ORAP 4.20

(1) As used in this rule:

(a) "Agency" means any state agency whose decision is the subject of a

petition for judicial review filed in the Supreme Court or Court of Appeals; or the Oregon

State Bar or Board of Bar Examiners in a proceeding under ORAP 12.25, when the

proceeding below included an evidentiary hearing.

(b) "Agency record" means the record before the agency, including the agency

file, exhibits offered and received (or the subject of an offer of proof), and the transcript

of oral proceedings, or the shortened part of the record if the parties have so stipulated

pursuant to ORS 183.482(4), regardless of whether the agency actually conducted a

hearing.

(c) "Each party" may mean multiple parties if two or more parties are

represented by the same attorney or law firm.

(d) "Electronic means" means optical disk[fn 1] or Secure File Transfer Protocol,

or other similar electronic medium if approved by the Administrator.

(e) "Instructions" means the instructions, located on the Oregon Judicial

Department website, for filing and serving the agency record via Secure File Transfer

Protocol by electronic means.[fn 2]

(f) "SFTP" means Secure File Transfer Protocol.

(2) Transmitting Agency Record to Appellate Court. The agency may transmit the

agency record to the Administrator in paper form, by optical disk, or by Secure File Transfer

Protocol (SFTP), as provided in this rule.

(3) Preparation of the Record Generally

(a) (i) If a state agency has its own process for preparing the record,

including any transcript, for use by the agency or tribunal and the form of the

record substantially complies with this rule, the agency may submit the record in

that form, subject to this rule.

(ii) As provided in ORS 656.298(6), the record on judicial review in a

workers' compensation case includes the transcript prepared under ORS 656.295,

all exhibits, and all decisions and orders entered during the hearing and review

process.

(b) Agency file. The agency may prepare the agency file either with the first

filed document on top (or in front) or the last filed document on top (or in front). If the

agency is submitting the record in paper form, the pages of the agency file and the

exhibits must be consecutively numbered at the bottom of each page.

(c) Exhibits.

(i) Except as provided in this paragraph, the agency must transmit all

exhibits offered and received, including any exhibit that is the subject of an offer

of proof. If the agency is transmitting the exhibits by electronic means, the

agency must identify each disk or electronic file containing exhibits as provided

in the Instructions.

(ii) Except as provided in clause (iii) of this paragraph, if the exhibits

include any nondocumentary exhibit, the agency must conventionally transmit the

exhibit.

(iii) If the exhibits include an audio or video recording on an optical

disk, the agency must transmit the disk as part of the exhibits. If the exhibits

include one or more audio or video tape recordings, unless a party objects, the

agency may copy the recording to an optical disk and transmit the optical disk in

lieu of the tape recording. A party may move the court to supplement the record

on judicial review with a transcript of any audio or video recording, to be

prepared at the party’s expense.

(d) Transcript. If the agency is submitting the record in paper form, the

transcript must be prepared as provided in ORAP 3.35(1). If the agency is submitting the

record by electronic means, the agency must comply with ORAP 3.35(2)(a), (b), and (d).

(e) Indexing. The record must be indexed. The index for the record must

identify each document in the agency file, each volume of transcript, and each exhibit. If

the agency is transmitting the record by electronic means, each document identified in an

index must be electronically linked to the document. If the agency is transmitting the

record by optical disk and the record requires more than one disk, the second and any

subsequent disk must have a subindex of the documents on that disk, with electronic links

to each document on the disk.

(f) The agency must assemble the record in this order: The agency file, the

parties’ exhibits, and any transcript.

(g) If the agency is transmitting the record in paper form, the agency must

securely fashion the index and record in a suitable cover or folder showing on the outside

the case name and the agency name and case number. If the agency is transmitting the

record by electronic means, the agency must submit the record as provided in the

Instructions.

(4) Confidential and Sealed Documents

(a) If the record contains a confidential or sealed document* as defined in

ORAP 3.07, the agency must place the document in an envelope (if the record is being

transmitted in paper form) or in a separate electronic file as provided in the Instructions

(if the record is transmitted by electronic means). If the record includes multiple

confidential documents, the agency may place all confidential documents in the same

envelope or electronic file. If the agency record includes multiple sealed documents, the

agency must place each sealed document in a separate envelope or electronic file.

(b) An envelope containing a sealed or confidential document must indicate

on the outside of the envelope the case name, the agency name and case number, and that

it contains a sealed or confidential document. An electronic file containing a sealed or

confidential document must be labelled as provided in the Instructions.

(c) If the agency is transmitting the record by optical disk, all confidential

documents must be placed on a separate disk labelled as provided in the Instructions, and

each sealed document must be transmitted by a separate disk. If the agency is

transmitting the record by SFTP, any sealed document must be transmitted by either

optical disk or in paper form.

(5) Transmitting the Record in Paper Form. If the agency transmits and serves the

record in paper form, the record must have a suitable cover or folder bearing on the outside the

title and agency number of the case and the name of the agency from which the review is taken.

Whenever feasible, the agency must submit the original record. The agency’s transmission and

service of the record in paper form qualifies as transmission of the record within the meaning of

ORS 183.482(4).

(6) Preparing and Transmitting the Record by Electronic Means.

(a) If the agency transmits the record by electronic means, the agency must

prepare the record as provided in the Instructions.

(b) The following qualifies as transmission of the record to the Administrator

within the meaning of ORS 183.482(4):

(i) Delivery of the record in optical disk form to the Administrator for

filing as provided in the Instructions; or

(ii) Uploading the agency record to the Judicial Department’s SFTP

site as provided in the Instructions, together with notification to the Administrator

that the upload is complete, as provided in the Instructions.

(c) The following qualifies as service of the record on a party to the judicial

review, as provided in subsection (3):

(i) Delivery of the record in conventional paper form to the party;

(ii) Delivery of the record in optical disk form to the party; or

(iii) Uploading the record to the Judicial Department’s SFTP site as

provided in the Instructions and providing notification to the other party that the

upload is complete. The record will remain on the SFTP site for 14 days to allow

a party being served by SFTP to retrieve the record and copy it to a suitable

location on the party’s computer.

(7) Service Generally

(a) On the same date the agency transmits the agency record to the

Administrator, the agency must serve a copy of the record on each other party to the

judicial review. The agency may serve the party in paper form, by optical disk, or by

Secure File Transfer Protocol (SFTP), as provided in this subsection.

(b) Service on Party Represented by Attorney. If the agency transmits the

record to the Administrator by optical disk or SFTP, the agency must serve a copy of the

record on any party represented by an attorney, including an out-of-state attorney

admitted pro hac vice, by the same means unless the attorney has made arrangements

with the agency for service by other means.

(c) Service on Self-Represented Party.

(i) The agency may serve the record on a self-represented party in

paper form or by optical disk.

(ii) The agency may serve the record on a self-represented party by

SFTP, if the party has stated the party's willingness to be served by SFTP as

provided in ORAP 4.15(1)(d) or if the agency otherwise has obtained the party’s

consent to be served by SFTP.

(iii) If the agency serves a self-represented party by optical disk or

SFTP, the agency must notify the party that, if the party is unable to access the

record, the party must notify the agency within 14 days of receipt, with contact

information for the agency.[fn 3] If a party so notifies the agency, the agency must

serve the record on the party in paper form within seven days.

(d) If the record includes one or more confidential documents* as defined in

ORAP 3.07, the agency must serve the parties with a copy of the confidential document.

If the record includes one or more sealed documents as defined in ORAP 3.07, the

agency must not serve a copy of the sealed document on the parties.

(e) The agency must accompany the record as transmitted to the court with

proof of service of the record on each party, stating the manner in which each party was

served.

(8) Transmitting and Serving Corrected or Additional Agency Record

(a) The record is deemed settled when the time to move to correct the record

as provided in ORAP 4.22 has expired or the process under that rule has been completed.

(b) If the agency or the court corrects or adds to any part of the record, the

agency must transmit to the Administrator and serve on the parties the corrected or

additional part of the record by one of the methods prescribed in this rule.

(c) The Administrator will notify the parties when the Administrator

determines that the record is settled.

(9) Modified Record After Court Grants Leave to Present Additional Evidence

If the appellate court grants a party’s motion under ORS 183.482(5) for leave to present

additional evidence, following proceedings before the agency, the agency must transmit to the

Administrator and serve on the parties any additional record by one of the methods prescribed in

this rule.

(10) Disposition of Agency Record upon Issuance of Appellate Judgment

(a) If the agency transmitted the record to the Administrator in paper form,

unless the court directs otherwise, when the Administrator issues the appellate judgment,

the Administrator will return the record to the agency.

(b) If agency transmitted the record to the Administrator by electronic means,

the Administrator issues the appellate judgment, the Administrator will not return the

agency record to the agency. The Administrator will retain the electronic record for at

least six months; thereafter, unless the court grants a party’s request to retain the agency

record longer, the Administrator may delete the record from computer storage.