Media wants divorce files open to public
By ANNE SAUNDERS
The Associated Press
August 13, 2004
CONCORD — Do lawmakers have the right to block public access to financial records in divorce cases?
A judge heard arguments yesterday about the constitutionality of a law that went into effect on Tuesday.
The law made all financial affidavits filed in a divorce, child support or custody case confidential except to the couple, their lawyers and certain other officials. Some lawmakers argued this was needed to protect people’s privacy.
Five newspapers, The Associated Press wire service, the New Hampshire Association of Broadcasters and WMUR-TV sued. They asked Merrimack County Superior Court Judge Edward Fitzgerald to act immediately to suspend the law until the issue is decided.
They argue public access to court records is essential to keeping legal proceedings fair and is protected under the state constitution.
Their lawyer, William Chapman, said the state Supreme Court has ruled previously that court documents are public unless there’s a “compelling interest” in sealing them.
This law “totally emasculates that rule,” he said. Furthermore, it’s up to the judiciary, not the Legislature, to decide what sort of access to court records there should be, he said.
Daniel Mullen, associate attorney general, said the law does not usurp judicial authority. It’s the Legislature’s responsibility to make the laws governing divorce proceedings, he said.
“It’s not an absolute closing of financial records,” he said. If asked, the court can unseal the records, he noted.
Furthermore, there are other exceptions to public access including juvenile and adoption proceedings, he said. In divorce cases, the Legislature acted because financial affidavits include sensitive personal information not typically available to the public.
Mullen agreed there were legal problems with one part of the law making it a misdemeanor for anyone to disclose a financial affidavit to an unauthorized person.
That could have led to broadcasters or publishers being charged for revealing information they got through no illegal act on their part, something the U.S. Supreme Court has disallowed.
The question remains whether finding one part of the law improper means the entire law should be thrown out.
Fitzgerald said he will give the lawyers until the end of the day Monday to submit any additional arguments in this case. He gave no indication when he would rule.
The newspapers suing include the Concord Monitor, The Keene Sentinel, Valley News, Portsmouth Herald and The Telegraph of Nashua.
Thanks to Darla for spotting this news item.