Rule 4.20 - RECORD ON JUDICIAL REVIEW(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 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.(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. 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 documentsfn-FR-4.20-astr 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.Adopted November 15, 2018, effective 1/1/2019; amended April 15, 2019, effective 4/15/2019; amended November 13, 2020, effective 1/1/2021; amended January 4, 2022, effective 7/14/2021.