Cal. R. 8.45

As amended through September 20, 2024

Rule 8.45 - General provisions

(a)Application

The rules in this article establish general requirements regarding sealed and confidential records in appeals and original proceedings in the Supreme Court and Courts of Appeal. Where other laws establish specific requirements for particular types of sealed or confidential records that differ from the requirements in this article, those specific requirements supersede the requirements in this article.

(b)Definitions

As used in this article:

(1) "Record" means all or part of a document, paper, exhibit, transcript, or other thing filed or lodged with the court by electronic means or otherwise.

(2) A "lodged" record is a record temporarily deposited with the court but not filed.

(3) A "sealed" record is a record that is closed to inspection by the public or a party by order of a court under rules 2.550-2.551 or rule 8.46.

(4) A "conditionally sealed" record is a record that is filed or lodged subject to a pending application or motion to file it under seal.

(5) A "confidential" record is a record that, in court proceedings, is required by statute, rule of court, or other authority except a court order under rules 2.550-2.551 or rule 8.46 to be closed to inspection by the public or a party.

(6) A "redacted version" is a version of a filing from which all portions that disclose material contained in a sealed, conditionally sealed, or confidential record have been removed.

(7) An "unredacted version" is a version of a filing or a portion of a filing that discloses material contained in a sealed, conditionally sealed, or confidential record.

(Subd (b) amended effective January 1, 2016.)

(c)Format of sealed and confidential records

(1) Unless otherwise provided by law or court order, sealed or confidential records that are part of the record on appeal or the supporting documents or other records accompanying a motion, petition for a writ of habeas corpus, other writ petition, or other filing in the reviewing court must be kept separate from the rest of a clerk's or reporter's transcript, appendix, supporting documents, or other records sent to the reviewing court and in a secure manner that preserves their confidentiality.

(A) If the records are in paper format, they must be placed in a sealed envelope or other appropriate sealed container. This requirement does not apply to a juvenile case file but does apply to any record contained within a juvenile case file that is sealed or confidential under authority other than Welfare and Institutions Code section 827 et seq.

(B) Sealed records, and if applicable the envelope or other container, must be marked as "Sealed by Order of the Court on (Date)."

(C) Confidential records, and if applicable the envelope or other container, must be marked as "Confidential (Basis)-May Not Be Examined Without Court Order." The basis must be a citation to or other brief description of the statute, rule of court, case, or other authority that establishes that the record must be closed to inspection in the court proceeding.

(D) The superior court clerk or party transmitting sealed or confidential records to the reviewing court must prepare a sealed or confidential index of these materials. If the records include a transcript of any in-camera proceeding, the index must list the date and the names of all parties present at the hearing and their counsel. This index must be transmitted and kept with the sealed or confidential records.

(2) Except as provided in (3) or by court order, the alphabetical and chronological indexes to a clerk's or reporter's transcript, appendix, supporting documents, or other records sent to the reviewing court that are available to the public must list each sealed or confidential record by title, not disclosing the substance of the record, and must identify it as "Sealed" or "Confidential"-May Not Be Examined Without Court Order."

(3) Records relating to a request for funds under Penal Code section 987.9 or other proceedings the occurrence of which is not to be disclosed under the court order or applicable law must not be bound together with, or electronically transmitted as a single document with, other sealed or confidential records and must not be listed in the index required under (1)(D) or the alphabetical or chronological indexes to a clerk's or reporter's transcript, appendix, supporting documents to a petition, or other records sent to the reviewing court.

(Subd (c) amended effective January 1, 2016.)

(d)Transmission of and access to sealed and confidential records

(1) A sealed or confidential record must be transmitted in a secure manner that preserves the confidentiality of the record.

(2) Unless otherwise provided by (3)-(5) or other law or court order, a sealed or confidential record that is part of the record on appeal or the supporting documents or other records accompanying a motion, petition for a writ of habeas corpus, other writ petition, or other filing in the reviewing court must be transmitted only to the reviewing court and the party or parties who had access to the record in the trial court or other proceedings under review and may be examined only by the reviewing court and that party or parties. If a party's attorney but not the party had access to the record in the trial court or other proceedings under review, only the party's attorney may examine the record.

(3) Except as provided in (4), if the record is a reporter's transcript or any document related to any in-camera hearing from which a party was excluded in the trial court, the record must be transmitted to and examined by only the reviewing court and the party or parties who participated in the in-camera hearing.

(4) A reporter's transcript or any document related to an in-camera hearing concerning a confidential informant under Evidence Code sections 1041- 1042 must be transmitted only to the reviewing court.

(5) A probation report must be transmitted only to the reviewing court and to appellate counsel for the People and the defendant who was the subject of the report.

(Subd (d) amended effective January 1, 2019.)

Cal. R. Ct. 8.45

Rule 8.45 amended effective 1/1/2019; adopted effective 1/1/2014; previously amended effective 1/1/2016.

Advisory Committee Comment

Subdivision (a). Many laws address sealed and confidential records. These laws differ from each other in a variety of respects, including what information is closed to inspection, from whom it is closed, under what circumstances it is closed, and what procedures apply to closing or opening it to inspection. It is very important to determine if any such law applies with respect to a particular record because where other laws establish specific requirements that differ from the requirements in this article, those specific requirements supersede the requirements in this article.

Subdivision (b)(5). Examples of confidential records are records in juvenile proceedings (Welf. & Inst. Code, § 827 and California Rules of Court, rule 8.401 ), records of the family conciliation court (Fam. Code, § 1818(b) ), fee waiver applications (Gov. Code, § 68633(f)), and court-ordered diagnostic reports (Penal Code, § 1203.03). This term also encompasses records closed to inspection by a court order other than an order under rules 2.550-2.551 or 8.46, such as situations in which case law, statute, or rule has established a category of records that must be closed to inspection and a court has found that a particular record falls within that category and has ordered that it be closed to inspection. Examples include discovery material subject to a protective order under Code of Civil Procedure sections 2030.090, 2032.060, or 2033.080 and records closed to inspection by court order under People v. Marsden (1970) 2 Cal.3d 118 or Pitchess v. Superior Court (1974) 11 Cal.3d 531. For more examples of confidential records, please see appendix 1 of the Trial Court Records Manual at www.courts.ca.gov/documents/trial-court-records-manual.pdf.

Subdivisions (c) and (d). The requirements in this rule for format and transmission of and access to sealed and confidential records apply only unless otherwise provided by law. Special requirements that govern transmission of and/or access to particular types of records may supersede the requirements in this rule. For example, rules 8.619(g) and 8.622(e) require copies of reporters' transcripts in capital cases to be sent to the Habeas Corpus Resource Center and the California Appellate Project in San Francisco, and under rules 8.336(g)(2) and 8.409(e)(2), in non-capital felony appeals, if the defendant-or in juvenile appeals, if the appellant or the respondent-is not represented by appellate counsel when the clerk's and reporter's transcripts are certified as correct, the clerk must send that counsel's copy of the transcripts to the district appellate project.

Subdivision (c)(1)(C). For example, for juvenile records, this mark could state "Confidential-Welf. & Inst. Code, § 827" or "Confidential-Juvenile Case File"; for a fee waiver application, this mark could state "Confidential-Gov. Code, § 68633(f)" or "Confidential-Fee Waiver Application"; and for a transcript of an in-camera hearing under People v. Marsden (1970) 2 Cal.3d 118, this mark could say "Confidential-Marsden Hearing."

Subdivision (c)(2). Subdivision (c)(2) requires that, with certain exceptions, the alphabetical and chronological indexes to the clerk's and reporter's transcripts, appendixes, and supporting documents must list any sealed and confidential records but identify them as sealed or confidential. The purpose of this provision is to assist the parties in making-and the court in adjudicating-motions to unseal sealed records or to provide confidential records to a party. To protect sealed and confidential records from disclosure until the court issues an order, however, each index must identify sealed and confidential records without disclosing their substance.

Subdivision (c)(3). Under certain circumstances, the Attorney General has a statutory right to request copies of documents filed under Penal Code section 987.9(d). To facilitate compliance with such requests, this subdivision requires that such documents not be bound with other confidential documents.

Subdivision (d). See rule 8.47(b) for special requirements concerning access to certain confidential records.

Subdivision (d)(2) and (3). Because the term "party" includes any attorney of record for that party, under rule 8.10(3), when a party who had access to a record in the trial court or other proceedings under review or who participated in an in-camera hearing-such as a Marsden hearing in a criminal or juvenile proceeding-is represented by appellate counsel, the confidential record or transcript must be transmitted to that party's appellate counsel. Under rules 8.336(g)(2) and 8.409(e)(2), in non-capital felony appeals, if the defendant-or in juvenile appeals, if the appellant or the respondent-is not represented by appellate counsel when the clerk's and reporter's transcripts are certified as correct, the clerk must send the copy of the transcripts that would go to appellate counsel, including confidential records such as transcripts of Marsden hearings, to the district appellate project.

Subdivision (d)(5). This rule limits to whom a copy of a probation report is transmitted based on the provisions of Penal Code section 1203.05, which limit who may inspect or copy probation reports.