Access to Court Records Developments in New Zealand

An Overview Court Record Access is not standardised Criminal Proceedings (Access to Court Documents) Rules 2009 cover criminal files Access rules to other files spread across a number of enactments and rules There is no electronic filing Some records are kept in electronic format Issues regarding access are under consideration

Definitional Issues Definitional Court file – expansive Court Record – restrictive Criminal Proceedings Rules favour the former

Timing of Access Four stages Different rules may apply – Prehearing from the commencement of the proceedings until the commencement of the substantive hearing; – During the hearing the commencement of the substantive hearing until 28 days after the end of the proceedings; – Post hearing 28 days after the end of the proceedings to transfer to Archives New Zealand; – After court records are transferred to Archives New Zealand.

Access Principles Presumption of Access based on open justice Two classes of exception – Public interest exceptions – Confidentiality exceptions

Public Interest Exceptions Include – Prejudice to the maintenance of law including the prevention investigation into detection in offences; – Prejudice to the right to a fair hearing; – Endangering the safety of any person; – Prejudice to the proper administration of justice – Endangering the security or defence of New Zealand.

Confidentiality Exceptions The information would disclose a trade secret or unreasonably prejudice a commercial position; 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; Withholding the information where its necessary to protect an obligation of confidence; Withholding information where its necessary to protect the privacy of natural persons Allowing access to the court record would be contrary to a court order.

Access to Criminal Court Files Covered by the Criminal Proceedings (Access to Court Documents) Rules 2009 Provides a structured approach to access entitlements Premised upon open justice and right to access Provides exceptions, requirements for judicial order and the timing of release of certain papers

Application to Access File – Matters to be Considered The right of the defendant to a fair hearing; The orderly and fair administration of justice; 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; The principle of open justice, namely, encouraging fair and accurate reporting of and comment on trials and decisions; The freedom to seek, receive, and impart information; Whether a document to which the application or request relates a subject to any restriction under Rule 12; Any other matter that the Judge, other judicial officer or a registrar thinks just.

How it Works Fairfax Media et al v Callaghan – Factual background – Procedural steps – Who were the applicants – What the Judge did – What the applicants did with the information

Electronic Records Fundamental realities Functional Equivalence Partial Obscurity Public is Public

Fundamental Realities Properties of paper v properties of digital record Recognition of the difference and its impact informs policy directions Do we craft rules for the digital paradigm? Has the digital paradigm fundamentally changed perceptions of privacy? Or apply paper rules mutatis mutandis to the digital record?

Functional Equivalence Used in UN Model Law on Electronic Commerce Ratifies digital transactions referenced to the earlier environment Is it applicable to court records? Ignores essential difference in properties between paper based and digital based information Does functional equivalence compromise the potential and properties of digital information

Partial Obscurity Played a part in privacy protection in the past Demolished by properties of digital information AND its ease of availability Do we craft systems to maintain a digital equivalent of partial obscurity Or do we recognise partial obscurity is a concept based in the paper paradigm

Public is Public Favoured by the news media Fails to distinguish between paper based and digital records Ignores the values, concepts and assumptions about information expectations that have developed in one paradigm May seriously challenge privacy

Judges and Privacy We disclose a considerable amount of personal information in opinions Both about litigants and witnesses Different privacy expectations based on nature of participation On-line decisions make them available to a wider audience than in the past. Modern information systems allow a profile to be constructed from a few base facts An example.

To Conclude New Zealand has developed a structured approach to Criminal Disclosure Premised upon broad principles Principles based on paper paradigm Can they translate into the digital paradigm Will require a careful analysis starting with a recognition of the paradigmatical difference between paper and electronic court records.