§ 16-123-345. Incentives for self-testing and self-correction

(a)

1. (1) A report or result of a self-test, as that term is defined by rule of the Director of the Arkansas Fair Housing Commission, shall be considered to be privileged under subdivision (a)(2) of this section if a person:

   1. (A) Conducts or authorizes an independent third party to conduct a self-test of any aspect of a residential real estate-related lending transaction or any part of that transaction by that person in order to determine the level or effectiveness of compliance with this subchapter by that person; and

   2. (B) Has identified any possible violation of this subchapter by that person and has taken, or is taking, appropriate corrective action to address any such possible violation.

2. (2) If a person meets the conditions specified in subdivision (a)(1) of this section with respect to a self-test, any report or results of that self-test:

   1. (A) Shall be privileged; and

   2. (B) May not be obtained or used by the Arkansas Fair Housing Commission or any applicant, department, or agency in any:

      1. (i) Proceeding or civil action in which one (1) or more violations of this subchapter are alleged; or

      2. (ii) Examination or investigation relating to compliance with this subchapter.

(b)

1. (1) No provision of this subchapter may be construed to prevent an aggrieved person, complainant, department, or agency from obtaining or using a report or results of any self-test in any proceeding or civil action in which a violation of this subchapter is alleged, or in any examination or investigation of compliance with this subchapter if:

   1. (A) The person to whom the self-test relates or any person with lawful access to the report or the results:

      1. (i) Voluntarily releases or discloses all or any part of the report or results to the commission, aggrieved person, complainant, department, or agency or to the general public; or

      2. (ii) Refers to or describes the report or results as a defense to charges of violations of this subchapter against the person to whom the self-test relates; or

   2. (B) The report or results are sought in conjunction with an adjudication or admission of a violation of this subchapter for the sole purpose of determining an appropriate penalty or remedy.

2. (2) Any report or results of a self-test that are disclosed for the purpose specified in subdivision (b)(1)(B) of this section:

   1. (A) Shall be used only for the particular proceeding in which the adjudication or admission referred to in subdivision (b)(1)(B) of this section is made; and

   2. (B) May not be used in any other action or proceeding.

(c) An aggrieved person, complainant, department, agency, or the commission that challenges a privilege asserted under this section may seek a determination of the existence and application of that privilege in:

1. (1) A court of competent jurisdiction; or

2. (2) An administrative law proceeding with appropriate jurisdiction.