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NOV 22 2017
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New rules for seeking access to court documents

New rules for seeking access to court documents

The rules for accessing court documents changed on 1 September 2017.  The new rules apply to civil and criminal cases in the District Court, High Court, Court of Appeal and Supreme Court.  This note summarises the rights of third parties (like journalists) to access documents on a court file, and the relevant procedures.

GENERAL RIGHT OF ACCESS TO COURT FILE

Everyone has the right to access what is called the “formal court record”.  That phrase captures any judgment, order or minute of the court, and also the “permanent court record” which sets out the details and outcome of a criminal charge.  The procedure is as follows:

  • The person seeking access applies orally to the court registrar (or in writing, if the registrar so  requires).
  • The registrar then gives access to any document which forms part of the formal court record (subject to the qualifications noted below).  There is no duty to consult with the parties, or seek approval from a judge. 

REQUESTS FOR ACCESS TO COURT DOCUMENTS

Not every document on the court file forms part of the “formal court record”.  However, everyone may ask to access “documents” which is defined to capture any written material in the custody or control of the court (including written documents, photographs, and recordings).  The procedure is as follows:

  • The person seeking access applies in writing to the court registrar.  An application form is available online at www.courtsofnz.govt.nz, but a letter or email is sufficient.  The request must carefully describe the document sought, the reasons for seeking access, and any proposed conditions.
  • The registrar then gives a copy of the request to the parties.
  • The parties may then object to access.  They must do so in writing by 3pm on the third working day  after receipt of the request.
  • A judge may then direct that the person seeking access file a formal application, or give notice to any person who may be adversely affected by the giving of access, or convene an oral hearing. 
  • The judge will then determine the request.  That may include granting it, granting it subject to conditions, or refusing it altogether. 

In determining the request, the judge must take into account a range of matters including:

  • the right to a fair trial;
  • the principle of open justice;
  • the right to bring civil proceedings without disclosing private or commercially sensitive matters;
  • confidentiality and privacy interests (especially those of children or vulnerable people); and
  • the freedom to seek, receive and impart information.

The judge must also take into account that confidentiality and privacy interests have greater weight prior to a substantive hearing, while the principle of open justice assumes more significance during or after such a hearing.

QUALIFICATIONS ON ACCESS

Access to a document may be refused where:

  • a judge has made an order or direction limiting or prohibiting access to a document;
  • legislation limits or prohibits access;
  • the proceeding is brought under one of a number of specified statutes (including the Adoption Act 1955, the Domestic Violence Act 1995, the Harassment Act 1997, or the Mental Health (Compulsory Assessment and Treatment) Act 1992);
  • the request is for one of a class of sensitive documents (including a pre-trial or bail judgment, a complainant’s evidence, or a recording of an interview with a defendant).

If you would like to discuss whether a particular class of court documents can be accessed, please do not hesitate to contact us.

ANDERSON CREAGH LAI LIMITED 

Andy Glenie | Mobile: +64 21 568 923 | Email: andy.glenie@acllaw.co.nz

Lydia Ingram | Mobile: +64 21 0699 295| Email: lydia.ingram@acllaw.co.nz