TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 507. Classified Information
Scope. This rule governs the assertion of a privilege for classified information and the conduct of a proceeding in which classified information may be disclosed. It is prescribed under 3 R. Stat. § 121.106 and 9 R. Stat. § 122.209 and is to be read with Chapter II of Title IX of the State Statutes.
Definitions. “Classified information” means information or material that has been determined by the State of Ridgeway, pursuant to an executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of state security, 9 R. Stat. § 111.002. The classifications are Top Secret, 9 R. Stat. § 121.004; Secret, 9 R. Stat. § 121.005; Confidential, 9 R. Stat. § 121.006; Sensitive Compartmentalized Information, which supplements another classification, 9 R. Stat. § 121.003; Sensitive but Unclassified, 9 R. Stat. § 121.007; and Unclassified, 9 R. Stat. § 121.008. Information classified as Unclassified is not within this rule.
Privilege. The State has a privilege to refuse to disclose, and to prevent a person from disclosing, classified information, except as Chapter II of Title IX provides and except as this rule provides. The production, management, and access of classified information is an executive function under the management of the State Security Council, 9 R. Stat. § 121.001, and a court shall not order the declassification of information.
Access by the Court. A Supreme Court Justice, Superior Court Judge, Administrative Court Judge, or Magistrate Judge who has been assigned a security clearance shall access only such classified information as has been submitted before that judicial officer in a court proceeding, 9 R. Stat. § 121.201.
Classification Status Unchanged by Admission. Evidence containing classified information may be admitted into evidence without change in its classification status, 9 R. Stat. § 122.201. The admission of such evidence declassifies nothing and confers upon no person a right of access.
Partial Admission. To prevent the unnecessary disclosure of classified information involved in a criminal proceeding, the court may order the admission into evidence of portions only of the relevant classified material, unless the whole ought in fairness be considered, 9 R. Stat. § 122.202. Rule 106 applies to a request that the whole be considered.
Objection During Testimony. During the examination of a witness in a criminal proceeding, the State may object to a question or line of inquiry that may require the witness to disclose classified information not previously found to be admissible. Upon such an objection the court shall take suitable action to determine whether the response is admissible in a manner that safeguards against the compromise of classified information, and may require the State to provide a proffer of the witness’s response and the defendant to provide a proffer of the nature of the information sought to be elicited, 9 R. Stat. § 122.203. A proffer under this subdivision shall be made in the manner Rule 501(i)(3) prescribes and shall not be tendered to the electronic filing system.
Pre-Trial Conference. At any time after the filing of an indictment or information, a party may move for a pre-trial conference upon matters relating to classified information, and the court shall promptly hold such a conference upon that motion or upon its own initiative, to establish the timing of requests for discovery, the provision of notice, and the initiation of the procedures of this rule, 9 R. Stat. § 122.204. No admission by the defendant or by an attorney for the defendant at such a conference may be used against the defendant.
Protective Orders. Upon motion of the State, the court shall issue an order to protect against the disclosure of classified information disclosed by the State to a defendant, 9 R. Stat. § 122.205. Such an order operates upon persons and not upon documents; it binds each person named in it and each person acting on that person’s behalf; and it is enforced by contempt under Rid. R. Crim. P. 43 and by prosecution under R.C.C. § 2.09. No such order shall direct the clerk to seal, redact, or remove a document from the record, the electronic filing system providing no such capacity.
Discovery by the Defendant. Upon a sufficient showing, the court may authorize the State to delete specified items of classified information from documents to be made available to the defendant in discovery, to substitute a summary of the information, or to substitute a statement admitting the relevant facts that the classified information would tend to prove, 9 R. Stat. § 122.206(a). The court may permit the State to make the request in the form of a written statement to be inspected by the court alone, 9 R. Stat. § 122.206(b).
Notice by the Defendant. A defendant who reasonably expects to disclose or to cause the disclosure of classified information in the proceeding shall notify the attorney for the State and the court in writing, describing briefly the classified information expected to be disclosed, and shall amend the notice upon learning of further such information, 9 R. Stat. § 122.207(a). No defendant shall disclose information known or believed to be classified until the notice has been given and the State has had a reasonable opportunity to seek a determination under Rule 507(l), 9 R. Stat. § 122.207(b). Upon a failure to comply, the court may preclude the disclosure of classified information not made the subject of the notice and may prohibit the examination of a witness with respect to that information, 9 R. Stat. § 122.207(c).
In Camera Hearing; Determinations; Substitution.
The State may request a hearing upon the use, relevance, and admissibility of classified information. The hearing shall be held in camera, and the court shall issue a determination in writing for each item, 9 R. Stat. § 122.208(a).
Before the hearing the State shall notify the defendant of the classified information at issue, identifying specific information previously made available to the defendant and describing other information by generic category in such form as the court approves, 9 R. Stat. § 122.208(b).
Upon a determination authorizing disclosure, the State may move for the substitution of a statement admitting relevant facts, or of a summary. The court shall grant the motion if it finds that the statement or summary will provide the defendant with substantially the same ability to make a defense as would disclosure of the specific classified information, 9 R. Stat. § 122.208(c).
Where the court denies such a motion and the State files an affidavit of the Attorney General objecting to disclosure, the court shall order the defendant not to disclose or cause the disclosure of the information, 9 R. Stat. § 122.208(e). Where such an order deprives the defendant of evidence material to the defense, the court shall proceed under Rule 506(i).
Where the court determines that classified information may be disclosed, it shall, unless the interests of fairness do not so require, order the State to provide the defendant with the information it intends to use in rebuttal, and upon a failure to comply may exclude evidence not disclosed and prohibit examination by the State upon it, 9 R. Stat. § 122.208(f).
Preservation in Lieu of Sealing. Where 9 R. Stat. § 122.206(c) or 9 R. Stat. § 122.208(d) requires that the text of an ex parte statement or the record of an in camera hearing be sealed and preserved for use upon appeal, and the electronic filing system provides no capacity to seal a document, the requirement is satisfied by either of the following, and by no other means:
the conduct of the ex parte showing or the in camera hearing as an ex parte matter, the case record and documents of which the electronic filing system withholds from the public docket by reason of the type of the matter, as Rid. R. Civ. P. 5.4(3) provides; or
the reduction of the statement or record to writing and its preservation by the clerk apart from the electronic filing system, marked with the case number and the classification, and its transmission to the Supreme Court upon an appeal.
No classified information shall be transmitted to the general filing channel of the electronic filing system in any matter, and the clerk shall reject a filing that contains it.
Civil and Administrative Proceedings. In a civil action and in a proceeding before the administrative court, the court shall apply Rule 506 and this rule so far as they are applicable, and shall employ the procedures of Rule 507(g) through Rule 507(m) so far as they are practicable.
Security Procedures. This rule is the rule of procedure prescribed for the protection against unauthorized disclosure of classified information in the custody of the Administrative Court, the Superior Court, and the Supreme Court, 9 R. Stat. § 122.209, and is subject to such further procedures as the Judicial Conference prescribes.