IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Adoption ) CJO No. 99-016
of Rule of Appellate Procedure ) ORDER SPECIALLY ADOPTING
5.95. ) NEW ORAP

By order dated January 13, 1998, the Supreme Court and Court of Appeals prescribed a procedure for adopting amendments to the Oregon Rules of Appellate Procedure. Part (5) of that order requires that all proposed amendments be published in the Oregon Appellate Courts Advance Sheets and requires a 49-day public comment period. However, part (6) of that order also provides that the appellate courts may adopt an amendment without publication in the Advance Sheets and without opportunity for public comment, subject to the conditions that special circumstances justify adoption of the amendment with a different effective date and that the order adopting the amendment state the nature of the special circumstances.

The court finds that special circumstances justify adoption of new Rule of Appellate Procedure 5.95 without prior publication in the Advance Sheets, as follows. A number of statutes require that material not be subject to public disclosure or that the trial court has authority to seal material in a trial court file, such as a presentence investigation report in a criminal case and the trial court record in juvenile court and mental commitment cases. On occasion an appeal may be filed in a case in which the trial court file contains material not subject to public disclosure and on appeal the parties need to refer to such material in their briefs, including setting forth verbatim excerpts of the material. The Supreme Court and Court of Appeals do not have a procedure for filing briefs containing material that is not subject to public disclosure. New Rule of Appellate Procedure 5.95 would provide a procedure for protecting against public disclosure of material that is protected by statute or court order.

Therefore, new Oregon Rule of Appellate Procedure 5.95, a copy of which is attached to this order, is hereby adopted and becomes effective immediately.

Date Chief Justice

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Adoption )
of Rule of Appellate Procedure ) ORDER SPECIALLY ADOPTING
5.95. ) NEW ORAP

By order dated January 13, 1998, the Supreme Court and Court of Appeals prescribed a procedure for adopting amendments to the Oregon Rules of Appellate Procedure. Part (5) of that order requires that all proposed amendments be published in the Oregon Appellate Courts Advance Sheets and requires a 49-day public comment period. However, part (6) of that order also provides that the appellate courts may adopt an amendment without publication in the Advance Sheets and without opportunity for public comment, subject to the conditions that special circumstances justify adoption of the amendment with a different effective date and that the order adopting the amendment state the nature of the special circumstances.

The court finds that special circumstances justify adoption of new Rule of Appellate Procedure 5.95 without prior publication in the Advance Sheets, as follows. A number of statutes require that material not be subject to public disclosure or that the trial court has authority to seal material in a trial court file, such as a presentence investigation report in a criminal case and the trial court record in juvenile court and mental commitment cases. On occasion an appeal may be filed in a case in which the trial court file contains material not subject to public disclosure and on appeal the parties need to refer to such material in their briefs, including setting forth verbatim excerpts of the material. The Supreme Court and Court of Appeals do not have a procedure for filing briefs containing material that is not subject to public disclosure. New Rule of Appellate Procedure 5.95 would provide a procedure for protecting against public disclosure of material that is protected by statute or by court order.

Therefore, new Oregon Rule of Appellate Procedure 5.95, a copy of which is attached to this order, is hereby adopted and becomes effective immediately.

Date Chief Judge

Temporary Rule 5.95

BRIEFS CONTAINING CONFIDENTIAL MATERIAL

(1) If a brief contains matter that is, by statute or court order, confidential or exempt from disclosure,1 the party submitting the brief shall file two original briefs:

(a) One brief shall contain the material that is confidential or exempt from disclosure. The title page of the brief shall contain in or under the case caption the words "CONFIDENTIAL BRIEF UNDER " followed by the statutory citation or a description of the court order under which confidentiality is claimed.* The brief shall be placed in a sealed envelope marked "CONFIDENTIAL BRIEF".

(b) One brief shall have the material that is confidential or exempt from disclosure removed or marked out. The title page of the brief shall contain in or under the case caption the words "REDACTED BRIEF UNDER " followed by the statutory citation or a description of the court order under which confidentiality is claimed.*

(2) (a) If a brief described in subsection (1) of this rule is filed in the Court of Appeals, the party filing the brief shall file 15 copies of the confidential brief and five copies of the redacted brief.

(b) If a brief described in subsection (1) of this rule is filed in the Supreme Court, the party filing the brief shall file 10 copies of the confidential brief and seven copies of the redacted brief.

(c) Each copy of a confidential brief filed under paragraphs (a) or (b) of this subsection shall be placed in a separate sealed envelope and marked "CONFIDENTIAL BRIEF".

(d) A party filing a brief under this rule shall serve two copies of the confidential brief and two copies of the redacted brief on each other party to the case on appeal or review.

(3) The Administrator shall keep both original briefs in the appellate file for the case. The Administrator shall make the redacted version of the brief available for pubic inspection and copying.

(4) (a) On motion of a person, the court shall make available for public inspection and copying a confidential brief based on a showing that the brief does not contain matter that is confidential or exempt from disclosure.

(b) On motion of a person and under such conditions as the court may deem appropriate, the court may authorize inspection or copying of a confidential brief based on a showing that the person is entitled as a matter of law to inspect or copy the material that is confidential or exempt from disclosure.

(5) When the appellate judgment issues terminating a case, the Administrator shall distribute to brief storage facilities only the redacted copies of a brief filed under subsection (1)(b) of this rule.

1See, e.g., ORS 36.222(5) and (6) regarding confidential mediation communications and agreements; ORS 135.139, 179.495, 179.505, 433.045(3), and 433.055 regarding records revealing HIV testing information; ORS 137.077 regarding presentence investigation reports; ORS 179.495 and 192.525 regarding medical records; ORS 179.505 regarding medical records maintained by state institutions; ORS 418.135, 418.747(13), and 419A.035 regarding abuse investigation records; ORS 426.160 and 426.370 regarding records in mental commitment cases; and ORS 430.399 regarding alcohol and drug abuse records.

Return to previous location.

* See Appendix S.

APPENDIX S

Illustrations for Rule 5.95

1. Sample Brief Caption for Brief Containing Confidential Material

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON, )
  ) County Circuit
Plaintiff-Respondent, ) Circuit Court No.
  )
v. ) CA A
  )
JOHN DOE, )
  ) CONFIDENTIAL BRIEF
Defendant-Appellant. ) UNDER ORS 137.077

STATE OF OREGON, )   ) County Circuit Plaintiff-Respondent, ) Circuit Court No.   ) v. ) CA A   ) JOHN DOE, )   ) REDACTED BRIEF Defendant-Appellant. ) UNDER ors 137.077

[or]

REDACTED BRIEF UNDER TRIAL COURT ORDER

DATED JANUARY 1, 1999

APPELLANT'S BRIEF AND ABSTRACT OF RECORD


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