Open justice matters. Justice must not only be done; it must be seen to be done. This is a vital prerequisite to the rule of law. People must see justice being done to understand it, to anticipate law’s intervention in their own lives, to interrogate the actions of those who administer it, and to hold them to account. There is a broad-based attachment to open justice in society as a whole, but an assumption of the paramount importance of openness and transparency is engrained into lawyers. Not for nothing was the most famous dictum about open justice pronounced in a suit to annul a marriage because of the husband’s impotence. Open justice prevailed, even then, over consideration for the sensibilities of the parties.Footnote 1
Even lawyers recognise that open justice is not an inviolable and absolute principle. It is a mutable bundle of principles or values, the implementation of which is context specific and negotiable.Footnote 2 It will be weighed against other considerations, including the efficacy and efficiency of the judicial system, privacy, and public safety.Footnote 3 There is, though, a strong presumption that court proceedings will be open and public, and that the associated records will be available for third-party inspection.
Open justice is more often discussed in relation to the public trial.Footnote 4 Here, however, we focus on third-party access to court records.Footnote 5 In a justice system which is increasingly reliant upon pre-trial process and written proceedings,Footnote 6 this is more important than ever before. Reflecting this, the Transparency and Open Justice Board identified ‘open documents’ as one of the four ‘fundamental components’ of open justice.Footnote 7 Within the archives, however, the link between records access and open justice is less clear. Questions around records access, and limits to access, have long been,Footnote 8 and remain,Footnote 9 subject to debate. Here we seek to understand why. First, however, we must understand the nature of the records, and the justice system’s provision for third-party access to them.
THE NATURE OF COURT RECORDS AND THIRD-PARTY ACCESS IN THE JUSTICE SYSTEM
The identity and character of court records: ambiguity and complexity
What we mean by ‘court records’ is not, in fact, entirely clear.Footnote 10 Their definition under the Public Records Act 1958 (PRA 1958, schedule 1, part 2, paragraph 4) is not unambiguous; nor is a definition to be found elsewhere. We define court records here as records created by, or submitted to, the courts.Footnote 11 However defined, their content and form raise complex questions around access and the balance struck between open justice and other considerations.
All of life comes before the courts – whether civil or criminal – and legal proceedings entangle a diverse, sometimes unpredictable, and often surprisingly multitudinous array of parties and witnesses with the justice system. The records created, or otherwise held by the courts, contain a wealth of personal, professional or commercial information, some of it sensitive, about numerous individuals;Footnote 12 for the justice system’s record-drafting habits are pre-disposed to data maximisation, rather than minimisation. So, affidavits record the names, addresses and office / profession of witnesses. Witness statements taken by the police often record the name, age, address, relationship status and occupation of the witness. Questions around access to such information, particularly for more modern cases, often raise many competing considerations.
Sometimes court records raise difficult questions only because they contain information relating to multiple individuals. The information itself is formal, sparse, predictable, and formulaic. Of this type, assize crown minute books are an example. The contents of other records, however, will be far richer, more variable and less predictable. Crown court case files provide us with an excellent example – relating often to a single defendant but containing diverse information types and forms about multiple individuals. Balancing the interest in access and open justice against the privacy and health and safety of numerous data subjects and their families (and other factors) is an inherently complex task. The outcome will be context specific, and often depends on decision makers’ professional judgement.
THIRD-PARTY ACCESS TO COURT RECORDS HELD BY THE COURTS
The courts identify third-party access to (at least some) of their records as being vital to open justice, which they regard as a foundational value.Footnote 13 Judges give open justice as a key reason for which the courts keep records,Footnote 14 and they appeal to it to defend their inherent jurisdiction to grant third-party access to those records.Footnote 15
The courts’ Rules and practice reflect their commitment to access and open justice. They do not confer an absolute right to third-party access,Footnote 16 but manifestly the commitment to open justice weighs powerfully in favour of such access. So, Rule 39 of the Rules of the Supreme Court confers a general right for third parties, upon an application to the registrar, to inspect any of the records held by the Court. Similarly, Rule 5.4C of the Civil Procedure Rules 1998,Footnote 17 and Rules 5.8–5.10 of the Criminal Procedure Rules, provide third-party access to specified types of information held by the courts. Strikingly, these Rules are regarded as expressing only a minimum expectation. In most instances, the courts will grant far wider access.Footnote 18
OPEN JUSTICE AND THIRD-PARTY ACCESS TO COURT RECORDS IN THE ARCHIVES
The ways, and contexts, in which archives engage with questions around open justice and access are more complex and contested than those of the justice system. Given that the implementation of open justice is both negotiable and context specific, this is unsurprising. Here, we explore why.
A difference in ‘first principles’
The first reason is a difference in ‘first principles’. The status of open justice is not the same in the archives as it is in the justice system. Despite synergies between open justice and the democratic and inclusive trend of current archival sector policy and strategy,Footnote 19 open justice is rarely openly referred to, rather than silently implied, within the fabric of the public records system, which largely pre-dates the justice system’s current concern with it.
The Public Records Act 1958 (PRA 1958) does not mention it. True, the Freedom of Information Act 2000 (FOIA 2000) takes access to information (and by implication open justice) as a starting point. The Data Protection Act 2018 (DPA 2018), however, appears to weigh in the opposing direction – though, like the General Data Protection Regulation (GDPR, article 89), it provides for the processing of personal data in the public interest, including to support activities to promote democratic engagement (DPA 2018, section 8).
The proceedings and report of the Committee on Legal Records (the Denning Committee), which undertook the last comprehensive review of policy and practice in respect of archived court records, scarcely mentions open justice concerns.Footnote 20 Neither, generally, do the relevant record retention and disposition schedules or operational selection policies.Footnote 21 Perhaps, though, as these documents are revised and updated, this may change – especially since open justice concerns are driving much justice system-led reform – including the development of free digital access to other types of legal material (see Find Case Law https://caselaw.nationalarchives.gov.uk/ and Legislation.gov.uk https://www.legislation.gov.uk/).
The diversity of users and uses for archived court records
The next source of difference is the breadth of archival audiences and, relatedly, the diversity of their uses of court records. Both are, one suspects, markedly more heterogenous than those encountered within the justice system.
Generally, this breadth and diversity of user and use is evidenced in the Archives and Records Association’s visitor survey.Footnote 22 From this, we see that nearly 40% of users had not regularly used the archive in which they were surveyed. Only 37% were conducting academic research, while 52% were completing research in family or local history, and the remaining users were there for a variety of other reasons. For court records specifically, internal statistics on the use of The National Archives’ (TNA) online research guides suggest significant demand for information about court records. The overview guides for criminal justice and civil justice records, and the more detailed guide on crown court records, sit comfortably within the top 10, by user numbers, of circa 359 guides (with 85,000, 80,000, and 94,000 users respectively for June 2023 to July 2024).Footnote 23 Impressionistically, TNA staff see diversity of user and use in the online and in-person enquiries which they address. In any given month these might include questions from legal practitioners, charities and public interest groups, all kinds of amateur and professional researchers, litigants in person, victims/survivors of crime, offenders and ex-offenders, government departments, police investigative teams, journalists and bodies such as the Criminal Cases Review Commission.
In consequence, court records have a long and varied life once they have passed beyond the custody of the justice system. During this, they are used in ways which could not have been imagined or anticipated by their subjects and creators.Footnote 24 Archives themselves contribute to this as they strive to engage new, and potentially larger and more diverse, audiences with the records in new and different ways in a rapidly changing social and technological landscape. This shifting landscape, together with the diversity of users and usage, shapes the ways in which archives respond to questions around open justice and access.
The number of decision makers in the public records system
The implementation of open justice is negotiable and context specific. Those making decisions about records access are required, therefore, to exercise professional discretion and judgement as they balance competing factors. Within the public records system, a multitude of decision makers exercise such discretion and judgement since, under the PRA 1958, record creators determine the access conditions applied to their records upon transfer. The many different archives which receive them have then to implement those access conditions.Footnote 25
Variations in the implementation of open justice and access are a natural consequence, whether intentional or not, of reliance upon the professional discretion and judgement of numerous decision makers located within different contexts.Footnote 26 We see this in the access history, given in its online catalogue, of the assize records held at TNA. This reveals that, while the crown minute books for most circuits are fairly consistently closed for the late 1940s onwards (or at least from the early 1950s), those for the Northern and North Eastern circuits are open down to 1971,Footnote 27 and the equivalent records for the Central Criminal Court are closed from 1926.Footnote 28
Until relatively recently, even the guidance provided to the courts by their supervising department contributed to a varied picture of implementation. Now the responsibility of the Ministry of Justice, oversight of court records was previously divided between the Lord Chancellor’s Office and the Home Office. These departments, which oversaw the deposit of records of different types to archives with very different users and contexts, sometimes diverged markedly over access conditions.Footnote 29
Archives, too, contribute to variety and diversity in the implementation and experience of open justice and records access. Each of the myriad archives in which court records are deposited will decide whether or not to adopt a scheme granting privileged access to closed records. Each will set the procedure through which, and the criteria under which, privileged access will be granted. Some archives run such schemes, others do not. The relevant procedures, access criteria, and conditions vary from place to place.Footnote 30
The dynamic nature of policy and legislation and its consequences in the archives
Legislation, and the policy which underpins it, are other causes of diversity and complexity. They are dynamic – shifting over time. The FOIA 2000 and the DPA 2018, though they cross-refer extensively, demonstrate this. The FOIA 2000 derives from the late 21st Century drive for open government. Pursuing this, it confers a general right of access to information held by public authorities (section 1), albeit one which is subject to a series of exemptions (sections 2 and 21-44).
The DPA 2018, by contrast, is the fruit of the digital age. It responds to concerns about the difficulty of controlling the dissemination of the wealth of digital data which we generate during our lives, to the desire for privacy, and to fears about the misuse of personal data. Whereas the FOIA 2000 starts with a right to access, which is then subject to exceptions, the DPA 2018 begins almost with a general prohibition on processing / access, to which exceptions are made for access / processing for legitimate purposes, providing always that the rights of the individual are adequately safeguarded (section 2).
Archival development, by its nature, captures the consequences of these shifts in policy and legislation, and of the interventions of numerous decision makers during their implementation, in ways which are not always entirely predictable, and sometimes create a perception of inconsistency. In general, accessioned records remain under the access conditions subject to which they were transferred to the archives. These may, given shifts in policy and legislation, contrast sharply with those applied to similar records which were accessioned at a different time. So, for example, many crown court case files were transferred as open documents at the height of the drive for open government. By contrast, all but the earliest batches of crown court indictment files were transferred subject to a blanket 100-year closure following the implementation of the DPA 2018.Footnote 31 Sometimes, however, shifting regulatory regimes, sensibilities, and record uses will prompt institutional audits, reclosure exercises and individual requests for access or reclosure. These may make substantial inroads into the status quo ante.Footnote 32
There are evidently, then, many reasons why the implementation of open justice and access looks less homogenous, and more complex and contested, in the archives than it generally does in the justice system. This becomes most obvious when we attempt to navigate the matrix of legislative provisions and regulatory guidance which archives are required to apply.
A CASE STUDY IN COMPLEXITY: APPLYING THE FOIA 2000, SECTIONS 38 AND 40 (AND CORRESPONDING SECTIONS OF THE DPA 2018) TO ARCHIVED COURT RECORDS
An initial survey of the legislation suggests two prima facie challenges facing those responsible for its application. The first is divergence in the language used. While the PRA 1958 refers to ‘records’, the FOIA 2000 refers to ‘information’, and the DPA 2018 is concerned with (personal) ‘data’. These are not necessarily the same thing. The second concerns the scope / focus of the legislation. Unlike the PRA 1958, the FOIA 2000 and DPA 2018 are designed for general (rather than sector specific) application. True, the DPA 2018 makes provision for ‘archiving in the public interest’, scientific and historical research, and statistical purposes (DPA 2018, section 19),Footnote 33 but the legislation’s impact on archives and historical research (rather than scientific research and statistics) was little debated during its passage through Parliament. Neither statute was designed specifically with archives and (non-scientific or statistical) research in mind.
In highlighting these things as potential indicators of difficulty or complexity, we may be accused of legalistic nit-picking. The formidable nature of the task confronting archives, as they attempt to apply the legislation is, however, irrefutable. We will demonstrate this, using two examples.
The FOIA 2000, section 40: personal data
To determine whether information is personal information/data, which should be exempt from disclosure under FOIA 2000, section 40, archives and other decision makers must apply the legislative definitions. The FOIA 2000 and DPA provide slightly different, but broadly aligned, definitions. The FOIA 2000, section 40, defines personal information as information which permits a living individual to be identified. The DPA 2018, section 3, defines it as data which refers to an identified or identifiable living individual. Regulatory guidance advises that, in deciding whether information / data falls within these definitions, record-holders must consider the likelihood that disclosure would lead to identification. Factors affecting this will include: the effects of the passage of time, the size of the group to which an individual belongs, and the impact of technological advances (mosaic identification).Footnote 34
If information/data is personal data, then the exemption under the FOIA 2000, section 40 will apply if disclosure would contravene the data principles enshrined in the DPA 2018. These require that personal data should be processed in a way which does not breach the rights of the data subject (for which see DPA 2018, sections 45 – 47), and which is lawful, fair and by consent or on some other lawful basis (see DPA 2018, section 2, and sections 8 and 19). Assuming that the lawful basis of the processing is clear (being archiving in the public interest), the key question is whether the proposed disclosure / access / processing is fair to the data subject.
Factors affecting fairness may include: the extent to which the information is already in the public domain and is still known about, the form in which the information is to be made available, the risk that disclosure will cause harm to the data subject, their views about disclosure, and their expectations (or not) of privacy. Questions of fairness will then play into the general attempt to balance the public interest in disclosure / access / processing against competing factors which militate against it.Footnote 35 The statute’s application, therefore, very evidently relies upon case-specific determinations of fact and the exercise of professional judgement. Given this, it is reasonable to expect that the decisions made may, on occasion, prompt debate and disagreement.
The FOIA 2000, section 38: health and safety
Under the FOIA 2000, section 38, information will be exempt from the general duty to disclose if such disclosure “would, or would be likely to… endanger the physical or mental health” or “safety” of an individual. Mirroring this, but using incompletely aligned language, the DPA 2018, section 19(2) and schedule 11, paragraphs 13 and 14, provide that processing will not be considered to be fair, or to contain adequate safeguards for individual rights, if it is likely to cause “substantial damage or substantial distress to a data subject”. In such circumstances processing which would otherwise be lawful becomes unlawful. Taken together, these provisions raise potentially difficult questions about the degree and type of harm required to trigger the exemption, and about causation.
To understand what might constitute ‘substantial damage’ or ‘substantial distress’ archives must refer to the published guidance. This provides that, determined on a case-by-case basis, ‘substantial damage’ may include financial loss, economic or social disadvantage, physical or reputational harm, loss of confidentiality and a deprivation of rights. It states that ‘substantial distress’ may include ‘upset’, or ‘mental and emotional pain’. It does not, however, include ‘annoyance’, ‘anger’ or ‘strong dislike’. The degree of risk, and the severity of the damage or distress likely to be caused, must then be balanced against the public interest in disclosure / access / processing.Footnote 36
Turning to the question of causation, the exemption under FOIA 2000, section 38 will only apply if the disclosure will, or is likely to, cause harm or distress. The harm or distress must derive from, or be likely to derive from, the disclosure. Factually, this link may be difficult to establish or disprove. The extent to which information is in the public domain and still known about may, for example, be difficult to determine or the subject of disagreement. Then again, how does the record holder determine what is ‘likely’ to happen? Just like the FOIA 2000, section 40, the application of section 38 is evidently dependent upon the exercise of professional judgement and discretion, as decision makers must make case-specific determinations of fact and undertake complex balancing exercises. That the outcome will sometimes cause disagreement and debate, is inevitable.
CONCLUSION
To conclude, open justice is not an inviolable and absolute principle. Its expression and implementation are negotiable and context specific. We should, therefore, recognise that it may quite properly be expressed or implemented differently within the justice system and the archives. Indeed, it may be expressed and implemented differently by different record creators within the justice system, and by different record holders within the archival sector. Further, its mutable and negotiable character, means that its implementation depends upon the exercise of professional judgement and discretion which will, like the shifting character of the policy and legislative landscape, contribute to variability. Undeniably, consistency and clarity of outcome are desirable; but we can see why achieving them will be challenging in practice.
The justice system’s ideological attachment to access and open justice is unequivocal. By contrast, the appeal to ideals of open justice and access is, in the archives, more equivocal and contested. In archived court records, however, we find a location at which these different worlds or viewpoints intersect – where the world of the justice system meets that of the archives. For, even when they are physically (or virtually) located in the archives, court records never entirely and unequivocally belong to that world. The boundary between ‘legal’ time and ‘historical’ time – that is between the time within which records have current legal relevance (and ‘belong’ to the justice system) and that in which their significance is purely historical (and they ‘belong’ to the archives) – is inherently and unpredictably permeable. Court records may move fluidly between these two ‘times’ or worlds as they are called upon for purposes which are as varied as their users.Footnote 37
Recognising this, the justice system collaborates with archives in developing the archival policy and practice applied to court records. This, though, largely happens beyond the public gaze. I conclude, then, with two interrelated questions. First, would more open and visible collaboration, between the justice system and the archives, enhance efforts to reflect upon points of commonality and difference in the expression and implementation of access and open justice? Second, would this empower decision makers more effectively to engage with, and address, the ways in which the different contexts, users, and uses of court records may shape their treatment in divergent and context specific ways?Footnote 38
