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As we all know, family court records for the most part are open to the public pursuant to Rule1:38.[i] Although there are some limited exceptions under the rule[ii], they still do not provide full protection to the privacy and sanctity of our families, especially the children who find themselves involved in family court proceedings.[iii] This had been hotly debated when the original report from the Supreme Court Special Committee on Public Access to Court Records Report was issued by Justice Barry T. Albin in Nov. 2007. The committee attempted to balance the public’s general right to know and the individual’s limited right of privacy within our court system. In addressing family part records, the committee determined the public’s and the bar’s right to know how cases are decided and ensuring the integrity of the court proceedings trumped the individual’s right to privacy interests and concerns.
Since then, public access of family court records has been an issue under consideration by the NJSBA Family Law Section. Along those lines, one of our past section chairs, Amanda S. Trigg, created a subcommittee to address the issue and make recommendations. She appointed Lizanne J. Ceconi, as the chair of the subcommittee, which also included Michele E. D’Onofrio, Christine C. Fitzgerald, Richard M. Sevrin, Abigail M. Stolfe, Sandra Starr Uretsky and Sheryl J. Seiden.
In a Feb. 21, 2017 memo to the Family Law Executive Committee (FLEC) the subcommittee reported on Rule 1:38 and the recommendations by the Supreme Court Advisory Committee on Public Access.[iv] The NJSBA Family Law Section strongly believes the private lives of divorcing and non-dissolution litigants should not be open to public access.
With respect to Rule 1:38, the committee, together with the Supreme Court Advisory Committee on Public Access recommended five amendments to the present court rule. Rule 1:38-3 lists court records that are specifically excluded from public access. The first amendment, Rule 1:38-3(d)(1), was to expand the list to include “settlement agreements incorporated into judgments or orders in dissolution and non-dissolution actions.” The subcommittee wholeheartedly supports this amendment, which will provide litigants with the confidence that their agreements containing detailed information and personal information will be protected. The subcommittee also believes that non-consensual orders and court rulings, if publicly accessible and containing personal identifiers, information culled from a case information statement or personal information regarding children, should be redacted before any protected information is released.
The second proposed amendment expands Rule 1:38-3(d)(a)(1) to include “Notices required by R. 5:5-10 including requisite financial, custody and parenting plans.” Again, the subcommittee supports this amendment because it includes detailed financial and personal information, often identical to information contained in a family case information statement (CIS).
The third proposed amendment expands Rule 1:38-3(d)(13) to include “parenting time and visitation plans” pursuant to court rules including Rule 5:8-5. The subcommittee supports this amendment, as it is intended to protect children whose personal information will be included in these documents.
The fourth proposed amendment recommended that Rule 1:38-3(a) establish a “good cause” standard for the release of documents after review and recommendation from the Supreme Court Advisory Committee on Public Access. The subcommittee also supports this recommendation.
Finally, the Public Access Committee recommended that Rule 1:38-1 clarify that “Restrictions on access shall not apply to named parties in any litigation.” The subcommittee also supports this recommendation but with a further clarification/amendment. In family part matters, third parties can be named for discovery purposes, such as business partners or entities in which a party may have an interest. In matters where adultery is pled as a cause of action for divorce, the co-respondent is a named party. Therefore, the subcommittee does not believe these named parties should be given unfettered access to the family part file. Accordingly, they suggest that in family part matters, a third-party plaintiff or defendant should only be permitted unfettered access to the causes of actions directly related to that party’s case.
Overall, the subcommittee was very pleased with the recommendations made by the committee in expanding confidentiality to litigants in the family part. The subcommittee and this author share the committee’s concerns of the harm that can occur if the personal information sought to be protected is used improperly by unauthorized third parties, including identity theft. We also share the committee’s concerns in protecting children whose detailed personal information will be included in documents filed with the courts.
Recognizing that the desire to protect the privacy of children and prevent identity theft for litigants are important goals, the sub-committee and this author believe the proposed amendments do not go far enough in addressing these concerns. Our initial proposal was that all family part pleadings; affidavits; certifications; case information statements; findings of fact; conclusions of law; judgments of divorce; orders, both pendente lite and final; written agreements and memoranda of understanding, including any attachments shall not be distributed to any person not a party or the attorney or counsel of a party, absent good cause shown. We remain committed to this goal as the only practical means of protecting family part litigants from excessive intrusion into their personal lives. At a minimum, if orders and judgments are publicly accessible, they should be redacted to remove personal identifiers, information culled from the case information statement and most importantly, personal information regarding children. Of course, once the issue of redactions arises, who will be given the responsibility for such a sensitive task?
Our present motion practice, in both dissolution and non-dissolution courts requires litigants to share with the court their lives’ stories. Litigants must be candid with the court without fear of their private dealings being made public. Whether it is pendente lite or non-dissolution, the matters before the court involving support, custody and/or equitable distribution require a recitation of the fitness of the parties, the needs of the children, the past and present economic circumstances of the family, the medical conditions of the parties and their children, and a narrative explaining the case information statement, among other personal information. Even though Rule 1:38-3(a) provides that if documents deemed to be confidential are attached to non-confidential documents, the attachments remain confidential, it is hard to imagine t this rule will be properly and effectively administered to ensure the privacy rights recognized in the rule.
The subcommittee and this author believe it is crucial to expand the confidentiality of family part pleadings because of the advent of e-filing and internet access to the courts making the distribution and dissemination of matters in the family part more accessible to the public than ever before, through anonymous means.
With e-filing and access to records over the internet, children would be able to access their parents’ divorces. Neighbors, classmates and school personnel would be able to read about the most personal aspects of someone’s life for purely prurient reasons. Prospective employers would be able to access past earnings, marital history, net worth and medical history. Mere allegations of spousal abuse, mental illness, drug addiction or infidelity could wreak havoc on a person’s prospective employment and ability to move on with his or her life post-divorce.
In 2005, the case of Smith v. Smith[v], the court ruled against third parties to a matrimonial action who sought to seal the record of their daughter’s matrimonial proceedings. The Hon. Jack M. Sabatino, J.S.C. then a trial court judge and now elevated to the Appellate Division, found that the third party’s personal interest did not suffice to overcome the strong presumption of open judicial proceedings. The court, however, stated the following:
The day may come, and perhaps it will be soon, when all courthouse filings are routinely harvested in data banks and instantly transmitted around the world via the internet. Electronic filing is rapidly becoming the norm in Federal Court and our state courts are not far behind. The digital storage of such filings may well make them far easier to retrieve by outsiders. It is not hard to imagine that each scurrilous allegation contained in some court filing could eventually turn up in a “Google search”. Such broadcasted diatribe has the capacity to defame not only celebrities and public officials, but also average citizens whose backgrounds could be researched on the World Wide Web by prospective employers, business associates, loan officers, government regulators, social clubs, and perhaps even would-be Saturday night dates. Those looming technological developments may warrant the judiciary to reconsider prospectively, the current balance of interest in favor of open court proceedings.[vi]
There is some recent evidence that this haunting prediction is closer than we think. In the current news, we hear that the U.S. House of Representatives has just approved a “congressional disapproval” vote of privacy rules, which gives your internet service provider the right to sell your internet history to the highest bidder. This follows the same vote in the Senate in the prior week. Just prior to the vote, a White House spokesman said the president supported the bill, meaning that the decision will soon become law. This approval means that whoever you pay to provide you with internet access Comcast, AT&T, Time Warner Cable, etc. will be able to sell everything they know about your use of the internet to third parties without requiring your approval and without even informing you.[vii] With such laws, the risk of widespread dissemination of private family court filings is more possible.
The Family Law Executive Committee believes the time predicted by Judge Sabatino is soon, and, accordingly, must be addressed in a way that protects children, family part litigants and all those third parties involved in their lives. For these reasons, we ask the committee to continue its expansion of the protections afforded family part litigants and their children in preventing harm to them through unwanted disclosure. With today’s technology and the daily concerns regarding cyber-stalking, cyber-harassing and hacking, without these protections, we may be creating a two-tiered justice system where those with the financial means will seek relief outside the court system to avoid potential exposure of their personal lives.
The author wishes to thank Lizanne J. Ceconi. and other members of the NJSBA Family Law Section Sub-committee on Public Access to Family Court Records for their excellent report which forms the basis of this column.
These materials were originally published within the New Jersey Family Lawyer (37 NJFL 6 (July 2017)) and are being republished herein with permission of the New Jersey State Bar Association.
[i] R. 1:38.
[ii] R. 1:38-3.
[iii] Effective Sept. 1, 2009, Rule 1:38 was replaced and renamed “Public Access to Court Records and Administrative Records.” The new rule shifts the emphasis from “confidentiality” toward a presumption of “public access.” It states that all court and administrative records within the custody and control of the judiciary will be available for public inspection and copying unless the record is expressly exempted under one of the 38 exceptions listed in R. 1:38-3 (court records) or R. 1:38-5 (administrative records). The rule was designed to provide practitioners with an all-inclusive, single point of reference to enable them to easily determine which records were confidential and which would be available to the public — without having to consult a myriad of court rules, statutes and case law. The vast majority of exempted records, 30 out of 38, pertain to family matters and criminal matters. See https://www.law360.com/articles/164404/rule-1-38-and-presumption-of-public-access-to-records
[iv] The report stated that the Supreme Court Family Practice Committee “Committee” issued its Report for the 2015 – 2017 Rules Cycle on January 20, 2017. This report was in response to a request for comments by Judge Grant, as Acting Administrative Director of the Courts.
[v] 379 NJ Super. 447 (Ch. Div. 2005).
[vi] Id. at 458-459.
[vii] https://www.theregister.co.uk/2017/03/28/congress_approves_sale_of_internet_histories/