Australia: New Legislation Gives Public Greater Access to Court Information – How Safe is Your Commercially Sensitive Information?
Commercial Litigation and Dispute Resolution Update

The Court Information Act 2010 (NSW) (Act) came into force on 26 May 2010. The intention of the Act is to encourage open justice and to overhaul the previous complex and inconsistent system governing the release of court information. This legislation is particularly relevant to commercial enterprises, which now need to be diligent in protecting their confidential and commercially sensitive information in court proceedings.

Background

The 2004 NSW Law Reform Commission recognised that law of contempt by publication is intrinsically linked to the right to access court information. As a result, the NSW government conducted community consultation that raised issues about the existing framework for accessing court information including:

1. the debate about the extent to which privacy principles are relevant when dealing with court records;
2. the differing approaches by individual NSW courts;
3. divergent views on the extent to which exhibits should be available to the public and to the media; and
4. processes to review decisions about access to third parties.

The Act

The main objectives of the Act are as follows:

1. to promote consistency in the provision of access to court information;
2. to provide for open access to the public to certain court information to promote transparency and a greater understanding of the justice system;
3. to provide for additional access to the media to certain court information to facilitate fair and accurate reporting of court proceedings; and
4. to ensure that access to court information does not compromise the fair conduct of court proceedings, the administration of justice or the privacy or safety of participants in the proceedings, by restricting access to certain court information.

The Act provides for open access to certain court information, known as "open access information", unless the court otherwise orders in a particular case. The Act also provides for "restricted access information" to which access will only be permitted by leave of the court.

Open access information includes, with conditions, the originating process, pleadings, written submissions, transcript for open court proceedings, statements and affidavits admitted into evidence, record of judgment given and any direction or order made in proceedings.

Restricted access information includes all information that is not considered open access information. This includes personal identification information, information contained in affidavits or statements that have been rejected or struck out or otherwise not admitted. It should be noted that nothing in the Act changes or amends the regime for protection of information which is brought into the proceedings by way of the court's compulsory process (over which the implied undertaking regime still applies).

One of the more notable changes is that news and media organisations are now able to access not only open access information, but also certain restricted access information. As a result, a media organisation is entitled to access information contained in a transcript of proceedings in closed court, statements and affidavits admitted into evidence information. The only real limitation is that access to personal identification information such as tax file numbers, Medicare numbers, financial account details, passport details, telephone numbers, home addresses and dates of birth will not be provided.

It should be noted that although the Act sets out a statutory framework for obtaining access to most court information, the Court will retain its discretionary power to make suppression and non-publication orders in particular circumstances.

Furthermore, the Act is not intended to override other statutory provisions disallowing access to or publication of particular information.

Something to think about

Where commercially sensitive information is likely to be filed in the course of litigation, parties should consider seeking orders restricting access to court information to prevent competitors or third parties from accessing documents which may fall within the open access information category. The flip side is that it might be worth having a look at what court information is available from proceedings involving your competitors...

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.