§ 6101.9 - Record; content and access[Rule 9].

6101.9 Record of Board proceedings; review content and copying access[Rule 9].

(a) Composition of the record Record for decision. The record upon on which any decision of the Board will be rendered consists ofdecide a case includes the following:

(1) The notice of appeal, petition, or application;

(2) Appeal

Evidence. Evidence in a case includes:

(i) Rule 4 (48 CFR 6101.4) appeal file exhibits other than those

as

to which an objection

has been

is sustained;

(

3) Hearing exhibits other than those as to which an objection has been sustained;

(4) Pleadings;

(5) Motions and responses thereto;

(6) Memoranda, orders, rulings, and directions to the parties issued by the Board;

(7) Documents and other tangible things admitted in evidence by the Board;

(8) Written transcripts or electronic recordings of proceedings;

(9) Stipulations and admissions by the parties;

(10) Depositions, or parts thereof, received in evidence;

(11) Written interrogatories and responses received in evidence;

(12) Briefs and memoranda of law; and

(13) Anything else that the Board may designate. All other papers and documents are part of the administrative record of the proceedings and are not included in the record upon which the Board's decision will be rendered.

(b) Enlargement of the record. The Board may at any time require or permit enlargement of the record with additional evidence and briefs. It may reopen the record to receive additional evidence and oral argument at a hearing.

(c) Protected and in camera submissions.

(1) A party may by motion request that the Board receive and hold materials under conditions that would limit access to them on the ground that such documents are privileged or confidential, or sensitive in some other way. The moving party must state the grounds for such limited access. The Board may also determine on its own initiative to hold materials under such conditions. The manner in which such materials will be held, the persons who shall have access to them, and the conditions (if any) under which such access will be allowed will be specified in an order of the Board. If the materials are held under such an order, they will be part of the record of the case. If the Board denies the motion, the materials may be returned to the party that submitted them. If the moving party asks, however, that the materials be placed in the administrative record, in camera, for the purpose of

ii) Other documents or parts thereof admitted as evidence;

(iii) Tangible things admitted as evidence;

(iv) Transcripts or recordings of testimony before the Board; and

(v) Factual stipulations and factual admissions.

(2) Other material. The Board may also rely on to decide a case:

(i) The notice of appeal, petition, or application;

(ii) The complaint, answer, and amendments thereto;

(iii) Motions and briefs on motions;

(iv) Other briefs;

(v) Demonstrative hearing exhibits; and

(vi) Anything else the Board may expressly admit or take notice of.

(b) Other contents of case file. The Board's administrative record may be broader than the record for decision. Material in the Board's case file that is not listed in Rule 9(a) (48 CFR 6101.9(a)) is part of the administrative record but is not part of the record for decision.

(c) Enlarging or reopening the record. The Board may enlarge or reopen the record for decision on terms fair to the parties.

(d) Protected and in camera submissions. The Board may limit access to specified material in a record for decision.

(1) Protective orders. The Board may limit access to specified material in a record for decision if the Board finds good cause to treat the material as privileged, confidential, or otherwise sensitive.

(2) In camera submissions. The Board may allow a party to submit a document solely for the Board's review in camera if:

(i) The party submits the document to explain a discovery dispute;

(ii) The Board denies a motion for protective order, and the movant asks that the record include a document that the party would have used in the case with a protective order, for possible later review of the Board's denial

, the Board will comply with the request.

(2) A party may also ask, or the Board may direct, that testimony be received under protective order or in camera. The procedures under paragraph (c)(1) of this section shall be followed with respect to such request or direction.

(d) Review and copying. Except for any part thereof that is subject to a protective order or deemed an in camera submission, the record in a Board proceeding shall be made available for review at the Office of the Clerk of the Board during the Board's normal working hours, as soon as practicable given the demands on the Board of processing the subject case and other cases. If a request is made for copies of documents, and if making such copies involves more than minimal costs to the Board, reimbursement will be required. If a request is made for a copy of a transcript which was prepared pursuant to a contract with the Board, the fee charged by the Board for a copy of the transcript will be at the rate established by the contract. When required, the Office of the Clerk will certify copies of papers and documents as a true record of the Board. Except as provided in 6101.17 and 6101.32 (Rules 17 and 32), the Office of the Clerk will not release any part of the record in its possession to anyone.

; or

(iii) Good cause exists to find that in camera review may limit or prevent needless harm to a party, witness, or other person.

(3) Status in record. A document submitted and accepted under a protective order or in camera is part of the record for decision. If the Board's decision is judicially reviewed, the Board will endeavor to preserve the protected or in camera nature of the document to the extent consistent with judicial review.

(e) Review and copying. The Clerk makes records for decision, except evidence submitted under a protective order or in camera, available for review on reasonable notice during business hours, and provides copies of such available documents for a reasonable fee. The Clerk will not relinquish possession of material in the Board's files.