Cal. R. 8.47

As amended through September 20, 2024

Rule 8.47 - Confidential records

(a)Application

This rule applies to confidential records but does not apply to records sealed by court order under rules 2.550-2.551 or rule 8.46 or to conditionally sealed records under rule 8.46. Unless otherwise provided by this rule or other law, rule 8.45 governs the form and transmission of and access to confidential records.

(b)Records of Marsden hearings and other in-camera proceedings

(1) This subdivision applies to reporter's transcripts of and documents filed or lodged by a defendant in connection with:

(A) An in-camera hearing conducted by the superior court under People v. Marsden (1970) 2 Cal.3d 118; or

(B) Another in-camera hearing at which the defendant was present but from which the People were excluded in order to prevent disclosure of information about defense strategy or other information to which the prosecution was not allowed access at the time of the hearing.

(2) Except as provided in (3), if the defendant raises a Marsden issue or an issue related to another in-camera hearing covered by this rule in a brief, petition, or other filing in the reviewing court, the following procedures apply:

(A) The brief, including any portion that discloses matters contained in the transcript of the in-camera hearing, and other documents filed or lodged in connection with the hearing, must be filed publicly. The requirement to publicly file this brief does not apply in juvenile cases; rule 8.401 governs the format of and access to such briefs in juvenile cases.

(B) The People may serve and file an application requesting a copy of the reporter's transcript of, and documents filed or lodged by a defendant in connection with, the in-camera hearing.

(C) Within 10 days after the application is filed, the defendant may serve and file opposition to this application on the basis that the transcript or documents contain confidential material not relevant to the issues raised by the defendant in the reviewing court. Any such opposition must identify the page and line numbers of the transcript or documents containing this irrelevant material.

(D) If the defendant does not timely serve and file opposition to the application, the reviewing court clerk must send to the People a copy of the reporter's transcript of, and documents filed or lodged by a defendant in connection with, the in-camera hearing.

(3) A defendant may serve and file a motion or application in the reviewing court requesting permission to file under seal a brief, petition, or other filing that raises a Marsden issue or an issue related to another in-camera hearing covered by this subdivision and requesting an order maintaining the confidentiality of the relevant material from the reporter's transcript of or documents filed or lodged in connection with the in-camera hearing.

(A) Except as otherwise provided in this rule, rule 8.46(d) governs a motion or application under this subdivision.

(B) The declaration accompanying the motion or application must contain facts sufficient to justify an order maintaining the confidentiality of the relevant material from the reporter's transcript of, or documents filed or lodged in connection with, the in-camera hearing and sealing of the brief, petition, or other filing.

(C) At the time the motion or application is filed, the defendant must:

(i) File a public redacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The cover of this version must identify it as "Public-Redacts material from conditionally sealed record." The requirement to publicly file the redacted version does not apply in juvenile cases; rule 8.401 generally governs access to filings in juvenile cases. In juvenile cases, the cover of the redacted version must identify it as "Redacted version-Redacts material from conditionally sealed record."

(ii) Lodge an unredacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The filing must be transmitted in a secure manner that preserves the confidentiality of the filing being lodged. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of the unredacted version of the document, and if applicable the envelope or other container, must identify it as "May Not Be Examined Without Court Order-Contains material from conditionally sealed record." Conditionally sealed material disclosed in this version must be identified as such in the filing.

(D) If the court denies the motion or application to file the brief, petition, or other filing under seal, the defendant may notify the court that the unredacted brief, petition, or other filing lodged under (C)(ii) is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to file the brief, petition, or other filing under seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the lodged unredacted brief, petition, or other filing. If the defendant does not notify the court within 10 days of the order, the clerk must (1) return the lodged unredacted brief, petition, or other filing to the defendant if it is in paper form, or (2) permanently delete the lodged unredacted brief, petition, or other filing if it is in electronic form.

(Subd (b) amended effective January 1, 2019; previously amended effective January 1, 2016.)

(c)Other confidential records

Except as otherwise provided by law or order of the reviewing court:

(1) Nothing filed publicly in the reviewing court-including any application, brief, petition, or memorandum-may disclose material contained in a confidential record, including a record that, by law, a party may choose be kept confidential in reviewing court proceedings and that the party has chosen to keep confidential.

(2) To maintain the confidentiality of material contained in a confidential record, if it is necessary to disclose such material in a filing in the reviewing court, a party may serve and file a motion or application in the reviewing court requesting permission for the filing to be under seal.

(A) Except as otherwise provided in this rule, rule 8.46(d) governs a motion or application under this subdivision.

(B) The declaration accompanying the motion or application must contain facts sufficient to establish that the record is required by law to be closed to inspection in the reviewing court and to justify sealing of the brief, petition, or other filing.

(C) At the time the motion or application is filed, the party must:

(i) File a redacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The cover of this version must identify it as "Public-Redacts material from conditionally sealed record," In juvenile cases, the cover of this version must identify it as "Redacted version-Redacts material from conditionally sealed record."

(ii) Lodge an unredacted version of the brief, petition, or other filing that he or she is requesting be filed under seal. The filing must be transmitted in a secure manner that preserves the confidentiality of the filing being lodged. If this version is in paper format, it must be placed in a sealed envelope or other appropriate sealed container. The cover of the unredacted version of the document, and if applicable the envelope or other container, must identify it as "May Not Be Examined Without Court Order-Contains material from conditionally sealed record." Material from a confidential record disclosed in this version must be identified and accompanied by a citation to the statute, rule of court, case, or other authority establishing that the record is required by law to be closed to inspection in the reviewing court.

(D) If the court denies the motion or application to file the brief, petition, or other filing under seal, the party who filed the motion or application may notify the court that the unredacted brief, petition, or other filing lodged under (C)(ii) is to be filed unsealed. This notification must be received within 10 days of the order denying the motion or application to file the brief, petition, or other filing under seal, unless otherwise ordered by the court. On receipt of this notification, the clerk must unseal and file the lodged unredacted brief, petition, or other filing. If the party who filed the motion or application does not notify the court within 10 days of the order, the clerk must (1) return the lodged unredacted brief, petition, or other filing to the lodging party if it is in paper form, or (2) permanently delete the lodged unredacted brief, petition, or other filing if it is in electronic form.

(Subd (c) amended effective January 1, 2019; previously amended effective January 1, 2016.)

Cal. R. Ct. 8.47

Rule 8.47 amended effective 1/1/2019; adopted effective 1/1/2014; previously amended effective 1/1/2016.

Advisory Committee Comment

Subdivisions (a) and (c). Note that there are many laws that address the confidentiality of various 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 this rule applies only to confidential records as defined in rule 8.45, and the procedures in this rule apply only "unless otherwise provided by law." Thus, where other laws establish specific requirements that differ from the requirements in this rule, those specific requirements supersede the requirements in this rule. For example, although Penal Code section 1203.05 limits who may inspect or copy probation reports, much of the material contained in such reports-such as the factual summary of the offense(s); the evaluations, analyses, calculations, and recommendations of the probation officer; and other nonpersonal information-is not considered confidential under that statute and is routinely discussed in openly filed appellate briefs (see People v. Connor (2004) 115 Cal.App.4th 669, 695-696). In addition, this rule does not alter any existing authority for a court to open a confidential record to inspection by the public or another party to a proceeding.

Subdivision (c)(1). The reference in this provision to records that a party may choose be kept confidential in reviewing court proceedings is intended to encompass situations in which a record may be subject to a privilege that a party may choose to maintain or choose to waive.

Subdivision (c)(2). Note that when a record has been sealed by court order, rule 8.46(g)(2) requires a party to file redacted (public) and unredacted (sealed) versions of any filing that discloses material from the sealed record; it does not require the party to make a motion or application for permission to do so. By contrast, this rule requires court permission before redacted (public) and unredacted (sealed) filings may be made to prevent disclosure of material from confidential records.