Re Livingstone v Livingstone
[2015] NZHC 2575
•22 October 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
D 2171/1921 and
D 200/1947 [2015] NZHC 2575
UNDER Part 3 of the High Court Rules IN THE MATTER OF
applications for access to the Court files Livingstone v Livingstone D 2171/1921 and Martin v Martin D 200/1947
Hearing: On the papers Judgment:
22 October 2015
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
4 pm on the 22nd day of October 2015
Re Applications to access Court files [2015] NZHC 2575 [22 October 2015]
[1] I had referred to me as Duty Judge two applications to access historic Court files which have been deposited with Archives New Zealand. Both are divorce files and are therefore subject to a standard 100 year restriction on access, pursuant to access authority decisions made under ss 43 and 44 of the Public Records Act 2005.
[2] One of the files presently at issue dates from 1947, the other from 1921. It is safe to say that all the parties directly involved in either will, by now, be dead.
[3] Rule 3.6 of the High Court Rules presently states that the sub-part of those rules dealing with access to court records applies only while the records are in the custody and control of the Court, “until they are transferred to Archives New Zealand”.
[4] This might suggest that there may be something of a lacuna in terms of the rules or principles to be applied in determining issues of access to archived court records. But as I understand it, the practice is that when requests for access are made Archives New Zealand transfers the files back to the court under s 24 of the Public Records Act 2005 and they are thus regarded as, again, being “in the custody or
control of the court” for this limited purpose.1 So the present requests fall to be dealt
with in accordance with the High Court Rules.
The Rules
[5] Those of the rules dealing with access to Court documents at the hearing stage can, for present purposes, be put to one side. Accordingly the requests here must invoke r 3.13, which provides:
3.13Applications for permission to access documents, court file, or formal court record other than at hearing stage
(1) This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.
(2) An application under this rule is made informally to the Registrar by a letter that—
1 See the discussion in the recent Rules Committee paper entitled Consultation on Accessing
Court Documents in Civil and Criminal Proceedings (May 2015) at [73] – [75].
(a) identifies the document, court file, or part of the formal court record that the applicant seeks to access; and
(b) gives the reasons for the application.
(3) The application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar.
(4) On receipt of an application made in accordance with subclause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.
(5) The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.
(6) The Judge or Registrar may dispense with the giving of notice under subclause (5) if it would be impracticable to require notice to be given.
(7) The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.
[6] Also relevant is r 3.16 which provides:
3.16 Matters to be taken into account
In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:
(a) the orderly and fair administration of justice:
(b) the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:
(d) the freedom to seek, receive, and impart information:
(e) whether a document to which the application or request relates is subject to any restriction under rule 3.12:
(f) any other matter that the Judge or Registrar thinks just.
[7] In terms of r 3.16(e), both files are subject to a restriction under r 3.12, which provides:
3.12 Restrictions on access
(1) Any right or permission conferred or given by these rules to access a document, court file, or any part of the formal court record is subject to—
(a) any enactment, court order, or direction limiting or prohibiting access or publication; and
(b) the payment of any prescribed fees for access.
(2) A person may not access a document, court file, or any judgment or order, that relates to a proceeding brought under an enactment specified in subclause (3) unless—
(a) the person is a party to that proceeding; or
(b) the court permits the person to do so. (3) The enactments are as follows:
(a) Adoption Act 1955:
(b) Alcoholism and Drug Addiction Act 1966: (c) Arbitration Act 1996:
(d) Care of Children Act 2004: (e) Civil Union Act 2004:
(f) Family Proceedings Act 1980: (g) Family Protection Act 1955:
(h) Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:
(i) Marriage Act 1955:
(j) Mental Health (Compulsory Assessment and Treatment) Act
1992:
(k) Property (Relationships) Act 1976:
(l) Protection of Personal and Property Rights Act 1988: (m) Status of Children Act 1969:
(n) any former provisions corresponding to provisions of any of the Acts mentioned in paragraphs (a) to (m).
[8] One of the statutes listed, the Family Proceedings Act 1980 (the FPA), governs divorce today. In 1921 and 1947 (being the dates of the files to which access is sought) divorce was dealt with under the Divorce and Matrimonial Causes Act 1908 and the Divorce and Matrimonial Causes Act 1928 respectively.2 It can safely be said that the relevant “correspondence” exists between the provisions of those Acts and the FPA.
The general approach to a request for access
[9] The previous regime required an applicant to show a particular interest in order for access to be granted. That is no longer the case, as confirmed in BNZ Investments Ltd v Commissioner of Inland Revenue.3 That said, the Court is likely to be less sympathetic to a request made by a person who cannot show a “recognisable and legitimate public or private interest” for seeking access. In Commerce Commission v Air New Zealand Ltd Asher J referred to the preliminary requirement under r 3.16 that the Registrar is to:4
… consider the nature of, and reasons for, the application or request …
[10] Then, his Honour said:5
They form a background for the assessment of the relevant matters that are then listed. They will tend to drive the analysis of the six factors. For instance if the purpose is publication to the public by the media, that may lead to a different focus than if the application was by a private person for personal or commercial purposes. Inevitably a Court will be less sympathetic to an application which does not have a recognisable and legitimate public or private purpose.
[11] The Judge also noted that the six matters to be taken into account under r 3.16 are “unambiguously non-hierarchical”.6 This led him to reject any suggestion
that open justice is a paramount consideration in the new access regime.7
2 The Divorce and Matrimonial Causes Act 1928 was replaced by the Matrimonial Proceedings
Act 1963 which was, in turn, replaced by the FPA.
3 BNZ Investments Ltd v Commissioner of Inland Revenue (2009) 20 PRNZ 311 (HC).
4 Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [30].
5 At [30].
6 At [28].
7 At [29]; citing John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101;
Seven Network Ltd v News Ltd (No 9) [2005] FCA 1394 at [23].
Discussion
[12] The starting point is, accordingly, the interest that the applicants have in the files and the purpose for which access is sought. In the present case, both applications are said to be made essentially for the purposes of family research. One applicant thinks, but is not sure, that one of the parties to the 1921 divorce is her great-uncle. She wishes to find out. The other applicant says that he is the second cousin twice removed of one of the parties to the 1947 divorce.
[13] Next, it is necessary to consider r 3.16. The considerations listed there which are most obviously engaged by the present requests are:
(a) the protection of the parties’ confidentiality and privacy interests;
(b) the freedom of the applicants to seek, receive, and impart information; (c) the existence of a r 3.12 restriction.
[14] I record at this point that I do not consider that the principle of open justice is significantly engaged by these applications. Rule 3.16(c) makes it clear that the focus of that principle is the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions. The present applications have nothing to do with that. And as Wylie J has very recently said (in a related, but not identical, context):8
[28] Relationship property claims differ in many respects from other civil proceedings. They arise consequent on the breakdown of a personal relationship, often of some duration. They can, and frequently do, involve significant intrusions into personal privacy, sometimes in a way not entirely related to the substantive legal issues which fall for consideration. Such claims are of interest primarily to the parties themselves. They concern their own personal and often intimate affairs, and those of their family. They do not generally engage the broader public interest.
[29] The Courts have long recognised the need to protect litigants in such cases. While the Family Court is now more open than it once was, it still provides protection to children, and to the vulnerable. Further, it remains the practice of the Family Court to anonymise the names of the parties to relationship property litigation. Similarly, the High Court Rules relating to
8 White v Hewett [2015] NZHC 1749.
searches of court files restrict the right of members of the public to access the formal court record in property relationship claims, and this court also commonly anonymises such proceedings.
[30] In my judgment it is a relevant consideration that the proceedings here in issue arise out of a marriage breakdown. They are proceedings that by their nature involve matters of a private nature, and that only lightly touch on the broader public interest.
[15] That statement appears to me to be entirely consistent with art 14 of the International Covenant on Civil and Political Rights, which requires “any judgement rendered … in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children”. (emphasis added)
[16] Open justice therefore has a limited role in relation to private proceedings of the present kind.
[17] It is convenient to address the matters referred to at [13](a) and (c) together;
there is considerable overlap between them.
Confidentiality, privacy and the r 3.12 restriction
[18] I have set out r 3.12 above. In summary, it relevantly provides that:
(a) the application of the access rules is subject to any enactment, court order, or direction limiting or prohibiting access or publication; and
(b)access to a court file that relates to a proceeding brought under one of the enactments specified in sub-cl (3) is prohibited unless –
(i) the person is a party to that proceeding; or
(ii) the court permits it.
[19] Apart from the Arbitration Act, the enactments specified in r 3.12(3) are all concerned with proceedings involving either family or health matters which are, as Wylie J has emphasised, inherently personal and private. As I have already noted,
the proceedings to which the files relate were brought under the Divorce and Matrimonial Causes Act 1908 and the Divorce and Matrimonial Causes Act 1928 which are antecedents of one of the listed statutes, the FPA.
[20] It is relevant to note that under the 1908 and 1928 Acts “cause” was required for divorce.9 Most, if not all, of the causes or grounds specified in those statutes involved matters which (it may be assumed) the parties would not wish to be publicised (such as adultery, desertion, habitual drunkenness, cruelty, and lunacy). It could therefore be posited that divorce files dated before 1980 might well contain information about the parties that is inherently more personal and private than divorce files after that date.
[21] Also relevant is that those Acts contained express provisions permitting the Court hearing an application for divorce to hear and try the proceedings in camera or in Chambers and also to make an order forbidding the publication of any “report or account of the evidence or other proceedings therein”. Restrictions of a similar sort remain today in many of the statutes listed in r 3.12(3) (including the FPA), which incorporate ss 11B to 11D of the Family Courts Act 1980.
[22] The assumption that files of the present kind are likely to contain personal information about the parties is borne out by the contents of the two files in question. Both contain material that I would describe as private, and even intimate, in nature. For obvious reasons, I do not intend to describe that material in this judgment. Suffice it to say that it is information of a kind that I feel sure that the majority of people would not wish to be made public (if the information were about them). It is also relevant to note that:
(a) Mr Livingstone (one of the parties to the 1921 proceeding) would,
today, qualify as a “vulnerable person” who is specifically protected
by ss 11B to 11D;10
9 Cause was also required under the Matrimonial Proceedings Act 1963.
10 The term “vulnerable person” is defined in s 11D.
(b)the 1947 file contains an order by Christie J dated 18 September 1947 that the hearing be in camera.11
[23] But as I have said, it may safely be assumed that all four parties directly involved in the two dissolutions in question are now dead. The fact that the files are subject to a 100 year access restriction, gives rise to an interesting issue about the precise nature of the interests that are intended to be protected. It is necessary to be clear about those interests in order to determine what weight they should be given.
[24] In its 2008 Study Paper Privacy: Concepts and Issues the New Zealand Law
Commission provides a useful summary of the (rather confused) law in this area.12
The Commission began by noting that the Privacy Act 1993 (the PA) and the Official Information Act 1982 (the OIA) take different approaches to the issue.13 More particularly:
(a) the PA defines “personal information” as information about an identifiable individual, and “individual” is defined to mean a natural person “other than a deceased natural person”;14 but
(b) other provisions in the PA appear to be at odds with this:
(i) the definition of “personal information” in the Act is as
follows (emphasis added):
includes personal information means information about an identifiable individual, and includes information relating to a death that is maintained by the Registrar-General pursuant to the Births, Deaths, and Marriages Registration Act 1995 or any former Act; and
(ii)section 29(1)(a) provides that an agency may decline to disclose information requested by persons about themselves if
11 There is no such order on the 1921 file.
12 Law Commission Privacy: Concepts and Issues (NZLC SP19, 2008).
13 Neither Act directly applies in the present circumstances.
14 Since 2000 the Broadcasting Act 1989 has adopted the same definition for the purposes of its privacy standard.
the disclosure “would involve the unwarranted disclosure of
the affairs of another individual or of a deceased individual”;
(iii)section 46(6) provides that, for the purposes of issuing any code of practice under the Act relating to health information, information privacy principle 11 (disclosure of personal information) shall be read as if it applies to health information about both living and deceased individuals;15
(c) the OIA assumes that dead people can have privacy. Section 9 provides that one of the good reasons for withholding official information is that the withholding is necessary to protect “the privacy of natural persons, including that of deceased natural persons.”
[25] Then, the Commission said:16
Our statutes therefore are unhelpful and confusing on this subject. The case law is also of little help.
When one looks at the question from first principles, there is no doubt that most of us would find distasteful, offensive or otherwise unacceptable, the disclosure of certain information about a deceased person. Examples would include photographs of a dead person showing the injuries from which they died; the intimate health records of a dead person; details of the bank account of a person who has recently died. There must surely be general agreement that such information should not automatically enter the public domain just because the person is dead. Is this, however, a privacy issue? We recoil at photographs of a dead person for a variety of reasons: we find them personally repugnant and upsetting to ourselves; we feel they increase the distress of the family of the deceased; we also feel instinctively that they show disrespect to the dead person. In one case where the question was whether a coroner should have suppressed details about a suspicious death, Heath J spoke of “the need to preserve the reasonable privacy interests of the family of the deceased, and the dignity afforded to a human body.” In the case of the publication of health records, the same reasons are engaged. In both of these cases, then, we may experience a feeling that the dignity of the dead person has been affronted. The publication of bank account details may be different. It may be rather a fear of crime and identity theft that primarily concerns us there.
[emphases added]
15 As the Commission notes, even though these provisions do not use the word “privacy”, they clearly envisage that there is some information about deceased persons which is sensitive enough to merit protection.
16 At [8.34]-[8.35].
[26] My own review of the (limited) overseas authorities suggests that there are
(at least) three points which emerge.
[27] The first is that an individual’s personal privacy rights, strictly so-called, are considered to terminate on death.17
[28] The second is that some obligations of confidence (and in particular the obligation of confidence owed by doctors to patients) may endure beyond the confider’s death. In Lewis v Secretary of State for Health, Foskett J held (after reviewing the limited authorities on the subject) that it was “arguable” that the obligation of confidence is capable of surviving the death of a patient.18 My impression is that the Judge was, indeed, attracted by the proposition. He noted that the learned authors of Toulson & Phipps on Confidentiality have said:19
Equity may impose a duty of confidentiality towards another after the death of the original confider. The question is not one of property (whether a cause of action owned by the deceased has been assigned) but of conscience.
[29] Foskett J also noted, however, that the time for which any such obligation of confidentiality might endure would vary according to the circumstances.20
[30] And the third point is that family members of someone who has died may have their own privacy interests in certain matters relating to the person’s death (and possibly, their life21). As the New York Court of Appeals said over 100 years ago:22
It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased.
17 Mark Warby QC Nicole Moreham and Ian Christie (eds) Tugendhat and Christie The Law of
Privacy and the Media (2nd ed, Oxford University Press, Oxford, 2011) at [8.65].
18 Lewis v Secretary of State for Health [2008] EWHC 2196.
19 R G Toulson and C M Phipps Confidentiality (2nd ed, Sweet & Maxwell, London, 2006) at
[11.054].
20 The Judge also referred to Éditions Plon v France [2004] ECHR 200.
21 Messrs Manches on behalf of the Tolkien family and Sunday Mercury, UK PCC, 26 January
2003 (Report 62).
22 Schuyler v Curtis 42 NE 22 (NY 1895) at 25.
[31] And in R v Broadcasting Complaints Commission ex parte Granada the
Court said:23
In my judgment it would be an unacceptably narrow interpretation of the meaning of privacy, and contrary to common sense, to confine it to matters concerning the individual complainant and not as extending to his family. Such an interpretation would also be inconsistent with the existing jurisprudence:-
(1) Article 8(1) of the European Convention of Human rights provides that:
"Everyone has the right to respect for his private and family life....."
(2) The French law of privacy covers family, personal and sexual matters - the Calcutt Report, para. 5.12.
(3) The Calcutt Committee adopted a formulation of privacy for working purposes in the following terms:-
".... the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family [my emphasis]....." - para. 3.7.
(4) At least some American jurisdictions seem to recognize that a father's privacy may be invaded by a reference to his daughter. Thus in Cox Broadcasting Corporation v. Cohn (1975) 95 S.Ct. 1029, the father of a deceased rape victim sued a broadcasting company for damages for the invasion of his privacy, by reason of the publication of his daughter's name. The Supreme Court of Georgia did not rule out the claim as inadmissible, and the Supreme Court of the United States made no adverse comment on this part of the case, although that was not the issue before it.
[32] The issue was also considered by the United States Supreme Court held in
National Archives and Records Administration v Favish.24
[33] In the present case, however, it is not possible (or at least not practicable) to make inquiries of the immediate families of the parties as to any objections they
might have to the disclosure sought. As I have noted, the applicants are, or might be,
23 R v Broadcasting Complaints Commission ex parte Granada 1994 EWCA Civ J 1214-3.
24 National Archives and Records Administration v Favish 541 US 157 (2004). The facts of that case concerned an application by Mr Favish (who appears to have been a conspiracy theorist)
under the Freedom of Information Act 5 USC § 552 for access to public records comprising
photographs showing the scene of the suicide of Vincent Foster Jr, who had been deputy counsel to President Clinton. The question was whether disclosure of the photographs “could reasonably be expected to constitute an unwarranted invasion of personal privacy” (the Act excused records “compiled for law enforcement purposes” from disclosure on that ground). The “personal privacy” at issue was not that of Mr Foster but of his family.
themselves members of the families concerned. And given the passage of time any direct privacy interests that (for example) children or parents of the parties might have had in the information would necessarily have diminished.
[34] But I also propose to proceed on the conservative basis that certain obligations of confidentiality may survive death. Obviously, I have not had the benefit of argument on the point.
[35] As far as the Livingstone file is concerned, I note the following:
(a) there is information on the 1921 file about Mr Livingstone of a broadly confidential kind;
(b) the file is 94 years old, which means that:
(i)to the extent that any specific obligation of confidentiality (of the doctor/patient variety) once attached to the information it is unlikely to enure; and
(ii)the 100 year restriction period has, in any event, nearly expired.
[36] As far as the Martin file is concerned:
(a) there is information on the 1947 file that, in my view, would have been the specific subject of an obligation of confidence between Mrs Martin and her doctor but which was disclosed to the Court for a limited and specific purpose and in camera;
(b) it also contains information of a broader confidential kind about
Mr Martin;
(c) the file is 68 years old which means that it is more arguable that the confidentiality obligation enures.
The freedom of the applicants to seek, receive, and impart information;
[37] Freedom of expression, or the freedom to seek, receive, and impart information is a right that is recognised and confirmed by s 14 of the New Zealand Bill of Rights Act 1990. But as I have noted above, even the International Covenant on Civil and Political Rights recognises that there may be limits to that right in relation to judgments concerning (inter alia) matrimonial matters. If judgments of that kind may be in a special category of protected communication, it necessarily follows that the files to which the judgments relate are also likely to be in that category. In short, the law recognises and has always recognised that the freedom possessed by members of the public to seek and receive information is limited where the information concerned is private in nature.
Disposition
[38] After balancing all the factors I have discussed above I consider that:
(a) The application for access to the 1921 file may be granted in its entirety, in large part because the effluxion of time has lessened any privacy interests or obligation of confidentiality that existed in the information contained in it;
(b)The application for access to the 1947 file is granted other than to the information contained in the “On His Majesty’s Service” brown envelope with “Medical report” written on it. Access is denied to the information contained in that envelope on the grounds of doctor/ patient confidentiality which, in all the particular circumstances of
this case, I consider still exists.
Copies to: K Leota and K Livingstone
“Rebecca Ellis J”
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