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Section 132.270 – Release and use of recording, transcript, notes or report; protective orders

May 14, 2021 | Criminal Procedure, Oregon

(1) Audio recordings and the notes or report of a shorthand reporter produced pursuant to ORS 132.250 and 132.260 are confidential and may not be released except as described in this section.
(2) When an indictment resulting from grand jury proceedings is indorsed “a true bill”, the audio recording or the notes or report of a shorthand reporter of the grand jury proceedings may be released only in the following manner:

(a) The prosecuting attorney may access a copy of the audio recording or the notes or report of a shorthand reporter at any time.
(b) When the defendant has been arraigned on the indictment and is represented by an attorney, the district attorney shall:

(A) Provide a copy to the defense attorney of all audio recordings, or the notes or report of a shorthand reporter, related to an indictment after 10 days have passed since the defendant’s arraignment on the indictment and no motion described in subsection (4) of this section has been filed; or
(B) Provide a copy of the audio recordings, or the notes or report of a shorthand reporter, to the defense attorney in accordance with the court’s ruling on the motion described in subsection (4) of this section, if a motion has been filed.
(c) Unless the court orders otherwise for good cause shown, the prosecuting attorney and the defense attorney may not copy, disseminate or republish the audio recording, the notes or report of a shorthand reporter, or a transcript prepared from the audio recording, notes or report, released pursuant to this subsection, except to provide a copy to an agent of the prosecuting attorney or defense attorney for the limited purpose of case preparation. Unless a court orders otherwise for good cause shown, in consulting with the defendant the defense attorney may not disclose to the defendant:

(A) Any personal identifiers of a victim, witness or grand juror obtained from the audio recording, report, notes or transcript; or
(B) Any portion of the audio recording, report, notes or transcript that contains any personal identifiers of a victim, witness or grand juror.
(d) The defense attorney may not provide a copy of the audio recording, notes or report, or a transcript prepared from the audio recording, notes or report, to the defendant.
(e) When the defendant has been arraigned but is not represented by an attorney, the defendant may request by motion that the court issue an order allowing the defendant access to review the contents of the audio recording or the notes or report of the shorthand reporter. A copy of the motion must be provided to the prosecuting attorney. The prosecuting attorney may request a hearing on the motion within 10 days after receiving a copy. At the hearing, or in response to receiving the motion, the court shall appoint counsel for the defendant for the limited purpose of reviewing the audio recording, notes or report and may set reasonable conditions on the review of the audio recording, notes or report.
(3)

(a) When a grand jury inquires into the conduct of a public servant as defined in ORS 162.005 for acts occurring in the performance of the public servant’s duties, and an indictment resulting from the grand jury proceedings is indorsed “not a true bill”:

(A) The public servant or the prosecuting attorney may file a motion requesting a court order releasing all or a portion of a transcript of the grand jury proceedings. A copy of the motion must be served on the opposing party. In deciding whether to issue such an order, the court shall determine whether the public interest in disclosure outweighs the interest in maintaining the secrecy of the grand jury proceedings. If the court orders disclosure, the court may set reasonable conditions on copying, disseminating or republishing the transcript.
(B) A member of the public may file a motion requesting a court order for production and release of a transcript of the grand jury proceedings. A copy of the motion must be served on the prosecuting attorney and the public servant’s attorney, or the public servant if the public servant is not represented by an attorney. The person filing the motion is responsible for the cost of producing the transcript and a court order for production and release of the transcript must be conditioned on receipt of payment. In deciding whether to issue such an order, the court shall determine whether the public interest in disclosure outweighs the interest in maintaining the secrecy of the grand jury proceedings. If the court orders disclosure, the court may set reasonable conditions on copying, disseminating or republishing the transcript.
(b) The release of any transcript under this subsection may not include:

(A) The release of any personal identifiers of a victim or witness; or
(B) The release of the name or any personal identifiers of a grand juror.
(4)

(a) A motion for a protective order concerning an audio recording, the notes or report of a shorthand reporter or a transcript of grand jury proceedings may be filed as follows:

(A) The prosecuting attorney may file a motion for a protective order within 10 days after the defendant’s arraignment on the indictment. The motion may be filed on behalf of a victim or a witness. The prosecuting attorney shall inform the victim of the ability to seek a protective order.
(B) The prosecuting attorney may file a motion for a protective order within 10 days after receiving a motion described in subsection (2)(e) of this section.
(C) The prosecuting attorney, the public servant who is the subject of an indictment indorsed “not a true” bill or the public servant’s attorney may file a motion for a protective order within 10 days of receiving a motion described in subsection (3)(a) of this section.
(b) If the motion for a protective order requests that a portion of the audio recording, notes, report or transcript be redacted, the motion must be accompanied by a specific description, including the date and time, of the portion of the audio recording, notes, report or transcript to be redacted.
(c) In response to a motion filed under this subsection, the court may order that the access of the person requesting release to a copy of the audio recording, notes, report or transcript be denied, restricted or deferred, or may make any other order, upon a finding of substantial and compelling circumstances. In deciding whether to grant the motion and enter a protective order under this paragraph, the court may consider the following:

(A) Protection of witnesses and others from physical harm, threats of harm, bribes, economic interference, reprisal and other forms of intimidation;
(B) Maintenance of secrecy regarding informants, as required for effective investigation of criminal activity;
(C) Confidential information recognized under law, including the protection of confidential relationships and privileges and the contents of confidential records unrelated to a crime alleged in the indictment; and
(D) Any other relevant considerations.
(d) The court may permit the evidence of substantial and compelling circumstances described in paragraph (c) of this subsection to be made in the form of a written statement to be inspected by the court only or by oral testimony given on the record.
(5)

(a) Except as provided in paragraph (b) of this subsection, when grand jury proceedings do not result in an indictment indorsed as either “a true bill” or “not a true bill,” the audio recording or notes or report of the shorthand reporter produced pursuant to ORS 132.250 and 132.260 may not be disclosed or released.
(b) When subsequent grand jury proceedings occur inquiring into the same criminal episode as the grand jury proceedings described in paragraph (a) of this subsection, and the subsequent proceedings result in an indictment indorsed as “a true bill,” the prosecuting attorney shall provide notice to the person charged in the indictment of the occurrence of the earlier grand jury proceedings. After the person is arraigned on the indictment and the time period described in subsection (2)(b) of this section has passed, the audio recording or the notes or report of the shorthand reporter produced during the earlier grand jury proceedings may be obtained in the manner set forth in subsection (2) of this section.
(c) As used in this subsection, “criminal episode” has the meaning given that term in ORS 131.505.
(6) The district attorney of each county may establish a fee for the cost of providing a copy of any audio recording, or the notes or report of a shorthand reporter, of a grand jury proceeding to a person requesting a copy under this section.
(7) An audio recording, the notes or report of a shorthand reporter or a transcript of a grand jury proceeding obtained pursuant to this section and ORS 132.250 and 132.260:

(a) May not be used as evidence in any subsequent proceeding, except as permitted under ORS 40.375, 40.380, 40.450, 40.460 or 40.465.
(b) May not be used to challenge the indorsement of an indictment “a true bill” or the proceedings that led to the indorsement.
(c) May be used as evidence in a prosecution for perjury or false swearing committed by a witness while giving testimony during the grand jury proceeding or during trial.
(d) May be used as evidence in a proceeding for contempt of court against a person alleged to have violated the terms of a court order concerning the audio recording, notes, report or transcript.
(e) May be submitted to the court and used as evidence for a hearing on a protective order described in subsection (4) of this section.
(8) The release of audio recordings, shorthand reporter notes or reports or transcripts of grand jury proceedings under this section does not affect discovery obligations under ORS 135.805 to 135.873.
(9) As used in this section:

(a) “Personal identifiers” means:

(A) In relation to a witness or a grand juror, the person’s address, telephone number, driver license, vehicle registration information, Social Security number, date of birth and the identifying number of the person’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.
(B) In relation to a victim, the victim’s address, electronic mail address, telephone number, driver license, vehicle registration information, Social Security number, date of birth, any user names or other identifying information associated with the victim’s social media accounts and the identifying number of the victim’s depository account at a financial institution, as defined in ORS 706.008, or credit card account.
(b) “Social media” has the meaning given that term in ORS 659A.330.

ORS 132.270

The amendments to 132.270 by section 11, chapter 650, Oregon Laws 2017, become operative July 1, 2019. See section 18, chapter 650, Oregon Laws 2017. The text that is operative on and after July 1, 2019, is set forth for the user’s convenience.