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Appellate court upholds public access to divorce records

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NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Secret Courts   ·   Jan. 24, 2006

NEWS MEDIA UPDATE   ·   CALIFORNIA   ·   Secret Courts   ·   Jan. 24, 2006

Appellate court upholds public access to divorce records

  • A state law that seals entire divorce records because they contain financial information is unconstitutional, the state Court of Appeal ruled.

Jan. 24, 2006  ·   A California law used to seal documents in a high-profile divorce case is unconstitutional under the First Amendment, the state Court of Appeal ruled Friday.

The Second District Court of Appeal in Los Angeles unanimously agreed to uphold a lower court decision that public access to divorce proceedings is constitutionally protected. The appeals court said the law, section 2024.6 of the California Family Code, went too far in allowing entire documents to be sealed because they contain financial details.

“The First Amendment provides a right of access to court records in divorce proceedings,” Judge Paul Boland wrote for a unanimous three-judge panel. “While the privacy interests protected by (the law) may override the First Amendment right of access in an appropriate case, the statute is not narrowly tailored to serve overriding privacy interests.”

Under the law, courts are required to seal, upon request of either party, any divorce-related documents that list a person’s financial assets and liabilities or provide the location or any identifying information about those assets and liabilities. That could mean that a 100-page document could be sealed because one footnote contained a party’s home address, Los Angeles Superior Court Judge Roy L. Paul noted last year.

After the law went into effect in 2004, California billionaire investor Ron Burkle used it to seal nearly all of the records in divorce proceedings with his wife, Janet. Burkle argued that financial information, such as bank account or Social Security numbers, could make him vulnerable to identify theft if disclosed.

Janet Burkle has accused her husband’s Yucaipa Companies of hiding millions of dollars in assets, The Associated Press reported Monday.

Susan Seager, who represented AP, the Los Angeles Times and the California Newspaper Publishers Association in challenging the law, said the ruling tells lawmakers they cannot enact overly broad legislation in the name of “unsubstantiated fears about identify theft.”

“Identify theft is the big bogeyman being used to seal traditionally open court and government records,” she said. “This is a very significant victory in the fight against thoughtless legislation and rules sealing traditionally public court records.”

The law failed two parts of a four-part constitutional test because it is not narrowly tailored and because less restrictive means are available to protect privacy, the appellate court ruled. Portions of records could be redacted to eliminate financial information without sealing the whole document, the court said.

In his February 2005 ruling, Paul found that the law places an “undue burden” on the public’s right of access to civil court proceedings. Burkle’s attorneys argued that the law is constitutional because it allows parties to return later and have the records unsealed if they show good cause. The appeals court rejected that argument.

The court also rejected Burkle’s argument that it could rewrite the statute to allow redaction. Doing so would not be consistent with the Legislature’s intent, the judges concluded.

Because the ruling relies in part on the First Amendment, its significance stretches beyond California, Seager said.

“I think it could be used any time someone tries to seal court records based on financial privacy,” she said. “They argued that financial privacy trumped the First Amendment. The court disagreed.”

A stay will keep the records closed while Burkle decides whether to seek review from the California Supreme Court.

(Burkle v. Burkle, Media Counsel: Susan Seager, Davis Wright Tremaine, Los Angeles)AB

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