| (a) Records filed as part of a contested case proceeding
at SOAH are presumed to be open to the public unless designated as
confidential in accordance with this rule. A party filing or offering
documents that contain confidential information and/or personal identifying
information, as those terms are defined in §155.5 of this chapter,
shall comply with this rule to prevent inadvertent public disclosure
of such documents.
(b) Documents filed in confidential cases.
(1) Confidential cases. The records of certain contested
case proceedings at SOAH are designated as confidential and closed
to the public because of the necessity to comply with applicable confidentiality
laws. Confidential proceedings include, but are not limited to:
(A) Tax proceedings subject to Tex. Gov't Code, §2003.104
referred by the Comptroller of Public Accounts;
(B) License suspension proceedings referred by the
Child Support Division of the Office of the Attorney General;
(C) Child abuse and neglect central registry proceedings
referred by the Health and Human Services Commission;
(D) Proceedings involving public retirement system
benefits;
(E) Workers' compensation benefits proceedings referred
by the Texas Department of Insurance, Division of Workers' Compensation;
(F) Proceedings related to a petition for correction
of a peace officer separation report referred by the Texas Commission
on Law Enforcement, unless the petitioner resigned or was terminated
due to substantiated incidents of excessive force or violations of
law other than traffic offenses; and
(G) IDEA special education due process proceedings
referred by the Texas Education Agency.
(2) Filing documents in confidential cases. In addition
to the requirements of §155.101 of this chapter, documents filed
in confidential cases shall be submitted for filing as follows:
(A) Each page of the document shall be conspicuously
marked "CONFIDENTIAL" in bold print, 12-point or larger
type.
(B) Attorneys, state agencies, and other governmental
entities required to electronically file documents in the manner specified
by §155.101 of this chapter shall designate all such documents
as "confidential" within the party's electronic filing service
provider.
(C) Unless otherwise permitted by order of the presiding
judge, only unrepresented parties may file documents in confidential
proceedings by mail, hand-delivery, or fax. If filed by mail, fax,
or hand-delivery, documents submitted for filing shall be accompanied
by an explanatory cover letter that includes:
(i) the docket number and style of the case;
(ii) the filing party's name, address, email address
(if available), and telephone number; and
(iii) conspicuous markings identifying the filing as "CONFIDENTIAL"
in bold print, 12-point or larger type.
(c) Confidential information filed in public cases.
(1) Redaction required. A person who files documents
at SOAH in proceedings designated as open to the public, including
exhibits, shall redact from the documents all confidential information
and personal identifying information that is unnecessary for resolution
of the case. Unless otherwise ordered by the judge, a party may not
file an unredacted document containing confidential information or
personal identifying information in a proceeding that is open to the
public except as provided in subsection (c)(2) of this section.
(2) Confidential documents necessary for resolution
of the case. A party may designate an entire document or exhibit as
confidential in a proceeding that is open to the public only if:
(A) the entire document or exhibit contains confidential
information or includes personal identifying information;
(B) redaction of the document or exhibit would remove
confidential information or personal identifying information necessary
to the resolution of the case; and
(C) no less restrictive means other than withholding
the information from public disclosure will adequately or effectively
protect the specific confidentiality interest asserted.
(D) A party may file a motion seeking an order for
the protection of confidential information to be filed in a proceeding
that is open to the public. Such motion should state with particularity:
(i) the identity of the movant and a brief, but specific
description of the nature of the case and the records which are sought
to be protected;
(ii) the applicable law or regulation requiring or
authorizing the specific information at issue to be protected from
public disclosure; and
(iii) any stipulation of the parties with respect to
the use or disclosure of confidential information.
(3) Filing confidential documents. In addition to the
requirements of §155.101 of this chapter, a party filing confidential
documents in a proceeding accessible to the public shall submit documents
for filing as follows:
(A) A party shall separate confidential documents or
exhibits from non-confidential documents or exhibits at the time the
records are submitted for filing. A party may not designate an entire
series of documents or exhibits as confidential for purposes of filing
if only a part of the records contains confidential information or
personal identifying information.
(B) Each page of the document containing confidential
information or personal identifying information shall be conspicuously
marked "CONFIDENTIAL" in bold print, 12-point or larger
type.
(C) Attorneys, state agencies, and other governmental
entities required to electronically file documents in the manner specified
by §155.101 of this chapter shall designate all such documents
as "confidential" within the party's electronic filing service
provider.
(D) Unless otherwise permitted by order of the presiding
judge, only unrepresented parties may file documents in confidential
proceedings by mail, hand-delivery, or fax. If filed by mail, fax,
or hand-delivery, documents submitted for filing shall be accompanied
by an explanatory cover letter that includes:
(i) the docket number and style of the case;
(ii) the filing party's name, address, email address
(if available), and telephone number; and
(iii) conspicuous markings identifying the filing as "CONFIDENTIAL"
in bold print, 12-point or larger type.
(E) Documents filed pursuant to a protective order
issued by the judge may be designated as "CONFIDENTIAL, FILED
UNDER SEAL" in bold print, 12-point or larger type.
(d) Challenging confidentiality designations. A party
may file a motion to challenge the redaction or confidential filing
of any information, or the judge can raise the issue. If a confidentiality
designation is challenged, the designating party has the burden of
showing that the document should remain confidential.
(1) If the judge determines that a confidential filing
under subsection (c) of this section is appropriate, the judge may
allow the filing to remain inaccessible to the public on SOAH's website,
admit the information into the evidentiary record under seal, or employ
appropriate protective measures.
(2) If the judge determines that a confidential filing
under subsection (c) of this section is not appropriate, the offering
party must redact the confidential information or personal identifying
information before resubmitting the document.
(e) Designation of a document as confidential in a
SOAH proceeding is not determinative of whether that document would
be subject to disclosure under Tex. Gov't Code Chapter 552 or other
applicable law.
(f) In Camera Inspection. Documents presented for in
camera inspection solely for the purpose of obtaining a ruling on
their discoverability or admissibility shall not be filed, but shall
be submitted only in the manner specified by the judge.
(g) Sanctions. The judge may issue an order imposing
sanctions in the manner described in §155.157 of this chapter
for the actions of a party in improperly filing or offering documents
that contain confidential information or personal identifying information,
or for actions that result in the public disclosure of information
that is confidential by law.
|
