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Counsel May Review "Confidential" Oregon Parole Board Evidence

Counsel May Review "Confidential" Oregon Parole Board Evidence

On December 22, 2010, the Oregon Court of Appeals held that counsel for two prisoners appealing orders of the Oregon Board of Parole and Post-Prison Supervision (Board) may review confidential evidence in the record that the Board relied on in making its decisions.

In 1985, Randy Fisher was convicted of Aggravated Murder. Pursuant to ORS 163.105(2), the Board held a September 19, 2007 rehabilitation hearing for Fisher, but found that he was not capable of rehabilitation and denied relief.

Fisher sought administrative review, claiming that the Board violated his rights by failing to disclose materials it considered. The Board again denied relief, claiming that the "materials were exempt from disclosure because they were submitted in confidence and disclosure ... would substantially prejudice or prevent the carrying out of the board's functions, and the public interest in confidentiality outweighed the public's interest in disclosure." The Board makes this blanket, boilerplate and unsupported finding every time it withholds "confidential information."

Fisher's appellate attorney moved, pursuant to Oregon Rule of Appellate Procedure (ORAP) 3.07, to inspect the sealed materials. The Board opposed the motion, arguing that: disclosure is not in the public interest; the confidential sealed materials were not critical to the board's decision; and the board would withdraw its order and issue a new order without considering the materials rather than reveal them.

The Appellate Commissioner granted Fisher's motion, concluding that the Board did not meet "its burden of showing that the public interest in confidentiality clearly outweighs the public interest in disclosure." The Commissioner conditioned counsel's inspection upon his agreement to not disclose the information to anyone, including Fisher, and that he would file a redacted or confidential brief, if necessary.

However, the Commissioner gave the Board seven days to withdraw its order and issue a new order without considering the materials. The Board chose, instead, to file an emergency motion to stay and reconsider the Commissioner's order.

The Court agreed with the Board "that a promise of confidentiality may be a compelling reason not to disclose the confidential information," but noted that Fisher was not seeking disclosure to him or the general public.

The Court rejected the Board's statutory construction, finding that "included in the scope of ORS 192.502(5) is the possibility of disclosure of otherwise confidential information to counsel for the offender involved in a hearing at which the offender's liberty is at stake." More importantly, "the public has an interest in being certain that the board is administering the laws relating to parole ... properly to the end that offenders are not improperly released from prison or improperly denied release from prison, as the case may be," found the Court. Given that prisoners have the right to judicial review of Board decisions, "the public also has an interest in ensuring that, in our adversarial system, of justice, the offender's advocate has the ability to provide proper advocacy on the client's behalf, for both the benefit of the offender and the court.”

Ultimately, the court affirmed the Commissioner's decision, holding that "the public interest in confidentiality does not outweigh the public interest in limited disclosure to the offender's attorney on judicial review," because said disclosure "does not interfere with the rehabilitation of an offender or prejudice the carrying out of the board's functions."

Dennis Gordon saw the Board for a February 21, 2007 release hearing on his 1976 murder conviction and the Board deferred his release 24 months.

On appeal, Gordon learned that the record contained several documents that the Board did not disclose to him. The Commissioner granted Gordon's counsel permission to review those confidential materials.

The Court denied the Board's emergency motion for reconsideration, finding that its Fisher reasoning applied to Gordon. "The board has not carried its burden of proving that the public interest in confidentiality of the sealed documents clearly outweighs the public interest in disclosure," the Court concluded.

Additionally, given that Gordon argued that the Board's order was not supported by substantial evidence in the record, the court found that "it would not be possible for appellate counsel to provide adequate assistance on the issue ... if appellate counsel cannot inspect the entire record."

Nevertheless, like the Commissioner, the court allowed the Board to avoid disclosing the information in both cases by withdrawing its orders within seven days and issuing new orders without considering — wink, wink — the confidential materials. Thus, the Board may consider confidential evidence, but claim that it had no impact on the decision and the prisoner will never have notice or an opportunity to rebut the evidence. This is an apparent clear-cut due process violation. See: Fisher/Gordon v. Board of Parole, 239 Or.App. 603 (Or. 2010).

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Related legal case

Fisher/Gordon v. Board of Parole