Thursday, December 18, 2014

The courts and the Public Records Act

Nicky Hager won an important victory in his case against the police yesterday, forcing discovery of the police's internal working documents about the decision to apply for and execute a search warrant against him. While some of the documents will be provided confidentially to counsel, the police's argument that their decisions were unreviewable wasn't accepted. The fact that they wanted to hide these documents, which will show how much consideration they gave to the issue of journalistic privilege, and whether they met the tests set by the court in previous cases on raiding the media, tells us that they probably have something very stinky to hide here. Which will now hopefully be exposed.

Meanwhile, buried in the judgement is a small grenade: the courts appear to be violating the Public Records Act.

[43] Mr Hager sought disclosure from the Manukau District Court of a copy of the file he anticipated would have been maintained by the Court in relation to the application for, and issue of, the search warrant. He also sought a document setting out Judge Malosi’s reasons for issuing the search warrant.

[44] Both requests are misconceived. Requests made to any person who is authorised as an issuing officer for the purposes of warrants under the SSA are not treated as proceedings by the Registry of any courts to which they might be delivered.

[45] Similarly, the response on behalf of the District Court is that there is no document in existence which records the Judge’s reasons for issuing the search warrant. That is entirely consistent with standard practice in which an issuing officer requested to consider an application for a warrant simply grants or declines the application. There is accordingly no discoverable document of that category either.

Section 17 of the Public Records Act requires every "public office" - including the courts - to
create and maintain full and accurate records of its affairs, in accordance with normal, prudent business practice

Not recording reasons for a decision, and indeed not keeping any file on it at all, appears to violate this obligation (not to mention making it difficult for higher courts to judicially review the granting of warrants). The Chief Archivist should probably be looking at this...

The full judgement is here.