Access to court records by the media: concerns and remedies

"The media has a critical role to play in translating the principle of open justice into reality."

The Law Commission in its Report on Access to court records (the Report) did not consider it necessary to recommend specific statutory provision or rules for media access to the court record. It did, however, make recommendations which should assist the media.

The Government has decided before it responds to the Report to allow time for debate on the findings of the Report by interested stakeholders, including the media.

In the meantime, the Minister for Courts has announced the launch of the long overdue "real time" recording and transcribing of evidence in courts - which will help reduce the length of trials. This is part of other proposed technological investments by the Ministry, some of which will assist media members - such as the provision of judicial decisions on-line.*

The current position

The Commission outlines in its Report the current situation for media access to court information.

Laws and conventions exist which recognise the special role of the media in reporting information about court proceedings. For example, accredited media can in some cases attend the Youth or Family Courts without special permission. By convention, media can also attend chambers hearings in the High Court and bail hearings (even though facts may be aired at such hearings which are adverse to an accused and may be inadmissible at trial). Media members can also sit in the press benches and take notes in court - which members of the public are not permitted to do. They also often provided with copies of informations of criminal charges at the start of the first hearing of the charges.

Ministry of Justice Guidelines provide that court staff must give the media "all reasonable assistance" to ensure accurate reporting. This is, however, qualified by the statement that media members are expected to attend a hearing of interest but are not otherwise entitled to information about it as of right, but may have their enquiries considered under the criminal records search rules (and presumably, under applicable civil search rules).

In-court media coverage of proceedings

Other guidelines, the In-court Media Coverage Guidelines 2003, apply to television, photographic and radio coverage of court proceedings. While all matters relating to in-court media coverage are at the discretion of the court, the intention of these guidelines is to ensure applications for in-court media coverage are dealt with expeditiously and fairly, and as far as possible, that similar cases are treated alike. In considering an application for media coverage, the court may take into account:

• the need for a fair trial;

• the desirability of open justice;

• the principle that the media have an important role in the reporting of trials as the eyes and ears of the public;

• the importance of fair and balanced reporting of trials;

• court obligations to the victims of offences; and

• the interests and reasonable concerns and perceptions of victims and witnesses.

Media concerns and proposed remedies

Prior to publication of the Report, media representatives consulted with the Commission and raised concerns about existing media access to court records, including:

• problems arising from the requirement for media to be in court before they can get information;

• delays receiving responses to applications for material from the court records;

• inconsistency of treatment of requests by court staff, both within and between regions;

• diminished access resulting from the increasing trend towards the court receiving written material which is not read out; and

• the costs of accessing the record - both the photocopying and legal fees incurred in making access requests.

(i) Requirement to be present in court

Media members perceived that access to information had become more difficult in the past 10 years. Irrespective of whether a reporter had been in court, it used to be relatively easy to obtain information from court staff about who was appearing in court, the nature of the charges, the correct spelling of names, the dates of adjournments, and outcomes. Currently some media representatives are finding that court staff generally refuse to provide such information unless the reporter concerned has been in court during the hearing. It is of course a logistical impossibility for a court reporter to be in every courtroom in a region on any particular day.

The Commission recommends that a reporter should not have to have been physically present in a courtroom to obtain copies of court records produced or relied upon in open hearing.

(ii) Delay in court response

Media representatives expressed strong concerns about delays, often of several weeks or many months duration, in obtaining a response to access requests, by which time the information is no longer newsworthy. The Commission's view is that delays some times cannot be avoided, as the court must find time to respond to requests, but the real issue is what is an acceptable delay. It considers new rules are required which provide clarity and certainty as to what is required in all situations, as would according greater priority to media requests.

On-line developments

Media members reported frustration at the time and effort currently required to confirm details such as names of parties and the exact nature of the charges or claims, and what stage the case is at. Online court calendars and any advance listings were said to be of real value to the media in planning deployment of resources.

The Commission noted that providing information online has the potential to radically improve media access to court information (and reduce time spent by Ministry staff handling requests). Journalists expressed strong support for the initiatives taken by the Supreme Court in putting court calendars, case summaries, transcripts and judgments online. Access to online court calendars for all courts would enable media to plan in advance which cases to report, and permit better coverage of the courts.

The Commission has been advised that it would not be technically difficult to follow the example of overseas courts, many of which have calendars online, subject to rules being agreed as to what information should be displayed, and how names should be displayed where suppression orders operate. The Commission notes however that there would be practical difficulties in keeping the daily lists current, particularly in the summary criminal jurisdiction of the District Court, where the information may be subject to change at short notice.

It is not envisaged that criminal matters would be posted on the online calendar at first call, as matters such as suppression order applications would need to be dealt with before case information is posted on the internet. It is suggested calendar information could be posted for the duration of the hearing of the matter (from the time of schedule for a hearing other than the first call, until 14 days after disposition), and that the listing then be removed. The Commission recommends that providing online access to court calendars should be a resource priority for development of the electronic medium for New Zealand courts and tribunals.

The High Court has begun to include judgments of public interest on its website* and has on occasion included important District Court decisions. This is seen as an excellent development, and it is recommended all courts have a system for identifying decisions with high public importance or interest and publishing them online, subject to any suppression orders.

(iii) Inconsistency of treatment of requests

It is not surprising that media members are finding inconsistency in treatment of requests to access for information when it was found by the Commission that:

".. The present rules are not always consistent, clear or easy to locate. Nor are they comprehensive. There are obvious gaps and there is also a lack of consistency across jurisdictions. A new approach is overdue".

It is also noted in the Report that the New Zealand Chairman of the Commonwealth Press Union (the CPU) wrote to the Chief Executive of the Ministry of Justice in December 2005 expressing concern that judges impose too many suppression orders, that the orders are often made orally, particularly in the District Courts, and the efficiency with which these orders are transcribed and circulated varies widely from one registry to another. The CPU suggested suppression orders should be typed up as a matter of urgency, and posted on the Ministry's website, or the details sent out by email. The Commission endorses this suggestion.

(iv) Diminished access because material is handed up

There is an increasing trend in civil and criminal cases for material to be put before the court in written form, rather than being read out in court, and such material is taken into account by the court in its decision. Examples of this include expert witness statements, depositions and submissions. At a trial, documentary evidence will not normally be read out in full, although there may be references to it during argument or in cross-examination. This trend creates serious practical problems for the media - material previously read aloud in open court is not now available to them, and trying to gain access to material during the hearing through the court record rules can result in delays. An application for access may ultimately be unsuccessful.

The Report considers written material which features in proceedings in open court. such as pleadings, affidavits, confirmed witness statements which stand as evidence in chief, and written submissions, should be regarded as documents which have been read in open court, and subject to any statutory restrictions or confidentiality orders, the media should be granted access to them once the documents have been produced in the court hearing.

Hand-Up Depositions

A particular area of frustration for reporters was the practice relating to the handing up of depositions, written statements of evidence not read out in open court but handed up to the judge or Justice of the Peace (JP). In most cases hand up depositions are used for reasons of convenience rather than because the evidence is in any way confidential. The depositions are part of the court record. As such, media have to apply for access to them under the criminal search rules, which may present problems for a reporter trying to produce a timely report of a criminal depositions proceeding.

The Commission considers this situation unsatisfactory, because in most cases the media would have been able to hear the deposition had it been read out in open court. It notes that in some cases, there may be suppression orders or other good reasons, such as the risk of prejudice to a fair trial, why the media should not have access and that those cases can be dealt with accordingly by an order of the court. Otherwise, the Commission considers there is no principled reason why the media should not have access to hand-up depositions, without which they may be hard-pressed to make sense of the proceedings.

The Commission recommends that JPs should be empowered to release hand-up depositions to the media, where there is no objection from the parties. Where there is objection, or the JPs are concerned that release might prejudice a fair trial, the matter should be referred to a jury-warranted judge for decision.

Access to Electronic Documents in court

A further concern for the media is access to electronic documents in court. In fraud trials and trials involving extensive and complex financial information computers are often used to store documents, and counsel and the judge will have a computer screen on the bench before them to follow the evidence. The resources for such cases are usually provided by the Serious Fraud Office, not the Ministry of Justice. In such cases, reporters typically do not have access to screens and this makes it very difficult for them to follow and report on the evidence.

The Commission considers that accredited news media should have access to computer screens during such hearings so they can make a fair and accurate report of the proceedings. Interested media should be able to make application to the court prior to the hearing, and the question of how access will be facilitated addressed at a case conference prior to commencement of the hearing or trial.

(v) Costs of accessing information

The Commission acknowledged the wide reported variance in fees being charged by court officials and that media are sometimes required to pay legal fees to argue access to court records.

In response, the Report notes that the Ministry of Justice has made significant changes to its communications strategy to ensure consistency of responses to media requests generally. Communications advisers have also been appointed to District and High Courts, and a media policy circulated within the Ministry which tries to ensure frontline court staff deal only with routine enquires (requests for judgments, public documents and basic information), and that all other queries are referred to communications staff.

Access requests will still however need to be made to the registrar or judge where leave is required under the rules. The Ministry is also preparing a media handbook to assist in fostering a positive working relationship between the media and courts, with a promise that it will be discussed with key media stakeholders before it is finalised and published on the Ministry's website.

The above is a summary only of the Commission's recommendations - which, if implemented, should go some way to addressing the media's concerns regarding access.

* Judicial decisions from the Supreme Court, Court of Appeal and High Courts are now available free of charge on the internet. Judicial Decisions Online is available on the Ministry of Justice website, www.justice.govt.nz, and this may prove a very useful resource for journalists.