One of the many implications of the new Data Protection Act 2018 (the "Act") is that pursuant to section 159 of the Act the rules of the courts (at all levels) have been changed to allow access to court records for bona fide members of the press or broadcast media.

Although the media have always had the right to report on what was said in open court (subject to the in camera rule and other exceptions) - via the Constitutional imperative in Article 34.1 that requires justice to be administered in public – there had been no formal mechanism for access to documents referred to in open court.

Furthermore, the Freedom of Information Act does not apply and access to 'court records' cannot be granted under FOI. Court records are under the control of the courts and not the Courts Service, in accordance with section 65 of the Court Officers Act 1926.

In recent years the High Court had cause to consider the issue of access to records opened in AIB v Tracey (No.2) 2013 IEHC 242 & Kelly v Byrne [2013] IEHC 450.

Access to court records prior to the Data Protection Act 2018

In AIB v Tracey Hogan J. considered the disclosure of affidavits to a non-party to the main proceedings. Hogan J. distinguished between affidavits that were opened fully in open court and documents to which no reference or no "reference of any substance" was made.

Hogan J. considered whether the Court's permission was necessary to obtain the documents and held that it was not necessary as the allegations contained in the affidavits were ventilated in civil proceedings in open court and given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution the cloak of confidentiality or protection from non-disclosure vanished at that point.

In Kelly v Byrne Hogan J. had to consider the scenario of where a party to litigation makes a statement in the course of civil proceedings which is subsequently opened in open court, is the Director of Public Prosecutions entitled to have access to that statement for the purpose of possibly deploying that statement in a subsequent criminal prosecution against that self-same litigant? The document which was sought was a statement made by Mr. Byrne in the course of civil proceedings brought by Mr. Kelly as plaintiff against Mr. Byrne as defendant. The statement was opened – or, at least, effectively opened - in open court and Mr. Byrne was cross-examined on this statement in the course of those proceedings.

Hogan J. stressed that the principle from Tracey was that the public are entitled to know the contents of material which was opened without restriction in open court and he directed that the Courts Service provide the DPP with a copy of the statement.

New Rule Changes

The new Rules apply from 1 August 2018 and to proceedings commenced on or after 1 August 2018. The Courts Service intends to issue guidelines to the media on accessing documentation in advance of the new legal year, commencing 1 October 2018.

Who is a bona fide member of the media?

Some sort of identification would need to be provided in the form of a press card issued by the National Union of Journalists or an international press card or some other documentary proof of links to the bona fide press or a bona fide media organisation.

What documents will be accessible?

The new Rules allow the media access to documents opened or deemed to have been opened at hearings and so the above case law may well prove relevant in deciding what "opened or deemed opened" means. It may mean that the media may now have access to the full content of documents even if only small extracts of the documents are read out, or where a judge treats a document as having been opened but not actually read out in court, as often happens.

Restrictions will still apply on the reporting of certain kinds of cases, such as those heard in camera (eg, family law or some probate cases). In addition, the court may, where appropriate, place specific restrictions on what the media may report in certain cases and confidentiality may attach to certain documents by order of the court.

How can the media access the documents?

The media will be able to access and review court documents by:

  • inspecting the documents under the supervision of the courts or member of the Courts Service;
  • taking a copy of the relevant document from the relevant court office on the undertaking that the copy document will be returned following the completion of the reporting of the hearing; or
  • by obtaining a press release or statement from the court or member of the Courts Service relating to the proceedings.

Key Considerations

This development formalises what had been quite an ad hoc process which often was a point of contention for both the media and for parties to litigation. It may improve reporting standards as the media will now be able to inspect certain documents from both sides to obtain a fuller picture of the case. However it may also provide a pause for thought among parties to litigation to consider even more carefully the strengths and weaknesses of their case before it is reported in the press.

The guidance note from the Court Service will issue in due course and hopefully will give clarity on what will be deemed to have been opened before the court.