Access to court and tribunal records

Individuals’ access and correction rights

35.83 In Chapter 29, the ALRC recommends that the ‘Access and Correction’ principle in the model UPPs provide that, if an agency holds personal information about an individual, the individual concerned is entitled to have access to that personal information, except to the extent that the agency is required or authorised to refuse to provide access under the applicable provisions of any law of the Commonwealth, including the FOI Act.^[125]

35.84 Access to, and correction of, personal information held by federal courts and tribunals would, therefore, continue to be subject to the FOI Act. The FOI Act, however, does not apply to any request for access to a document of a court; or a tribunal, authority or other body specified in sch 1 of the FOI Act, unless ‘the document relates to matters of an administrative nature’.^[126]

35.85 Under the ALRC’s recommendations, therefore, where personal information does not relate to matters of an administrative nature held by a court or tribunal, authority or other body specified in sch 1 of the FOI Act, neither the Privacy Act nor the FOI Act provisions would apply. Access to the information, however, may be permitted, subject to court and tribunal rules. Where personal information relates to matters of an administrative nature, individual rights of access to, and correction of, personal information will be subject to the FOI Act.

Third party access to court and tribunal records

35.86 Where personal information relates to matters of an administrative nature, requests for access to personal information by third parties—that is, persons other than the individual to whom the information relates—will be subject to the ‘Use and Disclosure’ principle in the model UPPs, and to the rules of courts and tribunals.

35.87 Where personal information does not relate to matters of an administrative nature, requests for access to personal information by third parties will be governed primarily by court and tribunal rules. In the course of the Inquiry, a range of concerns regarding third party access to court and tribunal records were raised, and are discussed below.

Research access to court records

35.88 Particular concerns have been expressed in relation to access to court records for research purposes. Research access may be considered an aspect of open justice because ‘research offers a more considered and sustained evaluation of the way courts operate’.^[127] Currently, no federal court rules specifically address the issue of researchers’ access to court records. Researchers who seek access to court records that are not publicly accessible will be required to seek leave of the court, and in some cases show that they have a proper interest in searching court records and inspecting court documents.^[128]

35.89 The Family Court of Australia has a detailed policy relating to the granting of research access to court records. The policy contains a number of requirements, including: the preservation of confidentiality of information; obtaining informed consent from study participants; restriction of access to medical or other treatment records, or other client data collection systems, to qualified clinical investigators; and clearance from an appropriate and credible ethics committee for certain types of studies. Applications for research access are considered by the Family Court’s Research Committee, which makes recommendations to the Chief Justice and the Chief Executive Officer of the Family Court on whether access to the court’s resources should be granted.

35.90 In its discussion paper on access to court records, the County Court of Victoria proposed a detailed process for approval of academic or commercial research utilising court records.^[129] In its report on access to court records, the New Zealand Law Commission recommended that there be a single entry point for all requests for access to court records by researchers, and that the process and criteria for considering all research proposals be articulated fully and published.^[130]

Discussion Paper proposal

35.91 In DP 72, the ALRC observed that research contributes to the understanding and improvement of the court system. The ALRC expressed the view that research should be encouraged, provided there are sufficient safeguards in place to ensure the proper handling of personal information.

35.92 One way of ensuring that safeguards are in place is by developing and publishing a policy on access to court records for research purposes. The ALRC noted that although the Family Court already had such a policy, it was not available on the Court’s website. Other federal courts have not published a written policy in relation to access to court records for research purposes. The ALRC therefore proposed that federal courts that do not have a policy on granting access for research purposes to court records containing personal information should develop and publish such policies.^[131]

Submissions and consultations

35.93 Some stakeholders expressed support for the ALRC’s proposal for the development and publication of policies on granting access for research purposes to court records.^[132] The OPC submitted that the development of such policies could facilitate research in the public interest, while providing appropriate privacy protection.^[133] National Legal Aid supported the proposal

as a means of encouraging research into legal service delivery and promoting the accountability of the court system, while maintaining the general exclusion of the courts’ non-administrative functions.^[134]

35.94 PIAC noted that ‘the policy by the Family Court is particularly comprehensive and could serve as a model’.^[135] The National Health and Medical Research Council (NHMRC) stated that it ‘would be pleased to assist with the development of policies relating to access to health information contained in court records’.^[136]

35.95 Some stakeholders expressed support for the ALRC’s recommendation, in its report, Keeping Secrets: The Protection of Classified and Security Sensitive Information (ALRC 98),^[137] that the Standing Committee of Attorneys-General (SCAG) should order a review of federal, state and territory legislation and court and tribunal rules concerning non-party access to court records, with a view to promoting a national and consistent policy.^[138] One stakeholder opposed the recommendation, stating that ‘absolute uniformity between federal courts is neither achievable nor desirable’.^[139]

35.96 Privacy NSW noted that responsibility for privacy has been transferred from the portfolio of the Attorney-General’s Department to the Department of the Prime Minister and Cabinet. It therefore suggested that the review of court and tribunal rules should be referred to the Council of Australian Governments (COAG) instead.^[140] In this regard, the ALRC has been informed that, under the new administrative arrangements,^[141] SCAG will continue to be the body to consider information privacy issues.^[142] SCAG, therefore, remains the appropriate body to order a review of court rules concerning non-party access to court records.

ALRC’s view

35.97 The principle of open justice is consistent with the promotion of research, given that research contributes to the understanding and improvement of the court system. Therefore, provided there are sufficient safeguards in place to ensure the proper handling of personal information, research should be encouraged.

35.98 One way of ensuring that safeguards are in place is by developing and publishing a policy on access to court records for research purposes. The Family Court already has such a policy, but it is not available on the court’s website. Other federal courts have not published a written policy in relation to access to court records for research purposes. The ALRC recommends that federal courts that do not have such a policy should develop and publish one. Such policies should address issues concerning the privacy of court users, such as confidentiality, the need for informed consent by participants, restricted access to sensitive information, and approval by ethics committees where appropriate. The policies could be developed in consultation with bodies that have experience in dealing with the privacy of personal information, such as the OPC, and the NHMRC in relation to health information.

Other third party access

Public access to court records

35.99 Court records may contain sensitive personal information such as criminal history, psychiatric and psychological reports, and other medical records. Information on court records relating to certain types of proceedings also may be particularly sensitive, for example, in family law, bankruptcy and criminal proceedings. In addition, children are considered to be particularly vulnerable and therefore the identification of children in court records raises specific privacy concerns.^[143]

35.100 Although exempt from the Privacy Act, access to documents on file in court registries is regulated by other statutes or rules of court.^[144] In the High Court, any person may inspect and take a copy of any document filed in the registry except: affidavits and exhibits to affidavits that have not been received in evidence in court; and documents that contain identifying information about a person where the disclosure of the identity of that person is prohibited by an Act, an order of the court or otherwise.^[145]

35.101 In the Federal Court, a person can search and inspect documents specified in the Federal Court Rules 1979 (Cth)—such as applications, pleadings, judgments, orders and submissions—unless the court or a judge has ordered that the document is confidential.^[146] A person who is not a party to the proceeding may inspect certain other documents only with the leave of the court.^[147] Leave will usually be granted, however, where a document has been admitted into evidence or read out in open court.^[148]

35.102 In the Federal Magistrates Court, only specified persons may search or inspect the court’s records without leave granted by the court or the registrar. Records relating to a family law or child support proceeding only may be searched or inspected by the Attorney-General, and other records related to a particular proceeding only may be searched or inspected by the parties, their lawyers or a child representative in the proceedings. Leave to search or inspect a record may be granted to a person only if he or she can demonstrate a ‘proper interest’.^[149]

35.103 In the Family Court, only specified persons may search, inspect or copy the court’s records relating to a case without the permission of the court. The specified persons include: the Attorney-General, the parties and their lawyers, and independent children’s lawyers. Permission to search, inspect or copy a court record may be granted to a person with a ‘proper interest’ in the case or the information in that particular court record.^[150]

35.104 Access to court records may be affected by the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The Act enables information to be introduced during federal criminal and civil proceedings in an edited and summarised form to facilitate the hearing of a case without prejudicing national security and the right of the defendant to a fair trial. A court exercising federal jurisdiction must hold closed hearings in certain circumstances,^[151] and must not make a record of the hearing available to, or allow the record to be accessed by, anyone except specified persons or entities. The specified persons and entities include: the court hearing the appeal or reviewing the lower court’s decision; the prosecutor in a criminal proceeding; the defendant’s legal representative; an unrepresented party or a party’s legal representative—provided that he or she has been given a security clearance at an appropriate level; and if the Attorney-General intervenes, the Attorney-General and his or her legal representatives.^[152]

Media access to court records

35.105 Media reports are how most members of the public are made aware of court proceedings. Such reports necessarily depend on journalists having access to proceedings, either directly by being permitted to be present at the proceedings, or indirectly by being allowed access to court records. In Raybos Australia Pty Ltd v Jones, Kirby P stated that:

The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who choose to attend … the principles which support open courts apply with special force to the open reporting of criminal trials and, by analogy contempt proceedings … ^[153]

35.106 Some legislation, however, recognises that certain proceedings may contain particularly sensitive information and should be subject to restricted media reporting. For example, s 121 of the Family Law Act 1975 (Cth) makes it an offence, except in limited circumstances, to publish proceedings that identify persons or witnesses involved in family law proceedings.^[154] Section 91X of the Migration Act 1958 (Cth) provides that the High Court, the Federal Court and the Federal Magistrates Court must not publish a person’s name where the person has applied for a protection visa or a protection-related visa, or had such a visa cancelled.

35.107 One stakeholder submitted that suppression orders, which prohibit the publication of certain information in court proceedings, were a restraint on the media’s role of disseminating information to the public. It opposed the granting of suppression orders for the purposes of protecting a person from embarrassment.^[155]

Police access to court records

35.108 The Family Law Council submitted that police officers should have access to the Family Court’s database so that officers could deal with cases of family violence that arise in the family law context.^[156] The ALRC notes that police officers already are allowed to obtain access to the Family Court’s database in particular types of matters under the Family Law Rules 2004 (Cth). Under rule 24.13, with the permission of the court, a person is allowed to search, inspect or copy a document forming part of the court record, if he or she can demonstrate a ‘proper interest’ in the case or the information in the court record.

Party and witness access to court records

35.109 Documents relating to a particular proceeding generally are accessible by parties to the proceeding and their legal representatives.^[157] One commentator has asked whether this right should extend to witnesses, on the basis that they are identified in the record and have the right to know what information is held about them.^[158]

35.110 Another issue is whether parties should have the right to correct or annotate inaccurate or irrelevant material on the record. It has been argued that, since both freedom of information and privacy legislation gives individuals the right to correct information held about them in public records, the same rule should apply to court records.^[159]

35.111 One stakeholder submitted that witnesses should not be able to access court files because ‘there is a real risk that the evidence and testimony of that witness may be affected by perusing the court file before giving his or her evidence’. Where access to court records is restricted,

the information held on the court file, even if inaccurate, is not publicly available and is therefore unlikely to be able to be accessed by or used by someone in a position to adversely affect the witnesses’ interests. ^[160]

35.112 It also was submitted that allowing parties to correct or annotate inaccurate or irrelevant information on the court record ‘may contaminate the court record, which is meant to accurately reflect the material before the court rather than commentaries upon the evidence’, and would represent a significant ‘interference with the role and powers of Courts on appeal where additional evidence may be permitted, but only in limited circumstances’.^[161]

35.113 Parties and witnesses to proceedings should not have the right to change or annotate court records. The purpose of court records is to reflect accurately the materials before the court for the purposes of the court’s adjudicative functions. The nature of proceedings and the material collected in an adversarial system are inherently contentious. Allowing parties or witnesses to change or annotate court records would be a significant interference with the court’s role as the arbiter of disputes. In addition, court records ought to reflect accurately the materials and evidence on which a court’s decision is based, especially for the purposes of review on appeal.

35.114 Allowing witnesses to access court files during proceedings runs the risk that the evidence and testimony of witnesses may be affected before they give evidence. Witnesses are often required to stay out of court in order to avoid the possibility that their testimony changes as a result of what has been seen and heard in court.^[162] Similar considerations should apply in relation to court records.

Harmonisation of court and tribunal rules

35.115 In its 2003 strategy paper on the federal civil justice system, the Attorney-General’s Department recommended ‘that the courts continue to develop, where appropriate, uniform procedures for those areas of law in which the same jurisdiction can be exercised in more than one court’.^[163]

35.116 The ALRC reviewed the issue of non-party access to court records as part of its inquiry into the protection of classified and security sensitive information. In ALRC 98, the ALRC identified a number of inconsistencies across state and federal court legislation and rules concerning public access to evidence and other court documents. Inconsistencies included: the types of document that may be accessed; when public access can be presumed; whether leave of the court is required for access; and the release of transcripts to non-parties.^[164] The ALRC recommended that SCAG order a review of federal, state and territory legislation and court and tribunal rules relating to non-party access to evidence and other documents produced in relation to proceedings, with a view to developing and promulgating a clear and consistent national policy.^[165]

35.117 In recent years, there has been some progress in the harmonisation of court rules in different areas of Australian law. The Council of Chief Justices and the Australian Institute of Judicial Administration have formed a Harmonisation of Rules of Court Committee. The Committee has harmonised rules of court in the areas of corporations law procedure, subpoenas, discovery of documents, and service of process outside the jurisdiction.^[166] In 2001, the Federal Court and the Federal Magistrates Court completed a joint project to develop harmonised rules for bankruptcy proceedings.^[167]

35.118 In DP 72, the ALRC observed that there were inconsistencies in legislation and court rules concerning non-party access to court records. For example, some court rules specify, in more detail than others, the categories of documents to which a non-party may have access, with or without leave of the court.^[168] There also are differences between court rules as to whether there is a presumption for or against the granting of non-party access to court documents.^[169] The ALRC stated that, to the extent that it is appropriate, consistency among rules of courts on non-party access to court documents can enhance clarity and efficiency of the justice system.

Options for reform

35.119 The ALRC considered a number of ways in which non-party access to court records could be standardised. One option is to grant different levels of access for different types of information on court records. In its discussion paper, Review of the Policy on Access to Court Information,^[170] the Attorney General’s Department of New South Wales proposed a system whereby court information is classified as either open to public access or restricted public access.^[171] Restricted access information, such as social security and tax file numbers and driver’s licence and motor vehicle registration numbers, would be subject to legislative prohibition against media publication.^[172] Restricted access information also would be subject to the provisions of the Privacy and Personal Information Protection Act 1998 (NSW).^[173]

35.120 A variation of this first approach is the recommendation in the report on access to court records prepared by the New Zealand Law Commission.^[174] The New Zealand Law Commission recommended the enactment of a Court Information Act based on a presumption of open court records limited only by principled reasons for denying access,^[175] including the protection of sensitive, private or personal information.^[176]

35.121 Another option is to determine the level of access to court records by reference to the nature of the proceedings. In its discussion paper, Access to Court Records, the County Court of Victoria proposed that: non-party access to civil files generally be available unless the court orders otherwise; limited access to parties to criminal or appeal files, before and after the trial, at the discretion of the registrar on a case-by-case basis; and no access to criminal or appeal files by non-parties without an order of the court.^[177]

35.122 A third option is to remove certain identifying information from the records before publication. In its report on privacy and public access to electronic case files, the United States Committee on Court Administration and Case Management (a committee of the Judicial Conference of the United States) recommended that civil and bankruptcy case files be made available electronically to the same extent they are available at the courthouse, provided that certain ‘personal data identifiers’ are modified or partially redacted.^[178] In September 2003, the Judicial Conference of the United States further permitted remote public access to electronic criminal case files (with certain exceptions) if specified personal identifiers were edited.^[179]

35.123 Recently, the Supreme Court of New South Wales issued a policy on the anonymisation of personal information recorded in transcripts and judgments. The stated purpose of the policy was to prevent identity theft and anonymise the identity of accused persons and witnesses where appropriate. The policy requires that certain information be anonymised in judgments and transcripts, such as street numbers, dates of birth, phone numbers, email addresses, tax file numbers and driving licence numbers.^[180]

35.124 It may be costly for courts to remove identifying information from records before publication. The cost to the courts could be reduced, however, if the person who made the filing was required to file a redacted version of a document for the public record. This option was introduced in the United States by recent amendments to the Federal Rules of Civil Procedure 2007 (US).^[181] Electronic access to court records is discussed further in Chapter 11.

35.125 In DP 72, the ALRC noted submissions by some stakeholders that one set of principles for access to court records would be problematic.^[182] One stakeholder submitted that uniform rules on access to court records may fail to take into account the nature and function of specialist courts and tribunals and could have an adverse impact on the interests of persons involved in or affected by litigation.^[183] Another stakeholder submitted that the balance between access to, and disclosure of, court records and judgments could not be resolved by one set of principles of general application. It was suggested this was an area where it would be appropriate for the Privacy Commissioner to prepare codes of practice or guidelines.^[184]

ALRC’s view

35.126 Since federal courts have differing jurisdictions, different considerations apply in relation to the levels of access to their records. For example, the Federal Court and the Federal Magistrates Court have broad jurisdiction, covering a wide range of matters. In contrast, the sensitive nature of the jurisdiction of the Family Court requires specific restrictions on access. It would be inappropriate, therefore, to have one set of access rules for all federal courts. There is, however, merit in promoting consistency in access rules for courts that deal with similar types of cases.

35.127 A coordinated approach by federal, state and territory courts and tribunals to non-party access to court and tribunal records is needed to provide more consistency. The ALRC reaffirms its recommendation in ALRC 98 that SCAG should order a review of federal, state and territory legislation and court and tribunal rules concerning non-party access to court records, with a view to promoting a national and consistent policy.^[185]