This Article examines the effect of freedom of information legislation on criminal discovery in the United States, Canada, Australia, and New Zealand. While all of these countries share the common law tradition and have comparable freedom of information legislation, Professor Taggart notes that the impact of that legislation on the law and practice of criminal discovery varies in each country.
The United States courts generally have resisted attempts by criminal defendants to gain access to a wider range of material under the Freedom of Information Act than available by conventional discovery. So far the courts are unwilling to allow that Act to supplement, and thereby possibly supercede, the discovery provisions of the Federal Rules of Criminal Procedure.
Examination of freedom of information legislation in Canada discloses little likely impact on the law and practice of criminal discovery. At the federal level, broad law enforcement exemptions nullify the practical use of the Access to Information Act by criminal defendants. Provincial freedom of information legislation in Canada either exempts from disclosure material desired by criminal defendants, does not cover law enforcement agencies or prosecutorial authorities, or, to date, has not been used for criminal discovery.
The language of Australia's federal and state freedom of information Acts appears to allow scope for criminal discovery-motivated requests by criminal defendants. Courts and administrative tribunals, however, have been hostile to freedom of information requests in aid of criminal discovery.
Criminal defendants seeking broader disclosure than conventional criminal discovery allows have had much greater success under New Zealand's Official Information Act. The key New Zealand case interpreting the reach of that Act held that criminal investigations by the police, before criminal charges are laid, will be protected from disclosure; however, once criminal proceedings are begun, the Act has been interpreted in favor of disclosure. At this point, the defendant's right to a fair trial has been said to prevail over the interest in investigative secrecy.
The Impact of Freedom of Information Legislation on Criminal Discovery in Comparative Common Law Perspective,
23 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol23/iss2/1