What is the best way to gain access to documents for proceedings in a court or tribunal?
If you are a party to court or tribunal proceedings and need documents for your matter, an FOI application may not be the best way forward. That is because even if documents are relevant to legal proceedings, they may still be exempt from disclosure under the FOI Act.
Instead, you can use the court or tribunal’s own processes to seek access to documents for your legal matter. For example, you can ask the court or tribunal to issue a subpoena.
This will generally be a more useful way to obtain access to documents for a hearing, as the exemptions in the FOI Act will not apply. In addition, the production of documents for your matter will be factored into the court’s timetabling, ensuring documents are available before the hearing.
Because the FOI and judicial processes are for different purposes, a document exempt from disclosure under the FOI Act may be ordered to be produced for court or tribunal proceedings.
An important point of difference is that documents disclosed under FOI legislation may generally be used for any lawful purpose, including sharing them with others. By contrast, documents produced by order of a court or tribunal for the purposes of proceedings may not be used for any other purpose. This is known as the implied undertaking or the Harman undertaking.
For information about how to apply for documents in a court or tribunal, contact the registry of the relevant court or tribunal. Information is often available on court or tribunal websites at State Administrative Tribunal of Western Australia or Magistrates Court of Western Australia.
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