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NEWS MEDIA UPDATE   ·   NEW HAMPSHIRE   ·   Secret Courts   ·   Jan. 4, 2006

NEWS MEDIA UPDATE   ·   NEW HAMPSHIRE   ·   Secret Courts   ·   Jan. 4, 2006


Financial information in divorce cases accessible

  • Citizens cannot shoulder the burden of proof for proving the public’s interest in financial documents in divorce proceedings, the state Supreme Court ruled.

Jan. 4, 2006  ·   The Supreme Court of New Hampshire on Friday struck down part of a law that withheld financial affidavits in divorce cases unless the public interest outweighed the privacy interest in keeping the information secret.

The section of the law is unconstitutional because it requires the proponent of disclosure to prove the public’s interest in the records’ release, Justice James E. Duggan wrote for the court. It also shuts down the public’s right of access to a category of court records, and is not written narrowly enough “to serve the allegedly compelling interest of the State in protecting its citizens from identity theft,” he wrote.

New Hampshire is one of only a few states whose constitution explicitly provides a right of access to court proceedings and records.

“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,” wrote Duggan. “The State has offered no empirical evidence linking identity theft to court documents” and has failed to show that the law offers “a narrowly tailored means of protecting litigants from identity theft,” he wrote.

The ruling came after The Associated Press, five newspapers, the New Hampshire Association of Broadcasters and WMUR-TV asked the high court to review a lower court’s decision rejecting their petition to declare the law unconstitutional.

The law at issue, Section 458-15b, concerns financial affidavits filed in annulment, divorce and separation proceedings. Part I makes financial affidavits filed in such proceedings accessible only to a limited group of people, including the parties and their attorneys. Part II penalizes anyone who discloses an affidavit to someone unauthorized to view it. Part III requires citizens seeking access to affidavits to show that the public interest in the information outweighs the interest in keeping it secret.

William Chapman, an attorney for The Associated Press, argued in his appellate brief that the law “encroaches on the Judiciary’s control of domestic relations proceedings by mandating that financial affidavits be confidential. The requirement of presumptive confidentiality contradicts the Court’s interpretation of the New Hampshire Constitution and undermines its historic commitment to open judicial proceedings and public accountability. In addition, by imposing a penal sanction on the unauthorized disclosure of financial affidavits, the Legislature has created an impermissible prior restraint on publication of lawfully obtained truthful information.”

The court upheld the first two parts of the law, ruling that it is not unconstitutional to require courts to make the records confidential when they are filed, so long as the public may petition for access to the documents, or to penalize improper disclosures of the confidential records.

The news organizations filed a petition in August 2004 for a declaration that the entire statute was unconstitutional and for an injunction enjoining its enforcement. Merrimack Superior Court Judge Edward J. Fitzgerald denied the motion, ruling that the statute served a compelling state interest. The court also ruled the law’s penalty provision a prior restraint on speech, but found that it had sufficient review procedures to make it constitutional.

The high court concluded that the law’s penalty provision was not a prior restraint on speech, reasoning that U.S. Supreme Court continually distinguished between prior restraints on publication and penal sanctions for publishing information.

Despite New Hampshire’s constitutional right of access to court proceedings and records, federal and state law allow that right of access to be overcome only where a sufficiently compelling interest outweighs it and there is no reasonable alternative to nondisclosure.

“The public right of access to judicial proceedings and records arises from a history of open court proceedings and the need to maintain the integrity and accountability of the judiciary,” Duggan wrote for the high court.

(The Associated Press v. New Hampshire; Media counsel: William L. Chapman, Orr & Reno, P.A., Concord, N.H.)SB


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