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Click here for the full text of this decision FACTS: Appellants, BP Products North America Inc., BP Amoco Chemical Co., BP Amoco Polymers Inc., and BP Corp. North America Inc. (collectively BP), assert an interlocutory appeal from two orders by the trial court 1. declaring 15 witness statements to be court records, and 2. denying BP’s motion to seal the witness statements. As a result of an explosion that occurred at BP’s Texas City facility on March 23, 2005, killing 15 people and injuring others, BP, the Occupational Safety & Health Administration and the Chemical Safety and Hazard Investigation Board began to conduct investigations into the cause of the explosion to prevent future explosions. BP’s internal investigation included taking 15 witness statements. After the explosion, the civil action underlying this appeal was filed in the Galveston County District Court for the personal injuries and deaths of those affected by the explosion. BP produced many documents, including the witness statements, which were marked “confidential,” to the plaintiffs pursuant to an agreed protective order. The Houston Chronicle (the Chronicle) and the Galveston County Daily News (the Daily News) intervened in the case on April 15, 2005, and filed a motion to unseal the discovery produced in the case, which, for purposes of this appeal, is limited to the 15 witness statements. On July 29, 2005, the Chronicle and the Daily News filed a motion to compel, or in the alternative, to rule discovery documents are court records, asking the trial court to determine whether the 15 witness statements are court records pursuant to Texas Rule of Civil Procedure 76a(2). The trial court reviewed the witness statements in camera and signed an order designating the 15 witness statements as court records that concern “[m]atters that have a probable adverse effect upon the general public health or safety,” and are thus accessible to the public. On Oct. 24, 2005, BP filed a motion to seal the 15 witness statements pursuant to Texas Rule of Civil Procedure 76a(1), along with a motion to stay the disclosure of any witness statements deemed “court records” until this court could consider an appeal of the trial court’s “court records” determination. On Nov. 7, 2005, the trial court denied BP’s motions to seal the 15 witness statements and the motion to stay the disclosure of the witness statements. On the same day, BP filed a motion to stay the disclosure of the 15 witness statements in this court, which this court granted on Nov. 8, 2005. On the same day, but before issuance of this court’s order to stay, the Chronicle and the Daily News each published stories containing some information from the 15 witness statements. On Nov. 23, 2005, notwithstanding this court’s stay order that was still in place, BP voluntarily removed the confidentiality marking from the 15 witness statements and produced them to the plaintiffs and the Chronicle. BP, however, redacted the names and identifying information of the witnesses and those named by the witnesses from the 15 witness statements. HOLDING: Affirmed. The movant, here the Chronicle, had the burden to prove that the witness statements met the “court record” requirements of Texas Rule of Civil Procedure 76a(2). BP’s challenge, however, to whether the Chronicle met its burden of proof to show that the witness statements are court records is moot. By voluntarily tendering the 15 redacted witness statements to the Chronicle, notwithstanding an order staying the trial court’s order, BP agreed to release the information contained within the witness statements to the public, which rendered the determination of whether they were court records moot because publishing the redacted witness statements had the effect of making them available to the public in the same way as a court record. Thus, whether the witness statements should be available to the public is no longer a live issue. Furthermore, the trial court’s determination of whether the witness statements were court records was made as to the documents themselves and not as to the witnesses’ identifying information in isolation. The test involves whether the documents as a whole are court records concerning matters that have a probable adverse effect upon the general public health or safety, not whether, as B.P. contends, some portion of each document concerns matters that have a probable adverse effect upon the general public health or safety. Under Texas Rule of Civil Procedure 76a, BP, as the party that requested that the court records be kept under seal, had the burden to show that no less restrictive means than sealing the witness statements would adequately and effectively protect the specific interest asserted. By tendering the 15 redacted witness statements, BP effectively conceded that a less restrictive alternative redaction was available to the broad sealing order it requested. BP therefore failed to meet its burden under Rule 76a, the court concludes. OPINION: Alcala, J.; Radack, C.J., Alcala and Higley, J.J.

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