In November 2011 the Center for Legal and Court Technology at William and Mary University, Williamsburg, Virginia, in association with the National Center for State Courts and the Administrative Office of United States Courts held the 8th Conference on Privacy and Public Access to Court Records.
I was honoured to be invited to present a paper on the New Zealand experience in this area. The paper was well received and there was considerable interest in the way in which the issue was dealt with in the absence of the context of the First Amendment to the Constitution of the United States and the ability of the press to report on court proceedings. By the same token, a number of Federal Courts and the US Supreme Court in particular do not allow cameras in Court whereas in New Zealand there is a specific media policy that allows this as long as there is compliance with media guidelines.
My paper, a copy of which is at the end of this post, sketched the approach in New Zealand to access to Court records. Despite an examination of the issue by the Law Commission in 2006 in its report entitled Access to Court Records, little legislative action has taken place apart from the introduction of the The Criminal Proceedings (Access to Court Documents) Rules 2009 which remedy some of the perceived access problems as far as criminal court records are concerned. However, 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.
There is a significant gap in the 2009 Rules. They do not cover District Court summary proceedings. This has caused some concern, because it could well be that a different process could apply to different criminal proceedings depending upon whether they have been laid summarily or indictably or, of course, where the accused has elected trial. The issue is of special interest (and no doubt concern) to the news media who routinely seek permission to access court files to obtain background and material for their reportage of court cases.
The difficulty, however, has been addressed in a case decided late last year. (Ministry of Economic Development v Feeney  DCR 257)
The application arose after the summary trial and acquittal of a number of directors of Feltex Ltd. The Ministry of Economic Development sought access to the Court file to obtain copies of a transcript of evidence and written statements that had been produced during the hearing for the purposes of civil proceedings in the High Court. The application was opposed.
The grounds of the opposition were that the proceedings were not “criminal proceedings” as defined in the Criminal Proceedings (Access to Court Records) Rules, and that the notes of evidence in the District Court were in the possession of the defendants and were accessible by discovery.
As to the first ground of opposition, Chief Judge Jan-Marie Doogue held that the Criminal Proceedings (Access to Court Records) Rules did not apply because the proceedings were summary proceedings.
The relevant part of the Rules defines a “criminal proceeding” as
There had been earlier examples of what Her Honour referred to as a “legislative blindspot” in the 1974 Criminal Proceedings (Search of Court Records) Rules and after considering the way in which the High Court had earlier approached the problem, and after considering the nature of the inherent power possessed by the District Court, held that the Court has an inherent power to effectively administer its statutory jurisdiction. Such power was sufficient to order access to Court documents in criminal cases that fall outside the operation of the Rules. Whether the exercise of that jurisdiction was proper in the circumstances should be assessed by analogy to the criteria set out in the Rules.
She then went on to consider the provisions of Rules 13 and 14 which contain the procedure and the remedies that a Registrar or Judge may grant, and, importantly, set out the provisions of Rule 16 which sets out the matters that must be taken into account in considering an application.
Rule 16 provides:
Importantly Chief Judge Doogue observed that sub-regulation (d) is concerned with media access to the Courts, and would be of importance in considering any media application for access to Court records. Each case will, of course depend upon its own circumstances as to the weight that an individual Judge or Registrar attaches to each of the criteria in considering applications.
At the moment, Court records are paper based. As I observe in my paper, the situation may well require revisiting when Court records are digitised, for the properties of digital technologies are quite different from those of the print or paper paradigm.
But discussion of those properties and their wider implications will have to take place on another day.
A copy of this paper may be found here. Other documents by the writer are also available to read at the same sites, and recommended reading for anyone interested in jurisprudence and the law.
- Source: https://theitcountreyjustice.wordpress.com/category/access-to-court-records/