ACCESS TO COURT RECORDS – TERMS OF REFERENCE The Commission will review the existing rules governing access to Court records and make proposals for any changes that are necessary and desirable. In particular the Commission is asked to consider: 1 What documentation held by a court or tribunal (hard copy and other) should form part of the court record and in particular what administrative documents are included. 2 What should be the principles and rules upon which access to court records, can be granted or withheld and specifically: (a) What is the relationship between these principles and rules and those underpinning the Official Information Act 1982, the Archives Act 1957 and the Privacy Act 1993 (b) How does the format of the court record, whether it be hard copy or electronic or other, affect any of these principles or require additional considerations? (c) Should there be special rules when requests for access are: (i) by accredited news media; or (ii) for research and statistical purposes (d) Should there be a single access code across and within all court and tribunal jurisdictions or specific codes (e) What are the principles upon which fees for accessing court and Tribunal records should be fixed? C:\Documents and Settings\TMcGlennon\Desktop\Consultation draft post peer review.doc 29/03/2006 12:22 1 3 What should be the principles and rules governing disclosure of documentation held by a Court or Tribunal which is not part of a court record? 4 What should be the principles and rules under which court staff operates when handling access requests. 5 What should be the principles and rules governing: (a) the archiving of court records; and (b) access to court files and records that have been transferred to National Archives. 2 C:\Documents And Settings\Tmcglennon\Desktop\Consultation Draft Post Peer Review.Doc 29/03/2006 12:22 Contents ACCESS TO COURT RECORDS – TERMS OF REFERENCE 1 CONTENTS 3 EXECUTIVE SUMMARY 4 CHAPTER 1: CURRENT RULES 14 CHAPTER 2: PRINCIPLES 47 CHAPTER 3: “THE COURT RECORD” 81 CHAPTER 4: COURT INFORMATION ACT PART 1 104 CHAPTER 5 COURT INFORMATION ACT PART 2 117 CHAPTER 6 MEDIA ACCESS 144 CHAPTER 7 RESEARCHERS’ ACCESS TO COURT RECORDS 158 CHAPTER 8 ARCHIVE PRACTICES 173 CHAPTER 9 COURT RECORDS IN ELECTRONIC FORMAT 185 CHAPTER 10 FEES 208 C:\Documents and Settings\TMcGlennon\Desktop\Consultation draft post peer review.doc 29/03/2006 12:22 3 EXECUTIVE SUMMARY THE NEED FOR CHANGE 1 The courts in New Zealand are the third arm of Government, entrusted with the administration of justice according to law. They constitute an essential part of our democratic framework. What they do and how they do it endures as a matter of important public interest. 2 General agreement exists that the administration of justice should be conducted openly and in public so far as possible. Secret trials are not tolerable in any democracy that respects of the rule of law. The principle of open justice is fundamental in New Zealand court proceedings. New Zealand does not have secret trials, although there are certain hearings to which the public and press are not admitted. However, access to information held by New Zealand courts is not so open. In our view this information should generally be more accessible, although in some cases there will be good reasons for withholding particular information. 3 Our examination of the issue of access to information held by the courts has found that, where they exist, the current rules are drawn from a variety of different sources. The present rules are not always easy to locate or consistent or clear. Nor are they comprehensive. There are obvious gaps and there is a lack of consistency across jurisdictions. A new approach is overdue. 4 Our recommendations in this report provide a framework of principle upon which the law can rest, and set out the conditions of access in order to produce both as much clarity and certainty as possible. However, the result in every case may not be predictable; in some cases a number of principles and factors will have to be balanced by a judge or a registrar. 4 C:\Documents And Settings\Tmcglennon\Desktop\Consultation Draft Post Peer Review.Doc 29/03/2006 12:22 THE NEW APPROACH 5 The terms of reference given to the Law Commission revolve around one main issue. Under what circumstances should members of the public be able to access information held by the courts? Our view is that, in accordance with the principle of open justice, information should be generally available, but that there are sometimes good reasons for not permitting access to some information. We consider that the approach set out in the Official Information Act 1982 fits with this principle and should be used as a legislative framework for access to court records. 6 In 1982 when the Official Information Act was passed by Parliament, New Zealand committed itself to generous access to public information within the Executive Government. The Danks Committee, whose recommendations led to the Official Information Act, found that the courts were excluded from their terms of reference and thus made no recommendations about them. The Committee expected that its proposals would in due course affect practice in the courts. We now fulfil that expectation. 7 The approach of the Official Information Act 1982, with its presumption of availability unless there are good reasons for withholding information, has been tried and tested over a long period in New Zealand. In broad terms this approach, which succeeded in the executive branch of government, should be used with necessary adaptations within the judicial branch of government. The Official Information Act principles as adopted in New Zealand have been widely admired as progressively making public information available. A number of international observers who have looked at the New Zealand approach have commended it, in comparison with more proscriptive approaches in other countries. 8 Rather than invent a totally new regime, it seems clear to us that the framework for accessing information in the courts should be built upon the Official Information Act framework. That is not to say that the access measures in the court structure should be exactly the same as those for the executive government. We are satisfied they cannot be. The courts exhibit unique features that must be taken into account and respected. C:\Documents and Settings\TMcGlennon\Desktop\Consultation draft post peer review.doc 29/03/2006 12:22 5 9 The administration of justice is not the same as the administration of public policy in all respects. The particular characteristics of litigation and litigants need recognition in any new framework so that personal information and individual privacy can be adequately protected. But the underlying principles are open justice, and the public interest in the accountability of the judicial process and the administration of justice. In accordance with these principles the presumption should be that court information will be made available unless there is a good reason to withhold it. THE NEW FRAMEWORK: THE COURT INFORMATION ACT 10 The new framework for addressing requests for access to information on a systematic basis within the New Zealand courts should be as simple and clear as possible. Information held by the courts can readily be divided into two categories. First, there is all information held by a court (for example material relating to judicial administration) that is distinct from information relating to particular judicial proceedings. 11 The second category covers all information held by a court relating to particular judicial proceedings. This distinction involves a consideration of what documentation held by a court should form part of the “court record”, or as we prefer to put it, the “case record” of a particular judicial proceeding. Court Information Act – presumption of availability 12 We recommend the enactment of a Court Information Act to cover both these categories of information held by a court. The presumption of availability of court information should apply to both categories, with exceptions where there are conclusive reasons for withholding the information, and potential exceptions where there are good reasons for withholding the information. But the two categories should be dealt with separately in the Act as different rules and processes will apply to each. For example, in relation to information relating to particular judicial proceedings, we recommend specific rules of court to govern the detail of access to those records. 6 C:\Documents And Settings\Tmcglennon\Desktop\Consultation Draft Post Peer Review.Doc 29/03/2006 12:22 Part 1 of the Court Information Act 13 The method of requesting information held by a court, other than that relating to a case record, and the handling of disputes relating to its access, should be dealt with in the same way as under the Official Information Act. This means the Ombudsmen will deal with disputes about this sort of information. 14 However, in respect of release of this class of information, there needs to be a new ground for withholding information: judicial independence. This is an important constitutional principle to be weighed against the open access principle if access could be detrimental to the independence of the judiciary. While this change is important we doubt that it will be a factor in many requests. Part 2 of the Court Information Act 15 Our terms of reference oblige us to look at what constitutes the “court record”. By that term we mean information held in the court relating to a particular case. At present there is no clear definition in New Zealand as to what constitutes the “court record”. We take the view that the record should comprise the entire case file used by the court to decide the case and any appeals, and includes any administrative information on the file, and also any records concerning a particular case that are to be found on case management systems.