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N.H. high court limits law shielding divorce records

By The Associated Press
01.03.06

CONCORD, N.H. — The state Supreme Court ruled late last week that financial information people disclose in divorce cases is not entitled to sweeping privacy protections.

The court struck down part of a 2004 law that sealed such information. The high court overturned the law’s attempt to shift the legal burden from the person trying to keep the information confidential to someone trying to obtain it.

A lower court upheld the law, leading to the appeal by news organizations that was decided on Dec. 30.

“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,” the unanimous court said in its ruling in The Associated Press v. New Hampshire.

The state said one reason for keeping financial affidavits private was to deter identify theft. But the court said the state didn’t demonstrate that the law would deter identity theft.

The court also struck down a requirement that record-seekers show that disclosing affidavits would be in the public interest.

“The motivations of the party seeking disclosure are irrelevant to the question of access,” the court said in an opinion written by Justice James Duggan.

The court said the right of access to court proceedings and records predates both the state and federal constitutions. It said openness in court cases, including divorces, promotes accountability and public confidence in the courts. Financial affidavits are crucial to determining child support, the court noted.

The decision relied heavily on the New Hampshire Constitution, which says power comes from the people, and judges and other government officials must be accountable to them. “To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted,” the Constitution says.

Quoting from a prior decision, the court said: “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.”

Per previous law, the person trying to prevent access must demonstrate a compelling reason and the judge must limit access in the least restrictive way possible. In some cases, that could be blacking out an account number or name in a document.

That was the standard applied to the divorce records of former state Supreme Court justice and U.S. Rep. Charles Douglas during his 2001 divorce. Douglas then encouraged the Legislature to pass the sealing law.

Douglas said on Dec. 30 that he was pleased the court recognized the need to protect some records but that he believed the court “glossed over the very real consideration of the constitutional right to privacy.” Douglas pointed out the decision didn’t refer to the constitutional ban on unreasonable searches and seizures of property.

The court upheld parts of the law. It said affidavits are confidential when they are filed and that someone seeking access must ask for it.

“It was a reasonable decision, although obviously not all that I had hoped for,” said Rep. Neal Kurk, R-Weare, a leading privacy advocate in the Legislature. “I think the Legislature 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.”

The court also rejected two arguments by the news organizations. One was that the law amounted to unconstitutional prior restraint on publication. The other was that by intruding on the court’s turf, the Legislature violated the constitutional requirement for separation of powers.

Larry Laughlin, the Associated Press’ northern New England bureau chief, said the victory was gratifying even though it wasn’t complete.

“The court said open records provide the public with a way to keep tabs on the performance of its government, which is just what cases such as this are all about,” he said.

The AP, five newspapers, the New Hampshire Association of Broadcasters and WMUR-TV sued shortly before the law took effect in August 2004.

The newspapers were the Concord Monitor, The Keene Sentinel, the Valley News, the Portsmouth Herald and The Telegraph of Nashua.

Nick Pappas, editor-in-chief of The Telegraph, applauded the shift back in the burden of proof. Putting the burden on someone seeking access is “not just a burden for the media, it’s a burden for each and every citizen of New Hampshire,” he said.

Sentinel Editor James Rousmaniere also praised the ruling.

“It will make clear to those who want to keep information sealed that it’s going to be a tough road for them to do it,” he said.


Related

California court strikes down law shielding divorce records

Judge rules statute that allowed billionaire Ron Burkle to seal some records in his case violates public's constitutional right to access civil court proceedings, records. 03.01.05

N.H. courts drop fees for unsealing case records
Move eases public access to court files that once were routinely sealed by judges. 03.27.07

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