New NSW proposals for access to court documents

A new computer system, CourtLink, for the NSW Court system is being implemented across the Supreme Court, District Court and Local Courts. As part of this process a review of issues associated with access to court information and documents is under way.

A draft review paper "Review of policy on access to court information" (see middle of page) issued by the Attorney General’s Department includes 22 proposals for managing public access including a significant shift away from the current process where the court exercises considerable discretion in deciding whether access to court documents will be granted.

Submissions were invited on the paper and closed on 14 July. Given the issues canvassed concerning rights of access and privacy implications, its had little media coverage. The only article I’ve seen is a straight report “Plan to revamp court access” (no link available) by Chris Merritt, the Australian’s Legal Editor on 9 June.

There has been no mention of the review on the NSW Privacy Commissioner’s website.

The paper makes a strong case that the principle of open justice requires clear rules concerning the public right to access to court information, but acknowledges that the power of technology and online access will require careful handling of some categories of sensitive information considered during court proceedings.

It proposes categorising certain documents and information as open access, with restrictions and legislative prohibitions against media publication of other categories of documents listed as restricted access. It would also give the courts clear powers to require removal of some information from websites where publication may be prejudicial to a trial. Restricted documents that become State Archives will not be available for access for 75 years.

The paper highlights the importance of balancing the principle of open justice and the rights of privacy but notes that currently the NSW Privacy and Personal Information Protection Act does not apply to a court or tribunal when exercising judicial functions.

Apparently courts have approved various arrangements with state government agencies and others such as credit rating organisations to access information in court records but in the absence of legislation there is a lack of rigour in the present system, and no safeguards against misuse of access rights conferred on government agencies.

The proposal for a comprehensive new legislative scheme sounds as if its been a long time in the making and getting a final proposal agreed to by the courts, passed by Parliament, and implemented will be complex and difficult.

While just about every other proposal concerning privacy in NSW seems to be put to one side pending the report on privacy laws generally by the Law Reform Commission it will be interesting to see whether this initiative gets a priority.