Bar Journal - Summer 2006
Associated Press, et al. v. State of New Hampshire: Access to Divorce Litigants’ Financial Information
By: Michael Litzau
Do You Want To Know a Secret?
The Supreme Court Voids the Legislature’s Attempt To Restrict
Public Access to Divorce Litigants’ Financial Information
Roughly half of all marriages end in divorce.1 Of those, many do not end without prolonged litigation. As a result, parties must file documents with courts containing personal financial information that would not otherwise be available to the public. There are few things people guard more jealously than their financial information, and on its face, it seems unfair that this personal information can be laid bare for public inspection simply because a person is engaged in divorce litigation.2
Juxtaposed with the notion of privacy in financial information is the public’s right of access. In New Hampshire, the public’s right of access to government records and proceedings is explicitly provided for in the state constitution.3 Furthermore, the constitution dictates that “the public’s right of access . . . shall not be unreasonably restricted.”4 The New Hampshire Supreme Court has held that because of the state constitutional mandate, financial records in divorce cases must be made available to the public.5
Responding to the burden that divorce litigants faced in sealing their affidavits,6 and the relative ease with which members of the public could petition for access, in 2004, the New Hampshire legislature enacted RSA 458:15-b.7 The statute automatically sealed financial affidavits in domestic relations cases and placed the burden on the party seeking access to the information to demonstrate a public interest in its disclosure.8
The Associated Press and other news organizations challenged the constitutionality of the statute.9 They alleged that the statute violated the public’s constitutional right of access to government proceedings and records.10 The New Hampshire Supreme Court upheld the provision that automatically sealed financial affidavits, but struck down the part of the statute that placed the burden on the party seeking disclosure. The Court held that the state constitution required that the burden to keep the information private be placed on the party opposing disclosure, i.e., the divorce litigant.
This article first provides background on the right of access in general, the right of access provisions in the New Hampshire constitution, and the legislative history of RSA 458:15-b. Part III discusses right of access case law in New Hampshire before Associated Press. Part IV examines the Court’s opinion and reasoning in Associated Press. Finally, Part V analyzes the Court’s justification for upholding RSA 458:15-b, I and argues that automatic sealing provisions are an unreasonable restriction on the public’s right of access.
II. Background to Associated Press
Historically, court proceedings and records have been open and available to the public.11 Both the federal and New Hampshire constitutions incorporate this common law tradition.12 Although the federal constitution does not explicitly provide for a right of access, the United States Supreme Court has held that the public’s right of access to court proceedings and records is implicit in the First Amendment.13 The U.S. Supreme Court explained that “public access . . . is one of the numerous checks and balances of our system, because contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”14
In contrast to the federal constitution, the New Hampshire constitution explicitly provides for a public right of access.15 Thus, the state constitution “provides greater textual support to the constitutional right of access than does the First Amendment.”16 In Associated Press, the Court noted that the state constitutional right of access provision was amended to “further this [common law] tradition of open court proceedings and records, consistent with the purpose of assuring, among other things, the accountability of the judiciary.”17
A. The Right of Access in the New Hampshire Constitution
New Hampshire is one of only a few states to explicitly provide for a right of access in its state constitution.18 The New Hampshire constitution mandates that the people are sovereign,19 provides that the government is accountable to the people,20 and as such, that the people have a right of access to government proceedings and records.21
The first sentence of Part I, Article 8 was included in the 1784 Constitution and is based on Part I, Article V of the Massachusetts Constitution.22 Before 1976, Article 8 did not provide any means by which people could hold the government accountable.23 Added in 1976, the last two sentences of Article 8 call for an express method of governmental and judicial accountability by providing a public right of access to government proceedings and records.24 During the 1976 constitutional convention, the Bill of Rights committee recommended amending Article 8 by adding the public’s right of access to governmental proceedings and records.25 The committee noted that “the right [of access] was extremely important and ought to be guaranteed by a constitutional provision.”26 One of the main reasons for the 1976 amendment was to safeguard the right of access.27 The sponsor of the amendment explained that the legislature “can’t go and completely repeal the right to know.”28 In other words, the amendment “prevented the legislature from completely doing away with the right to know.”29
In Hughes, the Court commented on the purpose of Article 8, noting that “the public’s constitutional right of access is meant to satisfy an ‘end’; to wit, that government should be open, accountable, accessible and responsive.”30 In Petition of Union Leader, the Court stated that “[public] access is critical to ensure that court proceedings are conducted fairly and impartially . . . and that the judicial process is open and accountable.”31 Furthermore, any attempts to restrict the public’s constitutional right of access “must be examined in light of the ability of the public to hold government accountable absent such access.”32
In addition to Part I, Article 8, the Supreme Court has recognized that the right of access is “grounded” by the “free speech clause” of the New Hampshire constitution.33 Part I, Article 22 provides that “[f]ree speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.”34 In cases involving the right of access to court proceedings and court records, the Court has relied on both Articles 8 and 22 as the basis for the state constitutional right of access.35 In Petition of Union Leader, the Court noted that the right of access to court proceedings and records “is firmly supported by New Hampshire practice and common law principles, Part I, Articles 8 and 22 of our State Constitution and our guidelines for public access.”36
B. RSA 458:15-b
During the 2003 session, the New Hampshire legislature introduced House Bill 384, “[a]n act relative to financial affidavits in domestic relations cases.”37 In the House Journal, the House Committee on Commerce provided insight into the legislature’s intent:
Financial affidavits used during divorce, separation, annulments are statements of a personal nature and should not be made public since it accomplishes no public purpose. Most states do not include financial affidavits in the court file, but are kept by the clerk of courts and available to all.38
At a Senate Committee on Judiciary hearing on House Bill 384, Senator Robert Clegg discussed what constitutes a sufficiently compelling interest to overcome the constitutional presumption of access:
[Y]ou are saying that . . . the State’s compelling interest  to protect the juveniles are [sic] okay. So, if I take that one step further, then the State has a compelling interest to protect people’s financial data. This bill now is no longer unconstitutional. We can argue all day long that protecting personal information is the same as protecting juvenile information. If one is constitutional, then the other one must be as well.39
In response, Theodore Kamasinski noted:
Your Constitution says the court is open. You want to take a value and say that the financial affidavits of an individual overcome that constitutional right. The court has already ruled on that. . . . You are protected, the individual is protected, because the court will always make a balancing test to see if . . . the public’s right to know outweighs . . . the person’s right to privacy. . . . [The Court] ha[s] already made that determination and they did it in the Douglas case.40
During another Senate Committee on Judiciary hearing, Senator Andrew Peterson discussed the provision of the bill that placed the burden on the party seeking disclosure to prove that the public interest outweighed the interest in keeping financial affidavits private:
[The amendment] allows someone to make a case by clear and convincing evidence that the public interest is served by the release of information [(which] outweighs the private interest served by maintaining privacy of the documents. But, that has to be shown for some other reason in addition to our desire to have open courts to the maximum extent possible. So, what this does is not foreclose the opportunity to open financial documents that came to light in a divorce, but sets a relatively high bar for them to be unsealed.41
When asked by Senator Sheila Roberge whether the burden shifting would “make it harder or easier to access ?? information,” Senator Peterson stated:
It is going to be harder based on this amendment than it is [now], according to current law, which is silent on the point. We have no law . . . specifically on this point. What we have are court decisions that have been based upon a constitutional general understanding in our Constitution and in open courts.42
Before concluding the hearing, Senator Peterson noted that “it is a difficult situation and we should not make people, simply because they have had a divorce, be second-class citizens. I think that is the core of the issue as far as I can tell.”43
Thus, the House and Senate Committees determined that financial documents in divorce proceedings are inherently personal and should remain private since they serve “no public purpose.”44
House Bill 384 was enacted on June 11, 2004 and took effect on August 10, 2004.45 Codified as RSA 458:15-b, the statute created a presumption that financial affidavits disclosed in divorce, annulment, and separation proceedings are confidential and placed the burden of proof on the party seeking disclosure.46 Part I automatically sealed financial affidavits in domestic relations cases and made them accessible only to certain parties.47 Part II made it a crime for anyone to knowingly disclose a financial affidavit to anyone not authorized to access the affidavit.48 Part III of the statute set forth procedures by which a member of the public could obtain access to financial affidavits in domestic relations proceedings.49
C. Procedural History of Associated Press
On August 9, 2004, the Associated Press, along with the Concord Monitor, The Keene Sentinel, the Valley News, the Portsmouth Herald, The Telegraph of Nashua, WMUR-TV, and the New Hampshire Association of Broadcasters, brought suit against the State of New Hampshire in Merrimack County Superior Court shortly before RSA 458:15-b took effect.50 The petitioners sought a declaration that the law was unconstitutional and an injunction enjoining its enforcement.51 The trial court ruled that the statute was constitutional in its entirety and denied all relief to the petitioners.52
In analyzing the public’s constitutional right of access to court records, the trial court determined that the statute’s constitutionality depended on whether it served a compelling state interest.53 The trial court found that the statute served a compelling state interest in that it advanced divorce litigants’ fundamental privacy rights in financial information.54 On appeal, the petitioners requested that the Supreme Court hold RSA 458:15-b unconstitutional in its entirety.55
III. The Right of Access Before RSA 458:15-b
A. Superior Court Rule 197
Superior Court Rule 197 “requires each party to file a financial affidavit at every marital hearing involving financial matters or property.”56 Parties must fully disclose all assets, expenses, and income.57 Additionally, Rule 197 provides that parties can choose to place financial affidavits under seal.58 Rule 197 sealing is not automatic upon filing, but must be requested by a party.59 Once placed under seal, the documents may only be accessed, without leave of court, by the parties involved or the Office of Child Support.60 Any other interested party desiring access to a document sealed under this rule must petition the court.61
Thus, even before RSA 458:15-b was enacted, Rule 197 provided parties with a means to seal financial affidavits. In contrast, RSA 458:15-b made the sealing of all financial affidavits automatic. Also, RSA 458:15-b afforded access to a larger list of parties without leave of court as compared to Rule 197.62
B. Petition of Keene Sentinel
In Keene Sentinel, a newspaper petitioned for access to the sealed divorce files of an incumbent congressional candidate.63 The files had been sealed by a court at the close of the divorce litigation and the lower court refused to unseal them, ruling that the petitioner did not present evidence as to why the balance of interests favored public access over individual privacy.64 The lower court accused the newspaper of “promot[ing] public scandal by exposing the most private aspects of the divorce litigants’ marital lives.”65
On the public right of access issue, the Supreme Court noted that the existence of court rules relating to affidavits filed in marital cases “implies that otherwise, absent special circumstances, those things which are filed in court in connection with a pending case are open to public inspection.”66 Also, the Court affirmed that the state constitution requires that the burden of proof rest with the party seeking nondisclosure.67 The Court refused to draw a distinction between criminal and civil matters, noting that in “unequivocal language,” the state constitution “provides for the openness, accessibility, accountability and responsiveness of government” and “make[s] no explicit distinction between civil and criminal records, and none can reasonably be implied.”68 The Court dismissed the argument that the motive of the party seeking disclosure is relevant, stating:
“[t]he motivations of . . . any member of the public  are irrelevant to the question of access. We cannot dictate what should and should not interest the public. Were the court to do so we would overstep our judicial authority by substituting our preferences for those of the individual. Accessibility of information assumes and encourages a community of people free to think as it chooses and act according to its collective will.”69
Next, the Court turned to whether the individual’s right of privacy in the sealed financial documents outweighed the public’s right of access.70 The Court stated, “[w]e cannot accept such a blanket assertion of the privacy right.”71 According to the Court, citizens seeking a divorce must do so in a public forum and “parties seeking a dissolution of their marriage are not entitled to a private court proceeding just because they are required to utilize the judicial system.”72 The Court held:
under the constitutional and decision law of this State, there is a presumption that court records are public and the burden of proof rests with the party seeking closure or nondisclosure of court records to demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public’s right of access to those records.73
Finally, turning to the facts of the case, the Court determined that the respondent could not keep his records sealed “merely by asserting a general privacy interest.”74 In addition, the Court set forth standards and procedures for lower courts to use when a member of the public seeks access to sealed records: (1) a member of the public who is denied access because a record is sealed must file a petition with the court requesting access; (2) the court examines the documents and holds an in camera hearing to determine whether and to what extent the document is to be revealed; (3) the court determines whether there is an overriding consideration of a sufficiently compelling interest that would justify preventing access to the records and the party seeking nondisclosure bears the burden of proof using the least restrictive means available; and (4) the court issues a public order describing its holding and separately, a sealed order setting forth specific findings of fact and rulings of law to support its conclusions.75
C. Douglas v. Douglas
In Douglas, following the standards and procedures set forth in Keene Sentinel when a member of the public petitions for access to court records filed under seal, a superior court judge ordered financial affidavits disclosed subject to redactions.76 In the divorce case, some affidavits were sealed by a broad confidentiality order early in the proceedings and some were filed in accordance with Rule 158.77 The Associated Press petitioned for access to the records and after a hearing, the lower court ruled that Keene Sentinel governed disclosure of the affidavits.78
On appeal, Douglas argued that affidavits filed under Rule 158 were exempt from disclosure absent an overriding public interest.79 Douglas cited Keene Sentinel and argued that filing affidavits pursuant to Rule 158 represented a “sufficiently compelling” circumstance that exempted them from disclosure.80 Additionally, Douglas argued that the threat of identity theft supported nondisclosure.81
The Supreme Court affirmed the lower court order granting disclosure of the records.82 First, the Court noted that nothing in Rule 158 indicated that financial affidavits were exempt from public disclosure or that the Rule overrides the Keene Sentinel procedures for determining whether to disclose the affidavits.83 Additionally, nothing in the Rule states that sealed affidavits were a special circumstance exempting them from disclosure.84 In contrast, the Court stated that the Rule is “an administrative procedure whereby parties may request the clerk of the court to seal their financial affidavits unless opened by permission of the court.”85
Second, the Court determined that the trial court properly balanced the parties’ interests by ordering the disclosure of the financial affidavits.86 The Court found that the trial court “correctly placed the burden of proof upon the plaintiff who sought nondisclosure of the affidavits” and properly redacted certain information, “cognizant of the privacy interests of the parties.”87 The Court did modify the trial court’s order slightly, ordering the party’s social security number redacted because it is “of no particular public interest, and such information should be redacted to guard against any potential misuse.”88
IV. The Court’s Analysis in
A. Limitations on the Right of Access
After a brief discussion on the history of the right of access at common law and the roots of the right of access in the New Hampshire constitution, the Associated Press Court outlined the limitations on the constitutional right of access to court records.89 The Court stated, “the constitutional right of access to judicial proceedings and records, under either the State or Federal constitution is not absolute.”90 Part I, Article 8 specifies that “the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.”91 To determine whether a restriction is “reasonable,” the Court “balance[s] the public’s right of access against the competing constitutional interest in the context of the facts of each case.”92 In Douglas, the Court noted:
there is a presumption that court records are public and the burden of proof rests with the party seeking closure or nondisclosure of court records to demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public’s right of access to those records.93
In Associated Press, the Court held that there is a “rebuttable presumption of openness that is inherent in the constitutional right of access.”94 Additionally, the Court stated the constitutional mandate for laws restricting the public’s right of access to court records:
[w]e hold that, whenever a member of the public, including the press, seeks access to a sealed court document, Part I, Articles 8 and 22 of the State constitution require: (1) that the party opposing disclosure of the document demonstrate that there is a sufficiently compelling reason that would justify preventing public access to that document; and (2) that the court determine that no reasonable alternative to nondisclosure exists and use the least restrictive means available to accomplish the purposes sought to be achieved.95
B. Right of Access Applicability to Divorce Proceedings and Financial Affidavits
Before analyzing whether RSA 458:15-b was an “unreasonable restriction” on the public’s right to access, the Court first examined whether the constitutional right of access attaches to domestic relations proceedings and financial affidavits.96 “[N]ot every type of court proceeding has historically been open to the public; nor does public access enhance the integrity or accountability of the judiciary in every situation.”97 To determine if the state constitutional right of access attaches to certain court proceedings, the Court traditionally examines (1) “whether the process or documents at issue ha[ve] historically been open to the public and [(2)] whether public access played a positive or negative role in the functioning of the process in question.”98 The Court noted that the New Hampshire test “follow[s] a similar paradigm” to the U.S. Supreme Court’s test.99 For that reason, the Court declared that it “now adopt[ed] the United States Supreme Court’s experience and logic test for determining whether the state constitutional right of access applies to certain proceedings.”100
Applying the test, the Court recognized that “[d]omestic relations proceedings are a type of civil proceeding that has historically been open to the press and general public.”101 Additionally, the Court found that “public access plays a significant role in the function of the court in domestic relations proceedings by enhancing the quality and safeguarding the integrity of the factfinding process . . . and fostering an appearance of fairness, thereby heightening public respect for domestic relations proceedings.”102 According to the Associated Press Court, “[t]he importance of matters regarding children and families only heightens the need for openness and public accountability in domestic relations proceedings.”103 Thus, having met the experience and logic test, the Court held that the constitutional right of access applied to domestic relations proceedings.104
However, although the Court held that the public has a right of access to domestic relations proceedings, the right does not automatically attach to every court document related to those proceedings. In Thomson, the Court held that the common law right of access applies to “those things which are filed in court in connection with a pending case.”105 In comparison to the common law right of access to court documents, the Associated Press Court stated that “we do not think the State constitutional right of access is as expansive.”106 The Court explained the proper standard to apply:
[w]e decline to hold that every document field in connection with a pending case is subject to the State constitutional right of access, and instead hold that the State constitutional right of access attaches only to those documents that are important and relevant to a determination made by the court in its adjudicatory function in connection with a proceeding to which the State constitutional right of access has attached.107
This standard, the Court explained, “is consistent with the policies underlying the constitutional right of access—‘to ensure that court proceedings are conducted fairly and impartially and that the judicial process is open and accountable.’”108
Applying the test, the Court noted that “[n]either of the parties has argued that the constitutional right of access does not apply to financial affidavits in domestic relations cases.”109 The Court concluded that the affidavits are subject to the constitutional right of access because “[f]inancial affidavits filed in domestic relations cases are utilized by the court in its adjudicatory function,” and “they are important and relevant to a determination made by the court in its adjudicatory function in connection with a presumptively open proceeding.”110
C. Constitutionality of RSA 458:15-b
After determining that the public has a constitutional right of access to financial affidavits filed in domestic relations proceedings, the Court examined the constitutionality of sealing financial affidavits upon filing, RSA 458:15-b, I, and the procedures for the public to gain access to the financial affidavits, RSA 458:15-b, III.111
1. Constitutionality of RSA 458:15-b, I
Part I of the statute, the automatic sealing of financial affidavits, was an issue of first impression for the Court.112 Prior cases merely required the Court to review the propriety of a lower court’s decision to disclose or refuse to disclose court records.113 Discussing Douglas, the Associated Press Court stated, “it is not the invocation of . . . a rule or statute that guides disclosure, but rather the procedures and standards that the State Constitution requires to be used when a member of the public or the media seeks access to sealed court records.”114 Turning to RSA 458:15-b, I, the Court stated that it “f[ound] nothing in the State Constitution or in our prior cases that prohibits the legislature from enacting legislation that, with sufficient justification, creates a procedure by which a narrow category of documents is made confidential upon filing with the court.”115 The Court elaborated further:
[a]lthough certain court records to which the constitutional right of access attaches may initially be made confidential, the records always retain their status as presumptively open; when a member of the public seeks access, the presumption in favor of disclosure must still be rebutted by the party seeking to maintain closure.116
Without additional discussion regarding the specific “sufficient justification” the legislature possessed to create a procedure to automatically seal documents upon filing, the Court held that Part I was a “reasonable restriction” on the right of access.117 The Court made its holding conditional, however, and held Part I constitutional “so long as the financial affidavits retain their status as presumptively open and the public is afforded procedural safeguards required by the constitutional right of access.”118
2. Constitutionality of RSA 458:15-b, III
After holding RSA 458:15-b, I constitutional, the Court analyzed Part III of the statute, the procedures for public access to financial affidavits in domestic relations proceedings.119 The Court reiterated the constitutionally mandated rule for whenever a member of the public seeks access to a sealed document: (1) the party opposing disclosure must demonstrate that there is a sufficiently compelling reason that would justify preventing disclosure to the public; and (2) the court must determine that no reasonable alternative to nondisclosure exists and use the least restrictive means available to accomplish the purposes sought to be achieved by nondisclosure of the documents.120
The State first argued that the two-part test “does not apply to legislative enactments designed to further some countervailing interest that the legislature has deemed to be sufficiently compelling to require nondisclosure in all cases.”121 In support, the State relied on the trial court’s interpretation of Keene Sentinel that statutory provisions granting confidentiality constituted “a sufficiently compelling interest to preclude public access.”122 The Associated Press Court disagreed with the trial court’s analysis and noted that although Keene Sentinel “recognize[ed] that the proponent of nondisclosure may have certain countervailing rights, statutory or otherwise,” it “did not state that these countervailing rights automatically rise to the level of a sufficiently compelling interest to preclude public access.”123
The State next argued that RSA 458:15-b, III is justified by two compelling state interests: the individual’s fundamental right of privacy and the protection of citizens from identity theft.124 As to the former, the Associated Press Court stated that “a generalized concern for personal privacy is insufficient to meet the State’s burden of demonstrating the existence of a sufficiently compelling reason to prevent public access.”125 The Court continued:
We cannot accept . . . a blanket assertion of the privacy right. Courts . . . are public forums. A private citizen seeking a divorce in this State must unavoidably do so in a public forum. While we recognize the importance of the right to privacy, the public’s right of access to sealed records must be weighed and balanced against privacy interests that are articulated with specificity.126
The Court also found unpersuasive the purported state interest in protecting citizens from identity theft, citing the lack of empirical evidence linking identity theft to court documents and the State’s failure to demonstrate that shifting the burden of proof to the person seeking disclosure would lead to a decrease in identity theft.127 The Court asserted that even if it found protecting against identity theft was a compelling interest, the State failed to demonstrate that the procedures in Part III were “a narrowly tailored means of protecting people from identity theft.”128 The Court explained that given Part I’s automatic confidentiality provision, any member of the public wishing to view an affidavit must file a petition with the court. Because of this mechanism, the Court did “not see what additional protection from identity theft the procedures contained in paragraph III provide[d].”129
The petitioners argued that RSA 458:15-b, III is unconstitutional because it (1) impermissibly placed the burden of proof on the party seeking disclosure, and (2) required that party to show that the public interest was something greater than the general right of public access to court records.130 The Court agreed with both arguments.
First, the Court faulted the trial court for “attempt[ing] to minimize the importance of this burden-shifting by interpreting the statute to mean that the burden of demonstrating a sufficiently compelling interest is always met when financial affidavits are filed.”131 In contrast, the Court noted that “the constitution requires an individualized determination of a sufficiently compelling interest on the facts of each case.”132 The Associated Press Court explained that in a given case, information contained in the financial affidavit might also be in other parts of the record which are not sealed.133 In such a scenario, the Court noted, a defendant’s “fear of identity theft based upon that information might not be a compelling reason in favor of nondisclosure of the financial affidavits.”134 Instead of shifting the burden in all cases, as the statute mandates, the Court stated that the interest in protecting parties from identity theft could be served by a less restrictive alternative of requiring the proponent of nondisclosure to demonstrate that the particularized risk of identity theft, in that case, necessitated nondisclosure.135
The Court also ruled that RSA 458:15-b, III was flawed because it required the party seeking disclosure to demonstrate a public interest in favor of disclosure that is greater than the public right of access to court records.136 The Court noted “the motivations of the party seeking disclosure are irrelevant to the question of access,” and that the last two sentences of Part I, Article 8 of the state constitution were added to prevent the legislature from doing away with the right to know.137 The Court deemed the statute’s public interest requirement an unconstitutional abrogation—”an attempt by the legislature to completely do away with the public’s right of access to certain court records.”138
Overall, the Court held RSA 458:15-b, III unconstitutional for three reasons: (1) it was not narrowly tailored to serve the State’s alleged interest in protecting citizens from identity theft; (2) it placed the burden of proof on the party seeking disclosure of the affidavit rather than the party seeking nondisclosure; and (3) it abrogated the public right of access to a category of court records, precluding courts from making individualized determinations.139
V. Implications of Upholding RSA 458:15-b, I
At first glance, Associated Press might appear to be a landmark ruling regarding the legislature’s ability to enact laws that automatically seal a class of court records.140 A plain reading of the opinion gives the legislature wide berth in enacting additional “automatic sealing” laws. However, automatic sealing provisions such as RSA 458:15-b, I are inconsistent with the broad and unique public right of access.
In analyzing RSA 458:15-b, I, the Court declared that it found “nothing in the State Constitution or in . . . prior cases that prohibits the legislature from enacting legislation that, with sufficient justification, creates a procedure by which a narrow category of documents is made confidential upon filing with the court.”141 Unfortunately, the balance of the Court’s discussion on Part I does not explain what “sufficient justification” is required to make documents automatically confidential upon filing. Although the Court determined when analyzing RSA 458:15-b, III that the State’s “generalized concern for personal privacy” did not rise to the level of a “sufficiently compelling reason to prevent public access,”142 perhaps such a general concern was a “sufficient justification” for the legislature to enact statutes automatically sealing certain court documents. By not being more specific, it is unclear what justification is “sufficient” for automatic sealing provisions to be held constitutional. This provides inadequate guidance for the legislature, the public, and courts regarding the right of access and automatic sealing provisions.
The Associated Press Court also stated that in prior cases involving the state constitutional right of access, instead of examining the procedure that seals documents, the Court examined the process employed when a member of the public sought access to the documents.143 In applying those cases by analogy, the Associated Press Court’s rule for automatic sealing provisions is that the statute is constitutional as long as the court record remains “presumptively open” and a member of the public is afforded a Keene Sentinel-type hearing to gain access to the record.144
However, the practical effect of upholding RSA 458:15-b, I, or any other provision that automatically seals a class of court records, is that a member of the public seeking access to such a record must file a written petition before the court in order to gain access. Additionally, the person, or his/her attorney, must be present at an in camera hearing. Such an undertaking requires considerable time and expense that many members of the public cannot afford to commit.
The additional obstacles that a member of the public faces when seeking access to automatically sealed court documents creates an “unreasonable restriction” on the public’s right of access.145 The Associated Press Court’s rule that automatic sealing provisions are constitutional as long as the public is afforded a Keene Sentinel hearing and the burden is on the party seeking nondisclosure is itself unconstitutional given the purpose and judicial interpretations of the constitutional right of access.
The framers of the right of access clause in the state constitution added the last two sentences to “prevent the legislature from completely doing away with the right to know.”146 By explicitly providing what the public has a right of access to, the framers intended to safeguard the right of access from legislative encroachment. Additionally, the New Hampshire Supreme Court noted that the purpose of the right of access clause was to ensure that the government was “open, accountable, accessible and responsive.”147 Furthermore, the Court determined that any restriction on the public’s right of access must be examined in light of the public’s ability to hold the government accountable.148
In comparison to court records that are not automatically sealed, it is more difficult for a member of the public to seek access to automatically sealed records. Automatic sealing provisions erode the role that public access is supposed to provide by acting as a check on the judiciary. Exceptions can be made for certain aspects of the information that do not advance the purpose of open access to court records. For instance, social security numbers contained within a record available to the public could be redacted because such information does not lessen the public’s ability to hold the government accountable.149 However, by automatically sealing entire financial records, RSA 458:15-b, I hinders the ability of the public to adequately oversee divorce proceedings and ensure fairness and impartiality. Without ready access to the court records, the public cannot serve as “an effective restraint on possible abuse of judicial power.”150
The Associated Press Court struck down RSA 458:15-b, III on the grounds that the state interest in protecting citizens from identity theft was not narrowly tailored, it impermissibly placed the burden of proof on the proponent of disclosure, and it attempted to do away with the court’s individualized determinations required by the constitution.151 In contrast, the Court upheld RSA 458:15-b, I, holding that the automatic confidentiality provision was a reasonable restriction on the right of access as long as the affidavits remain presumptively open and the public is afforded certain procedural safeguards to access the information.152
Looking beyond the holdings in the case, Associated Press is important because for the first time, the Court formally adopted the U.S. Supreme Court’s experience and logic test for determining whether the state constitutional right of access applies to certain proceedings.153 Also, because the Court stated that the constitution requires a case-by-case determination for the right of access, the legislature cannot shift the burden to the party seeking disclosure.154 Finally, after this case, even if the legislature could effectively demonstrate a link between identity theft and public access to financial affidavits following a Keene Sentinel hearing, it is difficult to imagine how the legislature could keep financial affidavits totally private.
Given the Court’s detailed analysis of Part III, it is perplexing how little attention the Court gave to the automatic confidentiality provision. The practical effect of RSA 458:15-b, I’s automatic confidentiality is that for parties who would not otherwise have invoked Rule 197, their affidavits are sealed and no one can access them without taking the time and expense to petition the court. This represents an unreasonable restriction on the public right of access because it diminishes the essential purpose of the public having a constitutional right of access —to ensure fairness, impartiality, and accountability of the judiciary.
One of the possible implications of Associated Press is that there may be more automatic sealing statutes aimed at curtailing the public’s right of access in favor of privacy interests.155 Additional statutes that automatically seal sets of court documents will only further minimize the public’s ability to monitor the judiciary. The Court needs to clarify the constitutional standards that apply to automatic sealing provisions and recognize the burdens that automatic sealing statutes place on the public’s right of access to court records.
1. U.S. Census Bureau, Number, Timing, and Duration of Marriages and Divorces: 1996, 18 (available at http://www.sipp.census.gov/sipp/p70s/p70-80.pdf); see also Harbour Fraser Hodder, The Future of Marriage, 107 Harv. Magazine 38, 42 (2004); but see Dan Hurley, Divorce Rate: It’s Not as High as You Think, N.Y. Times D7 (Apr. 19, 2005) (doubting the statistical veracity of the 50% figure).
2. But see Super. Ct. R. 197 (2001) (previously Super. Ct. R. 158). Rule 197 allows parties to request that financial affidavits be filed under seal. If a member of the public wishes access to the affidavits, they must file a petition with the court. Id. Then, the court weighs the privacy interests against the right of access, with a strong presumption in favor of access. Id. The burden rests with the party seeking nondisclosure to demonstrate a sufficiently compelling reason that would justify withholding disclosure to the public. See Petition of Keene Sentinel, 136 N.H. 121, 129-30 (1992).
3. N.H. Const. pt. I, art. 8.
5. See e.g. Keene Sentinel, 136 N.H. at 128.
6. See supra n. 2.
7. RSA 458:15-b (2004) (amended 2005).
9. Associated Press v. State of N.H., 888 A.2d 1236, 1240 (N.H. 2005).
10. See N.H. Const. pt. I, art. 8; N.H. Const. pt. I, art. 22.
11. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177-78 (6th Cir. 1983). The court noted that “[t]he English common law, the American constitutional system, and the concept of the ‘consent of the governed’ stress the ‘public’ nature of legal principles and decisions.” Id. at 1177.
12. See id. at 1177-79; Associated Press, 888 A.2d at 1242-43.
13. Richmond Newspapers, Inc. v. Va., 448 U.S. 555, 580 (1980).
14. Id. at 592 (quotations omitted).
15. See N.H. Const. pt. I, art. 8.
16. Associated Press, 888 A.2d at 1244.
17. Id. at 1242.
18. Hughes v. Speaker, N.H. House of Reps., 152 N.H. 276, 289 (2005); see also Larry M. Elison and Deborah E. Elison, Comments on Government Censorship and Secrecy, 55 Mont. L. Rev. 175, 189 (1994) (stating that only Louisiana, Montana, New Hampshire, and North Dakota provide explicit constitutional right of access provisions).
19. N.H. Const. pt. I, art. 7.
20. N.H. Const. pt. I, art. 8. Articles 7 and 8 together “express the American theory of government that the state being sovereign, the people being the state, and all magistrates and public officers being their substitutes and agents[,] they are accountable to the people.” Opinion of the Justices, 111 N.H. 175, 177 (1971).
21. See N.H. Const. pt. I, art. 8. The text provides that:
[a]ll power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted.
22. Susan E. Marshall, The New Hampshire State Constitution: A Reference Guide 50 (2004).
23. Hughes, 152 N.H. at 289-90 (citing Opinion of the Justices, 111 N.H. at 177).
24. Marshall, supra n. 22, at 50; Hughes, 152 N.H. at 286.
25. Marshall, supra n. 22, at 50 (citing Journal of the Convention to Revise the Constitution, May 1974 at 170-71 (1975)).
27. 152 N.H. at 286.
28. Id. (citing Journal of the Constitutional Convention at 174); see also Marshall, supra n. 20, at 50 (noting that “[a]lthough there was a state law on the [right of access], a constitutional amendment gave more protection than a statute, which could be changed by the legislature”).
29. Hughes, 152 N.H. at 286.
30. Id. at 295.
31. Petition of Union Leader Corp., 147 N.H. 603, 604 (2002) (quotations and citations omitted).
32. Associated Press, 888 A.2d at 1242.
33. See Keene Sentinel, 136 N.H. at 127.
34. N.H. Const., pt. I, art. 22.
35 Associated Press, 888 A.2d at 1244; see e.g. Keene Sentinel, 136 N.H. at 126-28.
36. 147 N.H. at 604.
37. RSA 458:15-b.
38. N.H.H.R. Jour. Vol. 25 No. 25 (March 25, 2003) (emphasis added).
39. Sen. Comm. on Jud. Hearing on HB 384, at 13 (April 24, 2003).
41. Sen. Comm. on Jud. Hearing on HB 384, at 2 (November 5, 2003).
42. Id. at 4.
43. Id. at 5.
44. N.H.H.R. Jour. Vol. 25 No. 25.
45. RSA 458:15-b.
47. RSA 458:15-b, I.
48. RSA 458:15-b, II.
49. RSA 458:15-b, III. Part III provided the following:
Notwithstanding paragraph I, the court may grant access to a financial affidavit filed under this chapter to a person upon a showing by clear and convincing evidence that the public interest served by release of the information outweighs the private interest served by maintaining the privacy of the financial affidavit. For the purposes of this paragraph, the right of the public to access court records shall not, absent further cause, constitute sufficient evidence to overcome the presumption of privacy contained in paragraph I.
50. Associated Press, 888 A.2d at 1241.
51. Id. at 1240-41.
52. Id. at 1241.
56. In re Rohdenburg, 149 N.H. 276, 278 (2003).
57. Id.; see also DePalantino v. DePalantino, 139 N.H. 522, 525 (1995) (decided under former Superior Court Rule 158).
58. Super. Ct. R. 197.
62. Compare RSA 458:15-b, I (granting access without leave of court to “the parties, their attorneys, the guardian ad litem, department of health and human services . . ., and . . . [certain] state and federal officials”) with Super. Ct. R. 197 (granting access without leave of court to the parties and the Office of Child Support).
63. 136 N.H. at 123.
65. Id. at 124.
66. Id. at 126-27 (quoting Thomson v. Cash, 117 N.H. 653, 654 (1977)).
67. Id. at 127.
69. Id. at 128.
72. Id. (citations omitted).
74. Id. at 129.
75. Id. at 130-31.
76. Douglas v. Douglas, 146 N.H. 205, 206 (2001).
77. Id. Rule 158 was the precursor to Rule 197, providing a means for parties to seal financial affidavits. See DePalantino, 139 N.H. at 525.
78. Douglas, 146 N.H. at 206.
81. Id. at 206-07.
82. Id. at 206.
83. Id. at 207.
86. Id. at 208.
89. Associated Press, 888 A.2d at 1245-46.
90. Id. at 1245.
91. N.H. Const. pt. I, art. 8 (emphasis added).
92. Hughes, 152 N.H. at 290.
93. 146 N.H. at 208 (quotations omitted).
94. Associated Press, 888 A.2d at 1245; see also Douglas, 146 N.H. at 208.
95. Associated Press, 888 A.2d at 1246.
98. Id. at 1248.
99. Id. at 1247-48.
100. Id. at 1247.
101. Id. at 1248.
102. Id. (quotations omitted) (citing Globe Newspaper v. Super. Ct., 457 U.S. 596, 606 (1982)).
105. 117 N.H. at 654.
106. 888 A.2d at 1249.
108. Id. (quoting Petition of Union Leader, 147 N.H. at 604).
111. Id. at 1250-53.
112. Id. at 1250.
113. See e.g. Petition of New Hampshire (Bowman Search Warrants), 146 N.H. 621, 622-29 (2001); Douglas, 146 N.H. at 208; Keene Sentinel, 136 N.H. at 126-30.
114. Associated Press, 888 A.2d at 1250 (quotations omitted); see Douglas, 146 N.H. at 207-08.
115. Associated Press, 888 A.2d at 1250.
119. Id. at 1250-53.
120. Id. at 1250 (citing Keene Sentinel, 136 N.H. at 129-30).
121. Id. at 1251.
123. Id. (quotations and citations omitted).
124. Id. at 1251-52.
125. Id. at 1251 (citing Keene Sentinel, 136 N.H. at 128-29).
126. Id. (citations omitted); Keene Sentinel, 136 N.H. at 128.
127. Associated Press, 888 A.2d at 1251-52.
128. Id. at 1252.
132. Id. (citing Keene Sentinel, 136 N.H. at 130).
136. RSA 458:15-b, III (providing that “the right of the public to access court records shall not, absent further cause, constitute sufficient evidence” to compel disclosure).
137. Associated Press, 888 A.2d at 1253.
140. See id. at 1250 (stating that the issue was one of first impression).
141. Id. at 1253 (emphasis added).
142. Id. at 1251.
143. Id. at 1250 (citing Bowman Search Warrants, 146 N.H. at 622-30; Douglas, 146 N.H. at 208; Keene Sentinel, 136 N.H. at 126-31).
144. See Keene Sentinel, 136 N.H. at 130-31. Constitutionally, “presumptively open” means that the burden is on the party seeking nondisclosure to prove a sufficiently compelling interest and that the judge must balance the right of access against the privacy interests, denying access only if there is no reasonable alternative to nondisclosure, and using the least restrictive means necessary to accomplish the purposes sought to be achieved. Id.
145. See N.H. Const. pt. I, art. 8
146. Hughes, 152 N.H. at 286.
147. Id. at 295.
148. Petition of Union Leader, 147 N.H. at 604.
149. See e.g. Douglas, 146 N.H. at 208.
150. Richmond Newspapers, 448 U.S. at 592.
151. Associated Press, 888 A.2d at 1253.
152. Id. at 1250.
153. Id. at 1248.
154. Id. at 1253.
155. After Associated Press, State Representative Neal Kurk (R-Weare) stated, “I think the [l]egislature is in a position to continue doing in the future what it has in the past, which is attempting to protect the privacy interests of certain groups of people and of certain documents.” Beverley Wang, Financial Records Law Overturned, Portsmouth Herald (Jan. 1, 2006).
Michael Litzau graduated from Franklin Pierce Law Center in May 2006. He now lives and works in Virginia.