(a) open access to certain court information, known as open access information, unless the court otherwise orders in a particular case,The Law Society of NSW criticised particular proposals last year [PDF].
(b) access to information, known as restricted access information (being information that is not open access information) if access is permitted by leave of the court or by regulations under the Act,
(c) access by news media organisations to certain restricted access information,
(d) access by parties to proceedings to any court information relating to the proceedings,
(e) imposition of conditions on access to court information relating to the way the information is provided or that restrict the disclosure or use of the information,
(f) protection of privacy and safety of participants in court proceedings, including limitations on access to personal identification information,
(g) the protection of court information from misuse and unauthorised access, use or disclosure,
(h) methods of access to court information, including charging of fees for access.
The objects of the proposed Act are to -
1) promote consistency in the provision of access to court information across NSW courts,Under the proposed Act the 'Open access information' (which any person is entitled to access, unless the court otherwise orders in a particular case), includes -
2) provide for open access by the public to certain court information to promote transparency and a greater understanding of the justice system,
3) provide for additional access by the media to certain court information to facilitate fair and accurate reporting of court proceedings,
4) ensure that access to court information does not compromise "the fair conduct of court proceedings, the administration of justice or the privacy or safety of participants in court proceedings", based on restricting access to certain court information.
i) in relation to criminal proceedings - indictments, court attendance notices, police fact sheets and statements of facts,Restricted access information (for which there is an entitlement for access only if permitted by leave of the court or by regulations made under the proposed Act) includes -
ii) in relation to civil proceedings - originating processes and pleadings,
iii) written submissions made by a party in proceedings,
iv) transcripts of proceedings,
v) statements and affidavits admitted into evidence, including expert reports,
vi) records of judgments and directions given in proceedings.
a) personal identification information,When deciding whether to grant leave for access to restricted access information, the court may take certain matters into account, including the -
b) medical, psychiatric, psychological and pre-sentence reports,
c) criminal records,
d) victim impact statements,
e) letters of comfort provided by the prosecution in connection with criminal proceedings.
a) public interest in access to the information,A court and regulations may impose conditions on access, including restrictions on the disclosure or use of that information.
b) extent to which the principle of open justice will be adversely affected if access is not provided,
c) extent to which an individual's privacy or safety will be compromised by providing access,
d) extent to which providing access will adversely affect the administration of justice.
The Act would provids for a media organisation to have access to certain court
information that is restricted access information (unless the court orders otherwise), including -
1) transcripts of proceedings in closed court or proceedings on a voire dire,A party to proceedings and the party's legal representative would be entitled to access any court information (in addition to open access information) that relates to the proceedings unless the court orders otherwise in a particular case.
2) transcripts of and evidence in proceedings on an application to a court for an order to prohibit or restrict the publication or disclosure of information,
3) the brief of evidence in criminal proceedings.
There would be no entitlement to access to court information under the proposed Act if providing that access would contravene a court order or a provision of another law.
A court may refuse to provide access to court information in a particular case if providing access would require an unreasonable diversion of the court's resources or it is necessary to refuse access to ensure the safe custody and proper preservation of court records.
In its comments on the 2008 Report the NSW Law Society noted -
concerns about the proposal in the Report for a special role for media interests, and an ability on the part of those interests to access a greater range of court information than that which is available to the general public. While it is acknowledged that the media can and does play a vital role in ensuring the communication of material already available under open justice principles to the general public, it is not readily apparent in the Report why that role necessitates greater access to court information than would generally be available to the public as a result of the proposed recommendations. To look at it conversely, on what basis can it be justified that the general public have less access to court information than media interests?It went on to comment that -
It is readily acknowledged that the media play a key role in giving effect to the general public interest in making justice visible and open. However, this role does not warrant access to a greater field of substantive information than would otherwise be available to the general public. The media may have a pecuniary interest in the ability to access information, and particularly in an ability to do so quickly. However, this does not warrant greater access, merely quicker access.Further -
There is no basis provided within the Report to explain why closed court transcripts, which the Report recommends be designated restricted information, should be made specially available to media interests. It is logically inconsistent for the Report to recommend that the media be granted special access to transcripts of closed court proceedings when it is acknowledged in the report that such transcripts are inappropriate for designation as 'open access' documents. If the material information is inappropriate for access by the public, it makes little sense to allow media interests, presumably with an intent to report on the contents, special access.
The rationale relied upon in the Report for special media access appears to be that such media interests can be appropriately regulated and therefore restricted from publishing sensitive details and personal information. This rationale is evident from the Report's recommendation that only employees of regulated mass media organisations be designated as 'media' for the purposes of access to court information. It is submitted by the Committee that this is a misguided approach, and that the emphasis should be placed on a clear delineation between accessible and restricted information, with clear sanctions for the inappropriate use of restricted information. It is suggested that it is both more appropriate and more practical to regulate the access and use to which court information may be put rather than assigning some media with special access rights in anticipation that those media can be regulated, are reputable and can be trusted not to misuse sensitive and potentially damaging information.
Notwithstanding the above, it is acknowledged that in some closed court proceedings, a media report on the proceedings (with applicable limitations on the disclosure of identities etc) may be the only available method by which the general public will become informed. It may be important for the proper and open administration of justice that the public be made aware of the nature of proceedings while the identities of those involved (and other confidential or sensitive information) is otherwise protected from disclosure. Nevertheless, this would appear to be a matter of procedure for the court exercising the discretion to close the courtroom. It is submitted that appropriate measures and orders can be made by the court in such conditions allowing media access with any appropriate limitations on the right of publication that the court deems appropriate in the circumstances. It would appear unnecessary and inefficient to attempt to contort the principles of a court information access regime to allow for preferential media access in such cases. Doing so leads to a complicated access regime that the Report is directed at avoiding.
