Chief Judge Howard T. Markey of the United States Court of Customs and Patent Appeals is sitting by designation.

This appeal and cross-appeal arise from a district court decision granting in part and denying in part certain declaratory and injunctive relief requested by a class of prisoners at the Indiana State Prison.

I

This action was brought by nine named plaintiffs all of whom were then inmates at the Indiana State Prison and had been transferred from the Indiana Reformatory. The district court ordered that the suit be maintained as a class action. *fn1

The defendants were the Warden Assistant Warden and Director of Classification at the Indiana State Prison at Michigan City (Prison) the Superintendent and Assistant Superintendent at the Indiana State Reformatory at Pendleton (Reformatory) and the Commissioner of the Indiana Department of Corrections.

The trial lasted ten days and because many of the witnesses were prisoners or guards it was held in the visitor's lounge of the Prison Administration Building.

In an order dated February 8 1974 the district Court ordered the following injunctive relief be granted:

(1) No inmate was to be transferred from the Reformatory *fn2 to the Prison *fn3 and confined in segregation at the "I" Cellhouse Detention Unit (I.D.U.) *fn4 upon his arrival (disciplinary transfer) *fn5 unless the following procedures were provided: (a) advance written notice delivered at least two days prior to prisoner's hearing of the fact that a disciplinary transfer was contemplated including a statement of reasons for the proposed transfer and the date and time of the hearing; (b) an impartial decision maker -- one or more Reformatory personnel other than individuals who had accused or investigated the behavior of the prisoner which formed the basis for the transfer proposal; (c) a fair opportunity for the inmate to be present during the hearing and to explain or refute accusations; (d) a fair opportunity to request that witnesses be called or interviewed in the presence of the inmate and that adverse witnesses be cross-examined unless the hearing officer or board determined that good cause existed to deny the right of confrontation in which case the written record shall reflect sufficient proof of the reliability of the absent or anonymous informer and a statement of the reasons for denying confrontation; *fn6 (e) representation by a lay advocate -- either institution personnel or another inmate not then in segregation; (f) a written statement of findings of fact and conclusions based on substantial evidence made available to the inmate; (g) an administrative review of the decision by the Commissioner of Corrections or his designate.

(2) The foregoing provisions for notice and hearing need not be provided in a true emergency situation where the general security of the transferring institution is immediately threatened. In such an unusual situation the inmate may be transferred and then provided with the procedures outlined above within five days of his arrival at the transferee institution.

(3) All prisoners in segregation at the Prison who were there pursuant to a disciplinary transfer from the Reformatory were to be provided with a hearing conforming with the above requirements concerning the basis for their transfer.

(4) Inmates confined in a segregation unit at the Prison for an indefinite term were to be accorded a periodic review (at least every thirty days) of their segregated status conducted in an adversary setting conforming with the procedures outlined above.

(5) The Deputies Office-Seclusion Unit (D.O.) at the Prison was ordered closed and all inmates were to be removed from that unit. *fn7

(6) The inmates confined in segregation at the Prison were to be accorded access to an adequate law library either by bringing the inmate to the library or by bringing to the inmate and leaving for a reasonable period of time legal materials or photocopies thereof.

(7) Mail sent between Counsels and prisoners at the Prison was not to be opened read censored or copied and its prompt delivery and transmission was not to be interfered with except if Prison officials have reasonable grounds to believe that a piece of Counsel-client or client-Counsel mail may contain contraband then a Prison official may open such mail but only in the presence of the prisoner involved and without reading censuring copying or further interfering with the delivery of the material.

Despite the fact that the district court disposed of a great many questions the defendants have raised on appeal only a limited number of issues and the plaintiffs have cross-appealed on one additional issue. *fn8

II

The defendants challenge certain procedures *fn9 ordered by the district Court to be part of the required disciplinary hearing prior to transferring an inmate from the Reformatory to the Prison. *fn10

A

The district Court ordered that an inmate who was the subject of a disciplinary transfer hearing is entitled as of right to representation by a lay advocate of his own choosing either institution personnel or another inmate not then in segregation.

In Wolff v. McDonnell 418 U.S. 539 94 S. Ct. 2963 41 L. Ed. 2d 935 (1974) the Supreme Court refused to recognize an absolute right to Counsel at prison disciplinary hearings. Court said:

The insertion of Counsel into the disciplinary process would inevitably give the proceedings a more adversary cast and tend to reduce their utility as a means to further correctional goals. At this stage of the development of these procedures we are not prepared to hold that inmates have a right to either retained or appointed Counsel in disciplinary proceedings. Id. at 2981-82.

Court went on to say:

Where an illiterate inmate is involved however or where the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case he should be free to seek the aid of a fellow inmate or if that is forbidden to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff. Id. at 2982.

The Supreme Court made clear that it was not only illiterate inmates who were entitled to lay Counsel in a given situation but also inmates faced with complex matters.

Court's decision did not define what factors were to be considered in determining "the complexity of the issue." Nor have we been apprised by the State of Indiana of existing rules or procedures that would give effect to Court's mandate. We note only that the complexity of an issue is often dependent on the amount of information available to a prisoner. It is conceivable that in many disciplinary transfer situations an inmate will already be confined in segregation and thus unable to collect information. This will make his task of explaining his actions and defending himself all the more difficult. In these situations the inmate should be entitled to assistance in preparing and presenting his case.

On remand the district Court should modify his order in accordance with Wolff and the foregoing considerations.

B

The next procedure challenged by defendants is the right of an inmate to cross-examine adverse witnesses during their disciplinary hearing unless the hearing officer determines that good cause exists to deny that right in which case the written record should reflect the reasons for the denial. *fn11

The Supreme Court in Wolff after finding that an inmate should be allowed to call witnesses and present documentary evidence in his defense stated that "confrontation and cross-examination present greater hazards to institutional interests." Wolff supra at 2980. *fn12 Court said:

We think that the Constitution should not be read to impose the procedure at the present time and that adequate bases for decision in prison disciplinary cases can be arrived at without cross-examination.

The better course at this time in a period where prison practices are diverse and somewhat experimental is to leave these matters to the sound discretion of the officials of state prisons. Id. at 2980 2981.

Thus while Court rejected an absolute right to cross-examination it left the matter to the discretion of prison officials. In interpreting this mandate Court of Appeals for the Ninth Circuit held that in exercising this discretion prison officials must upon request for a right to cross-examination enter into the record the reasons for the denial of the request. Clutchette v. Procunier 510 F.2d 613 (9th Cir. 1974) petition for cert. filed 43 U.S.L.W. 3517 (U.S. Mar. 20 1975).

The concern of Court in Wolff in not granting an absolute right of cross-examination was directed at unmanageability of the proceeding disruption of prison routine safety of prison personnel and possible reprisals against other inmates. Wolff supra at 2980-81. Court recognized that there existed a "narrow range of cases where interest balancing may well dictate cross-examination." Id. at 2981. But even in those cases the "courts will be faced with the assessment of prison officials as to the dangers involved and there would be a limited basis for upsetting such judgments." Id.

However limited Court recognized in Wolff that at least in some circumstances prison officials may be found to have abused their discretion if they deny a request for the right of cross-examination for entirely arbitrary reasons. As the Ninth Circuit found in Clutchette the only way the soundness of the discretion exercised can be subject to scrutiny is a requirement that any refusal to allow cross-examination when requested be accompanied by a written record of the reasons for the refusal.

Since Wolff makes clear that the district Court's order cannot stand in its present form it is remanded with directions to modify the order in light of Wolff and this opinion.

C

The district court ordered that a written statement of findings of fact and conclusions based on substantial evidence be made available to inmates following their disciplinary transfer hearings. The defendants challenge the "substantial evidence" requirement on the grounds that prison officials are not lawyers and should not be subjected to such a vigorous standard.

Wolff although not precisely on point relied on Morrissey v. Brewer 408 U.S. 471 33 L. Ed. 2d 484 92 S. Ct. 2593 (1972) when it said:

There must be a "written statement by the factfinders as to the evidence relied on and reasons" for the disciplinary action. Wolff supra at 2979.

The reason for this requirement was simple. Court recognized that the ultimate conclusions of a disciplinary hearing as indicated by whether the prisoner was found guilty or not of the charges would likely be considered in subsequent matters such as prison transfer proceedings or parole proceedings. *fn13

As a practical matter we fail to see the conflict defendants note between the term "substantial evidence" and the phrase "evidence relied on and reasons for the disciplinary action." Presumably the Supreme Court did not contemplate in Wolff where its use of the latter phrase in connection with the array of procedural rights provided was directed at protecting prisoners from subsequent collateral consequences that these rights should be easily emasculated by allowing prison officials to infringe arbitrarily on an inmate's substantive due process right not to be found guilty except by an appropriate quantum of evidence. See e.g. Gomes v. Travisono 510 F.2d 537 (1st Cir. 1974); Wilwording v. Swenson 502 F.2d 844 851 (8th Cir. 1974).

The term "substantial evidence" need not be something prison officials should be overly concerned about. In each case they should write their conclusions and the reasons for them based on the evidence they have heard. Wolff supra at 2979. It is of course hoped that when the evidence is not substantial they will accordingly find the inmate not guilty of the charges against him. If however they do find him guilty it will then be the responsibility of the reviewing courts in the final analysis to determine whether the decision was based on substantial evidence or whether the decision was sufficiently arbitrary so as to be a denial of due process. Clearly a decision to order a disciplinary transfer cannot be made arbitrarily or capriciously. United States ex rel. Miller v. Twomey 479 F.2d 701 715 (7th Cir. 1973) cert. denied 414 U.S. 1146 94 S. Ct. 900 39 L. Ed. 2d 102 (1974).

A written statement reflecting the reasons and the conclusions of the tribunal will aid in determining whether this standard has been met. The judgment of the district court on this issue is affirmed. *fn14

III

The district court in its February 8 1974 order required that prisoners confined in segregation for an indefinite term were to be accorded at least every thirty days a periodic review of their segregated status conducted in a manner consistent with the procedural rules previously approved by the district court. *fn15 The defendants have requested this court to modify in part that order.

The issue to be resolved is whether prison officials may conduct a simple file review every thirty days or whether a full adversary hearing must be held. The defendants conceded as they must that where an inmate is the subject of a new disciplinary report which is likely to have an effect on the continuation of his term in segregation the inmate should be given a hearing conforming with the procedures set for prison disciplinary hearings. Adams v. Carlson 488 F.2d 619 634-35 (7th Cir. 1973). Conversely the plaintiffs conceded at oral argument that where an indefinite segregation sentence is imposed and no new disciplinary reports or other adverse matters are placed in the inmate's record for consideration by the committee reviewing the inmate's segregation term then there was no need for a full adversary hearing. *fn16

After the respective concessions it appears that the only area of disagreement remaining is what should be the appropriate administrative review in the case where adverse matters are informally made available to the reviewing committee or recorded in a form other than a disciplinary report.

Since the plaintiffs' concession requires a modification of the order below and because the factual basis of plaintiffs' concern regarding informal adverse material being made part of prisoners' files has not been presented to this court this question is remanded to the district Court to fashion an order that resolves the narrow area of contention that remains between the parties.

IV

Plaintiffs have cross-appealed from that part of the district court's order that required hearings be held only for those individuals that had been subject to a disciplinary transfer to the Prison and who as a result of that transfer were still in I.D.U. at the time of the district court's order. Plaintiffs asked this court to extend that order to those prisoners who had been placed in I.D.U. as a result of a disciplinary transfer during the period July 1971 to July 1972 without any type of hearing and who had been released from segregation. *fn17 In the alternative they seek to have the records of such individuals expunged. *fn18

Plaintiffs contended that despite their release from segregation they continue to be adversely affected by their disciplinary transfer. Reports of such a transfer they contended are considered by the parole board affect classification decisions and affect assignments for work release or study release. Cf. Wolff v. McDonnell 418 U.S. 539 94 S. Ct. 2963 2979 41 L. Ed. 2d 935 (1974).

Wolff held that new prison disciplinary requirements were not to be applied retroactively. Plaintiffs contended however that those prisoners transferred between July 1971 just after this court decided Adams v. Pate 445 F.2d 105 (7th Cir. 1971) and July 1 1972 when Indiana officials instituted a hearing procedure for prisoners being transferred should be afforded a hearing to determine whether their records should be expunged.

In Adams where a prisoner before being placed in segregation was taken before a disciplinary captain for a determination of guilt or innocence this court said:

It thus appears that the prisoner is confronted with the accusation against him and afforded a reasonable opportunity to deny the accusation or explain his actions. In the context of the nature of the administrative action here involved this would appear to fairly and rationally satisfy the concept of procedural due process. Id. at 108.

The defendants contend that the above statement from Adams is dicta and in any case means only that the procedures referred to were acceptable not that they represented the minimum which was consistent with due process. This court however has not so treated this statement from Adams. Chapman v. Kleindienst 507 F.2d 1246 1252 (7th Cir. 1974); Adams v. Carlson 488 F.2d 619 624 (7^th Cir. 1973).

The fact that the quoted portion of Adams is not dicta does not necessarily require that individuals who were transferred between July 1971 and July 1972 have their records expunged. At most Adams provided prisoners with an opportunity to deny the accusations against them and explain their actions to prison officials.

Plaintiffs' primary concern is their reduced likelihood of being granted parole because of their disciplinary transfer. Any error in failing to follow the Adams' procedure can be rectified by including on the prisoner's record a statement by him denying the accusations against him and explaining his actions. The disciplinary action taken against the prisoner should then be reviewed by Prison officials in light of this statement. Adams required no more.

Although it is conceivable that in a very few instances the prisoner's explanation at the time of the incident may have avoided a disciplinary transfer whereas a review of his explanation at this point will not result in a decision to expunge his record we think the proposed relief strikes an appropriate balance. Admittedly Adams was not entirely clear on this point *fn19 and we believe that in light of this fact the disruption that would be caused to the Indiana Parole System by the mass ordering of expungement in many cases where it would not be appropriate in order to correct the few cases that may not be cured by our action in this case would not be justified. See Wolff v. McDonnell supra at 2983.

The order appealed from by the defendants (74-1328) is affirmed in part and remanded with directions in part.

The order of the district court on the cross-appeal (74-1320) is affirmed as modified.