DRAFT OF MARCH 2009
REPORT ON ACCESS TO JUDICIAL
INFORMATION
March 2009
TABLE OF CONTENTS
PAGE
INTRODUCTION ................................................................................................................................. i
COUNTRY SUMMARIES......................................................................................................................1
AUSTRALIA .......................................................................................................................... 1
BELGIUM.............................................................................................................................. 4
BOSNIA AND HERZEGOVINA ................................................................................................ 5
CANADA .............................................................................................................................. 7
CROATIA ............................................................................................................................ 10
THE EUROPEAN UNION ...................................................................................................... 12
IRELAND ............................................................................................................................ 13
ISRAEL ............................................................................................................................... 14
JAPAN ................................................................................................................................ 17
NEW ZEALAND .................................................................................................................. 21
SOUTH AFRICA .................................................................................................................. 22
SPAIN ................................................................................................................................. 24
SWEDEN ............................................................................................................................. 25
TURKEY ............................................................................................................................. 26
UNITED KINGDOM ............................................................................................................. 28
UNITED STATES ................................................................................................................. 30
CONCLUSIONS .................................................................................................................................37
INTRODUCTIONi
Access to judicial records and to information about the judiciary is an important, yet often
overlooked, aspect of transparency and access to information. While much legislative and
scholarly attention has focused on promoting freedom of information and access to records with
regard to the executive functions of government, much less has been done to secure or even
evaluate access to judicial information. In building upon a 2007 report on access to judicial
information in Latin American countries by The Due Process of Law Foundation,ii this report
takes the first step towards developing a dialogue on access to judicial information by
summarizing key principles and providing an overview of the current status of access to judicial
information in a mix of countries around the world.
Due to the scope of this undertaking and the inherent difficulty of researching an area about
which little has been written and that historically has been approached at a local level, this report
is not intended to be exhaustive. Although many countries have enacted national freedom-ofinformation legislation, in most cases the judiciary is exempt from those laws, either explicitly or
in practice. Thus, for the most part, courts have been left to create their own policies, rules, and
practices related to access to judicial records and information about the judiciary, often without
guidance from the legislature. The laws and practices of more than 15 countries are reviewed in
this report; they were selected to illustrate the variety of approaches that have been adopted in
this area.
Categories of Judicial Information
Three categories of information are relevant to judicial transparency. The first, and most
important, concerns the adjudicative work of the courts – including transcripts, documents filed
with the court (pre- and post-trial), trial exhibits, recordings, settlements, opinions, and dockets.
This information may be further categorized, for example, based on whether the proceeding is
criminal or civil in nature, whether minors or adults are involved, or whether information of a
private or intimate nature is involved. This category of information generally is the most readily
available to the public and is the primary category covered in this report.
The next category is information of an administrative nature. This includes information about
court budgets; personnel and human resources; contracts between the court and third parties for
construction, maintenance, office supplies, or the like; and organizational matters. Decisions
whether to make this information available to the public often are made on an ad hoc basis.
i
This Report was prepared by Ropes & Gray LLP for the Open Society Justice Initiative. Principal authors of the
Report were Thomas M. Susman of the American Bar Association (formerly of Ropes & Gray LLP) and Margaret
S. Moore of Ropes & Gray LLP. Contributors include Colleen Bathen, Alexander H. Berlin, Samuel Bickett, Katia
S. Callahan, Melissa Davenport, Christine W. Ennis, Sandra Caron George, Elizabeth Meltzer, Margaret S. Moore,
and Ann DeSear Wiles, current or former associates of Ropes & Gray LLP. Sandra Coliver of the Justice Initiative
provided some comments on various drafts.
ii
Due Process of Law Foundation, Disclosing Justice: A study on access to judicial information in Latin America,
June 2007 [hereinafter “DPLF Study”], available at http://www.dplf.org/uploads/1196288391.pdf.
-i-
The third category encompasses information about judges. This category includes information
about salaries, personal finances (such as debts and investments), vacancies, disciplinary matters,
and selection of judges. The second and third categories of information are covered to a lesser
extent than the first category in this report.
Guiding Principles of Judicial Transparency
As with any access-to-information regime, the concept of transparency in the judicial realm must
both advance and accommodate certain interests that at times may conflict. For example,
providing access to documents relating to criminal cases involving minors implicates privacy
concerns, while releasing personal information about judges may implicate security concerns
(especially in countries where judges have been victims of retaliatory violence). As Justice
Hugo Black of the United States Supreme Court said, “free speech and fair trials are two of the
most cherished policies of our civilization, and it would be a trying task to choose between
them.”iii
As with the development of access regimes applying to the executive branch, an access regime in
the judicial realm should seek to advance the goals of ensuring transparency and enhancing the
efficiency, effectiveness, and public confidence in the judicial system. The following goals
should be considered and balanced in developing a system for providing access to judicial
information:
1.
2.
3.
4.
5.
6.
Ensuring independence of the judiciary;
Ensuring fair administration of justice (including the public’s perception of the
judiciary and judicial decision-making);
Promoting efficient administration of justice;
Protecting privacy of judges, parties to a proceeding or case, and third parties;
Ensuring security of judges, parties, and other participants in the judicial system;
and
Protecting media access to the courts and the public’s right to know.
Each of these elements is discussed below.
An independent judiciary is critical to protecting individual rights, preserving the rule of law, and
preventing unwarranted concentration of power in the executive.iv The importance of judicial
independence was highlighted by the public outcry over the suspension of Chief Justice Iftikhar
Muhammad Chaudhry of Pakistan by the country’s president on March 9, 2007, for alleged
“misuse of office.”v The government declared Chaudhry to be “non-functional” and detained
iii
Bridges v. California, 314 U.S. 252, 260 (1941) (Black, J.).
iv
See, e.g., Susan Rose-Ackerman, An Independent Judiciary and the Control of Corruption, available at
http://democracy.ubc.ca/fileadmin/template/main/images/departments/CSDI/conferences/CorruptionConfRoseAckerman.pdf.
v
Salman Masood, Furor over Musharraf's Suspension of Pakistan's Chief Justice, INTERNATIONAL HERALD
TRIBUNE, March 15, 2007, available at http://www.iht.com/articles/2007/03/15/news/pakistan.php; see also Human
- ii -
him, incommunicado, at his home. Following public outcry by Pakistani citizens, protests by
lawyers around the world, and a Supreme Court ruling declaring the suspension illegal,
Chaudhry was eventually reinstated. In response to these events, one Pakistani commentator
observed that “[o]nly an independent and impartial judiciary can offer some challenge to an
executive determined to expand its sphere of powers, occasionally hold it legally accountable
and thereby force the executive to take full political responsibility for some of its actions.”vi
Some judges have protested that transparency in the judicial system could threaten judicial
independence. One commentator has replied that “[t]aken alone, [judicial independence] carries
the risk of impunity. . . . Because judicial decisions help to determine the distribution of wealth
and power, independent judges can exploit their positions for private gain.”vii However, in the
United States and many other nations, a presumptively public trial record and a prohibition on ex
parte communications (secret communications by a single party to a dispute) serve to alleviate
these concerns and to deter influence-peddling and corruption. In the end, transparency in the
judicial system will enhance, not threaten, judicial independence.
Allowing the public to access judicial records can help to ensure the fair administration of justice
and to enhance the public’s positive perception of, and confidence in, the judiciary. In the words
of United States Supreme Court Chief Justice Warren Burger:
Civilized societies withdraw both from the victim and the vigilante the
enforcement of criminal laws, but they cannot erase from people's consciousness
the fundamental, natural yearning to see justice done – or even the urge for
retribution. The crucial prophylactic aspects of the administration of justice
cannot function in the dark; no community catharsis can occur if justice is ‘done
in a corner [or] in any covert manner.’ . . . It is not enough to say that results
alone will satiate the natural community desire for ‘satisfaction.’ A result
considered untoward may undermine public confidence, and where the trial has
been concealed from public view an unexpected outcome can cause a reaction that
the system at best has failed and at worst has been corrupted. To work effectively,
it is important that society's criminal process ‘satisfy the appearance of justice,’ . .
. and the appearance of justice can best be provided by allowing people to observe
it.viii
In addition to promoting public confidence in the judiciary, allowing the public to access judicial
proceedings and records encourages judges to act fairly, consistently and impartially, allowing
the public to “judge the judge.”ix This reasoning extends not only to documents that actually
Rights Watch, Pakistan: Release Chief Justice of Supreme Court, March 13, 2007, available at
http://www.hrw.org/english/docs/2007/03/13/pakist15475.htm.
vi
See Moeen Cheema, Safeguarding Judicial Independence in Pakistan, Jurist, April 2, 2007, available at
http://jurist.law.pitt.edu/forumy/2006/04/safeguarding-judicial-independence-in.php.
vii
See Rose-Ackerman, supra note iv, at 2.
viii
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571-72 (1980) (internal citations omitted).
ix
See Sharon Rodrick, Open Justice, the Media and Avenues of Access to Documents on the Court Record, 29
U.N.S.W. L.J. 90, 93-95 (2006).
- iii -
involve judging, such as written opinions, but also to those documents, such as filings by parties
to a case and other parts of the court record, on which judicial opinions are grounded.
Transparency helps to ensure that courts can do their jobs efficiently and effectively. The quality
of justice should be enhanced when the public can know what parties are presenting to the court
and take issue with misstatements; when media can report on the quality and clarity of opinions;
when interested parties can make an informed decision whether to intervene or become involved
as a friend of the court; and when public pressure and concern about image can encourage judges
to decide cases expeditiously. It could be argued that transparency could become a distraction,
for example, by requiring judges to spend time deciding whether to redact privacy-related
information before releasing documents to the public or compiling personal financial information
for disclosure. (Arguments referring to distraction and disruption were advanced in connection
with efforts to prevent cameras in the courtroom in the United States, but the arguments have
been disproved at the state and federal levels.)
With regard to privacy and security concerns, three distinct sets of concerns must be recognized:
those of judges, parties to a proceeding, and third parties.
Privacy and security are crucial issues for judges, and not only in countries with an unstable or
corrupt government. A state court judge in the United States reported that “a man she had
sentenced to prison told her he knew the names of her children - then rattled them off.”x In 2005,
the mother and husband of a U.S. federal court judge were murdered in her home by a plaintiff
from a medical malpractice case that the judge had dismissed.xi And this problem is by no
means limited to the United States. Incidents of retaliatory violence against the judiciary have
been reported in, among others, Turkey,xii Peru,xiii and Germany.xiv
The privacy and security of individual parties involved in a judicial proceeding also must be
considered. These concerns are heightened in cases involving minors and cases implicating
sensitive personal or financial information, intimate relations, or national security matters.
Article 14 of the International Covenant on Civil and Political Rights attempts to balance the
interest in openness against privacy and security concerns, stating, in part:
x
Amanda Paulson and Patrik Jonsson, How Judges Cope with Everyday Threats on the Job, CHRISTIAN SCIENCE
MONITOR, March 4, 2005, available at http://www.csmonitor.com/2005/0304/p01s04-usju.html.
xi
Revenge Likely Motive in Judge Killings Case, CNN.com, March 11, 2005, available at
http://www.cnn.com/2005/US/03/11/judge.bodies/index.html.
xii
Yesim Borg and Karl Vick, Judge Killed in Attack On Turkish High Court, WASHINGTON POST, May 18, 2006,
available at http://www.washingtonpost.com/wp-dyn/content/article/2006/05/17/AR2006051701898.html
(reporting that a gunman opened fire on judges in a Turkish court; the gunman was a lawyer who was angry over a
ruling restricting Islamic dress in Turkey).
xiii
Peru Drugs Trial Judge Shot Dead, BBC News, July 20, 2006, available at
http://news.bbc.co.uk/2/hi/americas/5201716.stm (noting that the judge had been handling the trial of alleged
members of the Mexico-based Tijuana cartel).
xiv
German Judge Killed, BBC News, May 7, 1998, available at (noting that the judge was killed in open court and
that the gunman “had left a note saying he hated the judge for fining him and his wife in 1981 on an [embezzlement]
charge”).
- iv -
In the determination of any criminal charge against him, or of his rights and obligations
in a suit at law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the public may be
excluded from all or part of a trial for reasons of morals, public order . . . or national
security in a democratic society, or when the interest of the private lives of the parties so
requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any judgment
rendered in a criminal case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings concern matrimonial
disputes or the guardianship of children.xv
Above all else, an access-to-judicial-information regime must strive to protect and preserve the
public’s right to know. The ability of citizens to request and receive information about their
government is vital to transparency and accountability, which are hallmarks of an open and
democratic society. Enabling citizens to access and, in some cases, comment upon governmentheld information enhances respect for the government, encourages compliance with the law,
empowers the public to participate more effectively in governmental processes, and engenders
public trust in the government.
In free societies, access to information is integral to combating corruption and abuse and to
guarding against arbitrary or wasteful acts. Access-to-information laws expose governments to
public scrutiny, allowing citizens to inform themselves about the costs and efficacy of
government actions and to hold government officials accountable for their decisions. In the
words of United States Supreme Court Justice Louis Brandeis, “[s]unlight is said to be the best
of disinfectants; electric light the most efficient policeman.”xvi
Because of the competing interests discussed above and the sensitivity of much judicial
information (as well as the absence of scrutiny of the courts on this issue), few judicial systems
seem to have developed a comprehensive and uniform system of disclosure. As the descriptions
appended to this report demonstrate, access schemes often are ad hoc and derive from many
sources, and few courts have been able to create a comprehensive system of access to judicial
information that takes full cognizance of the principles described above. Even in the United
States – which arguably has the most open judicial system in the world – there has been
controversy over sealing judicial documents, and information about judicial administration
largely has been kept secret.
Some form of access to judicial records should be part of a comprehensive access regime in
every national and subnational jurisdiction. Although transparency inevitably imposes
administrative and other costs, the default should not necessarily be the least expensive or least
administratively burdensome solution. Seventy countries have developed a framework for
xv
International Covenant on Civil and Political Rights, Art. 14, March 23, 1976, available at
http://www.unhchr.ch/html/menu3/b/a_ccpr.htm.
Louis D. Brandeis, “What Publicity Can Do,” Other People’s Money, chapter 5, p. 92 (1932). First published in
Harper’s Weekly, December 20, 1913.
xvi
-v-
providing access to information held by the government, and applying a comprehensive
disclosure framework to the judiciary, while uniquely challenging, should be vigorously pursued.
In some countries, such as Ecuador, Israel, Mexico and Panama, freedom of information
legislation explicitly applies to at least some types of information held by the judiciary. This,
however, is not the case in most countries that have adopted freedom of information legislation.
Instead, in most countries, access to judicial records and information is left to the courts and
often is addressed on a local or ad hoc level. While this approach enables courts to fashion rules
and to make case-specific decisions about whether to release information, articulating principles
at the national level can help guide courts in balancing the competing interests discussed above
and ensure consistency, legitimacy, and public confidence in the judiciary.
- vi -
COUNTRY SUMMARIES
AUSTRALIA
The current legislative framework for access to court information in Australia is a composite of
statutory provisions and rules of court. The legislative framework lacks cohesion, has gaps
where there are no provisions dealing with access, and does not articulate principles relating to
access to court information.1 The approach taken with respect to allowing access to court
documents varies from court to court.
Constitution
The Australian constitution contains no right of access to information. However, the constitution
does include two potential sources of implied constitutional rights that may impact the ability of
nonparties to access documents on the court record.2 These include an implied freedom of
communication concerning political and government matters, which has been recognized by
Australia’s High Court. It appears to be generally accepted among Australian courts that this
implied freedom relates to communications that are connected with legislative and executive
affairs, but does not “encompass communications about the reasoning or conduct of courts and
judges, the exercise of judicial power or the results of cases.”3 In John Fairfax Publications Pty
Ltd,4 the New South Wales Court of Appeal found that this implied freedom does not provide the
public or the media with a “personal and positive right” of access to documents from any branch
of government.5
In addition, chapter III of the Australian Constitution, which vests judicial power in the courts,
has been interpreted in some decisions to contain a “process” requirement.6 It has been
suggested that this process requirement, in turn, may include an openness element.7 However,
New South Wales Attorney General’s Department, REVIEW OF THE POLICY ON ACCESS TO COURT INFORMATION 21
(April 2006) (“NSW Review”), available at
http://www.agd.nsw.gov.au/Lawlink/Corporate/ll_corporate.nsf/vwFiles/Access_to_Court_Information.pdf/$file/Ac
cess_to_Court_Information.pdf.
1
2
Sharon Rodrick, Open Justice, the Media and Avenues of Access to Documents on the Court Record, 29
U.N.S.W.L.J. 90, 114 (2006).
3
Id. at 116.
4
(2005) 62 NSWLR 512, 532 (discussed in Rodrick, supra note 2).
5
See Rodrick, supra note 2, at 117.
6
Both implied rights discussed in Rodrick, supra note 2, at 114-121.
7
Id. at 117-21.
this process requirement is not well defined – nor universally accepted – in Australian case law
and would not likely support a concrete right of access to court documents even if it were more
fully developed.8
Statutory Law
Australia (and each state and territory within it) has enacted freedom of information legislation;9
however, the laws generally do not permit access to documents relating to judicial proceedings.10
The Freedom of Information Act 1982, though, does provide for public access to court
administrative records.11 Under section (1)(a) of the act, public agencies, which are defined to
include courts, must make “available to the public information about the operations of
departments and public authorities,” including the rules and practices under which these agencies
operate.12
Certain provisions of statutes or court rules do provide access to court records, however, such as
section 314 of the Criminal Procedure Act 1986 of New South Wales, which permits members of
the media 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.”13 The documents that
are available for inspection under the Criminal Procedure Act 1986 include “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.”14
In addition, in the Court of Appeal, the Court of Criminal Appeal, and each division of the
Supreme Court of New South Wales, nonparties may access certain judicial records if the court
grants permission to access the record.15 Examples of the types of court records that may be
accessed are “pleadings and judgments in proceedings that have been concluded, except in so far
as an order has been made that they or portions of them 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.”16
8
Id. at 119-121.
9
Freedom of Information Act 1982, available at http://www.austlii.edu.au/au/legis/cth/consol_act/foia1982222/.
10
Rodrick, supra note 2, at 96-97.
11
Freedom of Information Act 1982, § 5.
12
Id.at § 1, § 5.
13
Criminal Procedure Act 1986 (New South Wales), chapter 7, section 314, available at
http://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1986188/s314.html.
14
Id. (cited in NSW Review, supra note 1).
15
Supreme Court, New South Wales, Supreme Court Practice Note SC Gen 2, available at
http://www.lawlink.nsw.gov.au/practice_notes/nswsc_pc.nsf/a15f50afb1aa22a9ca2570ed000a2b08/5f2bddd07a106a
9fca2572ed000cec95?OpenDocument (cited in NSW Review, supra note 1).
16
Id. (cited in NSW Review, supra note 1).
-2-
However, the judge or the registrar may refuse access to these documents if he or she believes
the material or portions of it should be kept confidential.17
Certain categories of information are specifically protected by statute and generally may not be
released to outside parties, unless the judge or registrar believes exceptional circumstances merit
their release.18 Examples include the name or identifying information of victim of a sexual
offense; information about witnesses; and the name of minor (i.e., child) criminal defendants.19
The inherent or implied powers of a court may allow for access by nonparties to court records,
depending on the court.20 For example, the superior courts, or Supreme Courts of each state,
have inherent, or unlimited jurisdiction.21 As a result of that inherent jurisdiction, the courts
have the power to grant non-parties access to court records.22 Each court may also adopt its own
rules regarding nonparty access to court records, which has led to a variety of approaches among
the various Australian courts.23 Some courts, such as the High Court, “confer an unqualified
right of access to documents in the court file.” Others permit the registrar or court varying
degrees of discretion to limit access, and some forbid all access to court file documents.
Statutorily created courts, on the other hand, such as the family courts, local courts, and county
courts do not possess inherent power.24 Rather, their jurisdiction is defined by statute and these
courts do not have unfettered ability to grant access to non-parties.25
Case Law
Australian courts have protected the public’s right to observe judicial proceedings. In John
Fairfax & Sons Limited v. Police Tribunal, Justice McHugh stated:
The fundamental rule of the common law is that the administration of justice must take
place in open court. A court can only depart from this rule when its observance would
frustrate the administration of justice or some other public interest for whose protection
Parliament has modified the open justice rule. The principle of open justice also requires
that nothing should be done to discourage the making of fair and accurate reports of what
occurs in the courtroom. 26
17
Id.
18
See NSW Review, supra note 1, at 9 (citing various legislative provisions that restrict access to court records).
19
Id.
20
Rodrick, supra note 2, at 121-26.
21
Id. at 122.
22
Id.
23
Id. at 128-31.
24
Id. at 123.
25
Id. at 124-25.
(1986) 5 NSWLR 465, 476-77, cited in Law Reform Commission, New South Wales, Report 100 (2003) –
Contempt by Publication, at ¶ 11.1 (“Law Reform Commission Report”), available at
http://www.lawlink.nsw.gov.au/lrc.nsf/pages/r100chp11#H1.
26
-3-
Australian courts generally have rejected the existence of a common law right to access judicial
records, except where an information-seeker can show a sufficient interest in or need for the
judicial record.27 There is no general common law right of access to judicial records,28 as a court
file is not a public register.29 Access by nonparties to documents on file in a court registry is
regulated by statute or by rules of court, as discussed above, which are the primary source of
guidance regarding access to court records. In general, any individual may access records filed
with the Supreme Courts, unless a court has ordered that a particular document remain
confidential. Judicial decisions confirm that although the media is free to report what occurs in
open court, there generally is no public right of access to documents in the court file (regardless
of whether the document has been used in court or read by a judge).30
BELGIUM
Although the Belgian Constitution provides for public access to judicial proceedings, there is
little positive law governing access to judicial documents. Belgium has enacted a law providing
access to federal administrative documents, however, the applicability of this law to the courts is
uncertain. Rather, access to judicial records in Belgium appears to be governed largely by
individual court practice.
Constitution
The Belgian Constitution provides a general right to access the government’s administrative
documents, with the exception of government documents that are specifically protected by law.31
This provision of the Belgian Constitution granting access to government documents was
intended to be applied to executive documents and does not appear to contemplate application to
the judiciary.32 The Belgian Constitution, however, specifically proposes a theme of openness in
respect of the judiciary, stating that “Court hearings are open, unless public access should
jeopardize morals or order.”33
27
Id. at 100-04
28
Id. at 100.
29
Law Reform Commission, New South Wales, DISCUSSION PAPER 43: CONTEMPT BY PUBLICATION 11.3 (2000),
available at http://www.lawlink.nsw.gov/au/lrc.nsf/pages/dp43chp11.
30
Rodrick, supra note 2, at 101.
31
Belgian Constitution, available at http://www.fed-parl.be/constitution_uk.html.
See Frankie Schram, “Executive Transparency in Belgium,” Freedom of Information Review, No. 95, October
2001 (cited in David Banisar, Freedom of Information Around The World 2006: A Global Survey of Access to
Government Information Laws 95 (Privacy International 2006), at 48, available at
http://www.freedominfo.org/documents/global_survey2006.pdf).
32
33
Belgian Constitution, Article 148.
-4-
Statutory and Case Law
A 1994 federal law called the “Law on the right of access to administrative documents held by
federal public authorities” allows individuals to request documents from executive authorities,
which may include certain types of judicial documents.34 In addition, a Royal Decree was
adopted in 1997 to make administrative decisions of the Council of State (the supreme
administrative court of Belgium)35 publicly accessible.
Published judgments of the Belgian Supreme Court since 1990 are available on the Internet, in
French and Dutch, through the database Juridat.36 The Belgian Constitutional Court provides a
searchable database including the full text of all of its case law in French, Dutch and German.37
A limited number of decisions of lower courts also are available on the database Juridat, as are
decisions by the Victim Assistance Commission and opinions of the Belgian Commission for the
protection of privacy.
BOSNIA AND HERZEGOVINA
In 2001, Bosnia and Herzegovina adopted the Freedom of Access to Information Act, which
gives any person inside and outside of the country the right to make a written request for information held by any public authority, including judicial entities.38 Exceptions include information
that would cause “substantial harm” to certain interests such as defense and security, public
safety, crime prevention, crime detection, the deliberative process of a public authority, corporate
secrets, and personal privacy.39 Despite the efforts of certain international organizations and the
country’s ombudsmen, the law’s implementation has not been consistent or widespread.
To help implement the law in its application to the judiciary, the Constitutional Court of Bosnia
and Herzegovina published a guidance document40 and established a Web site for the publication
Loi du 11 avril 1994 relative à la publicité de l’administration. Modifee par Loi 25 Juin 1998 et Loi 26 Juin 2000,
available at http://www.privacyinternational.org/countries/belgium/loi-publicite.rtf (cited in Banisar, supra note 32,
at 49).
34
See generally Jos Dumortier & Caroline Goemans, “The Challenge of the Information Society: Application of
Advanced Technologies in Civil Litigation and Other Procedures – Report on Belgium,” March 1999, available at
http://ruessmann.jura.uni-sb.de/grotius/english/Reports/Belgium.htm.
35
36
http://www.juridat.be/.
37
www.courconstitutionnelle.be, www.grondwettelijkhof.be, and www.verfassungshof.be. Information about the
Constitutional Court also is available on an English-language Website, which can be accessed through any of the
links listed above.
38
Freedom of Access to Information Act for the Federation of Bosnia and Herzegovina, July 2001, available at
http://www.ohr.int/ohr-dept/media-d/med-recon/freedom/default.asp?content_id=7269 (cited in Banisar, supra note
32, at 50).
39
Banisar, supra note 32, at 51.
See Constitutional Court of Bosnia and Herzegovina, “Guide on Access to Information within the Constitutional
Court of Bosnia and Herzegovina,” Sarajevo, April 2006 (the “Guide”), available at
http://www.ccbh.ba/public/down/Guide.pdf.
40
-5-
of court decisions and other judicial information.41 The Web site provides that “[i]nformation in
records under the control of the Constitutional Court shall be accessible to the public in
accordance with the Law on Free Access to Information in Bosnia and Herzegovina and the
Guide on Access to Information in the Constitutional Court.”
The Constitutional Court’s publicly available database includes a variety of judicial information
under the control of the Court, including:







decisions and other acts of the Constitutional Court;
statistical data in the exercise of the Constitutional Court’s jurisdiction;
statistical data on the Constitutional Court’s organizational structure;
report on the work of the Constitutional Court;
report on financial operations and transactions of the Constitutional Court;
information relating to the Constitutional Court’s relationships with other bodies and
organizations; and
other data and information relating to the work of the Constitutional Court.42
Certain categories of court documents may not be available in the public registry, and requests
for these documents may be rejected on the basis of the following:








41
to protect the decision-making process of the Court, and to protect the employees of the
court;
where related to foreign policy, defense, or security, and to protect public safety;
for the purposes of crime prevention and crime detection;
to protect the confidential nature of private hearings which are closed to the public;
to protect the proceedings conducted against a juvenile within the meaning of the
provisions of the Code on Criminal Proceedings of Bosnia and Herzegovina;
when the request for access to information elicits personal privacy concerns in
accordance with the law and the European Convention of Human Rights and
Fundamental Freedoms (Article 8 of the Convention);
to protect the appellant’s privacy; and
in cases where the information involves the confidential commercial interests of a third
party, the party shall be notified in writing that a request has been made and that the
information will be disclosed unless the party responds within 15 days and provides
reasons why the information should be kept confidential.43
See http://www.ustavnisud.ba/eng/odluke/.
Constitutional Court of Bosnia and Herzegovina, “Indexed Register of Types of Information in Records under the
Control of Constitutional Court of Bosnia and Herzegovina,” available at
http://www.ccbh.ba/eng/p_stream.php?kat=907&pkat=921.
42
43
Guide, supra note 40, at 3.
-6-
CANADA
Although the Canadian Constitution does not provide the public with a right to access court
records or to attend judicial proceedings, the Canadian courts have a long tradition of providing
such access. Canada's Federal Court Rules explicitly provide for public access to judicial
proceedings, except where the court has determined that certain proceedings should be closed to
the public. Similarly, the Rules provide that all material filed with the court shall be public,
unless otherwise ordered by the courts. As discussed below, the Canadian Judicial Council has
proposed a model policy to guide courts in deciding when it is appropriate to prevent disclosure
of such records, but the Supreme Court has yet to adopt this policy.
Constitution
The Canadian Constitution Acts of 1867 and 1982 do not provide an explicit right to public
access to judicial proceedings or information.44 However, according to a 2005 report by the
Canadian Judicial Council, “Canadian courts have consistently held that the openness of court
proceedings is an important constitutional principle that fosters many fundamental values,
including public confidence in the judicial system, understanding of the administration of justice,
and judicial accountability. Included within the open courts principle is the public’s right of
access to court records.” 45 Another report argued that “the right of the public to open courts is
an important constitutional rule, that the right of an individual to privacy is a fundamental value,
and that the right to open courts generally outweighs the right to privacy.”46
Statutory Law
According to the Canadian Judicial Council, “[t]raditionally, court records have been accessible
in paper format to any member of the public at the courthouse. There are some exceptions to
this, namely for records that are sealed by a court order or pursuant to a statutory requirement. In
general, any person who can afford a trip to the court registry may ask a court clerk to see all
documents and information pertaining to a specific case.”47
Canada adopted the Access to Information Act (“ATIA”) in 1983,48 providing that Canadian
citizens and permanent residents have a right to access “any record under the control of a
44
Canadian Constitution, available at http://laws.justice.gc.ca/en/const/index.html.
45
Model Policy for Access to Court Records in Canada, Judges Technology Advisory Committee, Canadian Judicial
Council, September 2005, at vi (“JTAC Model Policy”), available at http://www.ciajicaj.ca/english/publications/ModelPolicyAccess_CJC_Septe.pdf.
46
Discussion Paper, Prepared on Behalf of the Judges Technology Advisory Committee for the Canadian Judicial
Council on Open Courts, Electronic Access to Court Records, and Privacy, May, 2003, available at http://www.cjcccm.gc.ca/cmslib/general/OpenCourts-2-EN.pdf.
47
Model Policy for Access to Court Records in Canada, Judges Technology Advisory Committee, Canadian Judicial
Counsel, September 2005, at vi, available at http://www.ciajicaj.ca/english/publications/ModelPolicyAccess_CJC_Septe.pdf.
48
Access to Information Act, available at http://laws.justice.gc.ca/en/A-1/index.html.
-7-
government institution.”49 This statute, however, does not apply to the judiciary. Rather, certain
Canadian statutes explicitly deny or provide access to specific types of information held by the
courts or to certain judicial proceedings. For example, Section 38 of the Canada Evidence Act
provides that court records relating to hearings regarding “International Relations and National
Defence and National Security” are confidential.50 Under the Criminal Code, Offences Against
the Person and Reputation, the jury and public are excluded from hearings on whether evidence
of prior sexual activity of complainant is admissible. Additionally, under the Youth Criminal
Justice Act, if an adult sentence will not be sought, “the court shall order a ban on publication of
information that would identify the young person . . . .” 51 A number of other acts make
provisions for hearing evidence in camera where the court deems appropriate. These acts
include the National Defence Act, Office of the Superintendent of Financial Institutions Act,
Patent Act, Personal Information Protection and Electronic Documents Act, Tax Court of Canada
Act, and the Petroleum and Gas Revenue Tax Act.52 In addition, individuals may not access
another person’s criminal record without the consent of the person to whom the record relates.53
Under the Privacy Act,54 Canadian citizens have a right of access to information about
themselves.55 However, like the ATIA, the Privacy Act applies to government institutions, the
definition of which does not include the judiciary.56
Court Rules and Practice
Under Canada’s Federal Court Rules,57 hearings, other than pre-trial or dispute resolution
conferences, generally are open and accessible to the public. However, on motion, “the Court
may direct that all or part of a proceeding be heard in camera if it is satisfied that the hearing
should not be open to the public.”58 Also on motion, “the Court may order that material to be
filed shall be treated as confidential” if it is “satisfied that the material should be treated as
confidential, notwithstanding the public interest in open and accessible court proceedings.”59
49
ATIA, Access to Government Records: Right of Access, § 4(1).
50
Canada Evidence Act, available at http://laws.justice.gc.ca/en/showdoc/cs/C-5///en?page=1.
51
Youth Criminal Justice Act, available at http://www.justice.gc.ca/en/ps/yj/repository/index.html. The following
laws also contain provisions governing publication of and access to certain judicial information and hearings: the
Canada Petroleum Resources Act, the Canadian Security Intelligence Service Act, the Charities Regulation (Security
Information) Act, the Customs Act, the Extradition Act, and the Marine Transportation Act.
52
All are available at http://laws.justice.gc.ca/en/BrowseTitle.
53
Understanding Criminal Records, John Howard Society of Alberta 2000, available at
http://www.johnhoward.ab.ca/PUB/A5.htm.
54
Privacy Act, available at http://laws.justice.gc.ca/en/P-21/index.html.
55
Id. § 2.
56
Id. § 3(a).
57
The Federal Court Rules are available at http://laws.justice.gc.ca/en/F-7/SOR-98-106/index.html.
58
Federal Court Rules, § 2.
59
Id. § 151.
-8-
Unless otherwise ordered by the Court, only a solicitor who is not a party to the proceeding may
access confidential material.60
In the Supreme Court of Canada, members of the public, including the media, are permitted to
attend judicial proceedings except in unusual circumstances. Additionally, “all court documents
are a matter of public record unless a legislative provision or court order restricts public access.
Documents subject to a sealing order (these are rare) cannot be inspected by the public, including
members of the media [and d]ocumentation pertaining to cases subject to a publication ban may
be inspected.”61 The Court may impose a publication ban on the media to protect the privacy of
victims and witnesses, or as required by statute. When a judgment is delivered in a case, a
formal judgment is deposited with the Registrar along with all written opinions and a summary
in both official languages. Copies of the reasons for judgment are then available at the Registry.
Additionally, the reasons for judgment are published in the Supreme Court Reports which are
available in the Court’s Library. The Court gives notice of the release of decisions in news
releases, which are posted on the Internet and which contain a direct link to the reasons for
judgment. Any person may subscribe to receive these news releases. Reasons for judgment are
also available electronically in both languages on the LexUM site. Members of the public may
inspect court records at the Court Registry and photocopy them at a cost of $.50 per page. While
decisions of the Court are available over the Internet, documents filed with the Court generally
are not.62
The Canadian Judicial Council, which has authority over all federally appointed judges in
Canada, has proposed the following guiding principles for a model policy regarding access to
judicial information:
(a)
The open courts principle is a fundamental constitutional principle and should be
enabled through the use of new information technologies.
(b)
Restrictions on access to court records can only be justified where:
i.
ii.
iii.
60
Such restrictions are needed to address serious risks to individual privacy
and security rights, or other important interests such as the proper
administration of justice;
Such restrictions are carefully tailored so that the impact on the open
courts principle is as minimal as possible; and
The benefits of the restrictions outweigh their negative effects on the open
courts principle, taking into account the availability of this information
through other means, the desirability of facilitating access for purposes
strongly connected to the open courts principle, and the need to avoid
Id. § 152(2).
61
Supreme Court of Canada, Media Portal, Access to Court Materials, available at http://www.scccsc.gc.ca/mediaportal/accesscourtdocuments/index_e.asp.
62
Id.; see also Supreme Court of Canada, Media Portal, Decisions of the Court, available at http://www.scccsc.gc.ca/mediaportal/decisionscourt/index_e.asp; Supreme Court of Canada, Media Portal, Access to the Court,
available at http://www.scc-csc.gc.ca/mediaportal/accesscourt/index_e.asp.
-9-
facilitating access for purposes that are not connected to the open
courts.”63
Although the Supreme Court historically has not had a formal policy regarding access to court
records, it is considering adopting a policy in light of the Canadian Judicial Council’s
recommendations.64
CROATIA
In the last several years, Croatia has made significant strides to provide public access to judicial
records. Legislation enacted in 2003, provides the public with the right to access information
from all sectors of government, including the courts. It also requires that the courts and other
public bodies create an Internet database of information in their possession. Private efforts in
Croatia to make judicial documents available on the Internet have also greatly expanded access
to judicial information.
Constitution
Croatia’s Constitution provides that journalists have a right to access judicial information, but
does not provide this right to other individuals.65
Statutory Law
The Law on the Right to Access Information, adopted in 2003, provides the public with the right
to seek and receive information from governmental entities, including the courts, unless the
information pertains to state, military, official, professional, or business secrets.66 Courts and
other agencies may also refuse access to information if release of the information would interfere
with the prevention, uncovering, or prosecution of criminal offenses; the ability to conduct
administrative supervision; the protection of life, health, or safety of people or the environment;
the implementation of economic or monetary policies; or intellectual property rights.67
Notably, the law requires public authorities to set up a database of information held by the
government, and some of it must be published on the Internet.68 Violations of the law carry
monetary sanctions and potential criminal penalties.69
63
Model Policy for Access to Court Records in Canada, Judges Technology Advisory Committee, Canadian Judicial
Counsel, September 2005, available at http://www.ciajicaj.ca/english/publications/ModelPolicyAccess_CJC_Septe.pdf.
64
Barbara Kinkaid, Bulletin of the Association of Reporters of Judicial Decisions, The Catchline, vol. XXVI, No. 3
(May 2007), available at http://arjd.washlaw.edu/Catchline_May_2007.htm.
65
Croatian Constitution (2001), available at http://www.usud.hr/htdocs/en/the_constitution.htm (cited in Banisar,
supra note 32, at 58).
66
Law on the Right to Access Information, Art. 1, Art. 8, available at http://www.gradjani-imaju-pravoznati.hho.hr/index.php?lang=en&load=zppi (cited in Banisar, supra note 32, at 59).
67
Id. at Art. 8.
68
Id. at Art. 20.
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Efforts to Improve Access to Judicial Information
Although implementation of the access law has been slow, judicial bodies have begun providing
information about the courts and judicial decisions on the Internet. The Ministry of Justice
introduced the “e-Portal of the Ministry of Justice,” which aims to provide “fast access to
information on the activities, reforms and functioning of the judicial system.”70 Since December
2003, the portal has served as a depository for certain court opinions and rulings, with the
purpose of increasing judicial transparency. Included in the database are rulings from Croatia’s
Supreme Court dating back to 1993, as well as some opinions from regional courts and the High
Commercial Court.
In addition, the “Judges Web”71 aims to increase the public’s access to legal information.72
Originally launched by a private, nonprofit organization, Judges Web is now managed by the
Croatian Ministry of Justice. Judges Web includes a publicly accessible online database with
judicial decisions and information about the courts and the judicial system. The objectives of the
project include the following:







69
Help to shorten the length of judicial deliberations, by offering judges the ability to easily
target legal reasoning nation-wide, which can offer insight into their particular
proceedings;
Provide a database of easily searchable court decisions, which will help decrease the
uncertainty inherent in litigation and execution of court decisions, and will help to
discourage individuals or corporations from commencing unnecessary litigation by
offering information needed to better determine the probability of success;
Promote increased transparency of the judicial process;
Make possible the comparison of all appellate court decisions throughout Croatia, leading
to increased consistency in the legal practice of courts throughout the country;
Enable legislative and scholarly bodies to quickly recognize legal questions for which
articles of the law do not provide adequate and precise interpretation;
Offer foreign corporations and investors the ability to review the judicial practice of
Croatian courts [to] better inform them of the level of security the legal system can offer;
and
Aid with the incorporation of European Union laws into the Croatian legal infrastructure
during the process of European Union integration.73
Id. at Art. 26.
70
Central State Administrative Office for Croatia, available at http://www.ehrvatska.hr/sdu/en/ProgramEHrvatska/Provedba/e-Pravosudje.html.
71
http://www.sudacka-mreza.hr/.
72
Central State Administrative Office for Croatia, available at http://www.ehrvatska.hr/sdu/en/ProgramEHrvatska/Provedba/e-Pravosudje.html.
73
Judges Web, available at http://www.sudacka-mreza.hr/public.aspx?id=1&lang=eng.
- 11 -
THE EUROPEAN UNION
In contrast to the practice of most of its member countries, the EU provides very limited access
to judicial records. In fact, only parties to a judicial action have a right to access such records.
Court proceedings, however, are generally public, unless the Court determines the circumstances
warrant closure.
European Community Treaty and the Public Access Regulation
Article 255 of the European Community Treaty, as amended by the Treaty of Amsterdam (the
“Treaty”), declares that “[a]ny citizen of the Union, and any natural or legal person residing or
having its registered office in a Member State, shall have a right of access to documents,”
thereby establishing “the principle of public access to European Parliament, Council and
Commission documents.”74
The starting point for understanding the legal framework governing the public’s right to obtain
access to government information in the European Union is Regulation (EC) No 1049/2001 of
the European Parliament and of the Council of 30 May 2001 regarding public access to
European Parliament, Council and Commission documents (the “Access Regulation”).75 The
Access Regulation establishes a legally enforceable right of public access to documents, spells
out the procedures governing exercise of that right, delineates exemptions from required
disclosure, and authorizes both judicial and Ombudsman review of decisions to deny access.76
Access to Judicial Information
Courts are not Community institutions mentioned in Article 255(i) of the EC Treaty and thus are
not covered by the Access Regulation, which by its terms (in article 1(a)) applies only to
documents of the European Parliament, Council, and Commission. There is no automatic right
of access for third parties to case-files in the courts, in contrast to the practice of other European
courts in maintaining public dockets. The Court of Justice apparently exercised its discretion to
permit “its Research and Documentation Service to publish on the Court’s Internet website those
notes which have been prepared in respect of cases which have finally decided by the
Community judicature.”77
74
Treaty Establishing the European Community, O.J. (C 325) 33, 24.12.2002, available at http://europa.eu.int/eurlex/lex/en/treaties/dat/12002E/pdf/12002E_EN.pdf; Report from the Commission on the Implementation of the
Principles in Regulation (EC) No 1049/2001 Regarding Public Access to European Parliament, Council and
Commission Documents, COM (2004) 45 final (January 2004), available at http://europa.eu.int/eurlex/lex/LexUriServ/site/en/com/2004/com2004_0045en01.pdf.
75
EP and Council Regulation 1049/2001, 2001 O.J. (L 145) 43 (EC) (regarding public access to European
Parliament, Council and Commission documents), available at http://www.iue.it.EC/Archives/pdf/1049EN.pdf.
76
Thomas M. Susman, Transparency in the European Union (2006) (unpublished manuscript).
77
Noel Travers, Access to Documents in Community Law: On the Road to a European Participatory Democracy,
35 Irish Jurist 164 (2000) (discussed in Susman, supra note 76).
- 12 -
The pleadings filed by the parties before the Court of First Instance and the European Court of
Justice are not available to the public. The opinions of the Courts do endeavor to set out,
objectively and in great detail, the arguments made by the parties before turning to the decision
of the court on each matter.
The Statute of the Court of Justice (the “Statute”) generally mandates a policy of openness.
Article 31 of the Statute requires that court hearings “shall be public, unless the Court, of it own
motion or on application by the parties, decides otherwise for serious reasons.”78 Article 37
declares (seemingly without exception) that judgments “shall be read in open court.”79 Article
35, however, holds that “[t]he deliberations of the Court shall be and shall remain secret.”80
With respect to documenting judicial proceedings, Article 33 states that “[m]inutes shall be made
of each hearing and signed by the President and the Registrar.”81 These Articles are made
applicable to the Court of First Instance by Article 53.82
In addition, after a standard delay of 30 years, the disclosure of at least some additional court
documents is mandated by the Historical Archives regulation.83
IRELAND
Although the Irish courts are under no constitutional or statutory obligations, the Supreme Court,
the Court of Criminal Appeal, and the High Court make their decisions available on the Internet.
Additionally, the Irish FOIA requires that documents relating to court administration be made
available to the public.
Constitution
The Irish Constitution does not expressly provide a right to freedom of information.84
Statutory Law
Ireland’s freedom of information law, the Freedom of Information Act 1997 (as amended by the
Freedom of Information (Amendment) Act 2003) (the “Irish FOIA”),85 provides a right of access
78
Statute of the Court of Justice (2007), Art. 31.
79
Id. Art. 37.
80
Id. Art. 35.
81
Id. Art. 33.
82
Id. Art. 53.
83
See Council Regulation (EEC, Euratom) 354/83 of 1 February 1983, 1983 O.J. (L 043) 1 (governing historic
archives), and the Council Annual Report on Access to Documents 2003 (April 2004), at 9, available at
http://ue.eu.int/uedocs/cmsUpload/EN-AR-02.pdf.
84
Irish Constitution, available at
http://www.taoiseach.gov.ie/attached_files/html%20files/Constitution%20of%20Ireland%20(Eng)Nov2004.htm.
- 13 -
to all records held by a government entity listed in the legislation, including most state and local
departments, many central government departments, and many legislative bodies. Any person
may make a written request for a record for any reason, and public bodies must provide
reasonable assistance to the requestor in obtaining the record.86
Section 46 of the Irish FOIA specifically excludes from its scope records held by courts.
However, (i) records relating to court proceedings, not created by the court, the disclosure of
which the court has not prohibited, and (2) records “relating to the general administration of the
court or the offices of the courts” are subject to the law's disclosure requirements.87
Access to Judicial Information
The President of the High Court has directed that transcripts from criminal cases, except for
appeals to the Court of Criminal Appeal, are not to be made available. As a result, they are not
publicly available and are not subject to information requests under the Irish FOIA.88 For the
purpose of appealing a decision in a criminal case, the defendant may obtain from the court
Registrar copies of all documents and exhibits filed with the court.89
Judgments of the Supreme Court, the Court of Criminal Appeal, and the High Court are available
on the Internet.90
ISRAEL
Although Israeli law does not guarantee the public a right to attend judicial proceedings, such
proceedings are generally open to the public, unless a court deems closure is necessary to
safeguard individual privacy or state secrets. Israel's Freedom of Information Law, however,
does provide a public right to access information related to judicial information. Court records
relating to judicial proceedings, though, are explicitly exempt from the statute.
Constitution
Israel has no written constitution or bill of rights; instead, a series of “Basic Laws” establishes
the government and certain freedoms. Although certain individual rights were established by the
1992 Basic Law: Human Dignity and Freedom,91 the Supreme Court of Israel first acknowledged
85
Freedom of Information Act 1997, available at http://www.bailii.org/ie/legis/num_act/1997/zza13y1997.1.html;
Freedom of Information (Amendment) Act 2003, available at http://www.bailii.org/ie/legis/num_act/2003/200309.html.
86
Irish FOIA, Part II, §6(2).
87
Id. Part V, § 46.
88
Mr ACD and the Department of Justice, Equality and Law Reform, discussed in 2000 Annual Report of the
Information Commissioner, 12, available at http://www.oic.gov.ie/en/Publications/AnnualReports/2000/
89
Rules of the Superior Court, Order 86, Rule 17, available at
http://www.courts.ie/rules.nsf/webpages/bb9a582b582f736880256d2b003f6633?OpenDocument&l=en&p=140.
90
91
See http://www.courts.ie/Judgments.nsf/Webpages/HomePage?OpenDocument&l=en&p=220.
Basic Law: Human Dignity and Liberty, Mar. 17, 1992, available at www.mfa.gov.il.
- 14 -
the freedom of expression in 1953 in Kol Ha’am v. Minister of the Interior. In that case, the
Court ruled unanimously that freedom of expression was a cornerstone of democracy.92
Although the Court did not go so far at that point as to link freedom of expression to a right to
information, it emphasized the “high value” of investigating the truth for any state “which calls
itself a democracy.”93
The right of citizens to receive information from the government was recognized by the Supreme
Court of Israel in 1990 in a case brought by citizens against members of the Israeli parliament
who refused to disclose their coalition agreements. In Shalit v. Peres, the Court ordered the
parliamentarians to release the documents in question. The Court reasoned that “[f]reedom of
public opinion and knowledge of what is happening in the channels of government are an
integral part of a democratic regime.”94 Nonetheless, the Court reserved the right of the
government to limit the degree of disclosure based on security and foreign affairs, as well as
social and economic factors.95 The Court, however, has not ruled on whether the public has a
right to access judicial information.
Statutory Law
In 1998, the legislature passed Israel’s first Freedom of Information Law (FOIL). 96 The law
establishes a right to obtain information from a wide variety of public authorities, including
“courts, religious courts, bailiff offices, and other authorities with legally derived judicial
authority.” 97 The statute, however, specifically exempts the contents of legal proceedings from
disclosure.98 In all other respects, though, the courts are subject to the law’s disclosure
requirements.99 Despite the statutory exemption, however, legal proceedings in Israel are
generally open to the public, unless the law requires that they be held in camera.100 For example,
proceedings that raise state security, foreign policy, protection of morality, and family law
matters are closed to the public, as are proceedings that might jeopardize a witness’s ability to
provide testimony.
92
Debbie L. Rabina, Access to Government Information in Israel: Stages in the Continuing Development of a
National Information Policy,” p. 2 (2000), available at http://www.freedominfo.org/countries/israel.htm.
H.C.73/53 Kol Ha’am v. Minister of Interior, 7 P.D. 871, available at
http://elyon1.court.gov.il/eng/home/index.html.
93
94
H.C. 1601/90 Shalit v. Peres, 44(3) P.D. 353 at 11, available at http://elyon1.court.gov.il/eng/home/index.html.
95
Id. at 20. Two years later, in 1992, the obligation to publish political agreements before formation of a
government was included in the Basic Law: The Government (currently at § 1).
96
Freedom of Information Law 5758-1998.
97
Id. at § 2.
98
Id.
99
Id.
100
The Judicial Authority of the State of Israel Website, http://elyon1.court.gov.il/eng/rashut/klali.html.
- 15 -
Each public authority, including the Israel Judicial Authority, must designate an employee to be
responsible for providing information to the public, and publish an annual report of FOIL
activities.101
The law designates certain kinds of information that may not be provided to the public, as well as
information whose distribution is left to the discretion of the authority. In the former category is
information that would harm state security, foreign relations, public safety, or the safety or wellbeing of any person; information whose disclosure would constitute an invasion of privacy, or
that is otherwise illegal; and information specifically referred to in orders by the Minister of
Defense.102 Authorities have the discretion to disclose information that is, for example, likely to
disrupt the authority’s ability to carry out its duties; concerns internal discussions or
management; or is of economic value or to which professional or commercial confidentiality
applies.103
In 2003, Israel embarked on an “e-Government” initiative with a stated objective to “progress in
communication and transferring of information between the government and citizen.” 104 In
keeping with this objective, basic court information, including the code of judicial ethics and the
law establishing the judiciary, along with selected cases from the Supreme Court, is available on
the Web site of the Israel Judicial Authority.105
Case Law
Although the Supreme Court of Israel has not issued a ruling on the applicability of the FOIL to
the judiciary, the Court has issued one ruling that constrains the Law’s reach. In State of Israel
v. Association of Homes for the Elderly, the Court replaced a presumption in favor of disclosure
with a balancing test.106 The petition was brought to the District Court of Jerusalem after the
Ministry of Health refused to disclose spreadsheets used in the computation of its daily cost of
hospitalization figures, citing the internal discussions exception of the FOIL.107 The district
court ordered that, in the absence of a showing that disclosure of the information would cause
“special harm or damage,” the Ministry must release the spreadsheets. It was not enough,
reasoned the court, to simply point to one of the listed exceptions, especially where, as here,
petitioner had a clear interest in obtaining the information.108
101
Freedom of Information Law at §§ 3, 5.
102
Id. at § 9A.
103
Id. at § 9B.
Ministry of Finance, General Accountant Office, “A Three-year Master Plan ‘E-Government’ Initiative, 20032005” at § 2.2 (2003), available at http://www.itpolicy.gov.il/topics_egov/docs/MasterPlan150103.doc.
104
105
The State of Israel Judicial Authority, http://elyon1.court.gov.il/eng.
106
H.C. 1825/02 State of Israel and Ministry of Health v. Association of Homes for the Elderly (issued Jan. 6, 2005).
Yuval Karniel, “Case Comment: The Freedom of Information Law in Israel is Tested by its Supreme Court,”
OPEN GOVERNMENT 3-4 (July 28, 2005), available at http://www.freedominfo.org/countries/israel.htm.
107
108
Id. at 5.
- 16 -
The Supreme Court disagreed, finding no ground in the law for a test of “special harm.” Instead,
the Court adopted a general balancing test, requiring that the authority’s reasons be balanced
against not only the interest of the petitioner in the information, but the interest of the public in
general. In this case, the Court found that Association should be able to achieve its goals with
the raw data already provided by the Ministry.109
Other Issues
A 2005 review of the implementation of the FOIL found that the goals of the law had been
realized only to a limited extent. Overestimates of the number of requests that would be made –
and therefore, the expected costs – have hamstrung implementation. No budget has ever been
allocated for the purposes of incorporating FOI principles into the government. Authority
employees perform FOI responsibilities in addition to their regular duties, and without the aid of
the centralized advice and assistance originally envisioned. 110 Training for civil servants has
only occurred twice in ten years, and there is poor compliance with the requirement that
authorities publish an annual report on FOI implementation.111
Nor has the public shown the anticipated interest in obtaining information. In the first six years
since the passage of the Freedom of Information Law, a majority of government ministries
received only a few dozen applications a year. Of those, about 20% were abandoned for failure
to pay a fee or for failure to exhaust administrative remedies. About 60% of the requests were
granted. 112
JAPAN
Generally, there is very little recognition in Japan that the public has any interest in court
proceedings.113 In criminal cases, public review of court records is prohibited until judgments
are rendered and all appeals exhausted, which, in some cases, may take twenty years or more
from the time of arrest and prosecution.114 In civil cases, the code of civil procedure states that
members of the public are allowed to inspect – but not copy – court records in ongoing cases.115
109
Id. at 9.
110
Yoram Rabin & Roy Peled, Between FOI Law and FOI Culture: The Israeli Experience, OPEN GOVERNMENT: A
JOURNAL ON FREEDOM OF INFORMATION 12 (vol. 1, no. 2) (July 28, 2005), available at
http://www.opengovjournal.org/article/view/324/276.
111
Id. at 13.
112
Id. at 14. In response to these problems, a group of lawyers and reporters founded the Freedom of Information
Movement (“FOIM”) in Israel in 2004. FOIM makes requests in areas of poor governmental transparency and
pursues them through the court system, with a goal of bringing about full implementation of the Freedom of
Information Law. See http://www.foim.org.il/main/default.aspx.
113
E-mail from Lawrence Repeta, Professor, Omiya Law School, to Thomas Susman, Partner, Ropes & Gray LLP
(June 26, 2007, 4:46 EST) (on file with author).
114
Id.
115
Id.
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Constitution
Japan’s 1946 Constitution does not contain a specific right to access information held by the
government or by the courts.116 Article 21 of the Constitution guarantees the “[f]reedom of
assembly and association as well as speech, press and all other forms of expression.”117
Although it does not protect the right to access government-held information, in 1969, the
Japanese Supreme Court expanded the interpretation of Article 21 to include a “right to know”
(shiru kenri).118
Statutory Law
Japan’s Law Concerning Disclosure of Information Held by Administrative Organs (the
“Japanese FOIA”) came into effect on April 1, 2001.119 For the first time in Japan’s history, this
law created a legally enforceable right to request access to administrative documents held by
Japan’s national government. Under the Japanese FOIA, any person may request that an
116
Japanese Constitution (1946), available at http://www.solon.org/Constitutions/Japan/English/englishConstitution.html. Chapter III, Article 11 of the Constitution guarantees the people all of the “fundamental human
rights.” Id. Chapter VI, Article 82 of the Constitution requires that “[t]rials . . . be conducted and judgment declared
publicly,” except in cases where “a court unanimously determines publicity to be dangerous to public order or
morals.” Id. Certain types of trials, such as “trials of political offenses, offenses involving the press or cases
wherein the rights of people as guaranteed in Chapter III of th[e] Constitution are in question,” must be conducted
publicly. Id.
117
Id.
Information Clearinghouse Japan, Japan – Breaking Down the Walls of Secrecy: The Story of the Citizen’s
Movement for an Information Disclosure Law, July 27, 2002, http://www.freedominfo.org/features/20020727.htm;
Toby Mendel, Freedom of Information as an Internationally Protected Human Right,
http://www.article19.org/pdfs/publications/foi-as-an-international-right.pdf (explaining that, in 1969, the Japanese
Supreme Court decided “two high-profile cases,” holding that “the guarantee of freedom of expression found at
Article 21 of Japan’s constitution, included a ‘right to know’”); Lawrence Repeta, Local Government Disclosure
Systems in Japan, National Bureau of Asian Research, Paper Number 16, October 1999, p. 3, available at
http://www.nbr.org/publications/specialreport/ExecutiveInsight/EI16.pdf (emphasizing that, according to the two
1969 decisions of the Japanese Supreme Court, the “freedom of expression” guaranteed by Article 21 also “includes
a freedom to receive information”); David Moses Shultz, Japan’s Information Disclosure Law: Why a Law Full of
Loopholes is Better Than No Law At All, 27 LAW IN JAPAN 128, 143 (2001) (noting that, while the Supreme Court
“recognized a right based on Article 21 to receive information through the media,” and later “reiterated its
formulation of a passive right to know,” it has, nevertheless, “remained silent on the issue of whether or not the right
to know encompasses an active right to request the disclosure of government-held information”; adding that several
lower courts have affirmed the existence of an “active right to know”).
118
In addition, Japan is a signatory of the International Covenant on Civil and Political Rights, which, in pertinent part,
protects “the freedom to seek, receive and impart information.” Information Clearinghouse Japan, Japan – Breaking
Down the Walls of Secrecy: The Story of the Citizen’s Movement for an Information Disclosure Law, July 27, 2002,
http://www.freedominfo.org/features/20020727.htm (clarifying that the Japanese government has been reluctant to
recognize the existence of the right to know, and adding that this term does not appear in Japan’s Law Concerning
Disclosure of Information Held by Administrative Organs).
119
Lawrence Repeta and David Moses Schultz, Japanese Government Information: New Rules for Access: The
2001 Information Disclosure Law, and a Comparison with the U.S. FOIA, May 23, 2002,
http://www.gwu.edu/~nsarchiv/nsa/foia/japanfoia.html. The summary of the main points of this law is available at
http://www.soumu.go.jp/gyoukan/kanri/mainpoint1.htm.
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administrative organ covered by the statute disclose administrative documents. The term
“administrative organ” is defined to include Cabinet bodies or bodies under Cabinet jurisdiction
that were established by law, certain specified administrative agencies, and the Board of
Audit.120 A separate law, enacted in November of 2001, extended the coverage of the Japanese
FOIA to public service corporations.121 The judiciary, however, remains outside of the scope of
the Japanese FOIA.122
A 2005 Tokyo High Court ruling reinforced that the Japanese FOIA does not apply to the
judiciary. Hisashi Muto, a private citizen, sought to use the Japanese FOIA law in 2001 to
request that Japan’s Supreme Court release four documents, including the minutes of a July 1976
meeting of the Supreme Court justices who supported immunity from prosecution in a Lockheed
Aircraft Corporation bribery investigation.123 The Supreme Court refused to disclose the
documents, “with the exception of the conclusion of the justices’ conference.”124 Muto sued,
claiming that the state infringed on his constitutional right to obtain information and demanded
1.3 million yen in damages.125
120
The Law Concerning Disclosure of Information Held by Administrative Organs (Japan), Law No. 42 of 1999,
Article 2(1), available at http://www.soumu.go.jp/gyoukan/kanri/translation4.htm and
http://www.hawaii.edu/aplpj/pdfs/v3-07-Schultz.pdf; TOBY MENDEL, FREEDOM OF INFORMATION: A COMPARATIVE
LEGAL SURVEY 49, 50 (UNESCO 2003); Repeta & Shultz, supra note 119 (remarking that the Japanese FOIA
specifically excludes certain “special corporations” from its scope).
121
Banisar, supra note 32, at 95.
Shultz, supra note 118, at 150 (explaining that, while the Japanese FOIA “encompasses nearly every organ of
the national government,” it does not include the courts);see Fundamental Structure of the Government of Japan,
available at http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/fundamental_e.html (clarifying
that the judicial branch is independent from the legislative branch and the executive branch); National Integrity
Systems Transparency International Country Study Report: Japan 2006 10 (Transparency International 2006),
http://www.transparency.org/news_room/latest_news/press_releases_nc/2007/2007_01_24_nis_japan (stating that
Japan has a “separation of the three powers of administration, legislation and judicature”).
122
The term “administrative document” includes documents, drawings and electromagnetic records “prepared or
obtained by an employee of an administrative organ in the course of his or her duties” and held for organizational
use by the administrative organ’s employees. The Law Concerning Disclosure of Information Held by
Administrative Organs (Japan), Law No. 42 of 1999, Article 2(2), available at
http://www.soumu.go.jp/gyoukan/kanri/translation4.htm and http://www.hawaii.edu/aplpj/pdfs/v3-07-Schultz.pdf.
123
High Court Reverses Ruling on Lockheed Scandal Documents, JAPAN ECONOMIC NEWSWIRE, February 9, 2005;
Supreme Court’s Refusal to Disclose Documents Ruled Illegal, JAPAN ECONOMIC NEWSWIRE, June 24, 2004
(explaining that, to depose several American alleged bribers, Japanese prosecutors have given them immunity,
which the Supreme Court endorsed after the conference of justices). It is unclear what arguments Muto advanced to
support his assertion that the judiciary in general, and the Supreme Court in particular, falls within the scope of the
Japanese FOIA and is, therefore, subject to requests for information.
Top Court’s Refusal to Release Documents Illegal, THE JAPAN TIMES, June 25, 2004, available at
http://search.japantimes.co.jp/print/nn20040625a2.html; High Court Reverses Ruling on Lockheed Scandal
Documents, JAPAN ECONOMIC NEWSWIRE, February 9, 2005.
124
125
High Court Reverses Ruling on Lockheed Scandal Documents, JAPAN ECONOMIC NEWSWIRE, February 9, 2005.
It is unclear what statute provides for monetary damages for nondisclosure of information.
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In June 2004, the Tokyo District Court ruled that the Supreme Court’s refusal to release two of
the four judicial administration documents on the Lockheed bribery scandal126 was illegal.127
With regard to the minutes of the Supreme Court justices’ conference, the Tokyo District Court
reasoned that “disclosing the (justices’) process of decision making will [not] have an adverse
effect on future proceedings.”128 The court added that, “[t]he actions of the head of the Supreme
Court’s Secretary Division in denying disclosure of the meeting’s contents were illegal.” 129 The
court ordered the Supreme Court to release the documents, and mandated that the state pay Muto
60,000 yen in damages “for infringing on his constitutional right to information.”130
On appeal, the Tokyo High Court reversed the District Court’s judgment and dismissed Muto’s
claim.131 The Court reasoned that the Supreme Court’s policy of not disclosing the minutes of
the justices’ meetings “is in line with an information disclosure law that defines certain
documents as classified ones.”132 The Tokyo High Court further explained that the minutes
requested by Muto include “discussions on the crucial issue of how to exercise Japan’s judicial
power, which were conducted at the time when public attention was being paid to investigations
of the Lockheed scandal, and it is inevitable that the documents are kept undisclosed.”133
Top Court’s Refusal to Release Documents Illegal, THE JAPAN TIMES, June 25, 2004, available at
http://search.japantimes.co.jp/print/nn20040625a2.html (explaining that the “other two documents could not be
found at the time Muto’s [sic] made his disclosure request”)
126
Supreme Court’s Refusal to Disclose Documents Ruled Illegal, JAPAN ECONOMIC NEWSWIRE, June 24, 2004
(remarking that the Tokyo District Court became “the first ever Japanese court to rule against a Supreme Court’s
refusal to disclose judicial administration documents”); High Court Reverses Ruling on Lockheed Scandal
Documents, JAPAN ECONOMIC NEWSWIRE, February 9, 2005; Top Court’s Refusal to Release Documents Illegal,
THE JAPAN TIMES, June 25, 2004, available at http://search.japantimes.co.jp/print/nn20040625a2.html (explaining
that the district court “rejected Muto’s claim that [the other two documents] have been hidden” intentionally);
Banisar, supra note 32, at 96.
127
Top Court’s Refusal to Release Documents Illegal, THE JAPAN TIMES, June 25, 2004, available at
http://search.japantimes.co.jp/print/nn20040625a2.html. The Tokyo District Court appears to be referencing – and
deeming inapplicable -- the exemption contained in Article 5(5) of the Japanese FOIA, mandating nondisclosure of
certain information “concerning deliberations, examinations, or consultations” involving, in relevant part, the courts.
As noted earlier, this exemption applies to court documents (even though the courts themselves are outside of the
scope of the Japanese FOIA) held by administrative agencies subject to the Japanese FOIA. Thus, while Muto could
have requested the Supreme Court’s documents from an administrative agency covered by the Japanese FOIA, the
legal basis for the same request to the Supreme Court itself is unclear.
128
129
Id.
Supreme Court’s Refusal to Disclose Documents Ruled Illegal, JAPAN ECONOMIC NEWSWIRE, June 24, 2004;
High Court Reverses Ruling on Lockheed Scandal Documents, JAPAN ECONOMIC NEWSWIRE, February 9, 2005.
130
131
High Court Reverses Ruling on Lockheed Scandal Documents, JAPAN ECONOMIC NEWSWIRE, February 9, 2005.
132
Id. It appears that the Court is referencing the exemption for national security and diplomacy information, set
forth in Article 5(3) of The Law Concerning Disclosure of Information Held by Administrative Organs (Japan), Law
No. 42 of 1999, available at http://www.soumu.go.jp/gyoukan/kanri/translation4.htm and
http://www.hawaii.edu/aplpj/pdfs/v3-07-Schultz.pdf.
133
Id. However, it is still unclear whether, at any stage of this lawsuit, anyone has raised the issue of the judiciary
being outside the scope of the Japanese FOIA.
The Supreme Court apparently no longer has the official documents pertaining to the Lockheed scandal. Top Court
Loses Lockheed Records, THE JAPAN TIMES, March 23, 2004, available at
http://search.japantimes.co.jp/print/nn20040323a8.html. The court officials explained that the court “might have
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NEW ZEALAND
There is no comprehensive regime governing access to court records in New Zealand.
Some jurisdictions currently have no specific rules for access to their records, while in
others jurisdictions, access to court records is governed by rules of court.134
Statutory Law and Court Rules
New Zealand’s Official Information Act 1982 (the “OIA”) incorporates the principle that all
official information should be publicly available.135 Although the OIA does not apply to the
judiciary, the New Zealand Court of Appeal has held that the principles of the OIA and its
framework should guide judges in deciding whether to provide access to court records.136
In civil proceedings, each court system has its own set of rules that governs access to court
records.137 Parties generally have the right to search, inspect, and copy files within six years of
the close of the matter.138 Non-parties generally have the right to search, copy and inspect court
records, in the court’s discretion, once a matter has been determined.139 If the proceeding is
ongoing, non-parties do not have the automatic right to search, inspect and copy files, but the
registrar of the court has discretion to grant permission to do so. The registrar must grant leave if
the non-party has a “genuine or proper interest” in the case, which will typically be found if the
non-party is a member of the media expressing interest in a case with great public interest.140
The rules governing access to criminal court records are not comprehensive, and in many cases,
judges simply develop rules on their own.141 As a result, case law is the best source of these
rules.
thrown away its copies of the documents, including records of how the court had approved a 1976 decision by
prosecutors not to indict [Lockheed] officials,” and stated that they “had no idea why the records have disappeared
or even what kind of records they once had.” Id.
134
Law Commission, ACCESS TO COURT RECORDS 15 (June 2006), available at
http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_119_330_R93.pdf.
See Banisar, supra note 32, at 112. For the text of New Zealand’s statute, see
http://www.ombudsmaen.govt.nz/official.htm.
135
136
Law Commission, supra note 134, at 51-52.
137
Id. at 23.
138
Id.
139
Id.
140
Id.
141
Id. at 15, 22.
- 21 -
Case Law
The leading criminal trial records case is R v. Mahanga, 142 where the Court of Appeal developed
a balancing test that measures the accused’s privacy concerns against the public’s access
interest.143 The court expressed a strong interest in maintaining its supervisory powers over
court files and rationalizing the way in which requests for access were handled. Subsequent
cases have applied the balancing approach as well, sometimes considering additional factors
when exercising judicial discretion.144 These additional factors include the risk of prejudice to a
trial, whether the trial was broadly publicized, and whether access is necessary to enable accurate
commentary or research regarding a proceeding.145
SOUTH AFRICA
South Africa's Constitution provides the public with a broad right to access information held by
all governmental bodies, including the courts. There is no statutory or case law interpreting this
right to judicial information; rather, individual courts have taken steps to make their records,
including decisional materials, available to the public either on the Internet or at the courthouse.
Constitution
South Africa’s Constitution of 1996 guarantees the right of access to information held by the
government and information held by private bodies, which is necessary “for the exercise or
protection of any right.”146 The Constitution states: “Everyone has the right of access to . . . any
information held by the state . . . .”147
Statutory Law
South Africa's Promotion of Access to Information Act (the “PAIA”) went into effect in March
of 2001.148 The PAIA allows any person to demand records in possession of the government or
private bodies, regardless of the age and the author of the records. However, the PAIA expressly
does not apply to records of a number of government bodies, including the Cabinet and its
committees, judicial functions of courts and tribunals and judicial officers of those courts, and
individual members of Parliament and provincial legislatures.149 Thus, the courts in South
142
[2001] 1 NZLR 641.
143
Law Commission, supra note 134, at 18-19.
144
Id. at 20.
145
Id.
Mendel, supra note 120, at 69, citing Constitution of the Republic of South Africa No. 108 of 1996 § 32 (“South
African Constitution”).
146
147
South African Constitution, § 32(1).
148
Banisar, supra note 32, at 136; THE PROMOTION OF ACCESS TO INFORMATION ACT 2 of 2000, available at
http://www.info.gov.za/gazette/acts/2000/a2-00.pdf.
149
THE PROMOTION OF ACCESS TO INFORMATION ACT 2 of 2000, Ch. 1 §12 (b); Mendel, supra note 120, at 70;
Banisar, supra note 32, at 136-37; see South African Constitution § 166 (explaining that South Africa’s judicial
- 22 -
Africa are not under a statutory obligation to provide the members of the general public with
information or respond to information requests.
Case Law
There appears to be no significant case law in South Africa dealing with the public’s right to
access information about the judiciary, court pleadings, records, or other documents filed with
the courts.
Court Rules and Practice
Even though the PAIA does not apply to South Africa’s courts,150 several courts maintain Web
sites that provide a wide variety of information.
For example, the Constitutional Court of South Africa maintains a comprehensive Web site.151
The Web site includes detailed information about the Court, including its history, role, landmark
judgments, and rules. In addition, the Web site contains information about the judicial
appointment process and detailed biographies of former, current, and acting judges. The Court’s
annual strategic/business plan is also made available to the public. Furthermore, the Web site
enables the public to search for judgments by name or by year. It also contains the Bill of Rights
that is a part of the South African Constitution. Moreover, the Web site provides a
comprehensive overview of the Court’s procedures and proceedings, as well as information
about scholarships and law clerkships with the court. The Web site allows anyone to sign up to
receive notifications of upcoming court hearings and/or judgments.
Similarly, the Supreme Court of Appeal, the country’s highest court, also maintains a Web site
except with respect to constitutional matters.152 The Web site allows the public to access
judgments rendered by the Court since 1999 (only the judgments deemed “reportable” are
system is comprised of the following courts: the Constitutional Court, the Supreme Court of Appeal, the High
Courts, “including any high court of appeal that may be established by an Act of Parliament to hear appeals from
High Courts”; the Magistrates’ Courts, and “any other court established or recognised in terms of an Act of
Parliament, including any court of a status similar to either the High Courts or the Magistrates’ Courts”).
The Promotion of Access to Information Act is also inapplicable to “records requested for use in civil or criminal
cases after they have been commenced and for which access is provided in other legislation.” Mendel, supra note
120, at 69. In addition, the Promotion of Access to Information Act contains several discretionary exemptions,
including the exemption for law enforcement and legal proceedings, including “law enforcement techniques,
prosecution, investigations and the prevention of crime.” Banisar, supra note 32, at 137 (explaining that a public
interest test is applied with regard to some of the exemptions); Mendel, supra note 120, at 74. These discretionary
exemptions require a showing that the release of information would cause harm.
South Africa’s judicial system includes the Constitutional Court, the Supreme Court of Appeal, High Court of
South Africa, Circuit Courts, Special Income Tax Courts, Labour Courts and Labour Appeal Courts, Divorce
Courts, Land Claims Courts, the Water Tribunal, Small Claims Courts, Magistrates’ Courts, Community Courts and
Courts for Chiefs and Headmen. Jean Redpath, The Courts in South Africa (January 2003), available at
http://www.capegateway.gov.za/afr/pubs/public_info/C/32303/E.
150
151
See http://www.constitutionalcourt.org.za/site/home.htm.
152
See http://www.law.wits.ac.za/sca/index.php?PHPSESSID=183a294445e38dd2ee596ab487c15326.
- 23 -
included), bulletins setting forth the details of reserved and enrolled judgments, information
about the court and the judges, and the Court’s contact information.
In addition, the public may access the decisions of the Cape High Court,153 the Labour Courts’
decisions from 1998 through 2001,154 and various information about the Land Claims Court,
including its history, judges, rules, practice directions (dealing with the various procedural issues
pertaining to the court’s practice), and full text and summaries of its judgments from 1994
through the present.155 Furthermore, a list and contact information of Magistrate’s Courts also is
available on the Internet.156
SPAIN
The Spanish Constitution and Spanish law provide for a public right of access to post-decisional
judicial documents. The courts, except for the Constitutional Court which solely issues decisions
interpreting the Spanish Constitution, do not make their decisions available on the Internet.
Other judicial records appear to be inaccessible to the public.
Constitution
The Spanish Constitution provides for a right to access information in the administrative archives
and registers, except that the information is not available to the public when other interests, such
as security, investigation of crimes, and personal privacy are implicated.157
Statutory Law
Government documents and records are accessible to Spanish citizens based on the 1992 Law on
Rules for Public Administration.158 However the documents must be within a completed file, as
the law does not apply to pre-decisional documents. Additionally, the law provides for a number
of exceptions for documents such as those related to national defense or national security and
business secrets, among others. The government can also deny requests if the documents deal
with government actions related to a constitutional responsibility.
153
See http://law.sun.ac.za/.
154
See http://wwwserver.law.wits.ac.za/labourcrt/.
155
See http://wwwserver.law.wits.ac.za/lcc/. The Truth and Reconciliation Commission, which was set up to
remedy the effects of apartheid, was at one time a part of South Africa’s court system. While the Commission is no
longer active, its Web site may be accessed at http://www.doj.gov.za/trc/.
156
157
See http://www.capegateway.gov.za/eng/directories/facilities/9374.
Spanish Constitution (1978), Art. 105, available at http://www.uni-wuerzburg.de/law/sp00000_.html.
158
Ley 30/1992, de 26 de Noviembre, de Regimen Juridico de las Administraciones Publicas y del Procedimiento
Administrativo Comun, available at http://noticias.juridicas.com/base_datos/Admin/130-1992.html, amended by ley
4/99, de 13 de Enero de 1999 (cited in Banisar, supra note 32, at 140).
- 24 -
Access to Judicial Information
Spain does not have a highly developed system to provide public access to judicial information.
Decisions of the Supreme Court (the highest court in Spain other than the Constitutional Court)
are available in an official reporter called the Madrid Gazette, which is difficult to access and
navigate and unavailable on the Internet.159 The Constitutional Court, which is not considered to
be part of the judicial branch, publishes opinions that serve as binding interpretations of the
Spanish Constitution. These opinions, while not technically case law, are available on a staterun Web site.160
SWEDEN
The Swedish Constitution guarantees the public the right to attend judicial proceedings. The
Freedom of the Press Act provides the press and the general public with the right to access
official documents, including post-decisional court records. The manner in which Swedish
citizens may access such records, however, varies by court.
Constitutional Law
The Swedish Constitution is made up of five fundamental laws, including two that specifically
relate to freedom of information: (1) the Instrument of Government and (2) the Freedom of the
Press Act.
Under the Instrument of Government, Swedish citizens are granted a right to access information,
and specifically, the “freedom to procure and receive information and otherwise acquaint oneself
with the utterances of others.”161 The Instrument of Government also dictates that “proceedings
in courts of law shall be open to the public.”162
The Freedom of the Press Act sets out additional details about the right and grants every Swedish
citizen and resident a right to access official documents, including post-decisional judicial
records.163 That law mandates that public authorities register official documents and make them
publicly available, although certain documents are exempted from the requirement (e.g.,
documents of little importance to authorities’ activities or documents already registered in an
alternative registry). Documents may be exempt from the registration requirement, in the
government’s discretion, if they deal with topics such as national security or foreign relations,
fiscal policy, public economic interest, protection of privacy, or the prevention of crime, among
others.
159
Id.
160
Ministry of the President of Spain, Constitutional Jurisprudence, available at
http://www.boe.es/g/es/bases_datos/tc.php.
161
The Instrument of Government, Art. 1.2, available at
http://www.riksdagen.se/templates/R_PageExtended____6319.aspx (cited in Banisar, supra note 32, at 141).
162
Id. at Article 11.
163
The Freedom of the Press Act, available at http://www.riksdagen.se/templates/R_Page____6313.aspx (cited in
Banisar, supra note 32, at 141).
- 25 -
Access to Judicial Information
Swedish trials are open to the public and the media, except as otherwise provided by law.164 The
Code of Judicial Procedure governs whether a trial may be kept private and thus inaccessible to
the public.
The availability of Swedish case law depends on the court in which the case was heard. District
court reports are only available in an archive at each district court, with the exception of a few
district courts that make their cases available through subscription services.165 The Courts of
Appeal and the Supreme Court make their cases more widely available. The Supreme Court
specifically publishes its decisions in a journal called “Nytt juridiskt arkiv: Avd. I” and has made
its case law available on the Internet since 2003.166
TURKEY
Since the 2003 enactment of the Law on Right to Information, Turkish citizens have enjoyed a
right to access governmental information, including judicial information. Certain judicial
records relating to criminal proceedings are unavailable, however. In general, judicial case law
in Turkey is available on the Internet.
Constitution
The 1982 Turkish Constitution does not provide a right of access to judicial or other
governmental information.167 The Constitution establishes the independence of the judicial
branch, which is composed of a collection of “Supreme Courts” with varied subject matter
jurisdiction.168
Statutory Law
The Turkish Parliament unanimously adopted the Law on Right to Information on October 9,
2003, and it came into force on April 9, 2004.169 The goal of the law is “to regulate the
164
Ministry of Justice of Sweden, Public Access to Information and Secrecy with Swedish Authorities, at 9,
available at http://www.regeringen.se/content/1/c6/03/68/27/b9447d55.pdf.
165
Hauser Global Law School Program, Update: Swedish Law and Legal Materials, available at
http://www.nyulawglobal.org/globalex/Sweden1.htm.
166
Id.
167
Constitution of the Republic of Turkey, http://www.byegm.gov.tr/mevzuat/anayasa/anayasa-ing.htm.
168
Id. at Arts. 146-160 (establishing the Constitutional Court, Court of Cassation, Council of State, Military Court of
Cassation, Supreme Military Administrative Court, Court of Conflict, and Court of Accounts).
169
Turkey Enacts Freedom of Information Law—October 2003, Bilgi Edinme Hakki (Oct. 2003), available at
http://www.bilgiedinmehakki.org/en/index.php?option=com_content&task=view&id=10&Itemid=10. See also
Banisar, supra note 32, at 149.
- 26 -
procedure and the basis of the right to information.” 170 The law grants the public a right of
access to the information of all public institutions, including the courts.
The law, however, does not apply to criminal investigations and prosecutions, when disclosure
would, among other things, endanger prevention or investigation of a crime, or the legal
procedure for detention and prosecution of criminals; obstruct judicial duty; or violate a
defendant’s right to fair trial.171
Any refusal to provide information based on one of the above exemptions may be appealed, first
to the Turkish Right to Information Assessment Council (“Council”), then to the courts. The
Council is composed of nine members appointed by the Council of Ministers from members
nominated from the Court of Appeals and the Council of State; scholars of criminal,
constitutional and administrative law; select members of the Turkish Bar Association; and
judges.172 One exception to the normal review process is that decisions by the institution made
in response to a request for private information about an individual may be appealed to the
Council, but not to the courts.173
Court Practice
Judicial case law in Turkey is widely available on the Internet.174 The decisions of the
Constitutional Court are available in the Official Gazette, Anayasa Mahkemesi Kararlar Dergisi
(which includes Constitutional Court decisions and is published periodically) and at the official
website of the Constitutional Court.175 The decisions of the Court of Cassation are available in
Yargıtay Kararlar Dergisi and also available at the official website of the Court.176 Likewise,
the decisions of the Council of State are available in Danıştay Dergisi and also available at the
official website of the Council of State.177
170
Law on Right to Information, No. 4982, Art. 1, available at
http://www.bilgiedinmehakki.org/en/index.php?option=com_content&task=view&id=7&Itemid=8; see also
Circular 2004/12, The Exercise of the Right of Petition and Access to Information, OFFICIAL GAZETTE No. 25356,
Jan. 2004, available at http://www.freedominfo.org/documents/Turkey%20Prime%20Ministry%20Circular%20on%20Right%20to%20Information.pdf.
171
Law on Right to Information, Art. 20.
172
Id. at Art. 14.
173
Id. at Art. 15.
174
Serap Yazici, A Guide to the Turkish Public Law Order and Legal Research (Sep. 2006), available at
http://www.nyulawglobal.org/globalex/Turkey.htm#_Laws (accessed Oct. 30, 2007).
175
http://www.anayasa.gov.tr/general/.
176
http://www.yargitay.gov.tr/.
177
http://www.danistay.gov.tr/.
- 27 -
UNITED KINGDOM
Access to judicial records in United Kingdom is prescribed by court rules, as the Freedom of
Information Act applies to non-judicial governmental records. Certain courts make available
transcripts and other records on the Internet, including the courts in Scotland and the British
Court of Appeal. Other courts make their records available only in hard copy.
Statutory Law
The Freedom of Information Act 2000 provides a public right of access to documents held by
more than 100,000 public agencies and departments in the United Kingdom, both at the central
government and local levels, including the English Parliament, the police, and publicly owned
companies.178 The Act provides a public right of access for any reason to recorded information
held by the covered departments. Courts, however, are not subject to the Act, and documents
filed with a court or created by a court for the purposes of court proceedings are specifically and
completely exempt from the Act.179 At the same time, the Environmental Information
Regulations 2004 provide a public right of access to environmental information held by the
courts regarding their administration.180
Access to Judicial Information
England
The rules for access to judicial proceedings are primarily established by the courts and are laid
out in the Civil Procedure Rules, the Criminal Procedure Rules, and other court rules.
Under the Civil Procedure Rules, a non-party may obtain from the court copies of “a statement
of case, but not any documents filed with or attached to the statement of case, or intended by the
party whose statement it is to be served with it; [or] a judgment or order given or made in public
(whether made at a hearing or without a hearing),” as long as certain conditions are met.181 In
addition, a non-party, after receiving the permission of the court, may obtain a copy of any
“document filed by a party or communication between the court and a party or another
178
Freedom of Information Act (2000), available at http://www.opsi.gov.uk/acts/acts2000/ukpga_20000036_en_1.
179
Id. at Section 3, Schedule 1, Section 32.
180
See The Campaign for Freedom of Information, A Short Guide to the Freedom of Information Act and Other
New Access Rights, at 2-5, available at http://www.cfoi.org.uk/pdf/foi_guide.pdf.
181
Civil Procedure Rules, 5.4C, available at http://www.justice.gov.uk/civil/procrules_fin/menus/rules.htm. The
conditions include: “(a) where there is one defendant, the defendant has filed an acknowledgment of service or a
defence; (b) where there is more than one defendant, either – (i) all the defendants have filed an acknowledgment of
service or a defence; (ii) at least one defendant has filed an acknowledgment of service or a defence, and the court
gives permission; (c) the claim has been listed for a hearing; or (d) judgment has been entered in the claim.” If the
conditions are met, the non-party may obtain a copy of a statement of case or judgment or order.
- 28 -
person.”182 A party may apply to the court asking the court to bar non-parties from obtaining
statements of the case or to restrict the “persons or classes of persons who may obtain a copy.”183
A separate set of rules apply to criminal proceedings. The Contempt of Court Act prohibits the
use of a tape recorder in court without the leave of the court. 184 (The judge’s discretion to make
the determination is unlimited.185) The Contempt of Court Act also allows a court, “where it
appears necessary for avoiding a substantial risk of prejudice to the administration of justice in
the proceedings before it or in any others pending or imminent, [to] order that any publication of
any report of the proceedings . . . be postponed for such time as the court thinks necessary for
that purpose.”186
The Magistrates’ Courts (which handle the less serious offenses in the English criminal system)
are “encouraged to meet reasonable requests of the media for copies of court lists and the register
of decisions,” each of which provides details about the offender and the offense and judgment.187
Judgments from the Civil and Criminal Divisions of the Court of Appeal, and from the
Administrative Court, selected by the judge concerned, are available for free on the Bailii
(British and Irish Legal Information Institute) database or from the court.188 House of Lords
judgments since November 1996 are available on the House of Lords website.189 In addition,
information about minimum terms of imprisonment and details of specific cases is available
online.190
Scotland
Scottish court judgments are available on the Internet at no charge.191 Much information about
the judiciary, including judicial appointments and salaries, can also be found on the Internet.192
182
Id.
183
Civil Procedure Rules, 5.4C; Practice Direction 5, para. 4A, available at
http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part05.htm.
184
Criminal Procedure Rules, Consolidated Criminal Practice Direction, I.2. available at:
http://www.justice.gov.uk/criminal/procrules_fin/contents/practice_direction/pd_consolidated.htm
185
186
Id.
Criminal Procedure Rules, The Consolidated Criminal Practice Direction, I.3.1.
187
See Judicial Studies Board, Reporting Restrictions: Magistrates Courts, available at
http://www.jsboard.co.uk/publications/rrmc/mf_00.htm (citing Circular 80/1989).
188
BAILII Databases, http://www.bailii.org/databases.html; see also Her Majesty's Court Service:
Legal/Professional, http://www.hmcourts-service.gov.uk/cms/legalprofessional.htm.
189
House of Lords Judgments, http://www.publications.parliament.uk/pa/ld/ldjudgmt.htm.
190
Her Majesty's Court Service: Legal/Professional, http://www.hmcourtsservice.gov.uk/cms/legalprofessional.htm.
191
See http://www.scotland.gov.uk/Topics/Justice/Courts.
192
Id.
- 29 -
Additionally, the annual business plan and annual report for the courts are also available on the
Internet.193
UNITED STATES
The United States has a long-standing tradition of open trials and open access to judicial records
although the Constitution contains no explicit mandate regarding public access to government
information nor to judicial proceedings. Nonetheless, as Chief Justice Burger announced in the
landmark open trials decision, Richmond v. Virginia, “A trial is a public event. What transpires
in a courtroom is public property.”194
Despite this tradition, however, the manner in which the public may access judicial branch
records and the type of information available vary widely throughout the country. Recently,
increasing concerns related to the electronic availability of personal information contained in
court records have led many courts to restrict the public’s ability to access certain types of
judicial records and information. Nevertheless, state and federal courts continue to make
substantial advances in providing electronic access to judicial records to the public.
Access to Federal and State Judicial Proceedings
The Supreme Court in the Richmond case recognized a constitutional and a common law right to
public access to judicial proceedings and held that the public has a right of access to criminal
trials. In reaching this conclusion, the Supreme Court relied upon historical evidence that the
public has long been able to attend criminal trials and that these trials must be open to the public
unless a court can articulate a compelling interest for closure. In Richmond, the Supreme Court
held that “the right to attend criminal trials is implicit in the guarantees of the First Amendment
[to the U.S. Constitution]; without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press could be eviscerated.”195
Although the Supreme Court has not decided whether the public has a comparable right to attend
civil proceedings, the Richmond court observed, “Whether the public has a right to attend trials
of civil cases is a question not raised by this case, but we note that historically both civil and
criminal trials have been presumptively open.”196
In a subsequent decision, Globe Newspaper v. Superior Court,197 the Supreme Court struck down
a Massachusetts law that mandated that criminal trials be closed to the public if they involved
minor sexual assault victims. In striking down the law, the court noted that, although the
Constitution ensures a right of access to criminal trials, this right is not absolute and thus access
193
See http://www.scotcourts.gov.uk/courtusers/charter/charter_13.asp.
194
448 U.S. 555 (1980).
195
Id. at 580 (internal citations omitted).
196
Id. at 580 n.17.
197
457 U.S. 596 (1982).
- 30 -
may be denied if there is a compelling governmental interest and the restriction on access is
narrowly tailored to serve that interest.198
Federal and state courts have also extended a common law right of access to pre-trial
proceedings and jury selection. In Press-Enterprise Co. v. Superior Court, the Supreme Court
held that although there is no constitutional right of access to jury selection processes, there is a
common law right based on historical practice of public access to preliminary hearings and that
such “openness . . . enhances both the basic fairness of the criminal trial and the appearance of
fairness so essential to public confidence in the system.” 199
As a result of these decisions, the American public generally enjoys broad access to civil and
criminal proceedings.
Access to Judicial Records
Constitutional Law
Although the federal Constitution does not provide a public right to access government
information, many state constitutions provide such rights. At least one state constitution, the
Florida Constitution, requires that all judicial records be open to the public unless specifically
protected by statute.200 In other states, however, courts have interpreted constitutional provisions
relating to access to government information to include only the executive and legislative
branches and not the judicial branch.
Moreover, at least one state constitution—California—contains an enforceable privacy right.201
A California appellate court has held that this right of privacy trumps the public’s access to
certain electronic criminal proceeding information.202 The Westbrook decision provides a
window into the types of issues that state and federal courts have struggled with in deciding how
and to what extent to provide access to court records. The respondent in Westbrook sought to
purchase Los Angeles County municipal court computer tapes that contained the name, birth date
and zip code of all individuals against whom criminal charges were pending in those courts so
that he could sell this information to the public.203 The respondent argued that, without access to
these computer tapes, he would be required to travel to all 46 municipal courts in the county to
obtain access to the information. Although the court’s ruling against access to the computer
tapes was based in part on a statute protecting disclosure of certain criminal record information,
the court held that where the public’s right to know “conflicts with the right of privacy, the
198
Id. at 606.
199
464 U.S. 501, 508 (1984).
200
Fla. Const. art. 1, § 21.
201
White v. Davis, 553 P.2d 222, 233 (Cal. 1975).
202
Westbrook v. County of Los Angeles, 27 Cal. App. 4th 157 (1994).
203
Id. at 160.
- 31 -
justification supporting the requested disclosure must be balanced against the risk of harm posed
by disclosure.”204
Statutory Law
All fifty states and the federal government have enacted open government laws. The federal law,
the Freedom of Information Act (FOIA), was enacted in 1966 to allow any person, regardless of
citizenship or residency, to request and obtain records from federal agencies.205 The FOIA,
however, does not apply to Congress or the federal judiciary.
Similarly, although all states have enacted freedom of information laws, many of these laws
explicitly exempt the judiciary. For example, the state of Texas’ Public Information Act does
not apply to the Office of Court Administration or the courts, so access to court records has been
developed through common law, statutory law and court rules.206 Examples of court records that
are available to Texas citizens include: records of financial disclosures, licensing, continuing
education, and other credentials of elected judges; copies of complaints filed against a municipal
judge; and reports of ad litem (i.e., a party appointed by a court to act in a lawsuit on behalf of
another party who is deemed incapable of representing herself, such as a child) fees paid to
attorneys.207 Examples of the types of court records that are not available for disclosure include:
investigative files of Commission on Judicial Conduct; judicial work product; internal
deliberations on judicial administration matters; docket sheets of a municipal court; and traffic
citations.208
In the state of New Hampshire, “[a] presumption exists that all court records are subject to public
inspection.”209 The New Hampshire judiciary views the right of access to court records as an
extension of the state constitution, which provides a right of access to judicial proceedings.
Although a presumption of access exists, certain types of records are not available for public
inspection (unless otherwise ordered by the court), including: juvenile cases; pending or denied
applications for search or arrest warrants; grand jury records; applications for wire taps and
orders thereon; and other records that are confidential by statute, rule, or order.210
Indiana's Public Records Act provides that certain public records “may not be disclosed by a
public agency, unless access to the records is specifically required by a state or federal statute or
is ordered by a court under the rules of discovery,” including “[t]hose declared confidential by or
204
205
Id. at 166.
5 U.S.C. § 552.
Texas Courts Online, Judiciary’s Open Records Policy/Procedures, available at
http://www.courts.state.tx.us/rules/openrecstate.asp.
206
207
Id.
208
Id.
209
Judicial Branch, State of New Hampshire, Guidelines for Public Access to Court Records, available at
http://www.nh.gov/judiciary/rules/misc/misc-8.htm.
210
Id.
- 32 -
under rules adopted by the supreme court of Indiana.”211 Pursuant to this statutory authority, the
Indiana Supreme Court promulgates rules regarding access to court records.212 Like in New
Hampshire, there is a presumption in favor of access to court records, unless the record is
excluded from public access by the Supreme Courts Rule or the record “involves a particular
individual circumstance that excludes [the information] from public access.”213
In certain states, such as Washington, whose open records statutes do not exempt state
judiciaries, state courts have frequently held that under the separation of powers doctrine state
open records statutes nonetheless are not applicable to state courts.
Moreover, state freedom of information laws, just like the federal FOIA, contain various privacy
exceptions. These exceptions balance personal privacy interests against the public’s interest in
access to information. For example, agency personnel and medical records are exempt under
FOIA, as are any law enforcement files the release of which might interfere with law
enforcement proceedings, endanger the life or physical safety of any individual, or result in an
unwarranted invasion of personal privacy.214
Many U.S. states, including Connecticut,215 Indiana,216 Maryland,217 Minnesota,218 and
Vermont,219 have in recent years published studies regarding public access to judicial records.
Common Law
As a result of the lack of constitutional and statutory law, access to judicial records remains
grounded in the common law. Unlike access to judicial proceedings, however, federal and state
judges have vast discretion to deny access to court records and files. In Nixon v. Warner
Communications, Inc.,220 the Supreme Court recognized a common law right to access these
records, but held that “every court has supervisory power over records and files and can deny
211
Indiana Code § 5-14-3-4(a)(8), available at http://www.in.gov/legislative/ic/code/title5/ar14/ch3.html.
212
See Indiana Supreme Court, Division of State Court Administration, Public Access to Court Records Handbook
(Dec. 2004) (“Indiana Handbook”), available at http://www.in.gov/judiciary/admin/pubs/accesshandbook.pdf.
213
Id.
214
5 U.S.C. § 552(b).
215
Report of the Committee on Access to Court Records (Aug. 22, 2006), available at
http://www.jud.ct.gov/external/news/PublicAccess/report_courtrec_revised.pdf.
216
Indiana Handbook, supra note 212.
217
Report of the Committee on Access to Court Records (Feb. 5, 2002), available at
http://www.courts.state.md.us/access/finalreport2-05.pdf.
218
Supreme Court, State of Minnesota, Recommendations of the Minnesota Supreme Court Advisory Committee on
Rules of Public Access to Records of the Judicial Branch, Final Report (June 28, 2004), available at
http://www.lawlibrary.state.mn.us/access/accessreport.htm.
219
Vermont Judiciary, Committee to Study Public Access to Court Documents and Electronic Court Information,
Report, available at http://www.vermontjudiciary.org/Resources/ComReports/pafinalrpt.htm.
220
435 U.S. 589 (1978).
- 33 -
access when it would be used for improper purposes.”221 The Court also stated that “the decision
as to access is one best left to the sound discretion of the trial court, a discretion to be exercised
in light of the relevant facts and circumstances of the particular case.”222
Consequently, individual judges are left to exercise substantial discretion in determining how the
public may access court records and whether to redact certain information or to seal records. In
the federal courts, any person from whom discovery is sought may request a protective order that
would seal the discoverable information from the public. Under Rule 26(c) of the Federal Rules
of Civil Procedure, judges may “for good cause” grant an order requiring that the discoverable
information be sealed. Additionally, federal appellate courts have held that the common law
presumption of public access to judicial documents applies only to those documents filed with
the court and not those exchanged in discovery or settlement agreements not filed with the
court.223
Furthermore, trial court judges may order that certain documents filed with the court be sealed as
long as the court provides a “clear statement, supported by specific findings” of its reasons for
sealing the documents.224 Judges may also order that court proceedings be sealed if they find
that there is a compelling interest in sealing the proceedings and that there is no less restrictive
method of protecting this interest.225
Electronic Access to Court Records
The public’s ability to access judicial records varies widely from state to state and court to court.
Despite the American common law tradition of public access to judicial records, the manner in
which these records are available determines the ease with which the public can obtain judicial
information.
The public enjoys physical access to judicial records in state and federal courts around the
country. Although physical access to court files is generally unlimited (except where documents
are filed under seal), physical access may be costly and time-consuming depending on the
number of courthouses that must be visited to obtain certain information. As a result, many
states and the federal government provide Internet access to certain court information.
The Federal Judiciary’s Case Management/Electronic Case Files (CM/ECF) system allows
federal courts to accept filings and provide access to filed documents over the Internet.
Implementation of the CM/ECF system began in 1998. Almost all federal district and
bankruptcy courts and a handful of federal appellate courts now use CM/ECF. Documents and
docket sheets that are made available may be accessed either directly from the particular court’s
221
222
Id. at 598.
Id. at 599.
223
See, e.g., U.S. v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995); Pansy v. Borough of Stroudsburg, 23 F.3d 772,
781-83 (3d Cir. 1994).
224
Stone v. University of Maryland Medical System Corp., 855 F.2d 178, 182 (4th Cir. 1988).
225
See, e.g., Unabom Trial Media Coalition v. U.S. District Court, 183 F.3d 949, 951 (9th Cir. 1999).
- 34 -
website or through the Public Access to Court Electronic Records (PACER) service, which
assesses a nominal fee. Although most federal courts use CM/ECF, each individual court
determines its own policies for making its documents electronically available. As a result,
although electronic access to federal judicial information is expanding, the amount of
information that is accessible varies from court to court.
Electronic access to state court records is sporadic.226 Virtually all states provide electronic
access to state supreme court opinions and most states provide access to trial court docket sheets.
For the most part, states that make court records available over the Internet provide access free of
charge. Only a limited number of states, however, provide access to case files.
For example, the California Rules of Court Rule 2.503 requires courts to make records in civil
cases that have been maintained in electronic form available to the public on the Internet.227
Certain records containing confidential information, such as divorce, child custody, and spousal
support proceedings, however, are not available on the Internet.228
Additionally, Florida’s interim electronic access policy allows the chief judge of a jurisdiction to
require that all records in a case of significant public interest be made available on the Internet
and also allows certain real property case records to be made available on the Internet.229
Similarly, a small number of states provide Internet access to criminal trial information and those
states that do provide such information, such as Arizona, only provide docket information.230
California Court Rule 2.503 appears to contemplate the release of criminal record information in
high profile cases, however, the rule does not specifically address criminal record information.231
Finally, although Internet access to judicial records is on the rise in the United States, concerns
about inappropriate use of certain personal information contained in these records is increasing.
For example, the recently revised federal rules of procedure require that certain personal
identification information be redacted from documents filed with the court.232 Privacy concerns
have presented many obstacles to state efforts to make more judicial information available on the
Internet. For example, in 2002, the State of Florida imposed a moratorium on its efforts to
226
See Maryland Judiciary, Subcommittee on Other States and Federal Courts, State and Federal Policy on
Electronic Access to Court Records, available at http://www.courts.state.md.us/access/states7-5-01.pdf. Although
several years old, the Maryland Judiciary’s report provides summaries of electronic availability of court information
in the states of Arizona, California, Colorado, Connecticut, Florida, Massachusetts, New Jersey, New Mexico, North
Carolina, Oregon, Tennessee, Virginia, and Washington.
227
2008 California Rules of Court, R. 2.503, available at
http://www.courtinfo.ca.gov/rules/index.cfm?title=two&linkid=rule2_503.
228
Id.
229
In re: Revised Interim Policy on Electronic Release of Court Records, Fla. Admin. Order No. AOSC07-49 (Sept.
27, 2007) ("Revised Interim Policy").
230
See, e.g., Judicial Branch of Arizona, Maricopa County, Public Access to Criminal Court Case Information,
http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/Index.asp.
231
232
R. 2.503, supra note 224.
See, e.g., Fed. R. Civ. P. 5.2.
- 35 -
improve Internet access to its court records because of privacy concerns233. Although the
Supreme Court of Florida adopted an interim policy on the electronic release of court records in
2006, a final policy has yet to be adopted234. As a result, as state and federal courts grapple with
these privacy issues, efforts to expand Internet access to judicial records may be slowed.
In October 2002, the Conference of Chief Justices/Conference of State Court Administrators
(CCJ/COSCA) issued guidelines to assist state courts in their development of policies to provide
public access to court records.235 The CCJ/COSCA Guidelines carefully consider what
comprises a court record, what personal information is truly needed by the courts to carry out
their judicial functions, whether certain records should be made available only at the courthouse,
rather than on the Internet, and the procedures and standards for sealing records or otherwise
restricting public access.236 Since the publication of the CCJ/COSCA Guidelines, many states
have taken steps to improve their public access policies.237 These guidelines are a tremendous
source of information for courts seeking to implement public access policies.
233
In re: Comm on Privacy and Court Records, Fla. Admin. Order No. AOSC04-4 (Feb. 12, 2004).
234
Revised Interim Policy, supra note 226.
235
National Conference of State Courts, "Developing CCJ/COSCA Guidleines for Public Access to Court Records:
A National Project to Assist State Courts," (October 18, 2002), available at
http://www.courtaccess.org/modelpolicy/18Oct2002FinalReport.pdf.
236
Id.
237
National Center for State Courts, "Public Access to Court Records," at http://www.courtaccess.org/.
- 36 -
CONCLUSIONS
This report began by listing certain goals that should be considered when developing a legal
system for providing access to judicial information. The goals included, among others,
promoting the public's “right to know,” while ensuring the efficient and fair administration of
justice. As the preceding pages have shown, some countries have been more successful than
others in reaching these goals through legislation or case law. This concluding section offers a
synthesis of the individual summaries, identifying practices that achieve the goals and other
practices that do not. The following sections highlight the elements that should be included in a
model access-to-information (“ATI”) law.
A.
Access to Court Proceedings
1. Court Documents
An effective ATI law should
1. specifically address access to court documents, such as complaints, briefs, motions,
and evidence;
2. include the presumption that all documents in a case file should be accessible to the
public, subject to narrowly tailored exceptions;
3. require proactive publication of all decisions and opinions of all courts;
4. require registration and indexing of all official documents, and encourage
publication in electronic databases;
5. treat access to documents in civil cases and criminal cases , though some additional
privacy restrictions may need to be put in place for criminal cases, as discussed
below;
6. require designation of a public official whose duty it is to respond to requests for
documents that are unavailable in databases and provide them to those who request
them.
In addition, the legislature must provide an annual budget sufficient to implement all aspects of
the law.
Most countries surveyed have implemented some, but not all, of these best practices. For
example, Ecuador requires that files and documents be publicly available, but not necessarily
posted on the internet. Instead, a member of the public must request the document or file
directly.238 Mexico also makes its files public, but only once they are final. A member of the
public cannot access the file until the case is completed.239 A prevalent shortcoming among
countries surveyed is inconsistency among a system’s courts in policies for providing
documents. For example, in Australia, access to court documents varies greatly from court to
238
Transparency and Access to Information Act, Official Registry Supplement 337, May 18, 2004.
239
Transparency and Access to Public Governmental Information Federal Act, Art.3., XIV, (c).
- 37 -
court, and there is a lack of clarity in the law.240 Countries with inconsistencies in administration
of public access laws should ensure through legislation that all courts are treating document
access in the same way.
Another common shortcoming is that many countries provide varying degrees of access to
documents, but do so through means other than statutes or constitutional clauses, leading to
policies that are less consistent and clear than they would be if set forth in statutes or
constitutional clauses. In Belgium, a 1994 law allows individuals to request documents from
executive officials, which may include some judicial documents, but no statute specifically
addresses document requests to the judicial branch.241 In Canada, statutes do not provide for
public access to documents. Instead, the courts follow an “open courts principle,” a judicially
created policy that considers judicial access a fundamental principle, but does not positively offer
consistent and convenient services to the public to facilitate access. For example, most Canadian
courts provide access to documents only in paper format at the courthouse.242 Finally, in Israel,
statutes provide for a public official to be appointed whose duty it is to field requests for
documents and provide them to the public.243 However, no funds were budgeted to support the
law, no central institutional support was established, and existing officials were given ATI
duties on top of their other duties, rather than hiring new full-time officials, rendering the law
effective only to a limited extent.244
2. Judicial Decisions
An ATI law should require that judicial decisions must be made publicly available. They should
be available electronically on the internet and in tangible form. They should also be indexed and
cross-referenced for easy searching. Governments should provide access to all decisions,
including those from lower courts, administrative courts, and commissions. Finally, significant
decisions should be read or at least summarized in open court at the time they are announced.
Decisions are generally more accessible than other court documents in most countries. In
Turkey and the United Kingdom, for example, decisions are publicly available both
electronically and in book form.245 Belgium goes further, requiring that even relatively minor
commissions put their decisions on the internet. Additionally, Constitutional Court of Belgium
which is not part of the judicial system provides its decisions in the country’s three major
240
NSW Review, supra note 1.
241
Loi du 11 avril 1994 relative à la publicité de l'administration. Modifieé par Loi 25 Juin 1998 et Loi 26 Juin
2000, available at http://www.privacyinternational.org/countries/belgium/loi-publicite.rtf.
242
JTAC Model Policy, supra note 45, at vi.
243
Israel Freedom of Information Law 5758-1998, at §§ 3, 5.
244
Rabin & Peled, supra note 110, at 12.
245
Law on Right to Information, No. 4982, Art. 1, available at
http://www.bilgiedinmehakki.org/en/index.php?option=com_content&task=view&id=7&Itemid=8 (Turkey);
BAILII Databases, http://www.bailii.org/databases.html (United Kingdom); see also Yazici, supra note 174; Her
Majesty’s Court Service: Legal/Professional, http://www.hmcourts-service.gov.uk/cms/legalprofessional.htm.
- 38 -
languages.246 The European Union requires that judgments of the Court of Justice shall be read
in open court.247
3. Hearings/Trials
Hearings should be open to the public, with exceptions only for national security and, in some
cases, privacy. This provision is critical to the fair administration of justice and should be
imbedded both in statutory language and in constitutions.
In most countries surveyed, hearings are generally open to the public. For example, in Belgium,
a constitutional clause mandates that hearings be public.248 Additionally, the European Union
provides for public hearings by statute.249 However, some countries with public hearings only
open their proceedings because courts have used their discretion to do so or have created judicial
practice. For example, Canada, as noted above, follows the “open courts principle,” which
mandates that court hearings be open, but there is no statute or constitutional clause requiring
it.250
4. Privacy and Security Exceptions
An ATI law should provide for broad access to court information, subject to narrow exceptions
for information that could place at risk the privacy or security of judges, parties, victims, or other
individuals; the effectiveness of a criminal investigation; or national security. While judges
should have some discretion in implementing these exceptions, the ATI law should outline clear,
narrow, intelligible standards to guide judges in their decision-making. For example, juveniles
generally are entitled to more privacy protections than adults, and access to evidence of an
individual’s sexual activity should be restricted. Information related to police investigations
should be kept private where its release would endanger prevention or investigation of a crime,
but such information should be publicly accessible once that danger passes.
Most countries surveyed that provide public access to judicial information make exceptions for
some privacy and security issues. However, while many countries provide a mechanism to
create exceptions to their public access laws, often the law is too vague. For example, New
Zealand’s courts have created a balancing test to measure privacy concerns against the public
interest, but courts have a great deal of discretion in applying the test and little statutory law to
guide them.251 Turkey, on the other hand, has an ATI law that grants the public a right of access,
246
The various languages can be accessed at http://www.courconstitutionnelle.be, www.grondwettelijkhof.be, and
www.verfassungshof.be.
247
Statute of the Court of Justice (2007), Art. 37.
248
Belgian Constitution, Article 148 ("Court hearings are open, unless public access should jeopardize morals or
order.").
249
Statute of the Court of Justice (2007), Art. 31.
250
JTAC Model Policy, supra note 45, at vi.
251
Law Commission, ACCESS TO COURT RECORDS 18-19 (June 2006), available at
http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_119_330_R93.pdf.
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but explicitly and clearly excepts criminal investigations and prosecutions when disclosure
would, among other things, endanger prevention or investigation of a crime or the legal
procedure for detention and prosecution of criminals.252 The standard in Turkey allows for some
judicial discretion, but provides clear, narrow boundaries, at least in the case of criminal trials
and investigations.
B.
Access to Administrative Information
A workable and comprehensive ATI law should also cover access to administrative information
about the judiciary. Administrative information includes budgets of the courts, and in some
countries also includes judicial appointment procedures, and judges’ income and assets. Many
countries have enacted some version of a law requiring access to administrative judicial
information (whether it be statutory, constitutional, or case law).
Most ATI laws apply to administrative information about the courts including virtually all
European countries, Australia, Israel, Ecuador, Mexico, and Panama.253 Some countries without
ATI laws provide access to such information pursuant to other laws or decrees. For instance,
Argentina’s Supreme Court decrees, ethics laws, and other statutes require the judiciary to make
public the following information, among others: their budgets; how the cases in the docket are
distributed among the justices of the court; a list of personnel, their posts and duties, which
should be updated at least monthly; administrative decrees and resolutions related to
appointments and promotions, procurement, dismissals, extraordinary leave, and sanctions;
statistics of the work of the Supreme Court; and, most notably, a declaration of judges’ assets.254
Argentina’s Law of the Consejo de la Magistratura mandates that all disciplinary hearings
against judges are public, as well as their files.255 In regard to the appointment of judges,
Argentinean law requires publication of vacancies,256 lists of candidates,257 and, for Supreme
Court justice candidates, their resumes.258 The appointment procedure also includes a public
interview of short-listed candidates.259
Ecuador, a country that does have an ATI law applicable to the judiciary, publishes the names of
candidates for the judiciary so that the public may present any objections based on their
252
Law on Right to Information, No. 4982, Art. 14, available at
http://www.bilgiedinmehakki.org/en/index.php?option=com_content&task=view&id=7&Itemid=8.
253
For a discussion of ATI laws and regulations in Ecuador, Mexico, and Panama, please see DPLF Study, supra
note ii.
254
Acordada de la Corte Suprema de Justicia de la Nación No. 1/2004 Exp. 315/2004 Adm. Gral; Acordada No.
35/2003; Ley de Ética en la Función Pública, Ley 25.188 (1999) Art.2(e).
255
Ley del Consejo de la Magistratura (1999) No. 24.937, as modified by the Law 24.939, Art.8.
256
Id. Art. 15.
257
Id. Art. 18.
258
Supreme Court of Justice, Decree 222/03.
259
Ley del Consejo de la Magistratura (1999) No. 24.937, as modified by the Law 24.939, Art.43.
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integrity.260 However, the results of these evaluations are confidential, whereas Argentina allows
a public interview of short-listed candidates.
C.
Information about Judges
Finally, an ATI law should provide for access to information about judges.
An important element of the efficient and fair administration of justice is to have the judiciary
independent from both other areas of government (e.g., the executive branch) and private
influences (e.g., bribes). There is now a growing trend toward requiring financial disclosure by
government officials (and subsequent public disclosure), including judges, in order to combat
corruption, foster public confidence in government, and encourage foreign investment.261 As a
result of the proliferation of anticorruption regulations, more and more countries are screening
public officials’ assets and liabilities with the aim of detecting unjustified wealth as an indicator
of corrupt behavior.262 Many countries require that public officials and employees submit
financial disclosure declarations under oath. In many of these countries, the public has a right of
access to information about the assets, liabilities, net worth, and financial and business interests
of public officials and employees, including those of their spouses and unmarried children under
eighteen years of age who live with them. These laws allow citizens, the media, and civil society
organizations to participate in each government’s work against corruption and towards
transparency.263
Of course, independence of the judiciary from other branches of government may be used as a
defense against the imposition of transparency and disclosure requirements by the executive or
legislative branches with regard to information about judges. These concerns, however, can be
adequately protected by implementing tenure systems, insulation of judges from political
pressures through measures such as prohibiting diminution of judges’ salaries and prohibition of
ex parte proceedings.
D.
Conclusion
In sum, ATI laws, in addition to applying to the judiciary, should be comprehensive, uniform
within each country, clear, and easy to implement. In regard to comprehensiveness, it is
important that a comprehensive ATI law encompass access to court documents and
260
See www.cnj.gov.ec/.
261
Anti-Corruption Policies in Asia and the Pacific, Progress in Legal and Institutional Reform in 25 Countries,
(2006), available at
http://www.oecd.org/document/22/0,3343,en_34982156_34982460_36831894_1_1_1_1,00.html.
262
ABD/OECD Anti-Corruption Initiative for Asia and the Pacific, Anti-Corruption Policies in Asia and the Pacific:
Progress in Legal and Institutional Reform in 25 Countries (2006).
263
See generally Simeon Djankov, Rafael La Porta, Florencio Lopez-de-Silanes, and Andrei Shleifer, Disclosure by
Politicians, Third Draft (Jan. 27, 2009), available at
http://www.economics.harvard.edu/faculty/shleifer/files/transparency_jan27_2009.pdf.
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administrative records, for example, as opposed to different laws being applicable to different
areas of judicial information. The law should also be uniform within each country and uniformly
applied among the courts. A lack of uniformity detracts from efficiency and fairness. The law
should also be clear so that it cannot be arbitrarily applied. Lastly, the law should take into
account how it will be implemented. For example, there should be sufficient funds to create and
maintain an online database if the law calls for it. These proposals are aimed at achieving
comprehensive and meaningful access to judicial information. Just as ATI legislation improves
the quality of decisions of and enhances public confidence in executive and administrative
institutions of government, so also will application of these ATI proposals to the judiciary
promote the fair and efficient administration of justice while enhancing public confidence in the
courts.
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