Access to Court Records - The NZ Experience

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Access to Court Records The New Zealand Experience

Introduction

This paper gives a brief overview of the New Zealand approach to access to Court records.

New Zealand, as a former British colony, has a justice system based on the English model and

as such shares a number common elements with what may be described as the Anglo-American

system.

Court records in New Zealand are a mixture of electronic and paper based materials. E-filing,

although under discussion and examination, is not in place in New Zealand. But the issue of

access to court records is, nonetheless, a live issue primarily as a result of continued mediainterest in high profile court cases and a desire by the media to have access to as much

information as possible. In addition the rise of new media means that there is an increasing

interest on the part of individuals to access court records about cases of particular interest. A

third element that has enhanced topicality lies in the increased number of self-represented

litigants, particularly in the area of civil claims, who seek access to court records of cases that

may be related to or have a bearing on their litigation.

I shall start with a sketch of the position in New Zealand and address briefly the general

principles that underlie access to court records, and some of the problems that are present. I

shall then move to a discussion about the Criminal Proceedings (Access to Court Documents)

Rules of 2009 and discuss a case that exemplifies some of the tensions that arise when the

principles of open justice and media interest in a good story collide. I shall briefly address

issues of access to court records of civil cases and I shall conclude with a discussion of some of

the issues that surround electronic records and access to them, particularly in the tension

between open justice and individual privacy expectations.. The digital paradigm poses some

interesting unintended consequences for judges who provide snippets of personal information

about litigants or witnesses in opinions information which may allow the development of a

profile about an individual by use of a number of on-line information systems.

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General Comments

Although court trials are almost always in public, apart from certain hearings to which the

public and press are not admitted. Access to the court record is not so open. The Criminal

Proceedings (Access to Court Documents) Rules 20091 remedy some of the perceived access

problems as far as criminal court records are concerned but the current rules relating to other

court records are drawn from a variety of different sources, are not always consistent clear nor

easy to locate nor are they comprehensive.

The Presumption of Access and the Principle of Openness

The widely held view is that in accordance with the principles of open justice, court

information should be generally available unless there are good reasons for not permitting

access.2 That view is enhanced by utilising the approach set out in the Official Information Act

1982. However it is to be remembered that the administration of justice is not the same as the

administration of public policy to which the Official Information Act mainly applies and

court records are different in nature to government records. The competing interests of proper

litigation and of the litigants and other participants in the litigation process need recognition in

any frame work so that personal information and individual privacy can be adequately

protected.3 In addition, research shows that as much as anything a change in culture in the

courts in favour of this presumption of accessibility needs to be undertaken.4 This change of

culture will have to be on the part of both the judiciary and the court staff.

However, the presumption of accessibility should have certain exceptions where there are

conclusive reasons for withholding information and potential exceptions where there are good

reasons for withholding information.

Such reasons may arise in situations where allowing access would be likely to:

1 A copy of the Criminal Proceedings (Access to Court Documents) Rules is attached as an appendix.

2 This approach appears in the Criminal Proceedings (Access to Court Documents) Rules.

3 This tension will be discussed further in the section of electronic court records.

4 New Zealand Law Commission Access to Court Records NZLC Report 93 (NZ Law Commission,Wellington 2006) For an online copy see http://www.lawcom.govt.nz/project/access-court-records?

quicktabs_23=report (last accessed 23 September 2011).

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a) Prejudice to the maintenance of law including the prevention investigation into

detection in offences;

b) Prejudice the right to a fair hearing;

c) Endanger the safety of any person;

d) Prejudice to the proper administration of justice

e) Endanger the security or defence of New Zealand.

Other reasons where disclosure may be inappropriate are associated with aspects of a wider

expectation of confidentiality or privacy:

a) The information would disclose a trade secret or unreasonably prejudice a

commercial position;

b) Where the case file relates to a proceeding under listed statutes or a defamation

proceeding or a property dispute arising out of an agreement to marry;

c) Withholding the information where its necessary to protect an obligation of

confidence;

d) Withholding information where its necessary to protect the privacy of natural

persons

e) Allowing access to the court record would be contrary to a court order.

The general approach is to allow protection as a good reason for withholding information in

certain circumstances involving, for example, sensitive personal or commercial information. In

TV3 Network Services Limited v Broadcasting Standards Authority5 the High Court observed

that there is a distinction between matters properly within the public interest and the sense of

being of legitimate concern to the public and those that are merely interesting to the public on a

human level. News can differ in relation to individual assessments of the public interest. An

example can be found in a comparison between the dicta of Cook J in Mafart v Gilbert6 and of

5[1995] 2 NZLR 720; 1 HRNZ 558 (Eichelbaum CJ).

61986] 1 NZLR434 (CA).

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Simon France J in Television New Zealand Limited v Mafart and Prieur7 where access requests

were made in relation to the same film excerpt.

In 1986 Cook J said manifestly there is a public interest in knowing the course and result of

New Zealand Court proceedings. That is different, however, from any interest in seeing a film

including a videotaped part of the proceedings. Without in any way minimising the enterprise

of the corporation and seeking to include the sequence of a film to be shown at an international

festival and no doubt on many other occasion, the brief extract from the tape which it is desired

to include is not of itself a matter of great public interests; it will add to the impact of the film

but not significantly to its informant of substance.

Simon France J said in respect of a similar application in 2005

there can be no dispute that this was a truly significant event in New Zealand history.

It focused global attention on New Zealand and it raised for the government significant

political and diplomatic issues. I consider the visual record of the plea by the

respondents is a matter of public interest. Information these days tends to be conveyed

in visual form via television or the internet. I consider that the visual record of the plea

is a matter of public interest, even if the content of the plea is known. Being able to see

something is qualitatively different to simply knowing that it has happened.

The general approach in terms of guiding principles is that open justice is a cornerstone of New

Zealand justice system and should be a key guiding principle and access to court information.

This is because of the importance:

a) Of the accountability of judicial decision making; and

b) The maintenance of public confidence in the administration of justice.

Because open justice continues after a case is completed the presumption should be that court

information about a particular judicial proceeding should be accessible to the public at any

time.

Open justice is consistent too with the right of freedom of official information and the public

interest in receiving court information necessitating freedom of expression for the media and

7(23 May 2005) HC AK, BC200560562, Simon France J; [2005] DCR 640 (HC).

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imparting it. Developing sound and reliable social policy relating to the making of laws

requires access to an analysis of information in court records by researchers.

The presumption of accessibility can be rebutted by other important principles. Justice may

need to be done in private when vulnerable people such as children or the mentally ill are

involved. It should be a matter of Parliament to determine when closed courts and restricted

reporting are justified but courts should also have a discretion to determine in particular cases.

Case File or Court Record Definitional Issues

A difficulty experienced in New Zealand is that there is no clear definition as to what

constitutes the court record. Should it be restrictive or expansive? There is a view that the

record should comprise the case file used by the courts to decide the case and any appeals and

include any administrative information on the file and also any records concerning a particular

case that are to be found on case management systems. It would not include Judges notes and

drafts. Included within this definition would be transcripts of evidence, affidavits, depositions,

bail documentation, briefs of evidence, pleadings and submissions as well as judgments orders

and exhibits together with documents of an interlocutory nature or concerning case

conferences.

The court record includes other records such as registers and index calendars and daily lists

and electronic recordings of hearings most of which contain information about more than one

case.

As far as criminal records are concerned the issue has been addressed in the Disclosure Rules

where the expansive approach has been adopted.

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The Timing of Access

The timing of access to court files is important. The rules need to be sensitive to the stage that

the case is at, the type of case and the type of requestor. A number of variables need to be

taken into account. Has the case been heard? Has it been decided? How long ago was the case

dealt with? These issues would make a difference to whether access and the extent thereof

should be allowed and such temporal guide lines should be clearly defined.

It has been suggested that there should be four stages in a judicial proceeding in terms of

devising access rules.

1) Prehearing from the commencement of the proceedings until the commencement of

the substantive hearing;

2) During the hearing the commencement of the substantive hearing until 28 days after

the end of the proceedings;

3) Post hearing 28 days after the end of the proceedings to transfer to Archives New

Zealand;

4) After court records are transferred to Archives New Zealand.

The principle of open justice should continue throughout the four periods but the reasons for

withholding information may be stronger in some time periods than in others. In some time

periods some requestors such as parties to a case may be entitled to more information without

leave than other requestors. In some types of cases those related to family law or mental

health law there are probably good reasons for withholding personal information in all

periods especially where it is sensitive material about children or people who are disabled.

Other Categories of Court Information

In the past media have complained about lack of access to some categories of information held

by the courts. It has been suggested that there should be affirmative obligations on all courts to

make available information concerning future hearings by way of on-line access to court

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calendars. This is presently the case in the High Court and in the Supreme Court.8 On the

whole there does not seem to be any need for special rules relating to the media but the

generally understood rule that a reporter should be physically present in the court room to

obtain copies of court records seems to be no longer practical nor justifiable.

Researchers

Researchers provide a special category of those who seek access to court records and the view

is that there should be a process to deal with bona fide research projects that require access to

court records for reasons connected with public policy or other benefits. It has been suggested

that there should be a special committee to consider all research proposals requiring access and

which could determine after consultation with the Judges whether access be granted and under

what conditions.

Archived Material

It is also suggested that the principles and rules for access to court information should continue

to apply to court records that have been archived in Archives New Zealand. The current rules

for archive access are complex and difficult and do not entirely embrace the prima facie

presumption of access.

Electronic Records

Where records are held in electronic form, the ease with which information can be retrieved,

manipulated and transferred has significance privacy implications, which require additional

consideration for access rules particularly in relation to allowing remote public access to court

records. Where documents are held in electronic format, should they always be accessible in

that format? Should that access be onsite at the court house or should people be able to access

court documents over the internet? Should records be available in a form that is functionally

equivalent to a non-electronic search, thus depriving the electronic material of its unique

dynamic and malleable properties.

Given the relatively limited availability of court documents on the internet in New Zealand and

the fact that e-filing is in its early stages New Zealand has the advantage of being able to learn

8 See the Daily Lists section on the Courts of New Zealand website http://www.courtsofnz.govt.nz/ (last

accessed 23 September 2011)

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from the experience of overseas jurisdictions that are more advanced in terms of the court

records held and made available in electronic format.9 Certainly any policies should ensure that

the issues raised keep pace with technological advances in e-filing systems and capability in

New Zealand and with any moves to increase internet access to court records.

There are a number of measures that could be introduced in the future to reduce the risk of

erosion or privacy or threats to security including limiting remote public access to certain files

or documents or excluding it entirely, redacting or editing personal information contained in

electronic court files and allowing applications to seal particular documents. I shall deal with

electronic records and access at a later stage in this paper.

The Criminal Proceedings (Access to Court Documents) Rules 2009

In May of 2009 the Criminal Proceedings (Access to Court Documents) Rules 2009 came into

effect. These rules replaced the 1979 rules and were as a result of the Law Commissions

Report Access to Court Records of June 2006.10

The definition section (r. 3) defines access as to search, inspect, or copy under the supervision

of an officer of the court and court file means a collection of documents in the custody or

control of the court that relate to a criminal proceeding. This is a wide definition and goes

beyond the concepts of the crown book the information or the essential parts of the records that

the court keeps. The rules then go on to define document as:

a) Any written material in the custody or control of the court that relates to a criminal

proceeding, whether or not kept on a court file;

b) Includes documentary exhibits, video recordings, records in electronic form, films,

photographs and images in electronic form but

c) Excludes: (i) notes made by or for a Judge for his or her personal use and

9 Judicial decisions are available via the Judicial Decisions On-Line website

http://jdo.justice.govt.nz/jdo/Introduction.jsp (last accessed 23 September 2011) or through the New Zealand

Legal Information Institute http://www.nzlii.org/ (Last accessed 23 September 2011).

10 See above n.4.

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(ii) any material that relates to the administration of the court.

This definition clarifies the definition of court file.

On the other hand the formal court record confines certain categories of documents andincludes:

a) The register of persons committed for trial or sentence;

b) The register commonly known as the return of prisoners tried and sentenced;

c) Any index;

d) The Council charges set out and any information or indictment;

e) Any published list that gives notice of a hearing if a document that (i) may be

accessed under an enactment other than these rules or (ii) constitutes notice of its

contents to the public.

f) An order, a judgment, order, or minute of the court given in a criminal proceeding,

including any record of the reasons given by the Judge;

g) The Judges sentencing notes.

The rules apply to documents while they are in the custody and control of the court and until

they are transferred to Archives New Zealand but they do not require any person to prepare a

document that isnt in existence at the time that the document is sought (Rule 4).

Decisions made by a Judge under the Rules are deemed to be made in the exercise of the civil

jurisdiction of the relevant court and not the criminal jurisdiction (Rule 5).

Every person has the right of access to the formal court record, bearing in mind the specialised

definition of that term. This is contained in Rules 6 (1) and is subject to Rule 12. Rule 12 sets

out restrictions on access and the rights contained in Rule 6 are subject to any enactment, court

order or direction limiting or prohibiting access or publication and the payment of any

prescribed fees for access.

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There are certain documents contained in Rule 12 (3) which require the permission of a Judge

for access notwithstanding any limitation contained in Rule 12(1). These are documents in the

case of a proceeding to which section 185A of the Summary Proceedings Act 1957 or s 375A

of the Crimes Act applies and include:

i) A written statement by or a transcript of the evidence of a person who is a

complainant or who gives or is intended to give propensity evidence;

ii) Videotaped records or records in any electronic form of interviews with any person

who is a complainant or who gives or is intended to give propensity evidence;

iii) Photographs or images in any electronic form of any person who is a complainant

or who gives or is intended to give propensity evidence.

These rules are clearly specifically for the protection of complainants or those who are likely to

give propensity evidence of similar behaviour in sexual offending cases. A Judges permission

is also required for:

a) Videotape records or records in any electronic form of interviews with a defendant;

b) A document that identifies or enables identification of a person of the publication ofany matter relating to that persons identity is forbidden by an enactment or by

order of the Court;

c) Any written statement or document received or any record of anything said in the

proceeding while members of the public are excluded from the proceeding by an

enactment or by order of the Court.

Rule 6 also provides (Rule 6(2)) that a Judge may direct the judgment or orders or sentencing

notes not be accessed without permission of the Court or that the Crown book kept under s 353

of the Crimes Act may not be accessed without permission of the Court.

The prosecutor and defendant in criminal proceedings and their counsel may under supervision

of an officer of the court search and inspect the court file and any document relating to criminal

proceedings without a payment of a fee, and copy any part or parts of the court file or any

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document relating to the criminal proceeding on payment of a fee. Records in electronic form

may be copied only with the permission of the court despite r. 7(1) and there is resides with the

Judge a power to direct that the court file or any document relating to a criminal proceeding not

be accessed by the prosecutor and their defendant or counsel without court permission.

Rule 8 applies to access to documents during the committal stage and adopts a staged access

approach described above. It applies in certain circumstances where:

a) A defendant has been committed for trial without a hearing and the period ends with

a close of the 20th working day after that day;

b) If a committal hearing is heard the period starts with the start of that hearing and

ends with the close of the 20th working day after the day upon which the defendant

is discharged or committed for trial or sentence; or

c) If a defendant pleads guilty where there is no committal hearing held the period

starts with the day of the plea and ends with the close of the 20 th working day after

that day.

During that limited period any person may access any of the following documents relating to

the committal proceedings:

a) Any documents filed in the court for the purposes of the committal proceedings;

b) Any written statements admitted into evidence for the purposes of any committal

hearing;

c) Any documents submitted into evidence for the purposes of any committal hearing;

d) If any evidence is given orally at any committal hearing which is being transcribed,

a transcript of that evidence. The Judge or judicial officers presiding over the

hearing may on their own initiative or upon request direct that any document or part

thereof relating to the committal proceedings not be accessed.

When access is sought a request may be made informally to the registrar by letter identifying

the requested document and giving reasons for the request. The registrar must promptly give

the partys or the counsel a copy of the request and if a party wishes to object must do so before

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a relevant deadline. Once that objection has been received it must be referred to a Judge for

determination. Documents must be disclosed promptly clearly an answer to one of the issues

raised by the Law Commission about delays in provision of material and differing standards

between courts as to the promptness of disclosure. Judges have a wide discretion to allow or

refuse access the test being in any manner the Judge considers just.

Material admitted into evidence does not include evidence admitted provisionally that is

subject to objection.

Rule 9 deals with access to documents during the trial stage and once again the 20 th working

day after a verdict is given or the conclusion of the trial whether by discharge guilty plea or

otherwise applies. During this period any person may access:

a) Written statement admitted into evidence for the purposes of trial;

b) Documents admitted into evidence for the purposes of the trial;

c) If any evidence given orally is being transcribed a transcript of that evidence.

Once again similar rules relating to disclosure of trial information to those relating to committal

disclosure information apply.

Rules 6 to 9 essentially set certain boundaries. If a person doesnt fall within those rules access

to the document court file or any part of the formal court record must be with permission of the

court given on application made under Rule 13. Rule 13 relates to application for permission to

access documents, the court file, or the formal court record other than a committal or trial stage.

It may be made informally by letter identifying the document file or part of the court record to

which access is sought together with reasons for the application. It may be that the Judge or

registrar can direct that the person file an interlocutory application or an originating application

(Rule 13(4)). Notice must be given to any person who in the opinion of the Judge or registrar

is adversely affected by the application although that notice may be dispensed with. Once

again the test is that the application may be dealt with on the papers at an oral hearing or in any

other matter the Judge or registrar considers just.

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2011 pursuant to new committal proceedings which took effect in June of 2009. These

procedures effectively meant that there was no committal hearing.

It was agreed that the application should be treated as a request under Rule 8 for access to all

documents relating to the committal proceedings. The Judge referred to the definition of a

document and also the matters that the court had to take into account pursuant to Rule 16. The

media emphasised the principles of open justice and the freedom of expression. Mr Callaghan

supported by the Crown placed weight upon the right to a fair hearing, the orderly and fair

administration of justice and the protection of privacy interests.

Venning J referred to the decision in R v Burton12 discussing the approach to be undertaken

under the rules and the application of Rule 16 considerations. Rule 16 is intended to reflect the

balancing approach taken under the 1974 rules described by the court of appeal in R v

Mahanga13 and confirmed by the Supreme Court in Television New Zealand v Rogers.14

Venning J observed that there was no onus and rather the court is required to make a judgment

informed by the matters in Rule 16. The broad judicial discretion that is available must be

exercised by weighing the competing interests presented by the particular application. The

Judge first considered the balance between open justice and the right to a fair trial referring to

the cases ofAttorney General v Leveller Magazine15 andR v Mahanga.16The principle of open

justice is consistent with the right of an accused for fair and public hearing by an independent

and impartial court and is part of the means by which that right is achieved. The right to

freedom of expression in which finds form in Rule 16(e) in freedom to seek receive and impart

information often goes in hand with the principle of open justice but is conceptually distinct

and raises other considerations. However there will be occasions where such rights need to be

curtailed even if only temporarily to ensure a more fundamental right which is that of a fair

12 Unreported; High Court Auckland; CRI 2008-044-10515; 19 February 2010; Randerson J.

13 [2001] 1 NZLR 641 (CA)

14 [2008] 2 NZLR 277 (SC)

15 [1979] AC 440 (HL)

16 See above n. 13

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trial. References made to the comments of Thomas J in the case ofR v Burns(Travis)17where

he said:

No right is more inviolate than the right to a fair trial. Not only is it the

fundamental right of the individual but it permeates the very fabric of a free anddemocratic society. The notion that a person should be required to face a trial

and endure the punishment which a conviction would bring, when the fairness

of that trial cannot be assured, is repugnant.

The publics rights to receive information, the principle of open justice, the type of information

in question, its public importance and interest, its likely circulation, methods of diluting its

effect on the minds of potential jurors, the presumption of innocence, and other issues are all to

be balanced against its prejudicial effect. But once this exercise has been completed and has

been determined that there is a significant risk that the accused will not receive a fair trial, the

issue ceases to be one of balancing. The principles of freedom of expression and open justice

must then be departed from not balanced against. Similarly in the decision ofR v B18

Baragwanath J made the comment that a fair trial trumps all but pointed out that the distinction

between the pre-trial, trial and post trial phases of a proceeding in considering the analysis that

must be undertaken. At the trial stage suppression is uncommon because the accused has the

opportunity to place the defence contentions before the court and those present before in court

or who read reports of the proceedings may be informed. At trial open justice principles arelikely to trump other considerations. Baragwanath J also observed that the presence of the

media throughout the pre-trial proceedings is a significant safe guard of proper judicial

standards and public confidence in the courts but pre-trial publicity may be ill informed and

perhaps unjustified and the timing of the proceedings is a particularly relevant factor.

In the Callaghan case there was a high level of public interest but because committal had

occurred on the papers it was argued for the media applicants that neither the media nor the

public had an opportunity to be informed as to a critical part of the criminal justice process.

Thus it was argued that the reason for access to documents was twofold:

a) To enable the media to inform the public as to the prima face case; and

17 [2002] 1 NZLR 387 (CA)

18 CA 459/06

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b) To enable the media to better understand the matters in issue in the proceeding of

the pre-trial processes that may take place.

It was clear that the media and the public were well aware that Mr Callaghan had been

committed for trial but they had not seen the material that had been presented to support that

committal. It was argued that the right to a fair trial would not be placed at risk by permitting

access to the documents sought and the distinction between access to the documents and their

subsequent use such as publication was two different matters.

Mr Callaghan acknowledged there could be no objection to the application so far as it relates to

admissible evidence but he did oppose access to evidence which the Crown might not rely upon

which the defence challenged as inadmissible or which was in dispute. The Crown argued that

access to such evidence and documents should be restricted at this time at least to ensure fair

trial rights and provide for the orderly and fair administration of justice.

Venning J pointed out that if there had been a committal hearing under the earlier Rules the

media would have been entitled to be present hear the evidence and subject to restrictions on

publication have been able to report upon it. Because there was a committal on the papers there

was no hearing and the media were denied the opportunity to participate in that way. Similarly

there was no opportunity for the accused to test the evidence or take objection to it. The Judge

decided that access should be granted to those parts the witness statements and committal

documents containing evidence the Crown intended to lead at trial and to which no objection

was taken and the vast majority of documents fell in that category. The Judge accepted that

there were significant risks to fair trial rights where evidence was challenged and that there

could be prejudice the orderly and fair administration of justice if that evidence was published

in advance of trial. In addition the privacy rights of third parties should be protected (although

the Judge did not identify by those third parties nor the privacy interests that pertained to them).Thus the application was granted in part.

How the Media Reacted

What was interesting was the way in which the media dealt with that information. Not only

was the information accessed for their own benefit but it was the subject of some publicity.

The publicity was, to put it mildly, more than minor or peripheral. Usually, prior to the new

committal procedures, committal hearings, if reported, contained a brief summary of the

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highlights of the evidence that was given in a relatively a few column inches. In this case two

full pages summarised and analyzed the evidence in not inconsiderable detail. From this

writers point of view it was perhaps one of the most extensive reporting of evidence either

from a committal hearing or of a trial particularly before the matter had gone to a full hearing.

In this writers experience it is rare that even the most high profile trials receive such extensive

coverage. A number of reasons can be advanced for this one of them being that the

sensationalist nature of the allegations that had been made, another possibly being an aspect of

a larger campaign by a number of media organisation about open access to the courts and the

freedom of the media to report court proceedings very rarely an issue as far as the courts are

concerned but one perceived to be so by the media and which, in this writers opinion, they were

prepared to exploit.

Clean Slate Legislation

One issue that has implications for access to court records is the effect of the Criminal Records

(Clean Slate) Act 2004 which provides that persons convicted of certain relatively minor

criminal offences may have their criminal records concealed 7 years after the conviction if they

have not reoffended in the interim. The legislation does not apply to records in respect of any

person convicted of an offence resulting in any form custodial sentence and excludes people

who have committed sexual offences against children and young persons. The current policy

by the Ministry of Justice is to accommodate the requirements of the Act. Requestors must

provide the name of a specified individual and court staff will check the registers and either

provide a copy of the relevant entry or, if the Act applies advise that there is no information

held or able to be released.

Records in Civil Cases

The High Court and District Courts have specific rules governing access to court records in

civil proceedings which are similar in their terms. High Court rules apply to the Court of

Appeal. There are no specific rules for the Supreme Court. The Maori Land Court and the

Family Court have their own rules. There are no specific search rules for the Environment

Court or the Employment Court.

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Generally parties and their solicitors have the right to search inspect and take a copy of the file

relating to a proceeding or interlocutory application without paying a pay fee although some

restrictions apply and leave will be required if it is more than 6 years since the matter was

determined or if access is restricted by judicial direction.

Access by the Public

When a case has been determined, members of the public have an automatic right to search,

copy and inspect documents (subject to any direction of the Judge) while if the proceeding has

not been determined there is no such automatic right. The registrar has a wide discretion to

grant access and must do so if the applicant establishes that he or she has general or proper

interest. Cases where inspection has been permitted have typically involved members of the

news media seeking access to court documents in cases of high public interest.

Any person is entitled to search inspect and take a copy of any document or record filed or

lodged in the court more than 60 years before. In the case of records less than 60 years old

subject to specific exception set out in the High Court Rules any person may search inspect and

copy the following documents:

a) All registers and indexes of the court records;

b) Any document to which are right of search or inspection is given by any Act;

c) Any document which constitutes notice of its contents to the public;

d) Documents that relate to applications for grants of administration, whether or not

the proceedings have been determined.

e) Documents on a file relating to a proceeding that has been determined (for up to 6years and subject to exception);

f) Any document on a file relating to an interlocutory application where the

application relates to a proceeding that has been determined or it relates to an

intended proceeding where leave to bring the proceeding has been refused.

There are some specific exceptions to these general rights of access to the public many of them

contained in statutes. The High Court Rules provides no document that may be searched

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inspected or copied if it relates to proceedings or interlocutory applications involving

defamation, seduction, enticement or breach of promise. The question of genuine interest and

public interest have been considered. InFourth Estate Periodicals Limited19 the court held that

genuine interest means a real, true and solidly based interest, whereas proper interest involves

in interest that is lawful, respectable and worthy.

The civil search rules are not comprehensive across the civil jurisdictions and while open

justice has become an increasingly important theme in the cases temporal considerations

operate when discretions are being exercised and civil record searches. For example the rules

limit public access to court records where proceedings have not been determined in interests of

ensuring the trials proceed without prejudice and that fair or unbalanced reporting does not

occur. The 6 year period in which access is allowed without leave to civil records has no

equivalent in criminal record search rules.

Privacy

Court records contain large amounts of personal information about identifiable persons. People

are often bought unwillingly into the legal process and compelled to divulge intensely private

or commercial sensitive information for a particular purpose in a particular case. The surrender

of privacy in relation to sensitive personal or commercial information usually is necessary for

the administration of justice and accords with open justice principles. However it is arguable

that surrender of privacy is not for all time. Information once in the public arena can become

private through the passage of time. Particularly where the information may be personally

humiliating and damaging to a persons reputation, disclosure can affect rehabilitation and

reform, current relationships and future employment. The Criminal Records Clean Slate Act

preserves public interest in the integrity of the rehabilitation process and supports the view that

information once public can be protected after a period of time.

Access to Court Records Electronic Formats

Electronic records pose a particular challenge for access principles because the properties

inherent in digital material are significantly different from those that exist in the two

dimensional paper based medium. One of the major policy issues that needs to be considered is

19 (1989) 3 PRNZ189

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whether access should be crafted to retain a functional equivalence to paper based records

including the aspects of partial obscurity inherent in such records, or should the records be

presented in such a way that individual privacy interests are maintained whilst allowing access

to an electronic record, the data in which may be easily manipulated for a number of purposes

beyond the mere interest that an individual case may attract.

The information in electronic records can be used in ways that were previously impossible or

impractical. Furthermore information can be downloaded in bulk and may be used for

commercial purposes. In addition court records are a rich mine of personal and confidential

information including financial statements bank account details medical and family

information, dates of birth addresses and a range of unique identifiers such as Inland Revenue

numbers, passport numbers, Income Support or Hospital numbers. Concerns have been raised

about the use of information from electronic court records which may facilitate identify theft

intimidation of witnesses stalking and harassment.

In the New Zealand experience electronic records are either scanned copies of paper documents

or judicial opinions created with a word processing program. Court hearings are electronically

recorded and the recordings are kept in an electronic format for a period of time. In many

cases, particularly in the lower courts, no transcript is subsequently typed up unless there is an

appeal. The general view is that electronic recordings themselves should not be accessible but

rather a transcript should be provided. The only other records that are kept in electronic format

are case management and progress files that relate to paper based records.

Electronic filing is not in place in New Zealand although some information is available online

such as court calendars in the Supreme Court, Court of Appeal and High Court.20 There is no

online access to any court records and access to the main case management system is restricted

to authorised users with various levels of access. However it is only a question of time untilremote access to electronic court records becomes at least technically possible in New Zealand

and access rules to deal with the change and format will be needed.

New Zealand has the advantage of being able to learn from the experience of overseas

jurisdictions that are more advanced in terms of electronic court records.

20 See above n. 8

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The view is at the moment that it would be premature to make any firm policy decisions as to

whether or not there should be remote public access to court records. Rather the matter should

continue to be assessed against overseas experiences. Careful consideration of appropriate

policies to deal with the issues raised should receive the same priority as work on the

technological advances in e-filing systems and capability so that the New Zealand approach to

remote access, by the time it is a foreseeable reality, will be proactive rather than reactive.

In view of overseas experience it can be said that the availability of court records on the

internet and e-filing would have a profound effect upon the organisational operational and

managerial aspects of the New Zealand court system. It has the potential to play a significant

role in addressing problems of delay cost and access to justice and the legal system.

Privacy and Security Issues

It is recognised that there are significant privacy and security issues inherent within romote

public access to court records.. Recent reports from overseas tend to express greater concern

about the implications of the remote public access on the administration of justice and to

emphasise the need for steps to be taken to protect privacy and privacy is a key issue for New

Zealand when considering access policies to e-court records. Notwithstanding the inevitable

surrender of privacy for court users, the question in relation to electronic records is how far

should such privacy losses be allowed to go? It is generally felt that access rules should not

facilitate open ended commercial or other unanticipated uses of personal information in court

records, because if they do they have the potential to undermine the confidence of the public

and the fair administration of justice and can create disincentives for people to use the justice

system. Thus steps must be taken to protect the personal privacy and security of court users.

One of the major issues is whether or not personal information is necessary in the court record.

It has been noted in Canada for example rules governing the filing of documents in the court

records should prohibit the inclusion of unnecessary personal information which should be

included only when required for the disposition of a case.

Similar issues arise in written judgments which can contain unnecessary personal information

or disclose personal data identifiers that are incidental to the decision. It only takes a couple of

pieces of relatively minor information to provide the basis for a number of internet searches

which can build a reasonably full profile of an individual without too much difficulty at all.

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Certain information necessarily should be redacted or altered such as personal identification

numbers, financial account numbers, the names of minor children, the reduction of full dates of

birth to the year and reducing full residential addresses to a generalised location. There is no

equivalent in New Zealand to social security numbers and the closest comparison maybe

drivers licence numbers which are used as a common form of identification but there is a range

of other identifiers to be considered.

An alternative to redacting information from the hard copy record would be to redact on the

electronic version only although there is some debate as to who should be responsible for that.

Overseas experience seems to suggest that should rest with lawyers who file the documents in

court. However whilst redaction may prevent identity theft and reduce the use of information

for commercial purposes it is no guarantee of privacy.

Remote Access Restrictions?

A possible response to privacy concerns is not to allow any remote access to electronic case

files and allow remote access only by parties, their counsel, court staff or the judiciary. This

means that the public only has access to paper files or access to electronic records at a terminal

at the court house thus restoring the concept of partial obscurity.

This approach has been rejected in some jurisdictions such as the United States but is

recommended in a recent model policy approved by the Canadian Judicial Council. Even if

remote public access to case files were denied it could still be given court calendars skeletal

case information judgment and orders enabling the electronic medium to play a role in

enhancing public access to justice and open justice principles.

The advantages of allowing remote public access to electronic records include:

1) Simplicity;

2) Increased access to open justice;

3) More convenient use by media and researchers and the public at large.

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It is possible that privacy disadvantages and risks can be minimised by the identified protective

measures such as redaction that operate in jurisdictions where there is remote public access but

the generally held view in New Zealand is that it is rather too early to be confident of this.

The options as to remote public access remain open for the moment and the approach in New

Zealand is a guarded one, preferring to learn from other jurisdictions and probably conditioned

by a hard copy approach. The properties of new technology present scenarios that may go

beyond current rules and policies.

It is this writers view that there is a high privacy ethic in New Zealand which drives concerns

about remote public access to court records although it should also be noted that this may be

challenged by the media by what could be termed the celebrity culture and the focus by the

media upon the personal or human stories as opposed to objective factual reporting. The

level of subjectivity that is found in many media reports seems to suggest either a loss of

inhibition about emotional matters or a willingness to forsake tradition privacy concepts in this

regard.

Access Arguments and the Digital Paradigm

The collision of traditional pre-digital concepts of privacy and those should apply in the digital

paradigm are well illustrated in a consideration of public access to information about the court

process, the extent of public access to court records and the information that may be available

in court decisions. Openness is essential for public confidence in the operation of the judicial

system yet every case involves a collection of individual information that necessarily raises

potential privacy questions. Does one surrender elements of privacy when one subjects oneself

or is subjected to the court process either in civil or criminal proceedings? Is what would

otherwise be considered public private information exposed as suggested by Harrison J in TV

Works NZ Limited v Parsons21 because one has become involved, willingly or otherwise, in the

court process. A consideration of these issues can be viewed from one of two standpoints.

The first is that citizens have a right of access to the courts, to observe their workings and to

have access to court decisions and files. The argument is that electronic case files should be as

accessible as paper files. Why should electronic records be treated differently to records that

21 [2009] NZAR 198

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systems as to paper based ones but the properties of digital systems upset the settle balance of

competing interests afforded by the hard copy paradigm those of public access to the

workings of an arm of government and the privacy interests of individuals who have recourse

to the courts.

The public is public approach exemplifies the difficulty that is encountered in applying the

values, concepts and assumptions about information expectations in one paradigm and

expecting those to transfer comfortably to another without understanding that the information

or the equivalent afforded by the new paradigm is vastly different from that of the old.

Functional Equivalence

The terms technological neutrality and functional equivalence are frequently used in

applying old rules to the challenges of new technology or in ensuring that legal outcomes

within the context of the new technology have the same effect as those achieved in the pre-

technology environment. Copyright law for example has always prided itself in establishing

rules that were technologically neutral although over the years this is proven impossible to

achieve. New technologies have developed that have required special treatment.

Functional equivalence is a term that has been used particularly within the context of

carrying out commercial transactions on-line or using digital technologies. Special rules

recognising digital verification in place of a signature or the form of recording a transaction in

a non-tangible form that is capable of being rendered in a data stream rather than in the form of

a paper based document maintain the legal effectiveness and enforceability of transactions

concluded using digital technologies. There are circumstances where functional equivalence is

applicable to enable what was done before in the strictly engineering sense to make a

transaction work. But there are other circumstances where a simple functional equivalence

approach introduces a much wider outcome than was available in the pre-existing environment.

This is the case with many aspects of information access of which access to the court records is

one.

The question is whether or not electronic documents are functionally equivalent to paper based

ones. Functional equivalence is all very well if one is trying to replicate a legal process such as

the formation of a contract or the transfer of land. In circumstances such as these, the law

validates the electronic process and replicates, as much as possible, the paper based steps in the

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requires notice to the public and therefore motions for sealing and sealed documents must be

listed on a docket sheet and finally is only limited to extraordinary circumstances.

The protection of personal or private information can be afforded even in criminal cases by the

making of non-publication orders. Yet the making of such orders requires a judicial

determination itself. It is not a stealthy process either and notice to the public is given by virtue

of the existence of a non-publication order. It is rare in criminal cases that non-publication

orders subsist after the proceedings have been concluded and in such cases the entire file is

available for examination. In the event that electronic filing and access to court records

becomes a reality in New Zealand, the public is public approach means that this information

would potentially be available to anyone who had access to court records.

Concluding Thoughts

Should there be a general rule that personal information should not be available or,

alternatively, access to it should be restricted? The starting point must be openness, but there

may be justification for restriction on access to court records where:

1) It is needed to address serious risks to individual privacy and security rights or other

important interests, such as the proper administration of justice;

2) Restrictions are carefully tailored so that the impact on the open courts principle is

as minimal as possible; and

The benefits of the restrictions outweigh the negative effects on the open court principle, taking

into account the availability of the information by other means and the desirability of

facilitating open access. In essence, therefore, similar fundamental issues and approaches will

apply to electronic records as they do to paper based ones. The ultimate question will be the

extent of any restrictions that may be placed upon an openness approach to ensure individual

privacy, and how that may be effected.

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