2004-830, THE ASSOCIATED PRESS & a. v. STATE of NH

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial
errors in order that corrections may be made before the opinion goes to press.
Errors may be reported by E-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court's home
page is: http://www.courts.state.nh.us/supreme.
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Merrimack
No. 2004-830
THE ASSOCIATED PRESS & a.
v.
THE STATE OF NEW HAMPSHIRE
Argued: October 20, 2005
Opinion Issued: December 30, 2005
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.
DUGGAN, J. 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.

2
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

3
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
(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 (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
(2005).

4
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 (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 (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
(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; see also Opinion of the Justices, 111 N.H. at
177-78. 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 (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 (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

5
Hampshire have always considered their records to be public, absent some
overriding consideration or special circumstance.” Thomson, 117 N.H. at 654.
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
(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 (1980)
(plurality opinion); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253
(4th Cir. 1988); Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d
Cir. 1984). In Richmond Newspapers, 448 U.S. at 580, the United States
Supreme Court first recognized a constitutional right of access to criminal
trials. The Court described, in detail, the historical significance of the open
court, in both early England and colonial America, id. at 564-69, and
concluded that the right of access to trials was guaranteed by the First
Amendment:
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, 457 U.S. 596, 606 (1982), the
Court reaffirmed the constitutional right of access to criminal trials, explaining:
[T]he right of access to criminal trials plays a particularly
significant role in the functioning of the judicial process and the

6
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., 464 U.S. 501, 508-10 (1984) (hereinafter Press-Enterprise I), and
preliminary hearings in criminal cases, Press-Enterprise Co. v. Superior Court,
478 U.S. 1, 10 (1986) (hereinafter Press-Enterprise II).
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, 733 F.2d at 1070 (3d Cir. 1984). The significance of
the right of public access to civil proceedings, like that to criminal trials, rests
in the accountability of the judiciary:
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, 137 Mass. 392, 394
(1884)).
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 important, sometimes
the only, bases or explanations for a court’s decision.” Brown & Williamson,
710 F.2d at 1177; see also Rushford, 846 F.2d at 252-53 (applying First
Amendment right of access to pleadings and exhibits, including products of
discovery, filed in connection with motions for summary judgment).

7
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 to governmental proceedings and documents.
Hughes, 152 N.H. at 289. The explicit incorporation of the right of access to
governmental documents into the State Constitution provides greater textual
support to the constitutional right of access to court records than does the
First Amendment.
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, 136 N.H. at 127. Part I, Article
22 provides: “Free speech and liberty of the press are essential to the security
of freedom in a state: They ought, therefore, to be inviolably preserved.” N.H.
CONST. pt. I, art. 22. Thus, the State constitutional right of access arises from
both Part I, Article 8 and Part I, Article 22.
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, 117 N.H. 959, 961-62 (1977), we held that the trial court could
not order the closing of a probable cause hearing to protect the defendant from
pre-trial publicity. In doing so, we recognized that “[i]n this state the press has
been held to have a right, though not unlimited, to gather news so as to
effectuate the policy of our constitution that a free press is ‘essential to the
security of freedom in a state.’” Id. at 961 (quoting N.H. CONST. pt. I, art. 22).
Then, in Petition of Keene Sentinel, 136 N.H. at 128, we held that the trial
court, when faced with a petition for access from the press or other members of
the public, could not refuse to disclose documents filed in a divorce proceeding
absent a specific showing by the party seeking to prevent access that would
compel nondisclosure. We recognized that the constitutional and decisional
law of this State regarding Articles 8 and 22 established a presumption that
court records are public. Id. at 126, 127, 128.
Since Petition of Keene Sentinel, we have recognized that “the New
Hampshire Constitution creates a public right of access to court records.”
Bowman Search Warrants, 146 N.H. at 625; accord Petition of Union Leader
Corp., 147 N.H. 603, 604 (2002). “The right to open courtrooms and access to
court records related to court proceedings is firmly supported by New
Hampshire practice and common law principles, Part I, Articles 8 and 22 of our
State Constitution and our guidelines for public access.” Petition of Union

8
Leader Corp., 147 N.H. at 604. “Such access is critical to ensure that court
proceedings are conducted fairly and impartially, see Globe Newspaper[, 457
U.S. at 606]; Leucadia[, 998 F.2d at 161], and that the judicial process is open
and accountable. See N.H. CONST. pt. I, arts. 8, 22.” Petition of Union Leader
Corp., 147 N.H. at 604.
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, 457 U.S. at 606; Bowman Search Warrants, 146 N.H. at 625; see
also Petition of Keene Sentinel, 136 N.H. at 129-30.
In New Hampshire, the right of access may be overcome when a
sufficiently compelling interest for nondisclosure is identified. Bowman Search
Warrants, 146 N.H. at 625. We have repeatedly held that
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, 146 N.H. 205, 208 (2001) (emphasis added) (quotation
omitted); accord Petition of Union Leader Corp., 147 N.H. at 604; Petition of
Keene Sentinel, 136 N.H. at 128. Thus, there is a rebuttable presumption of
openness that is inherent in the constitutional right of access and the burden
is always on the party seeking to rebut that presumption. See Petition of Keene
Sentinel, 136 N.H. at 126-27, 128; cf. Dreiling v. Jain, 93 P.3d 861, 866-67
(Wash. 2004) (under Washington state constitution, “[o]penness is presumptive
. . . [and t]he burden of persuading the court that access must be restricted to
prevent a threat to an important interest is generally on the proponent” of
nondisclosure). The motivations of the party seeking disclosure are irrelevant
to the question of access. Petition of Keene Sentinel, 136 N.H. at 128.
Furthermore, even where a sufficiently compelling interest is demonstrated, a
court record may not be kept sealed unless “no reasonable alternative to
nondisclosure exists” and the “least restrictive means available” is utilized to
serve the interest that compels nondisclosure. Id. at 130.
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.

9
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, 464 U.S. at 509-10 (citation and quotation omitted). “[T]o
limit the public’s access to civil trials there must be a showing that the denial
serves an important governmental interest and that there is no less restrictive
way to serve that governmental interest.” Publicker, 733 F.2d at 1070.
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 accomplish the purposes sought to be achieved.”
Petition of Keene Sentinel, 136 N.H at 129-30.
IV. RSA 458:15-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.
A. Applicability of the Constitutional Right of Access to Divorce
Proceedings and Financial Affidavits
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 every situation. Inherent in the policies underlying public

10
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, 136 N.H. at 127-28, the parties seeking nondisclosure of their
divorce records argued that the constitutional right of access does not apply to
civil proceedings, but made no argument specifically regarding the applicability
of the constitutional right of access to divorce proceedings or financial
affidavits. We held only that the constitutional right of access to court records
applied to civil proceedings just as it does to criminal proceedings. Id. In
Douglas, 146 N.H. at 206, the party seeking nondisclosure of a sealed financial
affidavit argued that a superior court rule barred disclosure of such a
document, but made no argument as to the applicability of the constitutional
right of access to the documents at issue in that case. We held only that the
court rule did not bar access, and that the standard articulated in Petition of
Keene Sentinel, 136 N.H. at 128-30, was applicable to a petition for access to
sealed court records. Douglas, 146 N.H. at 207-08.
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, 478 U.S. at 8. If the
proceeding in question meets both considerations, then the First Amendment
right of access attaches. Id. at 9. Utilizing the experience and logic test, the
United States Supreme Court has applied the constitutional right of access to
voir dire in criminal cases, see Press-Enterprise I, 464 U.S. at 508-10, and
certain preliminary hearings in criminal cases, Press-Enterprise II, 478 U.S. at
10. Cf. id. at 8-9 (noting that grand jury proceedings would likely fail the logic
prong of the test, because the operation of the grand jury system would be
frustrated if conducted openly).
“The historical support for access to criminal trials applies in equal
measure to civil trials.” Brown & Williamson, 710 F.2d at 1178; see also
Publicker, 733 F.2d at 1068-70; Matter of Continental Illinois Securities
Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984). As such, other courts have
followed the Supreme Court’s experience and logic test and applied the federal
constitutional right of access to civil trials and certain civil proceedings. See,
e.g., Rushford, 846 F.2d at 252-53 (motions for summary judgment);
Westmoreland v. Columbia Broadcasting System, Inc., 752 F.2d 16, 23 (2d Cir.
1984) (civil proceedings); Publicker, 733 F.2d at 1070 (civil trials); In re Iowa
Freedom of Information Council, 724 F.2d 658, 661 (8th Cir. 1983) (civil trials
and proceedings for contempt); Newman v. Graddick, 696 F.2d 796, 801-02

11
(11th Cir. 1983) (civil trials pertaining to the release or incarceration of
prisoners and the conditions of their confinement, as well as proceedings
relating thereto); NBC Subsidiary (KNBC-TV) v. Superior Court, 980 P.2d 337,
361 (Cal. 1999) (civil trials and proceedings); cf. North Jersey Media Group,
Inc. v. Ashcroft, 308 F.3d 198, 204-05, 211-15 (3d Cir. 2002) (First
Amendment right does not attach to deportation proceedings because such
proceedings not historically open); Anderson v. Cryovac, Inc., 805 F.2d 1, 11-
12 (1st Cir. 1986) (civil discovery motions not subject to constitutional right of
access because discovery proceedings not historically open and public access
may burden the discovery process); Natural Parents of J.B. v. Florida DCFS,
780 So. 2d 6, 9-11 (Fla. 2001) (First Amendment constitutional right of access
does not attach to juvenile proceedings because such proceedings not
historically open).
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., 147 N.H. at 604-06; Bowman Search Warrants,
146 N.H. at 625-29. In Bowman Search Warrants, 146 N.H. at 625-29, we
held that there is generally no constitutional right of access to search warrants
and related documents during the pre-indictment stage of an on-going criminal
investigation because, among other things, search warrant procedures have
not historically been open to the public and public access would hinder the
warrant process and the ongoing criminal investigation. In Petition of Union
Leader Corp., 147 N.H. at 604-06, we held that there is no constitutional right
of access to agendas and minutes of superior court judges’ meetings. In both
cases, we examined whether the process or documents at issue had historically
been open to the public and whether public access played a positive or negative
role in the functioning of the process in question.
Given that we have considered the applicability of the State
constitutional right of access in a paradigm similar to that used by the federal
courts, we now adopt the United States Supreme Court’s experience and logic
test for determining whether the State constitutional right of access applies to
certain court proceedings. We note that, under the experience and logic test,
there may well be certain types of civil proceedings to which the constitutional
right of access will not attach; domestic relations proceedings, however, are not
one of them. Domestic relations proceedings are a type of civil proceeding that
has historically been open to the press and general public. See 24 Am. Jur. 2d
Divorce and Separation § 313 (1998) (“Public access to courtroom proceedings
is strongly favored, even in matrimonial cases. . . . Parties seeking a
dissolution of their marriage are not entitled to a private court proceeding.”);
see also Petition of Keene Sentinel, 136 N.H. at 128; Barron v. Florida Freedom
Newspapers, 531 So. 2d 113, 119 (Fla. 1988). In addition, public access plays

12
a significant role in the functioning of the court in domestic relations
proceedings by “enhanc[ing] the quality and safeguard[ing] the integrity of the
factfinding process . . . [and] foster[ing] an appearance of fairness, thereby
heightening public respect for” domestic relations proceedings. Globe
Newspaper, 457 U.S. at 606. The importance of matters regarding children
and families only heightens the need for openness and public accountability in
domestic relations proceedings. Therefore, just as the State constitutional
right of access applies to civil proceedings, so too does it apply to domestic
relations proceedings under the experience and logic test.
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 right of
access, we have held that it applies to “those things which are filed in court in
connection with a pending case.” Thomson, 117 N.H. at 654. However, we do
not think that the State constitutional right of access is as expansive. Cf.
Stone v. University of Md. Medical System Corp., 855 F.2d 178, 180 (4th Cir.
1988) (common law right of access applies to all judicial records and
documents, but First Amendment right of access has been applied only to
particular judicial records and documents).
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,
846 F.2d at 252-53 (discovery documents submitted as attachments to a
summary judgment motion were subject to constitutional right of access
“[b]ecause summary judgment adjudicates substantive rights and serves as a
substitute for a trial”); Matter of Continental Illinois Securities Litigation, 732
F.2d at 1304, 1309 (presumption of access applied to special litigation
committee report introduced by corporation in connection with its motion to
terminate derivative claims because district court relied on the report in
making its decision to dismiss some claims); Brown & Williamson, 710 F.2d at
1177 (principles regarding public access to judicial proceedings apply as well to
public access to court documents because “court records often provide
important, sometimes the only, bases or explanations for a court’s decision”);
Rufer v. Abbott Laboratories, 114 P.3d 1182, 1192 (Wash. 2005) (Washington
state constitutional right of access applies to all records filed with the court in
anticipation of a court decision, dispositive or not). To require that documents
filed with the court be subject to the constitutional right of access only if they
are important and relevant to an adjudication by the court in connection with a
presumptively open proceeding is consistent with the policies underlying the
constitutional right of access – “to ensure that court proceedings are conducted
fairly and impartially and that the judicial process is open and accountable.”
Petition of Union Leader Corp., 147 N.H. at 604 (citations omitted); accord
Globe Newspaper, 457 U.S. at 606.

13
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, 149 N.H. 393, 394 (2003) (trial court relied upon
parties’ financial affidavits in calculating child support). Therefore, we
conclude that financial affidavits filed in domestic relations cases are subject to
the constitutional right of access because they are important and relevant to a
determination made by the court in its adjudicatory function in connection
with a presumptively open proceeding.
B. Constitutionality of RSA 458:15-b, I and III
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 458:15-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, 146 N.H. at 622-30; Douglas, 146 N.H. at 208; Petition of Keene
Sentinel, 136 N.H. at 126-31.
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

14
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,
146 N.H. at 622-30; Douglas, 146 N.H. at 208; Petition of Keene Sentinel, 136
N.H. at 126-31. To that end, we have stated that “it is not the invocation of the
administrative procedures of [a rule or statute] that guides disclosure,” but
rather the procedures and standards that the State Constitution requires to be
used “when a member of the public or the media seeks access to sealed court
records.” Douglas, 146 N.H. at 207-08 (quotation omitted). Although certain
court records to which the constitutional right of access attaches may initially
be made confidential, the records always retain their status as presumptively
open; when a member of the public seeks access, the presumption in favor of
disclosure must still be rebutted by the party seeking to maintain closure.
Therefore, we conclude that the automatic confidentiality provision in RSA
458:15-b, I, is a reasonable restriction on the public’s right of access to court
records, and is thus constitutional, so long as the financial affidavits retain
their status as presumptively open and the public is afforded procedural
safeguards required by the constitutional right of access.
2. RSA 458:15-b, III
We now examine the constitutionality 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,
136 N.H. at 129-30.
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

15
preclude public access to the document at issue. See [Petition of
Keene Sentinel, 136 N.H.] at 130.
By enacting RSA 458:15-b, the 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, 136 N.H. at 130, of
the procedures that the trial court must follow in conducting an in camera
hearing on a petition for access to a sealed record in the presence of counsel for
the parties and the petitioner. We stated:
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
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, recognizing 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

16
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
sealed affidavit. See Petition of Keene Sentinel, 136 N.H. at 125. Only those
persons identified in paragraph I may enter the courthouse and request to view
a financial affidavit without the affiant receiving knowledge of the request and
an opportunity to object. RSA 458:15-b, I; Petition of Keene Sentinel, 136 N.H.
at 130. We do not see what additional protection from identity theft the
procedures contained in paragraph III provide, and even if those procedures
provide some additional protection, that protection does not justify the
restrictions placed on the public’s constitutional right of access.
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, 136 N.H. at 130,
and it requires the showing of 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). We agree.
As stated, Part I, Articles 8 and 22 of the State Constitution require that
a party 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, 136 N.H. at 130. By contrast,
RSA 458:15-b, III places the burden upon the party seeking disclosure. The
trial court attempted to minimize the importance of this burden-shifting by
interpreting the statute to mean that the burden of demonstrating a sufficiently
compelling interest is always met when financial affidavits are filed. However,
the constitution requires an individualized determination of a sufficiently
compelling interest on the facts of each case. See Petition of Keene Sentinel,
136 N.H. at 128; Globe Newspaper, 457 U.S. at 607 & n.20. For example,
much of the information contained in the financial affidavit may already be
revealed in other parts of the record which are open to the public, or may
already have been otherwise made public, in which case the fear of identity

17
theft based upon that information might not be a compelling reason in favor of
nondisclosure of the financial affidavit. Cf. Globe Newspaper, 457 U.S. at 607-
09 (finding that the interests served by the statute were compelling, but that
“the circumstances of the particular case may affect the significance of the
interest”). Because the interest in favor of protecting litigants from identity
theft could be served by requiring the proponent of nondisclosure to show
whether the risk of identity theft necessitates complete or partial nondisclosure
in a given case, it cannot be said that the shifting of the burden in paragraph
III is narrowly tailored to serve that interest. See id. at 609.
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 of access. Petition of
Keene Sentinel, 136 N.H. at 128. Furthermore, the public right of access to
court records is a right grounded partially in Part I, Article 8 of the State
Constitution – the last two sentences of which were necessary in order to
prevent the legislature from “‘completely do[ing] away with the right to know.’”
Hughes, 152 N.H. at 286 (quoting Journal of Constitutional Convention 176
(1974)). The abrogation of the right of access to court records in paragraph III
appears to be just that – an attempt by the legislature to completely do away
with the public’s right of access to certain court records.
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, 136 N.H. at 130; it
abrogates entirely the public right of access to a class of court records, see N.H.
CONST. pt. I, arts. 8, 22; and it is not narrowly tailored to serve the allegedly
compelling interest of the State in protecting its citizens from identity theft, see
Petition of Keene Sentinel, 136 N.H. at 130. RSA 458:15-b, III does not permit
the court to make the individualized determinations required by the State
Constitution and by Petition of Keene Sentinel and its progeny. Cf. Allied Daily
Newspapers v. Eikenberry, 848 P.2d 1258, 1262 (Wash. 1993) (statute held to
be violative of Washington state constitution’s public access requirement
because statute did not permit court to make individualized determinations as
required by case law). The State’s remaining arguments on this issue are
without merit and do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).
V. Prior Restraint
Having concluded that RSA 458:15-b, I, does not violate the
constitutional right of access, while RSA 458:15-b, III does, we now consider

18
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, 124 N.H. 226, 231-32, 233 (1983).
The petitioners contend that because RSA 458:15-b, II punishes the
publication of lawfully obtained, truthful information it is an impermissible
prior restraint. Although the State concedes that RSA 458:15-b is a prior
restraint, we note that the statute “is not in the classic mold of prior restraint,
there being no prior injunction against publication.” Smith v. Daily Mail
Publishing Co., 443 U.S. 97, 101 (1979); see Nebraska Press Assn. v. Stuart,
427 U.S. 539, 559 (1976). In considering whether a statute is an
impermissible prior restraint under Part I, Article 22 of the State Constitution,
we find it helpful to look to the experience of the federal courts in analyzing the
same issue under the First Amendment. Cf. Scarborough v. Arnold, 117 N.H.
803, 807 (1977).
We agree that the United States Supreme Court has clearly held that the
First Amendment provides a certain degree of protection against penal
sanctions for the publication of lawfully obtained, truthful information. See
Smith, 443 U.S. at 101-02; see also Petition of Brooks, 140 N.H. 813, 819
(1996). In fact, courts have consistently reversed damage awards and criminal
convictions for the publication of lawfully obtained, truthful information by the
press. See, e.g., Florida Star v. B.J.F., 491 U.S. 524, 541 (1989); Smith, 443
U.S. at 100, 106; Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
834 (1978); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 496-97 (1975).
However, we do not agree that the Supreme Court has held that such
penal sanctions are prior restraints. See, e.g., Florida Star, 491 U.S. at 541 &
n.9 (concluding that the imposition of liability for the publication of lawfully
obtained, truthful information violates the First Amendment, but declining to
reach the question of whether it functions as an impermissible prior restraint);
Smith, 443 U.S. at 101-02 (distinguishing between prior restraints and penal
sanctions for publication of lawfully obtained, truthful information); Landmark
Communications, Inc., 435 U.S. at 837-38 (criminal prosecution of third
parties for the publication of lawfully obtained, truthful information not a prior
restraint). Nor have we. See Brooks, 140 N.H. at 823 (holding that
confidentiality rule failed First Amendment scrutiny, with no mention of the
rule constituting a prior restraint).

19
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, 380 U.S.
51, 58 (1965). However, having failed to meet their threshold burden of
demonstrating that RSA 458:15-b, II is a prior restraint, the petitioners cannot
succeed in challenging the constitutionality of paragraph II on the grounds that
it is a procedurally inadequate prior restraint.
Furthermore, even if RSA 458:15-b, II may violate freedom of speech
under the First Amendment or under Article 22 in certain cases by punishing
the publication of lawfully obtained, truthful information, no such punishment
is before us today. Unlike the cases cited by the petitioners, here the State has
not attempted to prosecute anyone for a violation of paragraph II. See Florida
Star, 491 U.S. at 526 (newspaper had been found civilly liable); Smith, 443
U.S. at 100 (grand jury had returned indictment against respondent
newspapers); Landmark Communications, Inc., 435 U.S. at 832 (newspaper
had been found guilty of crime); Cox Broadcasting Corp., 420 U.S. at 474
(television news reporter had been found civilly liable). Therefore, the
constitutionality of a punishment for the publication of lawfully obtained,
truthful information is not before this court.
The Federal Constitution offers the petitioners no greater protection than
does the State 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), 144 N.H. 210, 217 (1999) (quotation omitted). “We must also
determine, however, whether the unconstitutional provisions of the statute are
so integral and essential in the general structure of the act that they may not

20
be rejected without the result of an entire collapse and destruction of the
structure.” Id. (quotation omitted).
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 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., 144 N.H. at 217 (quotation omitted). RSA
458:15-b was enacted in order to make confidential all financial affidavits, and
paragraphs I and II continue to accomplish that primary legislative purpose.
Paragraph III appears to have been enacted only as a means for members of the
public to gain access in certain circumstances. Paragraph I maintains the
confidentiality of financial affidavits, and public access will continue to be
permitted in certain circumstances, in a manner consistent with the minimum
procedural requirements of Part I, Articles 8 and 22 of the State Constitution.
Therefore, we conclude that paragraphs I and II are severable from the
unconstitutional provision of RSA 458:15-b.
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 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.

21
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
unconstitutional, where it is susceptible to a construction rendering it
constitutional.” Coffey v. Bresnahan, 127 N.H. 687, 691 (1986) (quotation
omitted). For the reasons stated above, we believe that the legislature would
have chosen to enact a provision comparable to paragraph I that included a
constitutional procedure for public access. Cf. Coffey, 127 N.H. at 691
(concluding that legislature would have enacted statute, permitting institution
of a tort action after the death of a party, with a constitutional six-year
limitation period rather than the unconstitutional two-year limitation contained
in the statute). We therefore construe paragraphs I and II to provide for public
access in a manner consistent with the State Constitution; that is: (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. Cf. State v. LaPorte, 134 N.H.
73, 78-79 (1991) (statute prohibiting deposition of children who were under age
sixteen at time of offense was unconstitutional, but court construed statute to
prohibit deposition of children who are under age sixteen at time of deposition
in order to render the statute constitutional in light of its purpose to protect
children from repetitive interrogation without judicial supervision).
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, 124 N.H. 171, 179-80 (1983). The
doctrine of separation of powers is violated when one branch of government
usurps an essential power of another. See Opinion of the Justices, 121 N.H.

22
552, 556 (1981). Under RSA 458:15-b, as construed, the court retains
ultimate authority over access to court records. Therefore, the power to control
judicial proceedings continues to rest with the judiciary.
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 RSA
458:15-b conflicts with the court’s “power to control records filed by parties in
pending actions,” and specifically conflicts with Superior Court Rule 197. As
stated, under RSA 458:15-b, as construed, the court retains ultimate authority
over access to court records, and thus the statute does not conflict with the
court’s power to control these records. Furthermore, we do not agree that RSA
458:15-b, as construed, conflicts with Superior Court Rule 197.
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 financial 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 supplant the rule, and the two continue to exist
without contradiction. Cf. State v. Farrow, 140 N.H. 473, 475 (1995) (statutes

23
which deal with a similar subject matter are to be construed so as not to
contradict each other).
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 458:15-b, I, as
construed, does not violate the separation of powers guaranteed by Part I,
Article 37 of the State Constitution.
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.
BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,
concurred.