Access to court records - another chance to have your say on the Law Commission Report

The Law Commission (the Commission) issued for consultation and submissions a Draft Report on Access to court records, the final report (the Report) being published in June of last year. The Report recommends that court records should be more accessible and that a Court Information Act should be enacted to establish a regime for dealing with access.

In May of this year the Government asked Parliament's justice and electoral committee to enquire into the Report and consider what the Government's draft response should be. Meanwhile the Government has agreed with the Commission that the current access rules need improvement, acknowledging they are "not easy to find, unclear and inconsistent".

The Report recommends a significant shift from current rules. As a result, the Government has decided there should be public debate on the matter and that interested stakeholders, such as the media, the legal profession and the general public should have a further opportunity to contribute to the debate

Terms of reference of the Report

The terms of reference of the Commission's Report included that:

• the Official Information Act should be the legislative framework for access to court records - because that Act, with its presumption of availability of information in the absence of good reason for withholding it, has been tried and tested over time; and

• while acknowledging litigants need adequate protection of personal information and individual privacy, the underlining principles for access are those of open justice, the public interest, accountability of the judicial process, and the administration of justice.

The Commission's considerations

The Commission's view is that access to information held by the courts should be generally more accessible than at present, but notes there will be good reason in some cases for withholding access. It considered:

• what constitutes a "court record"; and

• the rules and principles for granting or withholding access to information, including:

• the relationship between the rules and the Official Information Act 1982 and the Privacy Act 1993;

• whether the format of the court record (in hard copy, electronic or other form) might affect those principles;

• if special laws should be enacted for access requests by accredited news media; or for research and statistical purposes, and

• if there should be one single access code for all court and Tribunal jurisdictions, or specific codes.

Current access rules

(a) Access to civil records

Currently the civil search rules are not comprehensive across all jurisdictions. While the District and High Courts have similar rules governing access in civil proceedings, other courts, such as the Family Court and Maori Land Court have their own rules. Specialist courts sometimes apply the District and High Court rules by analogy, or operate without access rules.

There are various statutory exceptions to the general right of access to court records, including in the Family Proceedings Act 1980, Matrimonial Property Act 1963, Adoption Act 1955, Civil Union Act 2004 and others, and a ban against access to defamation proceedings.

While open justice has become increasingly important, temporal considerations operate when judicial discretions are being exercised in civil records searches. For example, the rules limit public access to case records where proceedings have not been determined, in the interest of ensuring that trials proceed without prejudice and that unbalanced reporting does not occur.

(b) Access to criminal records - Criminal Proceedings (Search of court records) Rules 1974

The criminal search rules are more than 30 years old - (preceding the Official Information Act and the Privacy Act) - and are out of step with the move towards greater access to information.

There are no comprehensive criminal search rules, which in many cases are applied by analogy, and there is uncertainty as to the proceedings to which they actually apply. Most requests for access are subject to judicial discretions, for which the rules provide no guidance.

The Commission cited the case of R v Mahanga [2001] 1 NZLR 641 where the Court of Appeal applied a balancing approach to the criminal search rules which has been followed in subsequent decisions. The court considered the purpose of the rules was not to protect the privacy of defendants in the absence of strong reasons for allowing access, but rather to enhance the court's supervisory powers over court files, and rationalise the way requests for access were dealt with. In that case the court held that relevant considerations to the balance of interests included:

• any legitimate privacy concern raised by an accused;

• the purpose, if known, for which access is sought;

• the principle of open justice, especially where applications are made by the media;

• the administration of justice where there is a risk this will be harmed by disclosure; and

• in some cases, fair trial rights which may be affected and should be weighed.

Other cases have also demonstrated other matters which may be relevant to the exercise of judicial discretion to grant access to criminal records, including:

• the risk of prejudice to a trial (for example when the trial is imminent and likely to attract public notoriety and the risk of prejudice is therefore high);

• where access to materials is sought for research or commentary, and there is a need to ensure access to an accurate record of what was said in court rather than rely on recollection; and

• matters given publicly at trial which have received extensive media coverage.

In such cases access is more likely to be granted. So while there is case law guidance for the exercise of judicial discretion, the results for applicants are uncertain and inconsistent.

The proposed new framework

The Commission envisages that future access rules will be sensitive to the stage the case has reached, the type of case it is, and the nature of the party requesting access (i.e. whether a party to the proceedings, a journalist, a researcher, or simply a member of the public).

The purpose of its proposed new Court Information Act (the proposed Act) is to make court records more accessible by commanding a good reason for withholding access. The suggested good reasons include: if access is likely to prejudice the proper administration of the law (for instance, the prevention, investigation or detection of offences), the right to a fair hearing, or if access might endanger anyone's safety. The Commission notes, however, that such reasons still need to be weighed against the public interest in open justice.

The proposed Act

The Commission proposes under the Act that information held by the court will be divided into two categories - to be dealt with separately under different rules and processes, namely:

• information held by the court relating to judicial administration (as distinct from that which relates to particular judicial proceedings); and

• information which forms part of the "court record" relating to particular judicial proceedings.

Part 1 of the Act would cover the first category of information - with the Ombudsman being responsible for dealing with any disputes about access. The new ground for withholding such information would be "judicial independence" - an important constitutional principle to be weighed against the open access principal. This may not be a factor in many requests.

Part 2 of the Act would cover the second category, the court record; which is of more interest to most people. The Commission considered what would constitute the "court record", for there is presently no clear definition. In its view the "court record" should be defined as including the entire case file used by the court (administrative documents, electronic recordings of hearings, transcripts of evidence, affidavits, depositions, bail documents, briefs of evidence, pleadings, submissions, judgments, orders, exhibits and interlocutory documents about case conferences and so on) - but not judges' notes or drafts.

Conclusive reasons for withholding information

The Commission considers case record information should be accessible unless there are conclusive or good reasons for withholding it. Conclusive reasons would include prejudice to the security or defence of New Zealand, or the interests of information provided to it by other countries, prejudice to the maintenance of law, the right to a fair hearing, endangering the safety of any person, or prejudice to the proper administration of justice.

The Commission considered good reasons may exist for withholding information - unless in the particular circumstances of a case, withholding is outweighed by public interest considerations making disclosure desirable. This exception would operate only if withholding information is necessary:

• because disclosure would (a) disclose a trade secret or (b) unreasonably prejudice the commercial position of the person who supplied or who is the subject of the information;

• to protect information subject to confidentiality obligations, or which any person has been or could be compelled to provide, and providing access would likely prejudice the supply of similar information or information from the same source, contrary to public interest;

• because the case record relates to proceedings for defamation or under specific statutes, including in the family court or in relation to mental health matters;

• to protect an individual's privacy rights, both under the Privacy Act and other legislation (such as the Criminal Records (Clean Slate) Act 2004); or

• because allowing access to the case record is contrary to a court order.

It is intended the proposed Act will provide a right of appeal from any decision refusing access to information, and further appeals only with leave. The rules would outline the situations where the parties to the cases need to be consulted or heard on the application for access.

Media access to information

The Commission does not consider there needs to be specific statutory provisions or special rules applying to access to information by media representatives. It has, however, made some recommendations which if implemented should assist media access, in light of the public's special interest and reliance on media reporting of court cases. For further details of these recommendations, see the related article in this edition.

Enquiries and information

For more information please contact Wendy Duggan, Senior Associate.