Access to Court Records The New Zealand Experience Introduction This paper gives a brief overview of the New

w 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 media interest 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.

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:

A copy of the Criminal Proceedings (Access to Court Documents) Rules is attached as an appendix. This approach appears in the Criminal Proceedings (Access to Court Documents) Rules. This tension will be discussed further in the section of electronic court records.

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). 2

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).

1986] 1 NZLR434 (CA).

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

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

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.

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

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) 7

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

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. 8

(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 and includes: 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.
9

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 of any 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
10

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 20th 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
11

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.

12

The application may be refused or granted in whole or in part with or without conditions. A Judge may permit access to a series of files for the purposes of research a matter which is specifically dealt with in the Law Commission report. Matters to be taken into account are set out in Rule 16 and apply to applications under Rule 13 or requests for permission under Rule 8 or 9. The Judge judicial officer or registrar must consider the nature of and the reasons for the application or request and take into account each of the following matters relevant to the application request or objection: a) The right of the defendant to a fair hearing; b) The orderly and fair administration of justice; c) The protection of confidentiality privacy interests (including those of children and other vulnerable members of the community) and any privilege held by or available to any person; d) The principle of open justice, namely, encouraging fair and accurate reporting of and comment on trials and decisions; e) The freedom to seek, receive, and impart information; f) Whether a document to which the application or request relates a subject to any restriction under Rule 12; g) Any other matter that the Judge, other judicial officer or a registrar thinks just. Fairfax Media v Callaghan An important and recent case dealing with access post committal but before trial was that of Fairfax Media et al v Callaghan.11 The media applications sought access to the court file relating to the accused. The application was opposed in part by Mr Callaghan and by the prosecution. Mr. Callaghan had been committed for trial to the High Court. He faced charges of murder and attempting to obstruct to pervert the course of justice. He was committed for trial on 15th April
11

Unreported High Court Auckland; CRI 2010-004-017056; 15 July 2011; Venning J. 13

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 of Attorney General v Leveller Magazine15 and R v Mahanga.16 The 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. [2001] 1 NZLR 641 (CA) [2008] 2 NZLR 277 (SC) [1979] AC 440 (HL) See above n. 13 14

13

14

15

16

trial. References made to the comments of Thomas J in the case of R v Burns (Travis)17 where 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 and democratic 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 of R 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 are likely 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) CA 459/06 15

18

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
16

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.

17

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 6 years 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. In Fourth 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 19

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 until remote 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 20

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 23

maybe in another form. This argument is based upon access to information irrespective of the way in which it is gathered and obtained and could be characterised as the public is public approach. The second stand point is that one must have regard to the wider implications of the information sought that may arise from the properties of the technology employed in its retention. Thus there may be a prima facie right of access to the information but that right may be conditional upon the nature of the information sought. To preserve the balance between open justice and privacy protection in the digital age the prima facie presumption of free access to court information and records must be limited to the right of the public to observe the operation and function of the court system as an arm of government rather than to obtain personal information about individual participants in the system unless that information is relevant to the examination of the operation of the court system. As has already been suggested underlying access to court record issues is the concept of practical obscurity exemplified by the Law Commission proposal that a person should be able to listen to the audio of the court hearing at the court house rather than have a copy provided. Public is Public A public is public approach would suggest that the audio file should be made available. The evidence that informs the decision is an essential element in a proper scrutiny of the operation of an arm of government. However the audio record of testimony or the transcript is going to include a significant amount of personal information. Such information is not necessary for the proper scrutiny of the operation of the arm of government but the difficulty that arises is this: is practical obscurity, in terms of all the effort and money that is necessary to obtain a transcript, going to enhance privacy or are we prepared to allow a few fish to swim through the net by maintaining a partial obscurity regime. Digital systems mean that partial obscurity may be a thing of the past. The public is public approach is deceptively simple and ignores the paradigmatically different properties of the communication systems involved. Partial obscurity is based in the print and hard copy paradigm and that quality informs a level of privacy that is unavailable in the digital paradigms. It is very easy to assert that the same rule should apply to electronic
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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 pretechnology 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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electronic environment.

Thus, the same consequences or outcome may be achieved

electronically as were previously achievable in hard copy. The reality, however, is that electronic records are not functionally equivalent to those that are paper based. Their essential properties are different. Adequately addressing any issue such as the privacy implications arising from access to court records cannot be achieved using a functional equivalence approach. The descriptive approach assumes that privacy principles remains static and the special rules apply to electronic records that may not be applicable to paper based ones. The alternative properties based approach really raises questions as to whether or not our assumptions about basic principles can be maintained in the face of the digital paradigm. Maintaining print paradigm principles in a digital paradigm world simply cannot work because of the vastly different properties that exist between the two. As it stands, current thinking is to try and maintain print paradigm principles in the intellectual assumptions that underline them in the face of digital paradigm realities which introduce different intellectual consequences. Electronic filing, as undertaken in various jurisdictions, is a matter of functional equivalence of paper based filing. There are no real property based implications arising from electronic filing other than the utilisation of data management and remote access properties inherent within the digital paradigm. Making the files available introduce a raft of other considerations Institutions such as news media naturally would prefer the public is public approach, citing freedom of expression, freedom of the press and the importance of the free flow of information based upon information availability in the hard copy paradigm. It is no accident that some journalists adopt the adjective investigative. Such quality is indicative of the labour that is required to surmount the hurdles imposed by partial obscurity. The public is public approach is driven more by abstract principles about the free flow of information than the tension that arises from the individuals privacy expectations and the experience of the courts. Sealing the File? To mitigate the effect of the public as public approach is to seal the file. This has been the primary protective mechanism in the paper world but its utility is undermined in an on-line setting. Sealing, like court room closure cannot be a stealthy process. It calls attention to itself by virtue of the fact that a decision must be made to seal the file in the first place. Sealing
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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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