The opinion
*723 LINDE, J.,
dissenting.
The rule adopted by the Corrections Division to provide due process in prison disciplinary procedures, as ordered by the United States District Court, provides as follows:
"(5) The evidence considered by the Hearings Officer will be of such credibility as would be considered by reasonable persons in the conduct of their affairs:
"(a) When unidentified informant, testimony is presented to the Hearings Officer, the identity of the informant or the verbatim statement of the informant, or both, shall be revealed to the Hearings Officer.
"(b) Information must be submitted to the Hearings Officer upon which the Hearings Officer can find that the informant is reliable in the case at issue.”
OAR, 291-105-041. The rule states two separate requirements before a hearings officer can order the punishment of a prisoner on hearsay information that is said to come from an unidentified informant. One requirement is that either the identity of the informant or the statement of the informant, or both, be revealed to the hearings officer. The second is that information must be submitted from which the hearings officer can find that the informant is reliable in the case at issue.
Each requirement has separate importance; disclosure of the informant’s statement does not satisfy the rule without additional information to establish his reliability in the specific instance. This showing of reliability is necessary to compensate at least in part for the fact that the rule is designed to shield the informant, on whose sole allegations the accused may be punished, from crossexamination and even from identification to the hearing officer.
The Cotut of Appeals reached divided conclusions concerning the respondents’ compliance with each of the two requirements. Grisel v. OSP, 47 Or App 673 , 614 P2d 1231 (1980). It considered the second requirement, i.e. a showing that the informant was reliable in this case, satisfied because "the report revealed that the informant was an eyewitness and that he had proven reliable in the past.” Judge Buttler dissented:
*724 "As matters stand, we only know that the officer who reported receiving information from the unnamed informant tells us that the informant says he was an eyewitness and that he saw Grisel stab Smith; the officer’s report does not state that he had determined that the informant was, in fact, in the .area at the time the incident occurred.”
47 Or App at 678 .
A report which merely states that the unidentified informant says that he was an eyewitness obviously tells the hearing officer nothing about the informant’s reliability in making that statement. The bare, unadorned assertion that an informant was "reliable” on a past occasion does not give the hearing officer information upon which the hearing officer can find that the informant is reliable in the pending case, as the rule requires. Such an assertion does not describe the subject matter about which the informant was reliable, nor the time and circumstances of his prior statements that were deemed truthful and his relationship to those circumstances, or even how those prior statements proved to be truthful and reliable. The bare statement that an informant was reliable concerning an unidentified subject on an unidentified prior occasion simply asks the hearing officer to leave to the reporting officer the decision to believe the informant and therefore to believe the statement he is reported to have given that officer.
If that satisfied the rule, the provision for a hearing officer separate from the investigating officers would be a charade. But, of course, the rule is to the contrary. 1 Its provision that the hearing officer must take responsibility for "finding,” upon adequate information, that the informant "is reliable in the case at issue” is meant to be taken seriously.
*725 This prisoner was sentenced to 12 months’ segregation upon the hearsay report that an unidentified informant said "I saw Grisel stab Smith.” I regret that the majority, in effect, sends this petitioner and others in his position back to the federal court to secure the due process that the rule was intended to provide and, if properly interpreted, would provide.
I would reverse.
Lent and Peterson, JJ, join in this dissent.
The Corrections Division rule also provides:
"(2) Neither the Hearings Officer nor the Committee members shall or will have participated in the case as a charging, investigation or reviewing officer. Further, no person shall serve as a member of the Committee, Hearings Officer, or as an investigator, who was a witness to the commission of the alleged misconduct or has personal knowledge of any disputed material fact relating to the case being heard.”
OAR 291-105-041.