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.
Williamsburg is a lovely town, both a “University Town”, with the venerable William and Mary as the University focus, and a historic area – a combined restoration and conservation approach.
Some of the buildings have been reconstructed. The 1773 Public Hospital is an example, and this was the main venue for the Conference.
A refurbished historical asylum, do I hear you say? Although there is a re-creation of hospital conditions, the greater part of the building comprises a museum and an excellent Conference auditorium. It is also close to the National Center for State Courts and William and Mary Law School in which is located the remarkable McGlothin Electronic Courtroom and the Center for Legal and Court Technology.
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
”a proceeding brought against a defendant—
(i) that has been commenced by information in form 2 of Schedule 2 of the Summary Proceedings Act 1957; or
(ii) in which the defendant has, under section 66 of the Summary Proceedings Act 1957, elected to be tried by jury; or
(iii) in which a District Court has, under section 44 of the Summary Proceedings Act 1957, declined to deal summarily with the offence”
The effect of this is to exclude all summary criminal proceedings from the operation of the 2009 Rules.
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:
“In determining an application under rule 13, or a request for permission under rule 8 or 9, or the determination of an objection under those rules, the Judge or other judicial officers or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is 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 is subject to any restriction under rule 12:
(g) any other matter that the Judge, other judicial officer, or Registrar thinks just.”
In the instant case Her Honour held that sub-regulations (b), (c), (e) and )(g) were relevant, considering that the fair and orderly administration of justice supported access to documentation to the extent that the information contained therein might aid in the disposition of the High Courtt case. Privacy issues did not attach, because the District Court proceedings were conducted in open court, and that the freedom to seek, receive and impart information operated in favour of allowing access.
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 my paper may be found here:
The IT Countrey Justice