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Title 8. Industrial Relations
Division 1. Department of Industrial Relations
Chapter 4.5. Division of Workers' Compensation
Subchapter 2. Workers' Compensation Appeals Board -Rules and Practice Procedure
(a) The presiding workers' compensation judge or the Appeals Board may order sealed medical reports, medical records or other documents filed in a case containing references to or discussions of mental or emotional health of any person, sexual habits or practice, use of or addiction to alcohol or other drugs, or other matters of similar character. In a case involving an unrepresented injured employee, the presiding judge or the Appeals Board may on his, her, or its own motion seal a document or documents after compliance with subdivision (d). Within twenty court days after the order sealing documents, the presiding judge or the Appeals Board shall allow the injured worker an opportunity to object to the order.
(b)(1) A party requesting that a document or documents be sealed shall file a petition for an order sealing the requested records. The petition must be accompanied by a memorandum of points and authorities and a declaration containing facts sufficient to justify the sealing.
(2) The party requesting that a record or records be filed under seal must lodge it with the district office under (d) when the petition is filed or with the Appeals Board if the matter is pending on petition for reconsideration, removal or disqualification, unless good cause exists for not lodging it. Pending the determination of the petition, the lodged records will be conditionally under seal.
(3) If necessary to prevent disclosure, the petition, any opposition, and any supporting documents must be filed in a public redacted version and lodged in a complete version conditionally under seal.
(4) If the presiding judge or the Appeals Board denies the petition to seal, the clerk must return the lodged record to the submitting party and must not place it in the adjudication file.
(5) A document filed with the district office or the Appeals Board shall not disclose material contained in a previously filed document that is sealed, conditionally under seal, or subject to a pending petition to seal.
(c)(1) The party requesting that a record be filed under seal shall put it in a manila envelope or other appropriate container, seal the envelope or container, and lodge it with the district office or with the Appeals Board if the matter is pending on petition for reconsideration, removal or disqualification.
(2) The envelope or container lodged with the court must be labeled “CONDITIONALLY UNDER SEAL.”
(3) The party submitting the lodged record shall affix to the envelope or container a cover sheet that:
(A) Contains a case number and
(B) States that the enclosed record is subject to a petition to file the record under seal.
(4) Upon receipt of a record lodged under this rule, the district office or the Appeals Board shall endorse the affixed cover sheet with the date of its receipt and must retain but not file the record unless ordered to do so.
(d) The presiding judge or the Appeals Board may order that a document be filed under seal or sealed only if he, she, or it expressly finds facts that establish:
(1) There exists an overriding public interest that overcomes the right of public access to the record;
(2) The overriding public interest supports sealing the record;
(3) A substantial probability exists that the overriding public interest will be prejudiced if the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exists to achieve the overriding public interest.
(e)(1) If an order is made that a document or documents be sealed, the order shall be filed in the record of the proceedings. The order shall set forth the facts that support the findings and direct the sealing of only those documents and pages, or, if practicable, portions of those documents and pages, that contain the material that needs to be placed under seal.
(2) If the order directs that an entire document shall be sealed, and if the sealed document is contained in a paper adjudication file, the sealed document shall be placed in a sealed envelope, which shall be removed from the file before the file is made available for public inspection. If the sealed document is in an electronic adjudication file, the document shall be marked as sealed. No entirely sealed document in a paper file or an electronic file shall be available for public inspection.
(3) If the order directs that a portion or portions of a document be sealed, and if the partially sealed document is contained in a paper adjudication file, the partially sealed document shall be placed in a sealed envelope, however, a version of the document with the sealed portion redacted shall be made available for public inspection. If the sealed document is in an electronic adjudication file, a version of the document with the sealed portion redacted also shall be electronically maintained and shall be made available for public inspection.
(f) Sealed documents shall be made available for inspection by any party to the case or by his representative, subject to any reasonable conditions and limitations as the presiding judge or the Appeals Board may impose.
(g) Sealed documents shall not otherwise be made available for public inspection except by order of a workers' compensation judge or the Appeals Board which shall be made only on a showing that good cause exists to permit the inspection.
Note: Authority cited: Sections 133, 5307, 5309 and 5708, Labor Code. Reference: Section 5708, Labor Code; Rule 2.551, California Rules of Court.
1. Amendment filed 12-19-2002; operative 1-1-2003. Submitted to OAL for printing only pursuant to Government Code section 11351 (Register 2002, No. 51).
2. Amendment of section and Note filed 11-17-2008; operative 11-17-2008. Submitted to OAL for printing only (Register 2008, No. 47).
3. Amendment of section heading, repealer and new section and amendment of Note filed 10-14-2014; operative 1-1-2015 (Register 2014, No. 42).