Most ATI laws that extend the right to information to judicial bodies do so only insofar as they perform “administrative functions according to national law”. This, for instance, is the language in Article 1.2.a.i.2 of the Council of Europe Convention on Access to Official Documents, reflecting the scope of coverage of the laws of virtually all of the Council of Europe’s member states.
Such terms as “administrative information” and “information about administrative functions” are not particularly helpful, however, as they cover different information in different countries, as discussed in the section on Administrative Information and Proactive Publication.
Many countries have increasingly recognized a public right of access to all (or virtually all) judicial information, including final and interim case orders, case files, criminal investigations and hearings. In some countries, the right is codified in an ATI law; in others, access is provided pursuant to constitutional principles of “transparency,” “publicity” or “democratic accountability;” criminal and civil procedure codes; laws on public procurement and ethics; judicial regulations; or simply the court’s own conclusion that transparency builds public confidence and reduces opportunities for maladministration and corruption. See subsection on Judicial Branch: Case Information.
Even in countries without an ATI law applicable to the judicial branch, judiciaries are required to, and/or do in fact, make public a considerable amount of information about their judicial functions – including case law, case files and judicial proceedings – as well as administrative functions, although in general, less information than in countries with ATI laws.
Two main arguments are generally advanced as to why both the judical and legislative branches should be exempted from full coverage of ATI laws. For a summary of these arguments and reasons as to why we find them unpersuasive, see the opening paragraphs of the section on the Legislative Branch.
Regarding the judiciary a third argument is often advanced as well, namely that judicial authorities should be exempt because they hold mainly sensitive information, such as materials in case files and investigations in criminal proceedings. This argument contradicts the very idea of a right of access to information, however, which implies that information should be open unless a compelling public or private interest demands otherwise.
Recommendation: The fact that a document is held by a particular type of institution is irrelevant to whether its disclosure affects a compelling public or private interest. Just because some institutions hold more sensitive information than others does not mean that they should categorically be removed from the ambit of the law; they still hold some information that is not exempt. The deciding factor should always be whether disclosing a particular document will lead to an overriding harm to another important interest, not what type of body holds the document. Any other rule is bound to lead to information being withheld against the greater public good.
Major categories of important information that often are not required to be disclosed include statistics, e.g. concerning the number and length of cases handled by each judge or court; statements about the procedures courts follow in handling cases; and information about judge’s qualifications and the processes and criteria by which they are selected, promoted and disciplined. Moreover, in many countries, courts are not obliged to publish their decisions and the reasoning for those decisions, in part owing to exaggerated concerns to protect privacy of litigants, and in part because the guiding culture of the judiciary is to protect the interests of litigants and not wider societal interests. Fortunately, this culture is changing in many parts of the world, as demonstrated by the information collected in the sub-sections below.
Most of the detailed information in this section concerns 10 countries in Latin America, six of which have ATI laws that expressly apply to the judiciary (Dominican Republic, Ecuador, Honduras, Mexico, Panama and Peru); three of which have constitutional but not statutory protections of access to information held by the judiciary (Argentina, Chile and Colombia); and one of which has neither constitutional nor statutory protections (Uruguay). This information is drawn from a study, Disclosing Justice. Access to Judicial Information in Latin America (2007), published by the Due Process of Law Foundation (DPLF). The information in the DPLF study is organized by country, with an analytic chapter at the end. The Justice Initiative rearranged the information so that it is presented on this website by subject matter. Any errors that have resulted from this restructuring are the responsibility of the Justice Initiative.
Information concerning European countries was provided by Access Info Europe, and experts from several countries: Professor Dr. Frankie Schram; Leuven and Antwerp Universities, and Member and Secretary of the federal Commission for Access to Documents, Belgium; Paul Schabas, partner, Blake, Cassels & Graydon LLP; Oluf Jørgensen, Journalisthøjskolen, Århus, Denmark; Roger Errera, member of the Conseil d’Etat, France; Professor Dr. Dr. Christian Tomuschat, Humboldt University (Berlin); Professor Maeve McDonagh, University College Cork, Ireland; Professor Wouter Hins, Constitutional and Administrative Law, University of Amsterdam, and Media Law, Leiden University; Nataša Pirc Musar, Commissioner for Access to Public Information of the Republic of Slovenia; Advokat Ulf Öberg, Managing Partner, and Gunnar Persson, juris doctor, of the law firm Öberg and Associés (Stockholm). The US-based law firm Ropes & Gray LLP made available an analysis of the rules and practices governing access to court records in various jurisdictions, including Canada and the United States. Roy Peled contributed information about Israel, and the Commonwealth Human Rights Initiative sent information about India.