DCYF and CASA argued that Cole was not entitled to make a copy of the court record, and CASA requested that the court grant a protective order limiting Cole's inspection of the records to review at the courthouse and limiting disclosure of the court file. After a hearing, the court granted Cole's motion to copy records and also granted CASA's request for a protective order, in part. Cole's first amendment rights, and that it is permissible only if it is narrowly tailored to serve a compelling state interest.
To meet the competing interests it identified, the court made three rulings pertaining to Cole's use of the records:. Cole nor her counsel nor anyone else who is entitled, through her, to access the juvenile court records may disclose those materials publicly, whether through self-publication or through sharing those materials with journalists or other private individuals not directly involved in the present case.
Cole proceeds with her planned civil suit, the pleadings are to be filed under seal and the case is to be filed as confidential. The framework set out in Petition of Keene Sentinel, N. Cole moved for reconsideration of the third part of the order. The court denied the motion, and this appeal followed.
On appeal, Cole challenges only the third part of the trial court's order, which requires that any future case be filed as confidential and the pleadings filed under seal. She argues that this constitutes a prior restraint on free speech that violates her rights under the New Hampshire and United States Constitutions because it is neither narrowly tailored nor does it serve a compelling State interest.
Further, she asserts that it impermissibly places the burden upon her, instead of on the parties seeking nondisclosure, and that it unfairly restricts her disclosure while allowing others to disclose the same information. DCYF and CASA argue that there are a number of compelling State interests that justify the order and that the order is narrowly tailored to serve these interests as it is limited in both scope and duration.
Because Cole does not challenge the second part of the trial court's order, which precludes her from publicly disclosing the court records, and because it would violate this part of the order if she were to publicly file information derived from the juvenile court records in a superior court proceeding, we interpret her challenge to the third part of the order to be limited to the requirement that she file under seal the portions of any future pleading that do not derive from the court records.
As a preliminary matter, Cole argues that DCYF and CASA lack standing to seek a nondisclosure order in any future suit because the neglect case involving the children is closed, the children have been legally adopted, DCYF does not have custody of the children, and CASA no longer serves as their guardian ad litem. Cole did not raise the issue of standing in the trial court.
Among other things, parties may object to certain requests to access court records. We disagree with Cole that the parties lose standing to seek a protective order regarding nondisclosure once a case is closed. Our case law establishes that the burden is on a party seeking closure or nondisclosure of court records. Petition of Keene Sentinel, N.
To lose standing once a case is closed makes little sense because it would allow anyone to easily obtain confidential or sealed court records after a case is closed if the party who must defeat disclosure does not have standing to object. This result would undercut the purpose of maintaining confidential court records.
In addition, the rules of the family division of the circuit court recognize that parties' interests continue after a case is closed. See Fam. Moreover, to the extent Cole argues that under Troxel v.
Family of abused girls seeks public disclosure in DCYF lawsuit
Granville, U. The issue in Troxel was not one of standing, but rather, was based on the merits of the case, particularly the substantive due process rights of a parent. Troxel, U. We now turn to the substantive issue in this case. Cole argues that the third part of the trial court's order constitutes a prior restraint on free speech in violation of her rights under the New Hampshire and United States Constitutions. See N. I, art. CONST amends. I, XIV. She also suggests that it impermissibly limits public access to the courts and court records, in violation of our State Constitution.
We review the trial court's analysis of questions of constitutional law de novo. City of Keene v. Cleaveland, N. We first address Cole's claim under the State Constitution and rely upon federal law only to aid our analysis. See State v. Ball, N. To that end, the public's right of access to governmental proceedings and records shall not be unreasonably restricted.
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Cole contends that requiring her to treat a lawsuit on behalf of her children as confidential by filing it under seal amounts to an unconstitutional prior restraint. Implode—Explode Heavy Indus.
Chong, N. The trial court acknowledged, and no party disputes, that the third part of the order constitutes a prior restraint. We must determine whether this restraint is constitutional. See Petition of Brooks, N. Playboy Entertainment Group, Inc. 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.
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