Access to court documents

The Council's Policy Officer, INEZ RYAN, looks at some of the issues discussed in recent Press Council submissions on the availability of court documents.

Journalists and court officers have at least one thing in common - they both treat information as a precious resource. But in one important respect journalists and courts are diametrically opposed: court officers treat information as something which must be protected, if not hidden, while journalists treat information as something to be exposed and disseminated. Can these divergent attitudes be reconciled?

The tension between journalists and courts in relation to the management of information is a longstanding problem that the Press Council, together with other media organisations, has been attempting to resolve for some time.

In recent years a discourse has arisen in the US and Canada, as well as in Australia, about the management of information by the courts. The inescapable wave of technological transformation that has already revolutionised the way information is handled by the media and the corporate sector is at last being felt in the dusty registry offices and even in the sanctity of judges' chambers. As courts shift to electronic systems of document lodgment, storage and retrieval, they are being forced to review protocols for the circumstances in which documents will be disclosed to non-parties. This obligatory review of the rules and procedures determining access presents a unique opportunity to influence the formulation of the principles which will be the basis for the granting of media access to court information in the future.

At the very minimum, a journalist who is responsible for reporting on a court matter requires sufficient information to make sense of what is heard in open court and to ensure that reported details are accurate. In a simple matter, these requirements may be satisfied very easily, perhaps by a document setting out the charges against an accused. However, there may be cases in which the oral presentations are nonsensical to an observer who has not had an opportunity to view exhibits, statements and affidavits. While this may not be a problem if a researcher can wait until a judgment is published, a journalist is often required to report upon court matters before the full judgment is available. For this reason statements, affidavits and exhibits should be available to the media as soon as possible after they have been introduced into evidence in open court, unless the judge has ordered that they be suppressed.

Inefficient procedures

Until recently the available options for accessing court records were limited. Journalists seeking to view documents relating a matter before the court were obliged to visit the court's registry and either make notes or photocopy the documents. This procedure, which is still the most common method of accessing records in most courts, is cumbersome, time-consuming and inefficient. In addition to taking up a significant amount of time on the part of journalists, this process increases the workload for court Registrars and their staff. Apart from the inefficiency involved in this process, the requirement physically to attend the registry is problematic for journalists who are subject to rigid publishing schedules and tight deadlines and are often required to work outside of normal business hours. On the other hand, a court registry may only be open within certain hours (typically from 9.30 am to 4.00 pm on weekdays). This can make it impossible for an editor or journalist to check a fact prior to publication and may result in inaccurate or misleading reports of court proceedings.

Accessing on-line

A more efficient and effective method of accessing court records would be by on-line delivery. By making documents available on-line registry staff are relieved of the task of assisting journalists and researchers to locate and copy material. By streamlining the process of research for journalists on-line access should lead to an increase in the accuracy and reliability of court reporting.

In order to make on-line access feasible the courts would need to alter the process of determining whether access should be granted to non-parties. At present, in most courts journalists seeking to inspect court documents must make a request for access which is granted either by the Registrar or by the Judge, if the Registrar or Judge is available. In some jurisdictions this request can be made prior to the commencement of proceedings, thus ensuring that non-parties can inspect documents as soon as possible after they are introduced into evidence, thereby facilitating reports which are both contemporaneous and accurate. In other courts a request to inspect documents can only be made during the proceedings. If documents, at the time of filing, or once introduced into evidence in open court, were classified as "open access" or "private access", the requirement of seeking leave to inspect documents would be removed, with exceptions in certain instances. Those documents which are classified as being "open access" could then be made available for download from the court's website.

Obviously, the practicability of on-line document access is limited by the availability of electronic copies of documents. Where documents have been lodged in paper form it will in most instances be impractical to make them available on-line. However, with the increasing use of electronic lodgment, this problem will gradually become less significant.

Even where it is not possible to provide access to the documents themselves, a list of all documents filed on behalf of the parties should be available on the court's website, together with an indication of whether or not each has been classified as "open access". This would reduce the amount of time which is spent searching the records at the registry and would reduce the number of formal requests for access which journalists would be required to make prior to attending the court registry to inspect the documents.

Presuming openness

In its recent submissions to the NSW Attorney-General and the Victorian County Court on the issue of court access, the Press Council expressed the view that there should be a presumption in favour of open access to all court documents except in certain narrowly defined circumstances. Documents should only be exempt from access when confidentiality is essential to ensure justice between parties or where confidentiality is necessary to protect the parties or witnesses from risk. The desire of a party to avoid embarrassment would not be sufficient to warrant the withholding of documents from the media. Once a document has been introduced into evidence in open court it should be available to the public.

The process of determining access will vary but, regardless of who makes the initial decision regarding access, there is a need to set down clear criteria as to when access should be granted and when it should be refused. While there may be a need for a certain degree of discretion in order to allow for unanticipated circumstances, discretion should be exercised only by a magistrate or judge. Registrars and their staff should be required to determine access only in accordance with rules which are publicly available and such decisions must be subject to appeal. Registry staff should be given training in the rules governing access to documents in order to minimise the number of appeals likely to result from inappropriate refusal of access.

In some jurisdictions, a distinction is made between documents such as originating process, pleadings, notices of motions and judgments, which are available for inspection by members of the public, and documents such as affidavits and statements, which can only be inspected with the leave of the court. As noted above, at the very minimum, a journalist who is responsible for reporting on a court matter requires sufficient information to make sense of what is heard in open court and to ensure that reported details are accurate.

Transcripts

Finally, transcripts of court proceedings are a valuable source of information, particularly when a journalist is required to report upon simultaneous proceedings in different courts. It would be useful to have court transcripts available for download from the court's website as soon as possible after being created, thereby enabling journalists to check the accuracy of relevant details before publishing reports.

The free availability of court documents would provide the potential for the reporting of court proceedings to improve in quality and accuracy. Without free access to court documents, and the presumption of openness of judicial proceedings, the system of Australian justice will not be perceived as being truly open.

Inez Ryan

[Editor's note: The Press Council's submissions to the NSW Attorney-General and to the Victorian County Court on their respective reviews of access to court documents consisted of a general overview arguing the general principles involved. The article above is a précis of those arguments. That general overview was accompanied in each case by detailed responses to the particular issues raised in each review and the questions posed by the Attorney and by the Court. The complete submissions have been posted to the Council website.

The Council has proposed that the NSW Attorney-General should take the matter of access to court documents to the Standing Committee of Attorneys-General with a view to developing an uniform national approach on the matter.]

see also
The submissions to the Attorney and the Court
Website index of courts and contempt material.

[ return to top ]

Return to APC News 2006 Index