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New Hampshire

Open Courts Compendium

Author

William L. Chapman
Orr & Reno, P.A.
Concord, New Hampshire
wchapman@orr-reno.com

Last updated July 2018

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I. Introduction: Access rights in the jurisdiction

A. The roots of access rights

Reasonable access to court proceedings and records is guaranteed by part I, article 8 of the New Hampshire Constitution, Petition of Keene Sentinel136 N.H. 121 (1992), under New Hampshire common law, and longstanding practice. See Thomson v. Cash,117 N.H. 653 (1977).

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B. Overcoming a presumption of openness

In Keene Publishing Corp. v. Cheshire County Superior Court119 N.H. 710, 711 (1979), the New Hampshire Supreme Court (the “Court”) stated:

In this State the press has been held to have a State constitutional right, though not unlimited, to gather the news. (citations omitted). To effectuate this right, this court has adopted standards that govern pre-trial criminal hearings and establish a presumption in favor of open judicial proceedings and unsealed court records. Preliminary hearings may be closed to the public or press only if dissemination of information from the proceedings would create a “clear and present danger” to the fairness of the trial and if the prejudicial effect of such information could not be avoided by any reasonable alternative to closure.

In Petition of Keene Sentinelthe Court reaffirmed that the presumption of openness applies to all court records “absent some overriding consideration or special circumstance.” 136 N.H. 121, 128 (1992). To overcome the presumption, the party seeking to seal the records must “demonstrate with specificity that there is some overriding consideration or special circumstance, that is, a sufficiently compelling interest, which outweighs the public’s right of access to those records.” Id.

In Associated Press, Inc. v. State, 153 N.H. 120 (2005), the Court reworked the presumption of openness and adopted the United States Supreme Court’s experience and logic test for determining whether the State constitutional right of access applies to certain court proceedings. It held “that the State constitutional right of access attaches only to those documents that are important and relevant to a determination made by the court in its adjudicatory function in connection with a proceeding to which the State constitutional right of access has attached.” Id. at 134. In so ruling, the Court noted that the common law right of access is more “expansive” because it “applies to ‘those things which are filed in court in connection with a pending case.” Id. at 133 (citing Thomson v. Cash, 117 N.H. 653 (1977)).

Continuing, the Court stated that the legislature could make court records confidential upon filing so long as they “retain their status as presumptively open and the public is afforded procedural safeguards required by the constitutional right of access.” 153 N.H. at 135–36. Those safeguards are required by part I, articles 8 and 22 of the New Hampshire Constitution. They require:

  • 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
  • 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.

Associated Press, 153 N.H. at 136.

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C. Procedural prerequisites to closure

Given the presumption of openness, unless required by statute, e.g., in juvenile cases, a party seeking to close a court proceeding or seal a court record would do so by a motion to close/seal, stating the compelling reasons therefor and why closure/seal was the least restrictive means to achieve those reasons.

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II. Procedure for asserting right of access to proceedings and records

A. Media standing to challenge closure

The media as well as members of the public have standing to challenge a closure order or order sealing a court record. See Associated Press, Inc. v. State153 N.H. 120 (2005); Thomson v. Cash117 N.H. 653 (1977).

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B. Procedure for requesting access in criminal cases

Criminal cases are presumptively open. See discussion at I, B above.

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C. Procedure for requesting access in civil matters

Civil cases are presumptively open.

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D. Obtaining review of initial court decisions

If the decision is interlocutory, the party would apply to the lower court that issued the adverse decision for permission to appeal to the New Hampshire Supreme Court. See N.H. Sup. Ct. R. 8. If permission is granted, an appeal would be filed with the Supreme Court, which has the discretion to reject the appeal. In that event, if the issue were not moot it could be raised at the conclusion of the case or, possibly, at a later, more appropriate stage.

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III. Access to criminal proceedings

A. In general

The right of access granted by the state constitution and under the common law, discussed in “Overcoming a presumption of openness” above, applies to criminal proceedings, including pretrial, trial and post-trial proceedings.

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B. Pretrial proceedings

At the pre-indictment or pre-arrest stage, although the presumption of openness applies, the New Hampshire Supreme Court has created a special rule for “what constitutes an ‘overriding consideration or special circumstance’ . . . to overcome the presumption of access.” Petition of State (Bowman Search Warrant), 146 N.H. 621, 625 (2001). There, the Court held “that in most pre-indictment criminal investigations, the existence of an investigation itself will provide the ‘overriding consideration or special circumstance, that is, a sufficiently compelling interest, that would justify preventing public access to the records.’” 146 N.H. at 629.

The presumption of openness guaranteed by the state constitution applies to probable cause hearings under the Sexually Violent Predator Act, RSA Ch. 135-E. State v. DeCato156 N.H. 570 (2007).

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C. Criminal trials

The right of access granted by the state constitution and the common law applies to criminal trials.

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D. Post-trial proceedings

The right of access granted by the state constitution and the common law applies to criminal proceedings, including post-trial proceedings. See “Access to criminal proceedings/In general” above; see also State v. Kibby, 170 N.H. 255 (2017) (after defendant pled guilty to seven indictments, presumption of openness applied to the record, all pleadings filed, and all orders issued involving the defendant’s correspondence with the court and his counsel’s motion to withdraw, including the correspondence itself).

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E. Appellate proceedings

The right of access granted by the state constitution and the common law applies to criminal appellate proceedings.

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IV. Access to criminal court records

A. In general

The right of access granted by the state constitution and under the common law, discussed in “Overcoming a presumption of openness” above, applies to criminal records.

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B. Arrest records

Arrest records filed in court are subject to the general rule in IV, A. Access to arrest records not filed in court is governed by the Right-to-Know Law (N.H. Rev. Stat. Ann. § 91-A) and N.H. Rev. Stat. Ann. § 594:14-a, which reads:

I. For the purposes of this section, an "arrest record" means a record created by law enforcement personnel to document the arrest of an individual 17 years of age or older. Arrest records are "governmental records" as defined in RSA 91-A and subject to disclosure in accordance with that chapter, with the exception noted in RSA 106-B:14.

II. Arrest records shall contain, at a minimum: (a) The identity of the individual arrested; (b) The identity of the arresting officer or officers unless the officer's supervisor has good cause to believe that identifying the officer would not serve the public interest; (c) A statement as to reasons why and how the arrest was made; (d) The alleged crime; and (e) Whether the arrest was made pursuant to a warrant.

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C. Dockets

The right of access granted by the state constitution and under the common law discussed above applies to criminal dockets.

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Access to arrest and search warrants, as noted above in “Access to criminal proceedings/In general,” depends on the stage of the criminal proceeding. See, e.g., In re State (Bowman Search Warrants), 146 N.H. 621 (2001) (“[I]n most pre-indictment criminal investigations, the existence of an investigation itself will provide the ‘overriding consideration or special circumstance, that is, a sufficiently compelling interest, that would justify preventing public access to the records.’”)

Access to wiretaps is governed by N.H. Rev. Stat. Ann. § Ch. 570-A.

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E. Discovery materials

Discovery materials filed with the court are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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F. Pretrial motions and records

Pretrial motions and records are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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G. Trial records

Trial records are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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H. Post-trial records

Post-trial records are subject to the right of access discussed in “Overcoming a presumption of openness” above. See also State v. Kibby170 N.H. 255 (2017) (after defendant pled guilty to seven indictments, presumption of openness applied to the record, all pleadings filed, and all orders issued involving the defendant’s correspondence with the court and his counsel motion to withdraw, including the correspondence itself).

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I. Appellate records

Appellate records are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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J. Other criminal court records issues

Other records are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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V. Access to civil proceedings

A. In general

The right of access, discussed in “Overcoming a presumption of openness” above, applies to civil proceedings.

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B. Pre-trial proceedings

The right of access, discussed in “Overcoming a presumption of openness” above, applies to pre-trial proceedings.

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C. Trials

The right of access, discussed in “Overcoming a presumption of openness” above, applies to trials.

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D. Post-trial proceedings

The right of access, discussed in “Overcoming a presumption of openness” above, applies to post-trial proceedings.

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E. Appellate proceedings

The right of access, discussed in “Overcoming a presumption of openness” above, applies to appellate proceedings.

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VI. Access to civil records

A. In general

The right of access, discussed in “Overcoming a presumption of openness” above, applies to court records in civil cases.

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B. Dockets

The right of access, discussed in “Overcoming a presumption of openness” above, applies to dockets.

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C. Discovery materials

D. Pre-trial motions and records

The right of access, discussed in “Overcoming a presumption of openness” above, applies to pre-trial motions and records.

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E. Trial records

The right of access, discussed in “Overcoming a presumption of openness” above, applies to trial records.

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F. Settlement records

Settlement records, like other court records filed with the court, are subject to the right of access discussed in “Overcoming a presumption of openness” above.

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G. Post-trial records

The right of access, discussed in “Overcoming a presumption of openness” above, applies to post-trial records.

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H. Appellate records

The right of access, discussed in “Overcoming a presumption of openness” above, applies to appellate records.

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I. Other civil court records issues

The right of access discussed in “Overcoming a presumption of openness” above, applies to other civil court records issues.

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VII. Jury and grand jury access

A. Access to voir dire

Voir dire of the jury is open to the public.

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B. Juror identities, questionnaires and other records

Juror qualification forms are not public records. See N.H. Rev. Stat. Ann. § 500-A:6.

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C. Grand jury proceedings and records

Grand jury proceedings and records are confidential. See N.H. Rev. Stat. Ann. § 600:3 (Oath taken by grand jurors).

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D. Interviewing jurors

Jurors may be interviewed but there is no right to interview.

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VIII. Proceedings involving minors

A. Delinquency

Delinquency proceedings are confidential by statute. See N.H. Rev. Stat. Ann. § 169-B:34 and 35.

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B. Dependency

Dependency proceedings – “Services for Children, Youth and Families” – are confidential by statute. See N.H. Rev. Stat. Ann. § 170-G:8-a.

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C. Other proceedings involving minors

Abuse and neglect proceedings are confidential by statute, see RSA 169-C:25, as are proceedings for children in need of service. See N.H. Rev. Stat. Ann. § 169-D:24 and 25.

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D. Prohibitions on photographing or identifying juveniles

See the other sections of “Proceedings involving minors.”

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E. Minor testimony in non-juvenile courts

The right of access, discussed in “Overcoming a presumption of openness” above, applies to such testimony by a minor.

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IX. Special proceedings

A. Tribal Courts in the jurisdiction

Not applicable.

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B. Probate

The right of access, discussed in “Overcoming a presumption of openness” above, applies to probate proceedings. See also Probate Court Rule 169-A. Access to Confidential Records -- Fees and Notice: “Any person or entity not otherwise entitled to access may file a motion or petition to gain access to any sealed or confidential court record. See Petition of Keene Sentinel136 N.H. 121 (1992).”

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C. Competency and commitment proceedings

Hearings to determine the competency of a person to stand trial are public, as are commitment proceedings. See N.H. Rev. Stat. Ann. § 170 G:10.

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D. Attorney and judicial discipline

Attorney judicial discipline hearings are public. See Sup. Ct. R. 37A, III (c)(1).

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E. Immigration proceedings

F. Other proceedings

X. Restrictions on participants in litigation

A. Media standing to challenge third-party gag orders

The media has standing. Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. 710 (1979).

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B. Gag orders on the press

Gag orders are considered to be prior restraints on the press and are presumptively unconstitutional. Keene Publishing Corp. v. Cheshire County Superior Court119 N.H. 710 (1979).

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C. Gag orders on participants

The parties and witnesses: In re NB, 169 N.H. 205 (2016) (prior restraint are presumptively unconstitutional).

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D. Interviewing judges

Neither the press nor public has the right to interview judges. Whether a judge should give an interview is governed by the New Hampshire Code of Judicial Conduct. See Sup. Ct. R. 38.

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XI. Other issues

A. Interests often cited in opposing a presumption of access

Privacy – see Petition of Keene Sentinel136 N.H. 121 (1992).

Prejudicial pretrial publicity– see Keene Publishing Corp. v. Cheshire County Superior Court119 N.H. 710 (1979); Keene Publishing Corp. v. Keene District Court117 N.H. 959 (1977).

Interference with pre-indictment or pre-arrest investigation of a crime– see Petition of State (Bowman Search Warrants), 146 N.H. 620 (2001).

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B. Cameras and other technology in the courtroom

Cameras are permitted in all court proceedings open to the public. In re WMUR Channel 9, 148 N.H. 645 (2002); Sup. Ct. R. 19; Superior Court Rule 204 (civil) and 46 (criminal); Circuit Court: Rule 1.4 (District Division), Rule 78 (Probate Division), and Rule 1.29 (Family Division).

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C. Tips for covering courts in the jurisdiction

In addition to understanding the presumption of openness and the difference between its scope under the New Hampshire Constitution and common law, journalists will find the clerks of court to be knowledgeable and helpful for obtaining access to court proceedings and records. In addition, the Judicial Branch Communications Manager and media contact person is Carole Alfano. She can be reached at (603) 271-2646 Ext, 0243, or at calfano@courts.state.nh.us.

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