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Tuesday, January 3, 2006

New Hampshire Supreme Court Strikes Down Part of Statute Designed to Seal Financial Records

The New Hamphire Supreme Court has struck down part of a 2004 law which seals financial records in divorce cases, suggesting that the legislature overreached in its concern for personal privacy and in its attempt to protect against identity theft. But it left intact other parts of the law, telling the Associated Press and other media organizations which had brought the suit that their claim that the law was an unconstitutional prior restraint on publication did not pass muster.

"We now examine the constitutionality of the procedures for public access provided in RSA 458:15(b), III.  As stated above, whenever a member of the public, including the press, seeks access to a document sealed under RSA: 15-b, I, 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....At the outset, the State argues that the Petition of Keene Sentinel analysis 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. The State relies upon the trial court's interpretation of Petition of Keene Sentinel. In its order, the trial court stated: 

The Court in Keene Sentinel realized . . . that in certain circumstances, statutory provisions would grant or require confidentiality, constituting a sufficiently compelling interest to preclude public access to the document at issue....

By enacting RSA 458:15-b, the legislature provided that the individual privacy interest at stake in financial affidavits in domestic relations cases is so great that it constitutes a per se countervailing interest in the Keene Sentinel analysis.

"... We respectfully disagree. The trial court appears to have relied upon our discussion in Petition of Keene Sentinel...of the procedures that the trial court must follow in conducting an in camera hearing on a petition for access to a sealed record in the presence of counsel for the parties and the petitioner. We stated: 

There will be instances where the claimed countervailing rights of a party (for example, constitutional rights of a defendant in a criminal case or statutory provisions granting or requiring confidentiality in certain cases)must not be rendered moot pending final resolution of the access issue. When appropriate, the document's subject matter, however, can be described in general terms such that persons objecting to closure can present an adequate argument to the court.

"...In this statement, we provided a safeguard to preserve the status quo during in camera proceedings, recognizing that the proponent of nondisclosure may have certain "countervailing rights," statutory or otherwise, that must not be "rendered moot" by disclosure before the court decides whether to unseal the document. Id. However, we did not state that these countervailing rights automatically rise to the level of a "sufficiently compelling interest to preclude public access."

"The State next argues that RSA 458:15-b, including the procedures contained in paragraph III, is justified by a compelling State interest: the individual's fundamental right to privacy. However, 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...."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 . . . ." Id. 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."....

"The State also argues that RSA 458:15-b is justified by another compelling State interest: the protection of the citizens of the State from identity theft. We acknowledge that identity theft is a growing problem. However, the State has offered no empirical evidence linking identity theft to court documents, nor has the State demonstrated that the shifting of the burden of proof and the new standard established by RSA:15-b will lead to a decrease in the incidence of identity theft in the State.

"Even if we agree that RSA:458:15-b serves a compelling interest...the State has failed to demonstrate that the nondisclosure  procedures created by paragraph III of the statute are a narrowly tailored means of protecting litigants from identity theft. Once financial affidavits are made confidential under RSA 458:15-b, I, they may not be viewed by anyone but the parties and other persons specifically identified in paragraph I, except by leave of court....Thus, a member of the press or public must file a petition with the court when seeking access to a sealed affidavit.... We do not see what additional protection from identity theft the procedures contained in paragraph III provide, and even if those procedures provide some additional protection, that protection does not justify the restrictions placed on the public's constitutional right of access.

"The petitioners argue that RSA 458:15-b, III is unconstitutional because it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure...and it requires the showing of some public interest in favor of disclosure that is greater than the public right of access to court records.... We agree.

"As stated, Part I, Articles 8 and 22 of the State Constitution require that a party opposing disclosure of a presumptively open court document bear the burden of demonstrating a sufficiently compelling reason that justifies nondisclosure.... By contrast, RSA 458:15-b, III places the burden upon the party seeking disclosure. The trial court attempted 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. However, the constitution requires an individualized determination of a sufficiently compelling interest on the facts of each case....For example, much of the information contained in the financial affidavit may already be revealed in other parts of the record which are open to the public, or may already have been otherwise made public....

"We conclude that RSA:15-b, III is unconstitutional for three reasons: it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure... it abrogates entirely the public right of access to a class of court records... and it is not narrowly tailored to serve the allegedly compelling interest of the State in protecting its citizens from identity theft...."

Read the entire opinion here.

http://lawprofessors.typepad.com/media_law_prof_blog/2006/01/new_hampshire_s.html

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