; (vii) laboratory analyses and other analytical data; (viii) computer generated or electronically recorded information; (ix) maps, charts, graphs, and surveys; and (x) other communications and documents associated with an environmental audit; (B) memoranda and documents analyzing all or a portion of the materials described in (A) of this paragraph or discussing implementation issues; and (C) an implementation plan or tracking system to correct past noncompliance, improve current compliance, or prevent future noncompliance; (2) “confidential self-evaluation and analysis” means the part of an audit report that consists of interviews with current or former employees conducted by the auditor; field notes and records of observations made by the auditor; findings, opinions, suggestions, conclusions, guidance, notes, drafts, and analyses performed by the auditor; memoranda and documents that evaluate or analyze all or part of the material contained in the audit report, including findings, conclusions, opinions, recommendations made by the auditor, and an audit implementation plan or tracking system to correct past noncompliance, improve current compliance, or prevent future noncompliance with an environmental law; and that is (A) a voluntary, confidential, critical, internal, and retrospective review, self-evaluation, or analysis of conduct, practices, and occurrences and their resulting consequences; and (B) prepared and maintained with the expectation that it will be kept confidential; (3) “department” means the Department of Environmental Conservation; (4) “environmental audit” means a voluntary audit that an owner or operator of a regulated facility, operation, or property conducts or causes to be conducted, whether or not on a regular basis or in response to a particular event, that is specifically designed and undertaken to assess compliance with environmental laws or a permit, license, or approval issued under those laws, including an assessment that is part of the owner's or operator's compliance management system and that is a (A) systematic, objective, and periodic review of the facility, operation, or property related to meeting the requirements of environmental laws or a permit, license, or approval issued under those laws; or (B) documented, systematic procedure or practice that reflects the owner's or operator's due diligence in preventing, detecting, and correcting violations of environmental laws or a permit, license, or approval issued under those laws at the facility, operation, or property; (5) “environmental law” means (A) a federal or state environmental law implemented by the department; or (B) a rule, regulation, or municipal ordinance adopted in conjunction with or to implement a law described by (A) of this paragraph; (6) “operator” means a person or persons who direct, control, or supervise all or part of a regulated facility, operation, or property; (7) “owner” means a person or persons with a proprietary or possessory interest in a regulated facility, operation, or property; (8) “penalty” means an administrative or civil sanction imposed by the state or a municipality to punish a person for a violation of a statute, rule, regulation, or ordinance; the term does not include a technical or remedial provision ordered by a government agency, nor an administrative or civil sanction relating to pipeline rates, tariffs, fares, or charges; (9) “regulated facility, operation, or property” means a facility, operation, or property that is regulated under an environmental law. (b) To fully implement the privilege and immunity established under AS 09.25.450 — 09.25.490, the term “environmental law” shall be construed broadly. (c) For purposes of this chapter, unless the context requires otherwise, a person acts (1) “intentionally” with respect to a result described by a provision of law defining a violation when the person's conscious objective is to cause that result; when intentionally causing a particular result is an element of a violation, that intent need not be the person's only objective; (2) “knowingly” with respect to conduct or to a circumstance described by a provision of law defining a violation when the person is aware that the conduct is of that nature or that the circumstance exists; when knowledge of the existence of a particular fact is an element of a violation, that knowledge is established if a person is aware of a substantial probability of its existence, unless the person actually believes it does not exist; a person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance; (3) “recklessly” with respect to a result or to a circumstance described by a provision of law defining a violation when the person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists; the risk must be of such a nature and degree that disregard of it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation; a person who is unaware of a risk of which the person would have been aware had that person not been intoxicated acts recklessly with respect to the risk. Article 5. Electronic Signatures. Secs. 09.25.500 — 09.25.520. Purposes and construction; electronic records and signatures; definitions. [Repealed, § 2 ch 110 SLA 2004. For current provisions, see AS 09.80 .]