The access request went beyond the formal court record, including all documents on the court files.
The High Court has clarified, in a recent case, the prevailing rules on access to historical court files.
In Winter v Winter [2023] NZHC 2673, Patricia Lowery applied to access historical court files deposited with Archives New Zealand. Lowery sought to access two divorce files for family history research purposes.
Under s. 21 of the Public Records Act 2005, public records held by every public office must be transferred to Archives New Zealand after 25 years. For Lowery’s request for access, the records were returned to the Court according to s. 24 of the act.
The High Court explained that applications for access to court documents are assessed within the framework provided by the Senior Courts (Access to Court Documents) Rules 2017. The rules apply to documents while they are in the custody and control of the court, including documents transferred from Archives New Zealand to the court.
The High Court noted that under Rule 8, every person has the right to access the formal court record relating to a civil proceeding. The “formal court record” is defined in r. 4 to include “a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge”. It also includes the register of documents filed in the proceedings. Accordingly, these are documents to which Lowery may have access without permission from the court. To obtain such documents, r. 10(1) requires Lowery to ask the Registrar “for access to one or more documents”. If necessary, to understand what documents are available, Lowery can request the register of documents filed in the proceedings.
The Court noted that Lowery’s request for access went beyond the formal court record, as she sought all documents on the court files. The court files were defined as “a collection of documents in the custody or control of the court that relate to a civil proceeding or a criminal proceeding (including an interlocutory application associated with the proceeding) or an appeal.”
As a result, the Court held that it was necessary to consider whether it should allow access to other documents on the file. The Court noted that a request for access to court documents must identify the person making the request, set out sufficient particulars of the documents to enable the Registrar to identify it, give reasons for asking to access, and set out any conditions of the right of access. A judge may refuse an access request solely because the request did not comply with the requirements.
In this case, the Court deemed it appropriate to dispense with the requirement that the Registrar serve the request on the parties to the proceeding, given the passage of time and the death of the concerned persons. After carefully reviewing the relevant matters, the Court concluded that Lowery should be granted access to the entire court files for family history research.
