Associated Press v. State

Decision Date30 December 2005
Docket NumberNo. 2004–830.,2004–830.
Citation888 A.2d 1236,153 N.H. 120
CourtNew Hampshire Supreme Court
Parties The ASSOCIATED PRESS and another. v. The STATE of New Hampshire.

Orr & Reno, P.A., of Concord (William L. Chapman, on the brief and orally), for the petitioners.

Kelly A. Ayotte, attorney general (M. Kristin Spath, associate attorney general, on the brief, and Mary E. Schwarzer, assistant attorney general, orally), for the State.

Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III, on the brief), for Neal Kurk, as amicus curiae.


The petitioners, the Associated Press and other news organizations serving New Hampshire, appeal the order of the Superior Court (Fitzgerald , J.) denying their petition for a declaration that RSA 458:15–b (2004) (amended 2005) is unconstitutional and for an injunction enjoining its enforcement. We affirm in part, reverse in part and remand.

I. Background

The record supports the following facts. RSA 458:15–b was introduced during the 2003 New Hampshire legislative session as House Bill 384. It was enacted on June 11, 2004, and took effect on August 10, 2004. The statute provides:

I. Except as provided in paragraph III, all financial affidavits filed under this chapter shall be confidential and accessible only to the parties, their attorneys, the guardian ad litem, department of health and human services employees responsible for child support administration, and state and federal officials for the purpose of carrying out their official functions.
II. Any person who knowingly discloses a financial affidavit to any person not authorized to obtain the financial affidavit under this section shall be guilty of a misdemeanor. This paragraph shall not apply to documents released by a court pursuant to paragraph III.
III. Notwithstanding paragraph I, the court may grant access to a financial affidavit filed under this chapter to a person upon a showing by clear and convincing evidence that the public interest served by release of the information outweighs the private interest served by maintaining the privacy of the financial affidavit. For the purposes of this paragraph, the right of the public to access court records shall not, absent further cause, constitute sufficient evidence to overcome the presumption of privacy contained in paragraph I.

RSA 458:15–b.

On August 9, 2004, the petitioners filed a petition for declaratory and injunctive relief in the superior court, requesting the court to rule that RSA 458:15–b is unconstitutional because: (1) it violates the public's right of access to court records guaranteed by Part I, Articles 8 and 22 of the State Constitution; (2) it is an impermissible prior restraint on freedom of speech as guaranteed by Part I, Article 22 of the State Constitution and the First Amendment to the Federal Constitution; and (3) it violates the separation of powers guaranteed by Part I, Article 37 of the State Constitution.

The trial court ruled that RSA 458:15–b is constitutional, and denied the petitioners' request for relief. With respect to the public's constitutional right of access to court records, the trial court said that the constitutionality of RSA 458:15–b depends only upon whether the statute serves a compelling State interest. The trial court then found that RSA 458:15–b advances the fundamental right to privacy, and "the preservation of this particular privacy interest in certain information is a compelling interest." The trial court also concluded that RSA 458:15–b does not violate the separation of powers, finding that the inclusion of a judicial review mechanism in the statute, as well as the existence of other similar statutes making court records confidential, indicates that the legislature has not impermissibly intruded upon the judicial function. Finally, the trial court concluded that, although RSA 458:15–b operates as a prior restraint on freedom of speech, the judicial review procedures in the statute are sufficient to render RSA 458:15–b constitutional.

On appeal, the petitioners ask us to hold that RSA 458:15–b is unconstitutional. "The constitutionality of a statute involves a question of law, which we review de novo ." Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 34, 871 A.2d 18 (2005). To address the petitioners' claims, we first must decide whether RSA 458:15–b violates the public right of access to court records provided by the State Constitution. In doing so, we review: the State constitutional right of access to court records, see N.H. CONST. pt. I, arts. 8, 22; the constitutional standards applicable to limitations on the right of access to court records, see Petition of Keene Sentinel, 136 N.H. 121, 129–30, 612 A.2d 911 (1992) ; and the applicability of those standards to RSA 458:15–b. We then must determine whether RSA 458:15–b is an impermissible prior restraint. Finally, we must decide whether RSA 458:15–b violates the separation of powers guaranteed by Part I, Article 37 of the State Constitution.

II. The Constitutional Right of Access to Court Records

Court records are governmental records, access to which is governed by the State Constitution. See N.H. CONST. pt. I, art. 8. Part I, Article 8 of the State Constitution provides:

All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted.

N.H. CONST. pt. 1, art. 8. The State argues that RSA 458:15–b does not violate Part I, Article 8 because it "reasonably restricts" public access to government records. In order to determine whether RSA 458:15–b is a reasonable restriction under Part I, Article 8, we must examine the history and purpose of the provision. See Baines v. N.H. Senate President, 152 N.H. 124, 133–34, 876 A.2d 768 (2005).

Part I, Article 8 must be read in conjunction with Part I, Article 7 of the State Constitution, which states in pertinent part that "[t]he people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state." N.H. CONST. pt. 1, art. 7 ; see Opinion of the Justices, 111 N.H. 175, 177, 278 A.2d 475 (1971). Together, these two provisions "express the American theory of government that the state being sovereign, the people being the state, and all magistrates and public officers being their substitutes and agents[,] they are accountable to the people." Opinion of the Justices, 111 N.H. at 177, 278 A.2d 475 (quotations omitted).

The last two sentences of Part I, Article 8 were added by amendment in 1976. Hughes v. Speaker, N.H. House of Representatives, 152 N.H. 276, 286, 876 A.2d 736 (2005). Prior to the 1976 amendment, Part I, Article 8 called for the accountability of government, but did not require any special method of accountability. Id. at 289–90, 876 A.2d 736 ; see also Opinion of the Justices, 111 N.H. at 177–78, 278 A.2d 475. The 1976 amendment incorporated an express right of access into the State Constitution as a method of ensuring, among other things, the accountability of government. See N.H. CONST. pt. I, art. 8. "[T]he public's constitutional right of access is meant to satisfy an ‘end’; to wit, that government should be open, accountable, accessible and responsive." Hughes, 152 N.H. at 295, 876 A.2d 736 (quotation omitted). The reasonableness of any restriction on the public's right of access to any governmental proceeding or record must be examined in light of the ability of the public to hold government accountable absent such access.

Unlike some government proceedings and records, see id., most court records and proceedings have historically been open to the public and, as discussed below, the importance of that openness has been recognized time and time again by this court and others. The 1976 amendment to Part I, Article 8 was adopted to further this tradition of open court proceedings and records, consistent with the purpose of assuring, among other things, the accountability of the judiciary. Therefore, the reasonableness of a restriction on access to court proceedings and records must be examined in light of this purpose and the common law and constitutional origins of the right.

The public right of access to court proceedings and records pre-dates the State and Federal Constitutions and is firmly grounded in the common law. See Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 & n. 6 (6th Cir.1983). The common law right of access to court records provides that, "absent special circumstances, those things which are filed in court in connection with a pending case are open to public inspection." Thomson v. Cash, 117 N.H. 653, 654, 377 A.2d 135 (1977). "This appears to be the almost universal rule dating from the earliest times." Id. ; accord Leucadia, Inc. v. Applied Extrusion Technologies, Inc.,

998 F.2d 157, 161 (3d Cir.1993). "The courts of New Hampshire have always considered their records to be public, absent some overriding consideration or special circumstance." Thomson, 117 N.H. at 654, 377 A.2d 135. The United States Supreme Court has also recognized the existence of a general common law right to access public records and documents, including judicial records. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597–99, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). Both the State and Federal Constitutions were adopted against this common law background.

The federal courts have recognized that a constitutional right of access to court proceedings and records is implicit in First Amendment guarantees. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (plurality opinion); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th...

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