A.R.S. tit. 12 ch. 13 — Arizona Revised Statutes Title 12 Chapter 13 — Evidence

12-2201. Persons who may be witnesses A. Every person, including a party, may testify in any civil or criminal proceeding, or before any person who has authority to receive evidence, except as otherwise expressly provided by law. B. A person shall not be incompetent to testify because he is a party to an action or proceeding or interested in the issue tried, or because he has been indicted, accused or convicted of a crime, or because of his religious opinions, or because he does not have any religious belief. 12-2202. Persons who may not be witnesses The following shall not be witnesses in a civil action: 1. Persons who are of unsound mind at the time they are called to testify. 2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are to testify, or of relating them truly. 12-2203. Admissibility of expert opinion testimony A. In a civil or criminal action, only a qualified witness may offer expert opinion testimony regarding scientific, technical or other specialized knowledge and the testimony is admissible if the court determines that all of the following apply: 1. The witness is qualified to offer an opinion as an expert on the subject matter based on knowledge, skill, experience, training or education. 2. The opinion will assist the trier of fact in understanding the evidence or determining a fact in issue. 3. The opinion is based on sufficient facts and data. 4. The opinion is the product of reliable principles and methods. 5. The witness reliably applies the principles and methods to the facts of the case. B. The court shall consider the following factors, if applicable, in determining whether the expert testimony is admissible pursuant to subsection A: 1. Whether the expert opinion and its basis have been or can be tested. 2. Whether the expert opinion and its basis have been subjected to peer reviewed publications. 3. The known or potential rate of error of the expert opinion and its basis. 4. The degree to which the expert opinion and its basis are generally accepted in the scientific community. 12-2211. Attendance of witnesses; punishment for failure to appear or testify A. A witness summoned in an action shall attend the court from day to day until discharged by the court or, with the court's permission, by the party summoning him. B. A witness summoned who fails to appear may be punished for contempt of court, and a warrant for the arrest of such witness may be issued to compel his attendance. C. A witness summoned or otherwise in attendance who refuses to testify may be committed to the county jail until he consents to testify or until discharged as provided by law. D. No punishment for contempt shall be imposed upon a witness, nor shall a warrant for his arrest be issued until it appears that the lawful fees have been paid or tendered to the witness. 12-2212. Subpoena by public officer; contempt A. When a public officer is authorized by law to take evidence, he may issue subpoenas, compel attendance of witnesses and production of documentary evidence, administer oaths to witnesses, and cause depositions to be taken, in like manner as in civil actions in the superior court. B. If a witness fails to appear at the time and place designated in the subpoena, or fails to answer questions relating to the matter about which the officer is authorized to take testimony, or fails to produce a document, the officer may, by affidavit setting forth the facts, apply to the superior court of the county where the hearing is held, and the court shall thereupon proceed as though such failure had occurred in an action pending before it. 12-2213. Privilege from arrest; exceptions A witness shall be privileged from arrest, except for treason, felony and breach of the peace, during his attendance at court, and in going to and returning therefrom, allowing one day for each twenty-five miles from his place of abode. 12-2214. Requirements for subpoena of media witnesses A. A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following: 1. Each item of documentary and evidentiary information sought from the person subpoenaed. 2. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain. 3. The identity of the other sources from which the affiant or his representative has attempted to obtain the information. 4. That the information sought is relevant and material to the affiant's cause of action or defense. 5. That the information sought is not protected by any lawful privilege. 6. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona. B. A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect. C. If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court. After the hearing the command of the subpoena shall be carried out in accordance with the order of the court. D. This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding. 12-2221. Manner of administering oath or affirmation; persons authorized to administer A. An oath or affirmation shall be administered in a manner which will best awaken the conscience and impress the mind of the person taking the oath or affirmation, and it shall be taken upon the penalty of perjury. B. The oath or affirmation may be administered by any judge, clerk or deputy clerk of any court of record, justice of the peace, notary public, referee or commissioner of a court of record. 12-2222. Officers authorized to administer oaths Every executive and judicial officer, clerk or deputy clerk of courts of record, those clerks of a justice or municipal court as authorized by the court and all notaries public may administer and certify oaths required to be administered or taken under any law of this state. Other officers or deputies may administer oaths which pertain to the duties of their office. 12-2223. Persons authorized to administer oath or affirmation within or without United States A. An oath or affirmation when taken without this state, but within the United States, may be taken before any judge, commissioner or clerk of a court of record having a seal, master in chancery, notary public authorized to administer oaths and affirmations by the law of the state wherein such oaths and affirmations may be taken. If the oath or affirmation purports to have been taken before any such officer, and has his seal of office affixed, such oath or affidavit may be used within this state as though taken before a like officer within this state. B. An oath or affirmation taken without the United States may be taken before any ambassador, minister, charge d'affairs, consul, deputy consul, vice-consul or consular agent of the United States resident and officiating as such in the country where taken, or before any notary public of the country where taken whose official authority is authenticated under the seal of any ambassador, minister, charge d'affairs, consul, deputy consul, vice-consul or consular agent. 12-2231. Husband and wife; anti-marital fact In a civil action a husband shall not be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, except as provided in section 12-2232. 12-2232. Husband and wife; privileged communications; permissible examination A. A husband or wife, during the marriage or afterward, without the consent of the other, shall not be examined as to any communications made by one to the other during the marriage, except: 1. In an action for divorce or a civil action by one against the other. 2. In a criminal action or proceeding as provided in the criminal code. 3. In an action for damages against another person for adultery committed by either husband or wife. B. In a hearing conducted pursuant to title 36, chapter 5, a husband or wife, during the marriage or afterward, without the consent of the other, may be examined as to any communications, physical acts or behaviors made by one to the other during the marriage that relate to the matters at issue in the hearing. 12-2233. Clergyman or priest and penitent In a civil action a clergyman or priest shall not, without the consent of the person making a confession, be examined as to any confession made to him in his character as clergyman or priest in the course of discipline enjoined by the church to which he belongs. 12-2234. Attorney and client A. In a civil action an attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment. An attorney's paralegal, assistant, secretary, stenographer or clerk shall not, without the consent of his employer, be examined concerning any fact the knowledge of which was acquired in such capacity. B. For purposes of subsection A, any communication is privileged between an attorney for a corporation, governmental entity, partnership, business, association or other similar entity or an employer and any employee, agent or member of the entity or employer regarding acts or omissions of or information obtained from the employee, agent or member if the communication is either: 1. For the purpose of providing legal advice to the entity or employer or to the employee, agent or member. 2. For the purpose of obtaining information in order to provide legal advice to the entity or employer or to the employee, agent or member. C. The privilege defined in this section shall not be construed to allow the employee to be relieved of a duty to disclose the facts solely because they have been communicated to an attorney. 12-2235. Doctor and patient In a civil action a physician or surgeon shall not, without the consent of his patient, or the conservator or guardian of the patient, be examined as to any communication made by his patient with reference to any physical or mental disease or disorder or supposed physical or mental disease or disorder or as to any such knowledge obtained by personal examination of the patient. 12-2236. Waiver of privilege as to attorney or doctor A person who offers himself as a witness and voluntarily testifies with reference to the communications referred to in sections 12-2234 and 12-2235 thereby consents to the examination of such attorney, physician or surgeon. 12-2237. Reporter and informant A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed. 12-2238. Mediation; privileged communications; exceptions; liability; definitions A. Before or after the filing of a complaint, mediation may occur pursuant to law, a court order or a voluntary decision of the parties. B. The mediation process is confidential. Communications made, materials created for or used and acts occurring during a mediation are confidential and may not be discovered or admitted into evidence unless one of the following exceptions is met: 1. All of the parties to the mediation agree to the disclosure. 2. The communication, material or act is relevant to a claim or defense made by a party to the mediation against the mediator or the mediation program arising out of a breach of a legal obligation owed by the mediator to the party. 3. The disclosure is required by statute. 4. The disclosure is necessary to enforce an agreement to mediate. 5. The disclosure is made in a report to a law enforcement officer, the department of child safety or adult protective services by a court appointed mediator who reasonably believes that a minor or vulnerable adult is or has been a victim of abuse, child abuse, neglect, exploitation, physical injury or a reportable offense. C. Except pursuant to subsection B, paragraph 2, 3, 4 or 5 of this section, a mediator is not subject to service of process or a subpoena to produce evidence or to testify regarding any evidence or occurrence relating to the mediation proceedings. Evidence that exists independently of the mediation even if the evidence is used in connection with the mediation is subject to service of process or subpoena. D. Notwithstanding subsection B of this section, when necessary to enforce or obtain approval of an agreement that is reached by the parties in a mediation, the terms of an agreement that is evidenced by a record that is signed by the parties are not confidential. The agreement may be introduced in any proceeding to obtain court approval of the agreement, where required by law, or to enforce the agreement. If a party requests that all or a portion of the agreement remain confidential, the agreement may be disclosed to the court under seal with a request to issue appropriate orders to protect the confidentiality of the agreement, as permitted by law. E. Notwithstanding subsection B of this section, threatened or actual violence that occurs during a mediation is not a privileged communication. The mediator may inform the parties that threatened or actual violence is not privileged and may be disclosed. F. A mediator is not subject to civil liability except for those acts or omissions that involve intentional misconduct or reckless disregard of a substantial risk of a significant injury to the rights of others. G. For the purposes of this section: 1. "Abuse" has the same meaning prescribed in section 8-201 if the victim is a minor or section 46-451 if the victim is a vulnerable adult. 2. "Child abuse" means child abuse pursuant to section 13-3623. 3. "Exploitation" has the same meaning prescribed in section 46-451. 4. "Mediation" means a process in which parties who are involved in a dispute enter into one or more private settlement discussions outside of a formal court proceeding with a neutral third party to try to resolve the dispute. 5. "Neglect" has the same meaning prescribed in section 8-201 if the victim is a minor or section 46-451 if the victim is a vulnerable adult. 6. "Physical injury" has the same meaning prescribed in section 13-105. 7. "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and that is retrievable in a perceivable form. 8. "Reportable offense" has the same meaning prescribed in section 13-3620. 9. "Sign" means to execute or adopt a tangible symbol with the present intent to authenticate a record or to attach or logically associate an electronic symbol, sound or process to or with a record with the present intent to authenticate a record. 10. "Vulnerable adult" has the same meaning prescribed in section 13-3623. 12-2239. Domestic violence victim advocate; privilege; training; exception; definition A. In a civil action, a domestic violence victim advocate shall not be examined as to any communication made by the domestic violence victim to the domestic violence victim advocate. B. This section does not apply to a civil action brought pursuant to title 36, chapter 37, relating to the civil commitment of sexually violent persons. C. Unless the domestic violence shelter or service provider has immunity under other provisions of law, the communication is not privileged if the victim advocate knows or should have known that the victim will give or has given perjurious statements or statements that would tend to disprove the existence of domestic violence. D. The domestic violence victim advocate-victim privilege does not extend to cases in which the domestic violence victim advocate has a duty to report nonaccidental injuries and physical neglect of minors as required by section 13-3620. E. A party to an action may make a motion for disclosure of privileged information under this section and, if the court finds reasonable cause, the court shall hold a hearing in camera as to whether the privilege should apply. F. To qualify for the privilege prescribed in this section, a domestic violence victim advocate must have at least thirty hours of training in assisting victims of domestic violence. A portion of this training must include an explanation of privileged communication and the reporting requirements prescribed in section 13-3620. G. A domestic violence victim advocate who is a volunteer shall perform all activities under qualified supervision. H. The training prescribed in subsection F may be provided by the shelter or service provider or by an outside agency that issues a certificate of completion. The records custodian of the shelter or service provider must maintain the training documents. I. For the purposes of this section, "domestic violence victim advocate" means a person who is an employee or volunteer at a domestic violence shelter or service provider for victims of domestic violence and who meets the training requirements of this section. 12-2240. Sexual assault victim advocate; privilege; exception; training; supervision; definition A. In a civil action, a sexual assault victim advocate shall not be examined as to any communication made by the sexual assault victim to the sexual assault victim advocate. B. This section does not apply to: 1. A civil action brought pursuant to title 36, chapter 37, relating to the civil commitment of sexually violent persons. 2. A sexual assault victim advocate's duty to report pursuant to section 13-3620. C. Unless the sexual assault program or service provider has immunity under other provisions of law, the communication is not privileged if the sexual assault victim advocate knows or should have known that the victim will give or has given perjurious statements or statements that would tend to disprove the existence of sexual assault. D. A party to an action may make a motion for disclosure of privileged information under this section and, if the court finds reasonable cause, the court shall hold a hearing in camera as to whether the privilege should apply. E. To qualify for the privilege prescribed in this section, a sexual assault victim advocate must have at least thirty hours of training in assisting victims of sexual assault. A portion of this training must include an explanation of privileged communication and the reporting requirements prescribed in section 13-3620. The training may be provided by the sexual assault program or service provider or by an outside agency that issues a certificate of completion. The records custodian of the sexual assault program or service provider must maintain the training documents. F. A sexual assault victim advocate who is a volunteer shall perform all activities under qualified supervision. G. For the purposes of this section, "sexual assault victim advocate" means a person who is an employee of or volunteer at a sexual assault program or service provider for victims of sexual assault and who meets the training requirements of this section. 12-2251. Limitations on testimony in actions by or against personal representatives, administrators, guardians or conservators In an action by or against personal representatives, administrators, guardians or conservators in which judgment may be given for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent. 12-2261. Instruments which may be acknowledged; receipt of acknowledged instruments in evidence Every written instrument, except promissory notes, bills of exchange, and the last wills of deceased persons, may be acknowledged as deeds are required to be acknowledged, and when so acknowledged shall be received in evidence without further proof of execution. 12-2263. Admissibility in evidence of certified copies of documents on file with state and county officers Certified copies, under the hands and official seals, if there are official seals, by all state and county officers of all documents properly on file with such officers, shall be received in evidence as the originals might be received. 12-2264. Evidentiary value of birth and death certificates A birth, death or fetal death certificate is prima facie evidence of the facts therein stated, but if an alleged father of a child is not the husband of the mother, the certificate shall not be prima facie evidence of paternity if that fact is controverted by the alleged father. 12-2265. Marriage certificate as prima facie evidence of marriage; other evidence competent to prove marriage A certificate of marriage executed in accordance with the laws of this state or a foreign state or country, or the record thereof, or a certified copy of such record shall be prima facie evidence of the facts therein stated in any proceeding, civil or criminal, in which the matter is in question. When the marriage is to be proved, evidence of the admission of such fact by the adverse party, or evidence of general repute, or evidence of cohabitation as married persons, or other evidence from which the fact may be inferred, is competent. 12-2266. Certificate of purchase, location or receiver's receipt as prima facie evidence of right to possession A certificate of purchase or a certificate of location or a duplicate receiver's receipt for land situated in this state, issued or made pursuant to any law of the United States or of this state, is prima facie evidence that the holder or assignee of such certificate or receipt is the owner of and entitled to possession of the land described therein as against every other person except the United States. 12-2291. Definitions In this article, unless the context otherwise requires: 1. "Clinical laboratory" has the same meaning prescribed in section 36-451. 2. "Contractor" means an agency or service that duplicates medical records on behalf of health care providers. 3. "Department" means the department of health services. 4. "Health care decision maker" means an individual who is authorized to make health care treatment decisions for the patient, including a parent of a minor or an individual who is authorized pursuant to section 8-514.05, title 14, chapter 5, article 2 or 3 or section 36-3221, 36-3231 or 36-3281. 5. "Health care provider" means: (a) A person who is licensed pursuant to title 32 and who maintains medical records. (b) A health care institution as defined in section 36-401. (c) An ambulance service as defined in section 36-2201. (d) A health care services organization licensed pursuant to title 20, chapter 4, article 9. 6. "Medical records" means all communications related to a patient's physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including medical records that are prepared by a health care provider or by other providers. Medical records do not include materials that are prepared in connection with utilization review, peer review or quality assurance activities, including records that a health care provider prepares pursuant to section 36-441, 36-445, 36-2402 or 36-2917. Medical records do not include recorded telephone and radio calls to and from a publicly operated emergency dispatch office relating to requests for emergency services or reports of suspected criminal activity, but include communications that are recorded in any form or medium between emergency medical personnel and medical personnel concerning the diagnosis or treatment of a person. 7. "Payment records" means all communications related to payment for a patient's health care that contain individually identifiable information. 8. "Source data" means information that is summarized, interpreted or reported in the medical record, including x-rays and other diagnostic images. 12-2292. Confidentiality of medical records and payment records A. Unless otherwise provided by law, all medical records and payment records, and the information contained in medical records and payment records, are privileged and confidential. A health care provider may only disclose that part or all of a patient's medical records and payment records as authorized by state or federal law or written authorization signed by the patient or the patient's health care decision maker. B. This article does not limit the effect of any other federal or state law governing the confidentiality of medical records and payment records. 12-2293. Release of medical records and payment records to patients and health care decision makers; definitions A. Except as provided in subsections B and C of this section, on the written request of a patient or the patient's health care decision maker for access to or copies of the patient's medical records and payment records, the health care provider in possession of the medical record or payment record shall provide access to or copies of the medical records or payment records to the patient or the patient's health care decision maker promptly and within not more than seven business days. B. A health care provider may deny a request for access to or copies of medical records or payment records if a health professional determines that either: 1. Access by the patient is reasonably likely to endanger the life or physical safety of the patient or another person. 2. The medical records or payment records make reference to a person other than a health professional and access by the patient or the patient's health care decision maker is reasonably likely to cause substantial harm to that other person. 3. Access by the patient's health care decision maker is reasonably likely to cause substantial harm to the patient or another person. 4. Access by the patient or the patient's health care decision maker would reveal information obtained under a promise of confidentiality with someone other than a health professional and access would be reasonably likely to reveal the source of the information. C. A health care provider may deny a request for access to or copies of medical records or payment records if the health care provider determines that either: 1. The information was created or obtained in the course of clinical research and the patient or the patient's health care decision maker agreed to the denial of access when consenting to participate in the research and was informed that the right of access will be reinstated on completion of the research. 2. A health care provider is a correctional institution or is acting under the direction of a correctional institution and access by a patient who is an inmate in the correctional institution would jeopardize the health, safety, security, custody or rehabilitation of the patient or other inmates or the safety of any officer, employee or other person at the correctional institution or of a person who is responsible for transporting the inmate. D. If the health care provider denies a request for access to or copies of the medical records or payment records, the health care provider must note this determination in the patient's medical records or payment records and provide to the patient or the patient's health care decision maker a written explanation of the reason for the denial of access. The health care provider must release the medical records or payment records information for which there is not a basis to deny access under subsection B of this section. E. Notwithstanding any other provision of this section, a health care provider shall respond to a request for medical records within the following time frames: 1. If the request is made by a patient or the patient's health care decision maker and is for the purpose of upcoming medical treatment: (a) Within ten business days after receiving the request if the medical records are less than twelve months old and are maintained in the health care provider's current electronic health record system. (b) Within fifteen business days after receiving the request if the medical records are twelve months old or more and are maintained in the health care provider's current electronic health record system. 2. Within thirty calendar days if the request is for a purpose other than upcoming medical treatment, including: (a) Litigation. (b) A request that is made by a patient for medical records that are not identified as necessary for upcoming medical treatment, including a request for personal copies of the patient's medical records when the medical records are otherwise available through a patient portal. (c) Requests for the purposes of life insurance or life insurance underwriting. (d) Requests from payors, unless otherwise specified in a contract between the provider and the payor. (e) Requests from schools or educational institutions. (f) Requests for records of a deceased patient. (g) Any other request that is not related to current or upcoming medical treatment. F. Subsection E of this section does not require a health care provider to create or compile records that do not otherwise exist. G. For the purposes of this section: 1. "Health professional" has the same meaning prescribed in section 32-3201. 2. "Upcoming medical treatment" means a scheduled or anticipated health care service or medical consultation for which the requested medical records are reasonably necessary to facilitate diagnosis, treatment or coordination of care. 12-2294. Release of medical records and payment records to third parties A. A health care provider shall disclose medical records or payment records, or the information contained in medical records or payment records, without the patient's written authorization as otherwise required by law or when ordered by a court or tribunal of competent jurisdiction. B. A health care provider may disclose medical records or payment records, or the information contained in medical records or payment records, pursuant to written authorization signed by the patient or the patient's health care decision maker. C. A health care provider may disclose medical records or payment records or the information contained in medical records or payment records and a clinical laboratory may disclose clinical laboratory results without the written authorization of the patient or the patient's health care decision maker as otherwise authorized by state or federal law, including the health insurance portability and accountability act privacy standards (45 Code of Federal Regulations part 160 and part 164, subpart E), or as follows: 1. To health care providers who are currently providing health care to the patient for the purpose of diagnosis or treatment of the patient. 2. To health care providers who have previously provided treatment to the patient, to the extent that the records pertain to the provided treatment. 3. To ambulance attendants as defined in section 36-2201 for the purpose of providing care to or transferring the patient whose records are requested. 4. To a private agency that accredits health care providers and with whom the health care provider has an agreement requiring the agency to protect the confidentiality of patient information. 5. To a health profession regulatory board as defined in section 32-3201. 6. To health care providers for the purpose of conducting utilization review, peer review and quality assurance pursuant to section 36-441, 36-445, 36-2402 or 36-2917. 7. To a person or entity that provides services to the patient's health care providers or clinical laboratories and with whom the health care provider or clinical laboratory has an agreement requiring the person or entity to protect the confidentiality of patient information and as required by the health insurance portability and accountability act privacy standards, 45 Code of Federal Regulations part 164, subpart E. 8. To the legal representative of a health care provider in possession of the medical records or payment records for the purpose of securing legal advice. 9. To the patient's third party payor or the payor's contractor. 10. To the industrial commission of Arizona or parties to an industrial commission claim pursuant to title 23, chapter 6. D. A health care provider may disclose a deceased patient's medical records or payment records or the information contained in medical records or payment records to the patient's health care decision maker at the time of the patient's death. A health care provider also may disclose a deceased patient's medical records or payment records or the information contained in medical records or payment records to the personal representative or administrator of the estate of a deceased patient, or if a personal representative or administrator has not been appointed, to the following persons in the following order of priority, unless the deceased patient during the deceased patient's lifetime or a person in a higher order of priority has notified the health care provider in writing that the deceased patient opposed the release of the medical records or payment records: 1. The deceased patient's spouse, unless the patient and the patient's spouse were legally separated at the time of the patient's death. 2. The acting trustee of a trust created by the deceased patient either alone or with the deceased patient's spouse if the trust was a revocable inter vivos trust during the deceased patient's lifetime and the deceased patient was a beneficiary of the trust during the deceased patient's lifetime. 3. An adult child of the deceased patient. 4. A parent of the deceased patient. 5. An adult brother or sister of the deceased patient. 6. A guardian or conservator of the deceased patient at the time of the patient's death. E. A person who receives medical records or payment records pursuant to this section shall not disclose those records without the written authorization of the patient or the patient's health care decision maker, unless otherwise authorized by law. F. If a health care provider releases a patient's medical records or payment records to a contractor for the purpose of duplicating or disclosing the records on behalf of the health care provider, the contractor shall not disclose any part or all of a patient's medical records or payment records in its custody except as provided in this article. After duplicating or disclosing a patient's medical records or payment records on behalf of a health care provider, a contractor must return the records to the health care provider who released the medical records or payment records to the contractor. 12-2294.01. Release of medical records or payment records to third parties pursuant to subpoena A. A subpoena seeking medical records or payment records shall be served on the health care provider and any party to the proceedings at least ten days before the production date on the subpoena. B. A subpoena that seeks medical records or payments records must meet one of the following requirements: 1. The subpoena is accompanied by a written authorization signed by the patient or the patient's health care decision maker. 2. The subpoena is accompanied by a court or tribunal order that requires the release of the records to the party seeking the records or that meets the requirements for a qualified protective order under the health insurance portability and accountability act privacy standards (42 Code of Federal Regulations section 164.512(e)). 3. The subpoena is a grand jury subpoena issued in a criminal investigation. 4. The subpoena is issued by a health profession regulatory board as defined in section 32-3201. 5. The health care provider is required by another law to release the records to the party seeking the records. C. If a subpoena does not meet one of the requirements of subsection B of this section, a health care provider shall not produce the medical records or payment records to the party seeking the records, but may either file the records under seal pursuant to subsection D of this section, object to production under subsection E of this section or file a motion to quash or modify the subpoena under rule 45 of the Arizona rules of civil procedure. D. It is sufficient compliance with a subpoena issued in a court or tribunal proceeding if a health care provider delivers the medical records or payment records under seal as follows: 1. The health care provider may deliver by certified mail or in person a copy of all the records described in the subpoena by the production date to the clerk of the court or tribunal or if there is no clerk then to the court or tribunal, together with the affidavit described in paragraph 4 of this subsection. 2. The health care provider shall separately enclose and seal a copy of the records in an inner envelope or wrapper, with the title and number of the action, name of the health care provider and date of the subpoena clearly inscribed on the copy of the records. The health care provider shall enclose the sealed envelope or wrapper in an outer envelope or wrapper that is sealed and directed to the clerk of the court or tribunal or if there is no clerk then to the court or tribunal. 3. The copy of the records shall remain sealed and shall be opened only on order of the court or tribunal conducting the proceeding. 4. The records shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following: (a) That the affiant is the duly authorized custodian of the records and has authority to certify the records. (b) That the copy is a true complete copy of the records described in the subpoena. (c) If applicable, that the health care provider is subject to the confidentiality requirements in 42 United States Code sections 290dd-3 and 290ee-3 and applicable regulations and that those confidentiality requirements may apply to the requested records. The affidavit shall request that the court make a determination, if required under applicable federal law and regulations, as to the confidentiality of the records submitted. (d) If applicable, that the health care provider has none of the records described or only part of the records described in the subpoena. 5. The copy of the records is admissible in evidence as provided under rule 902(11), Arizona rules of evidence. The affidavit is admissible as evidence of the matters stated in the affidavit and the matters stated are presumed true. If more than one person has knowledge of the facts, more than one affidavit may be made. The presumption established by this paragraph is a presumption affecting the burden of producing evidence. E. If a subpoena does not meet one of the requirements of subsection B of this section or if grounds for objection exist under rule 45 of the Arizona rules of civil procedure, a health care provider may file with the court or tribunal an objection to the inspection or copying of any or all of the records as follows: 1. On filing an objection, the health care provider shall send a copy of the objection to the patient at the patient's last known address, to the patient's attorney if known and to the party seeking the records, unless after reasonable inquiry the health care provider cannot determine the last known address of the patient. 2. On filing the objection, the health care provider has no further obligation to assert a state or federal privilege pertaining to the records or to appear or respond to a motion to compel production of records, and may produce the records if ordered by a court or tribunal. If an objection is filed, the patient or the patient's attorney is responsible for asserting or waiving any state or federal privilege that pertains to the records. 3. If an objection is filed, the party seeking production may request an order compelling production of the records. If the court or tribunal issues an order compelling production, a copy of the order shall be provided to the health care provider. On receipt of the order, the health care provider shall produce the records. 4. If applicable, an objection shall state that the health care provider is subject to the confidentiality requirements in 42 United States Code sections 290dd-3 and 290ee-3, shall state that the records may be subject to those confidentiality requirements and shall request that the court make a determination, if required under applicable federal law and regulations, on whether the submitted records are subject to discovery. F. If a party seeking medical records or payment records wishes to examine the original records maintained by a health care provider, the health care provider may permit the party to examine the original records if the subpoena meets one of the requirements of subsection B of this section. The party seeking the records also may petition a court or tribunal for an order directing the health care provider to allow the party to examine the original records or to file the original records under seal with the court or tribunal under subsection D of this section. 12-2295. Charges A. Except as otherwise provided by law, a health care provider or contractor may charge a person who requests reproductions of medical records or payment records a reasonable fee for the reproduction of the records pursuant to this section. Except as necessary for continuity of care, a health care provider or contractor may require the payment of any fees in advance. B. A health care provider or contractor shall not charge for the pertinent information contained in medical records provided to: 1. Another health care provider for the purpose of providing continuing care to the patient to whom the medical record pertains. 2. The patient to whom the medical record pertains for the demonstrated purpose of obtaining health care. 3. The health care decision maker of the patient to whom the medical record pertains for the demonstrated purpose of obtaining health care for the patient. 4. The Arizona medical board, the Arizona board of osteopathic examiners in medicine and surgery or an officer of the department of health services or the local health department requesting records pursuant to section 36-662. 5. The patient or the patient's legal representative for the purpose of appealing a denial of benefits under the social security act. Any additional request for medical records and a request for medical records that were previously provided free of charge in the same calendar year are subject to a reasonable fee pursuant to subsection A of this section, except that a fee may not be charged if no medical records are located in response to the request. A legal representative must provide an appointment of representative form SSA-1696 before obtaining a patient's medical records free of charge. 12-2296. Immunity A health care provider, contractor or clinical laboratory that acts in good faith under this article is not liable for damages in any civil action for the disclosure of medical records, payment records or clinical laboratory results or information contained in medical records, payment records or clinical laboratory results that is made pursuant to this article or as otherwise provided by law. The health care provider, contractor or clinical laboratory is presumed to have acted in good faith. The presumption may be rebutted by clear and convincing evidence. 12-2297. Retention of records A. Unless otherwise required by statute or by federal law, a health care provider shall retain the original or copies of a patient's medical records as follows: 1. If the patient is an adult, for at least six years after the last date the adult patient received medical or health care services from that provider. 2. If the patient is a child, either for at least three years after the child's eighteenth birthday or for at least six years after the last date the child received medical or health care services from that provider, whichever date occurs later. 3. Source data may be maintained separately from the medical record and must be retained for six years from the date of collection of the source data. B. When a health care provider retires or sells the provider's practice the provider shall take reasonable measures to ensure that the provider's records are retained pursuant to this section. C. A person who is licensed pursuant to title 32 as an employee of a health care provider is not responsible for storing or retaining medical records but shall compile and record the records in the customary manner. D. A nursing care institution as defined in section 36-401 shall retain patient records for six years after the date of the patient's discharge. For a minor, the nursing care institution shall retain the records for three years after the patient reaches eighteen years of age or for six years after the date of the patient's discharge, whichever date occurs last. 12-2301. Definitions In this article, unless the context otherwise requires: 1. "Advance payment" means any money or other thing of value voluntarily paid or provided before trial, as compensation or reimbursement for damages, to or for the benefit of any person having or asserting a claim for damages for personal injuries or for wrongful death or for damage or destruction of property against the person by whom or on whose behalf such payment is made. 2. "Defendant" means any party defending against a claim asserted against him by another party to an action. 3. "Plaintiff" means any party asserting a claim for damages against another party to an action. 12-2302. Admissibility of evidence of advance payment A. During trial of any action brought for damages for personal injuries or for wrongful death or for damage or destruction of property, evidence of an advance payment made by a defendant or any person acting on behalf of a defendant to or for the benefit of any person having or asserting a claim for such damages against such defendant, arising from the same event or occurrence out of which the claim, which is the subject of such action arose, shall not be received in evidence. B. If judgment is entered against a defendant by whom or on whose behalf an advance payment has been made and in favor of a plaintiff to whom or for whose benefit an advance payment has been made, such defendant shall be entitled to a reduction of the amount of damages awarded to such plaintiff equal to the amount or value of such advance payments as may be found by the court to have been made. However, in no event shall a person who has made such advance payments be entitled to reimbursement for amount paid in excess of the damages awarded to such plaintiff or in the event such plaintiff fails to recover judgment in his favor. C. An advance payment shall not operate to toll or extend the period of limitation otherwise applicable to any such action. 12-2311. Definition of silent witness or crime stopper program In this article, unless the context otherwise requires, "silent witness or crime stopper program" means a program which meets each of the following requirements: 1. The purpose of the program is to obtain information on wanted persons, felony crimes and other criminal activity. 2. The program forwards the information to the appropriate law enforcement agency. 3. The program expends program monies to provide rewards for information received pursuant to the program. 4. The program allows the person submitting a report to remain anonymous. 5. The program operates in conjunction with a certified law enforcement agency or county attorney's office. 12-2312. Silent witness or crime stopper program records; disclosure prohibited; exception A. A record of a communication between a person who submits a report of criminal activity to a silent witness, crime stopper or operation game thief program administered by a police department, a sheriff's department, a county attorney's office or the Arizona game and fish department and the person who accepted the report on behalf of the silent witness program is not a public record. B. Except as otherwise provided in this section, disclosure of information that might be used to identify an individual submitting a tip under this section is prohibited if the individual submitting the tip did so anonymously. All tips that do not include the full name of the individual submitting the tip shall be deemed submitted anonymously. This section does not prohibit a prosecutor in a criminal case from disclosing any information if the disclosure is required by a constitutional, legal or ethical duty. If a prosecutor in a criminal case possesses information that might be used to identify an individual who anonymously submitted a tip under this section and disclosure of that information is not required by a constitutional, legal or ethical duty, the prosecutor shall make reasonable efforts to ensure the information is not disclosed. C. No portion of any record maintained by a silent witness, crime stopper or operation game thief program or organization that might be used to identify an individual who submitted a tip anonymously under this section shall be subject to compulsory production except on a motion that is filed in the superior court where a complaint concerning the alleged event has been filed, or if no complaint has been filed, the county where the alleged event occurred and that establishes good cause for disclosure. The party filing the motion has the burden to show good cause for the disclosure. Good cause may include reason to believe that the tip was motivated by bias or animus or that disclosure is reasonably necessary to investigate a defense to the allegation or the potential sentence if convicted. This section does not prohibit a prosecutor in a criminal case from disclosing any information if the disclosure is required by a constitutional, legal or ethical duty. D. If a motion to disclose the tip information pursuant to subsection C of this section is granted, the court shall authorize the grant of a subpoena by the moving party to obtain the information. This section does not expand the scope of discovery available under any Arizona court rules. E. A silent witness, crime stopper or operation game thief program or organization shall retain tip materials submitted to them in writing by individuals submitting a report of criminal activity until at least the first anniversary of either of the following, whichever occurs last: 1. The date of expiration for all appeals and postconviction relief matters in a criminal proceeding or the expiration of the defendant's sentence. 2. The date the plaintiff's appeal rights are exhausted in a civil proceeding. 12-2321. Definitions In this article, unless the context otherwise requires: 1. "Actual harm" means damage, loss or injury. 2. "Audit report" means an audit report, prepared by an organization, as prescribed by section 12-2322. 3. "Health or safety law" means a federal, state or local statute, rule, regulation or ordinance, or a permit issued under a federal, state or local statute, rule, regulation or ordinance, that relates to occupational health, health or safety. 4. "Organization" means a public or private company, corporation, political subdivision organized under title 48 of this code, firm, enterprise or institution, or any part or combination of these entities, whether incorporated or not, that has its own functions and administration. If an organization has more than one operating unit, a single operating unit may be an organization. 5. "Person" means an individual, employee, officer, managing body, trust, firm, joint stock company, consortium, public or private corporation, including a government corporation, partnership, association, state, political subdivision of this state or commission or the United States government, a federal facility, an interstate body or any other entity. 6. "Regulated facility or operation" means a facility or operation that is regulated under a health or safety law. 12-2322. Audit report; contents A. Except for an item described in section 12-2326, an audit report shall include each document and communication that is created for an audit to evaluate an organization's compliance with a health or safety law or an industry standard of excellence with respect to safety, reliability or training. B. An audit report may include the following: 1. A report prepared by an auditor, consultant, monitor or other individual acting in a similar role, which may include: (a) A description of the scope of the audit. (b) The information gained in the audit and findings, conclusions and recommendations. (c) Exhibits and appendices. 2. Memoranda and documents that analyze all or a portion of the materials described by subsection C, paragraph 1 of this section or that discuss implementation issues. 3. An implementation plan or tracking system to correct past noncompliance, improve current compliance or prevent future noncompliance. 4. An evaluation, assessment or accreditation of an organization's facilities, operations or training programs relative to that industry's standards of excellence in safety, reliability or training. C. 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 of and gathered in the course of a health or safety audit, including: 1. Interviews with current or former employees. 2. Field notes and records of observations. 3. Findings, opinions, suggestions, conclusions, guidance, notes, drafts and memoranda. 4. Legal analyses. 5. Drawings. 6. Photographs. 7. Laboratory analyses and other analytical data. 8. Computer generated or electronically recorded information. 9. Maps, charts, graphs and surveys. 10. Other communications associated with a health or safety audit. D. To facilitate identification, each document in an audit report may be labeled "compliance report: privileged document" or with words of similar import. The failure to label a document does not constitute a waiver of the audit privilege or create a presumption that the privilege does or does not apply. E. An audit shall be completed within a reasonable time not to exceed six months from when it is begun, unless an extension is based on reasonable grounds. 12-2323. Privilege A. Except as provided in sections 12-2324, 12-2325 and 12-2326, any part of an audit report conducted by an organization is privileged and is not admissible as evidence or subject to discovery in any of the following: 1. A legal or an equitable civil action. 2. An administrative proceeding. B. If 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. 2. 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 12-2324, subsection B. (c) A custodian of the audit results. C. A person who conducts or participates in the preparation of an audit report 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 report. D. A state agency employee shall not request, review or otherwise use any privileged part of 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. 12-2324. Waiver; exception; penalties A. The privilege prescribed in section 12-2323 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 a health or safety audit does not waive the privilege, if the disclosure complies with any of the following: 1. Is made to address or correct a matter raised by the health or safety audit and is made only to: (a) An individual employed by the owner or operator, including a temporary or contract employee. (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 the owner's or operator's independent external auditors. 2. Is made under the terms of a confidentiality agreement between the organization for whom the audit report was prepared or the owner or operator of the regulated 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 state government official. (e) A person or entity engaged in the business of insuring, underwriting or indemnifying the facility or operation. 3. Is made under a confidentiality agreement to a government official or agency by the organization 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 the confidentiality 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 shall not be disclosed. An entity, employee or official of this state who knowingly or intentionally discloses information in violation of this subsection is subject to sanctions as prescribed by the rules of civil procedure or to a civil penalty not to exceed ten thousand dollars. 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