Draft Policy - Non-Party Access to Court Records

Supreme Court of New South Wales

Draft policy - non-party access to court records

1. Purpose of policy

This policy determines non-party access to Supreme Court records. The policy covers individual case records held in all formats, including paper and electronic formats. The policy does not cover access to court administration or other records.

2. Definitions

The term “non-party” includes:

·  the public;

·  the media;

·  witnesses; and

·  the Attorney General and his department.

The term “court record” means information about a case held in the following formats:

·  paper documents;

·  microfiche information, photographs, video and tape recordings and physical exhibits;

·  electronic information about a matter; and

·  electronic documents filed by the parties.

3. Ownership of court case records

Court case information is collected for the purpose of the case management and adjudication of matters before the court. Records compiled in relation to a matter are the property of the court. Except for fee payment and other financial records, the parties to a case, and their representatives, have full access to the court’s record in a matter, subject to any judicial order or legislative provision. This policy, and any legislation, determines non-party access to case information.

4. Access principles

“Open justice” is a fundamental principle of Australia’s legal system, requiring that hearings are generally conducted in public and that the process of justice should be transparent and accessible. Open justice does not mean unfettered non-party access to court files. Access will be granted to non-parties where the principle of open justice requires it and where no competing principles intervene.

Certain information about matters before the court will generally be in the public domain and therefore available to a non-party, for example the court orders in a matter. Generally, aggregated case information will not be made available, especially for commercial purposes. Only the Chief Justice can approve the release of aggregated case information and requests for this kind of information should be made in writing.

The Attorney General and his Department have an interest in court case management and financial performance information. Strict controls will apply to any departmental on-line access to aggregated and anonymised (i.e. personal information will be obscured or removed) information to reflect the processes in place for access to equivalent hard copy records.

Despite an exemption for judicial functions under the Privacy and Personal Information Protection Act 1998, the court will, as far as possible, comply with the privacy principles detailed in that legislation.

The court’s Public Information Officer will be available as a first point of contact to media representatives with access enquiries. As a member of his personal staff, the Public Information Officer reports directly to the Chief Justice of NSW. The Public Information Officer handles enquiries from journalists about media issues concerning the Supreme Court of NSW, District Court of NSW and some other courts. The Public Information Officer’s telephone number is (02) 9230 8190 and fax number is (02) 9230 8667. Other non-parties are to contact the Court registry to access court records. Appointments are not necessary.

Access policies and protocols will be made publicly available. It would be helpful to parties, court users, judicial officers, court staff and non-parties if a uniform approach to non-party access could, as far as possible, be adopted across all NSW courts and tribunals.

5. Access rules

The following rules are subject to any legislative provision or judicial order suppressing access to case information. Commonly, access is not available to:

·  voir dire judgments in criminal matters, prior to a jury verdict;

·  the name of any person involved in criminal proceedings who was under the age of 18 at the time of the offence in question; and

·  anything that can identify the complainant in certain sexual offence cases.

On-line access to Courtnet and CourtLink will be restricted to parties and their representatives. It is expected that data exchange agreements with the NSW Police Service, Bureau of Crime Statistics and research and other relevant Government agencies will be negotiated with the Court through the Attorney General’s Department.

A registrar will normally deal with applications for access. Doubtful cases may be referred to the Chief Justice or a judge nominated by the Chief Justice. Before being dealt with, requests for access may be notified to interested parties.

5.1 Current cases

These are proceedings that have not been finalised. Court lists will be published daily on the court’s website and throughout court buildings. They will continue to be made available to the Sydney Morning Herald newspaper for daily publication.

The registry will give access to the transcript[1], upon payment of a fee. It will also give the following verbal information about a current case:

·  file number;

·  date filed;

·  party names and roles;

·  representative names and contact details;

·  cause of action (civil);

·  charges (crime);

·  past and future listing dates;

·  orders made; and

·  name of judge.

To access the court file or other information about a current case, non-parties should complete a written request (form attached) setting out the file number and party names and their reasons for seeking access. Fees may apply[2]. Normally, access will be granted to the following (unless a judge or registrar considers the material should be kept confidential):

·  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.

Access will not normally be allowed to other material.

5.2 Recently concluded proceedings

These are proceedings that were concluded no later than two working days before an access application is made. The registry will give access to the transcript, upon payment of a fee. It will also give the following verbal information about a recently concluded case:

·  file number;

·  date filed;

·  party names and roles;

·  representative names and contact details;

·  cause of action (civil);

·  charges (crime);

·  past and future listing dates;

·  orders made;

·  name of judge;

·  case outcome;

·  how matter finalised (eg whether by judgment, discontinuance or terms of settlement); and

·  final judgment (but not confidential terms of settlement).

To access the court file or other information about these cases, non-parties should complete a written request (form attached) setting out the file number and party names and their reasons for seeking access. Fees may apply. Normally, access will be granted to the following (unless a judge or registrar considers the material should be kept confidential):

·  pleadings and judgments;

·  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.

5.3 Concluded proceedings

To access the court file or any information about completed cases, non-parties must complete a written request (form attached) setting out the file number and party names and their reasons for seeking access. Fees may apply. Normally, access will be granted to the following (unless a judge or registrar considers the material should be kept confidential):

·  pleadings and judgments;

·  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.

A formal request is not required for access to transcript, but fees will be payable.

5.4 Archived proceedings

Court records will be made open to the public at the State Archives Authority once they have been archived. Files will be archived, pursuant to the State Records Act 1998, according to the following table:

Type of file / Archived and open to the public at
Court of Appeal / 30 years from file completion
Court of Criminal Appeal / 75 years from file completion
Administrative law / 30 years from file completion
Admiralty / 30 years from file completion
Adoption / 100 years from file completion
Commercial and technology / 30 years from file completion
Common law / 30 years from file completion
Cost assessment / 6 years from file completion
Crime (including bail files) / 75 years from file completion
Equity / 30 years from file completion
Family law and ecclesiastical / 30 years from file completion
Guardianship files / 100 years from file completion
Land and evaluation / 30 years from file completion
Law Enforcement and National Security (Assumed Identities) Act orders / 100 years from file completion
Legal practitioners / 30 years from file completion
Liquidator bonds and guarantees / 30 years from file completion
Listening device and telephone intercept warrants / 100 years from file completion
Matrimonial causes / 30 years from file completion
Police Powers (Internally Concealed Drugs) Act orders / 100 years from file completion
Probate / 30 years from file completion
Proceeds of crime / 30 years from file completion

6. Review of decisions

Where a registry staff member or registrar declines to provide information under this policy, a request for review can be made to the Principal Registrar. This review will be determined within 24 hours.

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Supreme Court of NSW

Application for access to a Court record

(including Court of Appeal and Court of Criminal Appeal files)
Except by leave of a Registrar, no person other than a party to the proceedings shall be allowed to search a court file (Part 65 SCR). Normally it will take one working day to retrieve the file. Once requested, files will be held for a period of one week only. Documents will be photocopied by Registry staff upon payment of the prescribed fee.
Court file number:
Division:
Plaintiff/appellant:
Defendant/respondent:
I am making this request as: (þ appropriate box)
The solicitor on record / a partner or employed solicitor of the solicitor on record (sufficient identification is required, eg Law Society Card)
A barrister or other person duly authorised by the solicitor on record (a letter of authorisation is required from the solicitor on record)
The litigant in person - identification showing current addresses will be required, that is 1) driver’s licence or other photo ID; 2) bank record (passbook / credit card); 3) social security ID
Non-party to proceedings. Access must be approved by a registrar. Complete full details below and on the reverse of this form.
If you require the file to be delivered to the Duty Registrar please tick this box and indicate the date you will be seeing the Duty Registrar
Date: ______/______/______
If you require a file from another Court/Division to uplift documents to prepare appeal books tick this box and enter the lower court file number here: ______
Details of person making the request:
Full Name:
Firm (for non-parties specify full residential address, business address and your occupation):
Telephone Number: Date:
Signature: ______
For Non-parties only:
Your application will be considered by the Duty Registrar in Chambers and you will be advised of the outcome. If you wish to discuss your application with the Duty Registrar you should tick the box (on the other side of this form) indicating that you want the file delivered to the Duty Registrar and the date that you will be seeing the Duty Registrar.
I am seeking access to:
Tick one Ö:
  The full file
  The following documents or exhibits: (identify):
  Other (specify):
My reason for asking for access to the file/documents is:
and I say that access to the file/documents should be granted because (state grounds):

Registry Use Only

Registrar:
Decision:
Reason (if access is denied):
Date:

Undertaking - to be completed for inspection of file

If you are seeking leave to uplift documents to prepare an Appeal Book you will be required to sign a different undertaking.

I, (name) of (firm)
agree that I will not remove or tamper with any document on this file during inspection, nor will I remove the file from the court registry. I further undertake to return the file to the viewing room counter immediately upon completion of inspection.
Signature: Date:

Registry Use Only

/

For Court of Appeal: (date) Registrar/Clerk OK

Initial of Clerk granting access / Applicant entitled to view file - Identification seen (date)
Initial of Clerk receiving file / File/Documents returned intact (date)

[1] Should transcripts in Corporations law examination proceedings be made immediately available to non-parties, prior to any authentication?

[2] Fees would be a matter for Government