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
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
On appeal, the. pеtitioners 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,
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,
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
The last two sentences of Part I, Article 8 were added by amendment in 1976. Hughes v. Speaker, N.H. House of Representatives,
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 acсountability 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.,
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,
The Bill of Rights was enacted against the backdrop of the long history of trials being presumptively open. Public access to trials was then regarded as an important aspect of the process itself; the conduct of trials “before as many of the people as chuse to attend” was regarded as one of “the inestimable advantages of a free English constitution of government.” In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” Free speech carries with it some freedom to listen— [I]n the context of trials[,] the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted.
Id. at 575-76 (citations omitted).
In Globe Newspaper Co. v. Superior Court,
*127 [T]he right of access to criminal trials plays a particularly significant role in the functioning of the judicial process and the government as a whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process, with benefits to both the defendant and to society as a whole. Moreover, public access to the criminal trial fosters an appearance of fairness, thereby heightening public respect for the judicial process. And in the broadest terms, public access to criminal trials permits the public to participate in and serve as a check upon the judicial process — an essential component in our structure of self-government. In sum, the institutional value of the open criminal trial is recognized in both logic and experience.
The United States Supreme Court has since applied the First Amendment right of access to voir dire in criminal cases, Press-Enterprise Co. v. Superior Court of Cal.,
Although the United States Supreme Court has yet to apply the First Amendment right of access to civil proceedings, other federal courts have done so. See, e.g., Publicker,
The explanation for and the importance of [the] public right of access to civil trials is that it is inherent in the nature of our democratic form of government____“It is desirable that the trial of [civil] causes should take place under the public eye,... not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.”
Id. at 1069 (citations omitted) (quoting Cowley v. Pulsifer,
Although few courts have addressed whether the First Amendment right of access applies to court records, one federal court has said that principles regarding public access to judicial proceedings apply as well to public access to court documents because “court records often provide
Unlike the federal right of access under the First Amendment, the State constitutional right of access to court proceedings and records is explicitly provided by Part I, Article 8 of the State Constitution. New Hampshire is one of only a handful of States with a constitutional provision that explicitly protects the public’s right of access tо governmental proceedings and documents. Hughes,
Furthermore, just as the federal courts have recognized that the right of access to court proceedings and records is grounded in the First Amendment freedom of speech, we, too, have recognized that the public’s right of access to court records and proceedings is grounded in Part I, Article 22 of the State Constitution. See Petition of Keene Sentinel,
In a long line of cases discussing access to court proceedings and court records, we have relied upon Articles 8 and 22, together, as the basis for the State constitutional right of access. In Keene Publishing Corp. v. Keene District Court,
III. Limitations on the Constitutional Right of Access to Court Records
The constitutional right of access to judicial proceedings and records, under either the State or Federal Constitution, is not absolute. Globe Newspaper,
In New Hampshire, the light of access may be overcome when a sufficiently compelling interest for nondisclosure is identified. Bowman Search Warrants,
under the constitutional and decisional law of this State, there is a presumption that court records are public and the burden of proof rests with the party seeking closure or nondisclosure of court records to 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.
Douglas v. Douglas,
This standard is analogous to the standard employed by the federal courts in analyzing the public right of access to court proceedings and records under the First Amendment.
Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness____Where the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.
Press-Enterprise I,
We now reaffirm the clear command of Part I, Article 8 of the State Constitution, which requires that the public’s constitutional right of access to court records not be unreasonably restricted. In keeping with our prior cases, we hold, that, whenever a member of the public, including the press, seeks access to a sealed court document, Part I, Articles 8 and 22 of the State Constitution require: (1) 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 (2) that the court “determine that no reasonable alternative to nondisclosure exists” and “use the least restrictive means available to accоmplish the purposes sought to be achieved.” Petition of Keene Sentinel,
TV. RSA I58:15-b and the Constitutional Right of Access to Court Records
In analyzing whether RSA 458:15-b violates the State constitutional right of access to court records, we first consider whether the constitutional right of access attaches to domestic relations proceedings and financial affidavits in general. Finding that it does, we then consider whether RSA 458:15-b offends that constitutional right of access, in either its requirement that all financial affidavits be filed under seal or its procedural requirements for public access.
As explained above, 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. However, as discussed below, not every type of court proceedings has historically been open to the public; nor does public access enhance the integrity or accountability of the judiciary in evеry situation. Inherent in the policies underlying public access is the fact that the right of access does not attach to every proceeding or to every record.
Whether the right of access attaches to all financial affidavits filed in domestic relations cases has yet to be decided in this State. In Petition of Keene Sentinel,
In determining whether the First Amendment right of access applies to proceedings outside of the criminal trial, the United States Supreme Court has utilized a two-part test of experience and logic — “whether the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enterprise II,
We have never expressly adopted the United States Supreme Court’s experience and logic test under the State Constitution. However, we have followed a similar paradigm in determining when the State constitutional right of access attaches to certain court proceedings and court documents. See Petition of Union Leader Corp.,
Even where the constitutional right of access is applicable to a court proceeding, the right of access is not automatically applicable to every court document relating to that proceeding. With respect to the common law light of access, we have held that it applies to “those things which are filed in court in connection with a pending case.” Thomson,
Some federal courts have stated that documents filed with the court are subject to the First Amendment right of access only if the documents are important and relevant to an adjudication of substantive rights. See Rushford,
We decline to hold that every document filed in connection with a pending case is subject to the State constitutional right of access, and instead hold 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.
Having identified the standard for determining whether the constitutional right of access has attached to a court document, we must now consider whether it applies to financial affidavits. Neither of the parties has argued that the constitutional right of access does not apply to financial affidavits in domestic relations cases. Financial affidavits filed in domestic relations cases are utilized by the court in its adjudicatory function. See Super. Ct. R. 197 (requiring that financial affidavits be filed at hearings “involving financial matters or property, or as may be required by the court”); see. also, e.g., In the Matter of Folley & Folley,
Having determined that the constitutional right of access is applicable to financial affidavits filed in domestic relations cases, we must examine the constitutionality of the procedural requirements in RSA 458:15-b that: (1) make financial affidavits confidential upon filing, RSA 458:15-b, I; and (2) establish procedures for members of the public to gain access to those financial affidavits, RSA 458:15-b, III. We address each section of the statute in turn.
1. RSA I58:15-b, I
The constitutionality of a statute that automatically seals a class of court records is an issue of first impression for this court. To date, each of our cases has reviewed the constitutionality of a judicial mandate of disclosure or nondisclosure on the facts of a particular case. See, e.g., Bowman Search Warrants,
With the exception of the separation of powers issue raised by the petitioners and addressed later in this opinion, infra Part VII, we find nothing in the State Constitution or in our prior cases that prohibits the legislature from enacting legislation that, with sufficient justification, creates a procedure by which a narrow category of documents is made confidential upon filing with the court. In our prior cases dealing with the State constitutional right of access, rather than examining the statute or procedure by which the proceeding or document was made confidential, we instead examined the procedure that was employed when a member of the public sought disclosure of a confidential proceeding or document. See, e.g., Bowman Search Warrants,
2. RSA Jp58:15-b, III
We now examine the сonstitutionality of the procedures for public access provided in RSA 458:15-b, III. As stated above, whenever a member of the public, including the press, seeks access to a document sealed under RSA 458:15-b, I, Part I, Articles 8 and 22 of the State Constitution require: (1) 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 (2) 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. See Petition of Keene Sentinel,
At the outset, the State argues that the Petition of Keene Sentinel analysis does not apply to legislative enactments designed to further some countervailing interest that the legislature has deemed to be sufficiently compelling to require nondisclosure in all cases. The State relies upon the trial court’s interpretation of Petition of Keene Sentinel. In its order, the trial court stated:
The Court in Keene Sentinel realized ... that in certain circumstances, statutory provisions would grant or require confidentiality, constituting a sufficiently compelling interest to preclude public access to the document at issue. See [.Petition of Keene Sentinel, 136 N.H.] at 130.
By enacting RSA 458:15-b, thе legislature provided that the individual privacy interest at stake in financial affidavits in domestic relations cases is so great that it constitutes a per se countervailing interest in the Keene Sentinel analysis.
(Emphasis added.) We respectfully disagree. The trial court appears to have relied upon our discussion in Petition of Keene Sentinel,
There will be instances where the claimed countervailing rights of a party (for example, constitutional rights of a defendant in a criminal case or statutory provisions granting or requiring confidentiality in certain cases) must not be rendered moot pending final resolution of the access issue. When appropriate, the document’s subject matter, however, can be described in*137 general terms such that persons objecting to closure can present an adequate argument to the court.
Id. (emphasis added). In this statement, we provided a safeguard to preserve the status quo during in camera proceedings, reсognizing that the proponent of nondisclosure may have certain “countervailing rights,” statutory or otherwise, that must not be “rendered moot” by disclosure before the court decides whether to unseal the document. Id. However, we did not state that these countervailing rights automatically rise to the level of a “sufficiently compelling interest to preclude public access.”
The State next argues that RSA 458:15-b, including the procedures contained in paragraph III, is justified by a compelling State interest: the individual’s fundamental right to privacy. However, 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. See id. at 128. “We cannot accept... a blanket assertion of the privacy right. Courts ... are public forums. A private citizen seeking a divorce in this State must unavoidably do so in a public forum____” Id. While we recognize the importance of the right to privacy, “[t]he [public’s] right of access to ... sealed records must be weighed and balanced against privacy interests that are articulated with specificity.” Id. at 129.
The State also argues that RSA 458:15-b is justified by another compelling State interest: the protection of the citizens of the State from identity theft. We acknowledge that identity theft is a growing problem. However, the State has offered no empirical evidence linking identity theft to court documents, nor has the State demonstrated that the shifting of the burden of proof and the new standard established by RSA 458:15-b will lead to a decrease in the incidence of identity theft in the State.
Even if we agree that RSA 458:15-b serves a compelling interest— safeguarding litigants from identity theft — the State has failed to demonstrate that the nondisclosure procedures created by paragraph III of the statute are a narrowly tailored means of protecting litigants from identity theft. Once financial affidavits are made confidential under RSA 458:15-b, I, they may not be viewed by anyone but the parties and other persons specifically identified in paragraph I, except by leave of court. RSA 458:15-b, I. Thus, a member of the press or public must file a petition with the court when seeking access to a seаled affidavit. See Petition of Keene Sentinel,
The petitioners argue that RSA 458:15-b, III is unconstitutional because it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure, see Petition of Keene Sentinel,
As stated, Part I, Articles 8 and 22 of the State Constitution require that a pаrty opposing disclosure of a presumptively open court document bear the burden of demonstrating a sufficiently compelling reason that justifies nondisclosure. See Petition of Keene Sentinel,
RSA 458:15-b, III also requires that the proponent of disclosure demonstrate some public interest in favor of disclosure that is greater than the public right of access to court records. See RSA 458:15-b, III (“the right of the public to access court records shall not, absent further cause, constitute sufficient evidence” to compel disclosure). However, the motivations of the party seeking disclosure are irrelevant to the question
We conclude that RSA 458:15-b, III is unconstitutional for three reasons: it places the burden of proof upon the proponent of disclosure, rather than the proponent of nondisclosure, see Petition of Keene Sentinel,
V. Prior Restraint
Having concluded that RSA 458:15-b, I, does not violate the constitutional right of access, whilе RSA 458:15-b, III does, we now consider the constitutionality of RSA 458:15-b, II. Paragraph II makes criminal the disclosure of a financial affidavit “to any person not authorized to obtain the financial affidavit under [paragraph I],” except where the financial affidavit has been released by a court pursuant to paragraph III. RSA 458:15-b, II. The petitioners argue that paragraph II is an impermissible prior restraint on freedom of speech, in violation of Part I, Article 22 of the State Constitution as well as the First Amendment to the Federal Constitution. We first address the petitioners’ claim under the State Constitution and cite federal opinions for guidance only. State v. Ball,
The petitioners contend that because RSA 458:15-b, II punishes the publication of lawfully obtained, truthful information it is an impermissible
We agree that the United States Supreme Court has clearly held that the First Amendment prorides a certain degree of protection against penal sanctions for the publication of lawfully obtained, truthful information. See Smith,
However, we do not agree that the Supreme Court has held that such penal sanctions are prior restraints. See, e.g., Florida Star,
The petitioners argue that, because RSA 458:15-b, II is a prior restraint, it is permissible only if it contains certain “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland,
The Federal Constitution offers the petitioners no greater protection than does the Stаte Constitution under these circumstances. Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.
VI. Severability
Having concluded that RSA 458:15-b, III violates the constitutional right of access to court records, we are left with RSA 458:15-b, I and II, and the petitioners’ argument that the statute violates the separation of powers guaranteed by the State Constitution. However, before reaching the separation of powers argument, we must first determine whether RSA 458:15-b, III is severable from RSA 458:15-b, I and II, because if paragraph III is not severable, paragraphs I and II will not survive alone.
“In determining whether the valid provisions of a statute are severable from the invalid ones, we are to presume that the legislature intended that the invalid part shall not produce entire invalidity if the valid part may be reasonably saved.” Claremont School Dist. v. Governor (Statewide Property Tax Phase-In),
In reporting that House Bill 384 ought to pass with amendment, the House Commerce Committee report provided a written statement of intent:
Financial affidavits used during divorce, separation, [and] annulments are statements of a personal nature and should not be made public since it accomplishes no public purpose. Most*142 states do not include financial affidavits in the court file, but are kept by the clerk of courts and available to all.
N.H.H.R. Jour. 439 (2003). House Bill 384, as amended, included an analysis, which stated that “[the bill] provides that financial affidavits in domestic relations cases are confidential and accessible only to the parties, their attorneys, the guardian ad litem, and state and federal officials.”
From this legislative history, we conclude that paragraph III is not “so integral and essential in the general structure of the act that [it] may not be rejected without the result of an entire collapse and destruction of the structure.” Claremont School Dist.,
We note that paragraphs I and II provide as follows:
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 financiаl 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.
RSA 458:15-b, I, II (emphasis added). Having declared paragraph III unconstitutional, it may appear that RSA 458:15-b now contains no possibility for a member of the public to petition for access to a confidential financial affidavit. Such an interpretation would render RSA 458:15-b, I, unconstitutional as an infringement upon the public right of access to court records, as discussed. See supra Part IV, B, 2. To resolve this conflict, we invoke the principle that “a statute will not be construed to be
VII. Separation of Powers
Having concluded that RSA 458:15-b, I, as construed, does not violate the constitutional right of access to court documents, and that RSA 458:15-b, I and II are severable from RSA 458:15-b, III, we now consider whether the remaining provisions of RSA 458:15-b violate the separation of powers guaranteed by Part I, Article 37 of the State Constitution.
The petitioners contend that RSA 458:15-b violates Part I, Article 37 by controlling access to court records, and thus intruding upon the court’s power “to control its own proceedings.” We disagree.
An essential power of the judiciary is the power to control its own proceedings. See State v. LaFrance,
The petitioners also argue that RSA 458:15-b conflicts with the court’s rule-making authority under Part II, Article 73-a of the State Constitution, and thus violates the separation of powers doctrine. They contend that
Superior Court Rule 197 provides, in pertinent part: “The clerk shall, upon written request of any party, place that party’s affidavit in a sealed envelope, which shall not be opened except by the parties, the Office of Child Support, or with leave of court.” Rule 197 and RSA 458:15-b, I, differ in two respects: (1) the latter makes all affidavits confidential upon filing, while the former requires the sealing of affidavits only upon request of a party; and (2) the latter permits more individuals access to affidavits without leave of court than does the former. We find that neither of these differences results in a conflict between the statute and the court rule.
RSA 458:15-b, I, and Rule 197 can coexist. Neither prevents a party from invoking the provisions of the other. RSA 458:15-b, I, as construed, makes all financiаl affidavits confidential automatically, but access is granted, without leave of court, to “the parties, their attorneys, the guardian ad litem, department of health and human services employees responsible for child support administration, and [certain other] state and federal officials.” Id. Despite this provision, a party may still invoke the procedures of Rule 197 by requesting that the clerk place the affidavit under seal, in which case access will be granted, without leave of court, to only the parties and the Office of Child Support. Super. Ct. R. 197. In the absence of a written request under Rule 197, RSA 458:15-b, I, applies.
The coexistence of the statute and the rule does not create a conflict. If a financial affidavit is sealed pursuant to Rule 197, RSA 458:15-b, I, is not violated. Nothing in RSA 458:15-b, I, requires that access always be granted, without leave of court, to the guardian ad litem or any state or federal officials outside of the Office of Child Support; the provision of access to them is merely an exception to the general rule of confidentiality established by RSA 458:15-b, I. Thus, the statute does not supplаnt the rule, and the two continue to exist without contradiction. Cf. State v. Farrow,
The petitioners’ arguments that RSA 458:15-b is a violation of the separation of powers doctrine because it intrudes upon the court’s power to control its proceedings and records and because it conflicts with Superior Court Rule 197 are unpersuasive. Therefore, we hold that RSA
VIII. Conclusion
For the foregoing reasons, we hold that paragraphs I and II of RSA 458:15-b, as construed, do not violate the right of access to court records provided by Part I, Articles 8 and 22 of the State Constitution. Nor do paragraphs I and II violate the separation of powers guaranteed by Part I, Article 37 of the State Constitution. However, RSA 458:15-b, III is an unconstitutional restriction on the public right of access to court records provided by Part I, Articles 8 and 22 of the State Constitution. Because RSA 458:15-b, III is severable from the other constitutional provisions of RSA 458:15-b, the constitutional provisions remain valid, as construed in this opinion.
Affirmed in part; reversed in part; and remanded.