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Supreme Court of New South Wales

Consultation paper - access to court records

1. Purpose

To obtain feedback on the court’s draft access policy from:

  • the Attorney General and his department;
  • litigants and their representatives;
  • the legal profession; and
  • media bodies.

2. Feedback on the draft policy

Feedback is invited on the draft policy by 5pm, 31 May 2004.

Comments should be directed:

To: / Megan Greenwood
CEO and Principal Registrar

Supreme Court of NSW

By post: / GPO Box 3
Sydney
By DX: / DX 829, Sydney
By e-mail: /

3.Background

A new computer system, CourtLink, is being implemented across the Supreme, District and Local courts. This system will replace the current Courtnet system and will provide improved access and information. It is timely that the Supreme Court review its policies concerning access to court records.

4. Current access arrangements

In the Supreme Court, pt 65 r7 of the rules provides that a non-party may not search in a registry for, or inspect any document or thing, in any proceedings except with the leave of the Court. Similar provisions apply in other courts. Practice Note 97 provides guidance in the exercise of the discretion to grant non-party access to court records. PN 97 provides that access will normally be granted to non-parties in respect of the following (unless a judge or registrar considers the material should be kept confidential):

  • pleadings and judgments in concluded proceedings;
  • documents that record what was said or done in open court;
  • material that was admitted into evidence; and
  • information that would have been heard or seen by any person present in open court.

PN 97 provides for a written access application and notes that affidavits and witness statements are often not read in open court and that access will not normally be allowed to material that is the subject of current proceedings. What the procedures do not properly articulate is how court staff should deal with non-party requests for case information held, for example, on the court’s computer system. Requests are regularly made about hearing dates, party names, court orders and so on.

Section 314 of the Criminal Procedure Act 1986 (as amended in 2003, below) also makes certain information about criminal matters available to the media:

Section 314: Media access to court documents

(1)On application to the registrar, a media representative is entitled to inspect any document relating to criminal proceedings, at any time from when the proceedings commence until the expiry of 2 working days after they are finally disposed of, for the purpose of compiling a fair report of the proceedings for publication.

(2)The documents that a media representative is entitled to inspect under this section are copies of the indictment, court attendance notice or other document commencing the proceedings, witnesses’ statements tendered as evidence, brief of evidence, police fact sheet (in the case of a guilty plea), transcripts of evidence and any record of a conviction or an order.

(3)The registrar is not required to make documents available for inspection if the documents are not in the possession or control of the registrar.

(4)The registrar must not make documents available for inspection if:

(a)the proceedings are subject to an order prohibiting their publication, a suppression order or are held in closed court, or

(b)the documents are prohibited from being published or disclosed by or under any other Act or law.

(4A) This section does not limit the operation of any other Act or law under which a person may be permitted to inspect documents relating to criminal proceedings.

Further, the Supreme Court has public access index searches to certain case information on Courtnet through public terminals in the registry. Index searches can be performed by any non-party to access plaintiff or defendant (civil or crime) names. The following information is then available:

  • case number;
  • name of plaintiff;
  • name of defendant;
  • details of solicitor on the record; and
  • where relevant, whether liquidator appointed or probate granted.

Registration clerks are frequent users of the index search facility for the purpose of performing due diligence searches. Often, additional information is sought from court staff, including the date on which proceedings were commenced and the next hearing date. The public access index search facility is not available in other NSW courts. In the District Court due diligence searches are conducted by registry staff following registrar approval of a written application that includes reasons for the search request.

Some external organisations have on-line access to Courtnet to use Index Search Option (1). This enables access to the following information: file enquiries to all (Local, District and) Supreme Court divisions except the Adoptions List and diary enquiry, records of processing to the same divisions, information about when a matter commenced, what documents have been filed, what orders have been made and when the case has been listed. The following organisations currently have Index Search Option (1) access to Courtnet:

  • DPP (NSW);
  • Police Criminal Records Unit;
  • Crown Solicitor’s Office;
  • Police Integrity Commission;
  • Victims Compensation Tribunal;
  • Attorney General’s Department libraries;
  • Judicial Commission; and
  • Legal Aid Commission.

5.Security and privacy concerns

CourtLink can provide non-parties with on-line access to court files and information. Table 1 identifies positive and negative aspects of such database access.

Table 1: Benefits and detriments of on-line case information to non-parties

Benefits / Detriments
Electronic access enables courts to conduct their work in public – few people attend courts in person. E-access allows courts to make accurate information about their work more widely available / The pervasive scale of CourtLink databases and the wide range of information that it is capable of collecting may increase opportunities for misuse
Suburban, regional, rural and interstate non-parties would have improved access and reduced costs in accessing information / Would need protections (eg, code of access, undertakings as to usage, records of access, restricting access to people who can establish prior knowledge of the existence of the particular case by identifying parties and file number, usernames and passwords, fees) to prevent identity or data mining
Community could share benefits of technology investment / Would need protections (eg, limits on items searched) to prevent websites and databases of information being built, resulting in discrimination against litigants or accused
Due diligence checks could be more easily performed, meeting needs of legal profession / Implementation of protections could add cost for non-parties and courts
Could reduce risk of unauthorised dissemination of information by court staff / Information on CourtLink may be misleading or inaccurate and qualifications on the information may be needed
Publication of a comprehensive access policy could enhance access to justice / May not comply with legislative requirements
Robot exclusion clauses can operate as effective privacy protection measure / Is it legal or appropriate for criminal case information to be available on-line?
Could enable easy access to electronic hearings / Is any legal protection needed for the court to protect it against legal proceedings arising from the “publication” of court case information?
Any public access database would need to be separate to the “live” database

While the Privacy and Personal Information Protection Act 1998 exempts courtsfrom the operation of the Act in respect of their judicial functions, because of the potential for data mining and the court’s desire to comply with privacy principles it is proposed that there be no non-party on-line access to court records. It is proposed to remove access to the public Courtnet terminals and all non-party Courtnet access. CourtLink is expected to provide on-line party access and other electronic services in 2005.

6.The new draft policies

While any current legislative provisions will be unaffected, it is proposed that the draft access policy Non-party access to Court records will replace PN 97. It has not been decided whether the new policies will be codified as court rules or as a practice note. If the new access policies are implemented, current access arrangements will change as follows:

  • non-parties will not have on-line access to court records;
  • when the e-services facilities of CourtLink are available, litigants and their representatives will have on-line access to their matters;
  • justice agencies will not have on-line access to Courtnet or CourtLink, except where they are a party or representative in particular proceedings. Certain justice agencies will be able to negotiate data exchange arrangements through the Attorney General’s Department;
  • court staff will be formally approved to provide certain limited case information to non-parties free of charge if there is no legislative provision or judicial order suppressing the information;
  • an application policy (as is in place under PN 97) will apply to non-parties seeking other than basic information about a single case, for example media requests to view court files or due diligence searches;
  • a new fee regime is likely to be implemented by Government to reflect the cost of processing and determining non-party applications to access court records. The current fee waiver rules would likely apply to any application; and
  • once court records are archived they will be openly available to members of the public.

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