2006 Summer, 36. Associated Press, et al. v. State of New Hampshire: Access to Divorce Litigants' Financial Information.

AuthorBy: Michael Litzau

New Hampshire Bar Journal

2006.

2006 Summer, 36.

Associated Press, et al. v. State of New Hampshire: Access to Divorce Litigants' Financial Information

New Hampshire Bar Journal Volume 47, No. 2, Pg. 36 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

I. Introduction

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...

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