Monday, April 03, 2006

Editorial: Making our courts more open

Much is made of the principle of open justice and its central importance in the democratic system. And yet in important ways the openness of the system is sometimes limited; most people are familiar with the practice of suppressing names and evidence in court cases.

But openness of the system is also constrained at a much more basic level which is, perhaps, not so readily recognised. It is often difficult and sometimes very expensive to gain access to information held by the courts. This is an obvious concern for news organisations as well as to ordinary members of the public.

Every news organisation can attest, for example, to the difficulties of getting access to documents filed with the courts. There is no consistent rule to guide registrars and clerks when such documents are sought. They operate by instinct, which too often says it is safer to err on the side of secrecy.

The Law Commission has just issued an important report which proposes to change the institutional instinct. "The present rules are not always easy to locate or consistent or clear. Nor are they comprehensive ... A new approach is overdue," says the report. The commission's answer is to aim to bring the judicial branch of Government into line with the rest of the public service which has operated since the passage of the Official Information Act 1982 on the presumption that information it acquires is available to the public unless it is covered by one of some specified reasons for confidentiality.

The presumption is important. Previously public servants assumed their material was not to be disclosed unless the law said it could be. Now they know they cannot withhold it unless they can cite a valid reason. The regime in operation is not perfect but it is vastly better than before. The Law Commission's proposed Court Information Act might struggle to match it in practice.

It suggests very broad exemptions from the principle of open information. Court registrars and officials would be able to deny access to documents where the information would disclose a trade secret or prejudice a commercial position, or where it is thought necessary to protect someone's privacy, or to uphold an obligation of confidence, or if access was considered "contrary to court order".

The information often sought by news media for its public interest is in the form of filed statements of claim and defence, affidavits, depositions, transcripts of evidence and the like. This is material that will very likely be subjected to rigorous examination in court and it might take more than a worthy legislative principle to convince clerks, or perhaps even judges, that it does not fall automatically under the stated exemptions to open information before the case has a court hearing.

The commission proposes that disputes over access to court information should be decided, like other official information issues, by appeals to an Ombudsman. That could put an Ombudsman in the position of overruling the decision of a judge, which would be an interesting clash of authority. Judges are normally master of all procedural matters on cases before them. But the commission reserves the right for information to be withheld also on grounds of "judicial independence", which might cover a multitude of arbitrary rulings.

As always, the proof of the commission's pudding will be in the tasting. It has left ample room for the courts to continue treating documents on their files as inconsistently as ever. But a principle of open government enshrined in law with sufficient heraldry can have a profound effect. The commission has made a promising proposal. It should tighten some of the details and press it into law.

* This editorial did not make clear that the Law Commission report on access to court records is a draft which may be changed as a result of consultation. The report may be seen at (link below). To clarify a point raised in the editorial: the Ombudsman would be involved only in disputes over non-case records and would not be put in the position of overruling a judge.


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