In Minnesota most divorce records are public documents, accessible to anyone with an internet connection. That’s a problem.
By Michael P. Boulette, Seungwon R. Chung, and Abby N. Sunberg
Our courts have long favored open access to court records,[1] ensuring “citizens [can] keep a watchful eye on the working of public agencies” and allowing the media to “publish information concerning the operation of government.”[2]
But that public access has never been deemed an “absolute” good.[3] As Justice Powell once cautioned, court records can also contain “painful and sometimes disgusting details” that may legitimately be shielded from public scrutiny.[4] And in the decades since, courts have been left to balance the risk that court files could “become a vehicle for improper use” against often strong presumption in favor of access.[5]
Technological advances are making this balancing act far more challenging. Just a decade ago, parties’ privacy could be protected with little effort—divorce files sat locked in a file cabinet behind a court clerk’s desk, available only to those with the time, know-how, and motivation to go in search of them. But with the advent of Minnesota Court Records Online (MCRO), court files are now accessible in everyone’s living room—at any time of day and for any reason. And with this increased access comes a need for Minnesota to re-evaluate its approach to personal privacy in family law cases.
The problem with public divorce decrees
Minnesota isn’t alone: Most states share Minnesota’s policy favoring open access, even in the face of electronic records.
But other states have also recognized that family law cases often don’t raise the same government-oversight concerns as other types of matters. While criminal and civil court decisions may implicate matters of general concern, your neighbors’ divorce or child custody fight seldom does. In the words of one recent article, “No other person has a legitimate interest in mom’s affair, whether dad has a drinking problem, or if junior has health, psychological, or other difficulties, or in the custody schedule of that child.”[6] These cases are inherently personal to the families involved, yet some states, including Minnesota, fail to appreciate that distinction, treating all court records alike.
The Pennsylvania Superior Court in Katz v. Katz[7] summed up the problem nicely:
“Trials of divorce issues frequently involve painful recollections of a failed marriage, details of marital indiscretions, emotional accusations and testimony which, if published, could serve only to embarrass and humiliate the litigants. While the public has a right to know that its courts of justice are fairly carrying out their judicial functions, no legitimate public purpose can be served by broadcasting the intimate details of a soured marital relationship.”
Indeed, divorcing couples face a particular threat to their privacy through open access to their court records. The information readily discernible from these case records is far more expansive than in a civil or criminal case. By law, divorce pleadings must address the most sensitive information about the divorcing couple, spanning all aspects of the parties’ lives: emotional, medical, financial, and more.
In divorce cases involving children, courts are required by law to make detailed findings about the parties’ finances, their relationships with their children, their strengths and weaknesses as parents, any mental or physical health concerns of the parents or children, any incidents of domestic violence, and more. “Nearly everything about a person is relevant—particularly if children are involved,” which is especially problematic considering the low burden of proof involved in establishing allegations of misconduct (proof by a preponderance of the evidence).[8] Sensitive family history is forever memorialized in a document accessible to anyone with a smartphone.
The danger of online access cannot be overstated:
“[W]hen courts permit these case files to become electronic and connected to the Internet without proper safeguards, they will make all this personal information available easily and almost instantly for downloading, storage, searching, data compilation, aggregation, and massive dissemination for purposes that were never intended by either litigants, witnesses, victims, jurors, or others involved with or connected to a court proceeding.”[9]
Gone are the days when an individual had to go down to the courthouse to request a case file; now anyone can read about the most intimate, and often most difficult, moments in parties’ lives by perusing the court’s electronic files.
Access by John or Jane Doe isn’t the only concern. This sensitive, often painful information is also available to any child old enough to Google. While family courts aim to “shield minor children from the adverse effects of divorce and custody litigation,” that goal means little when a child can view their parents’ divorce records with a few clicks.[10]
While open-record advocates often insist that these harms are constitutionally necessary, the Supreme Court has repeatedly disagreed, recognizing the private and personal nature of marriage and family relationships. Why wouldn’t these same principles extend a similar protection and privacy when the relationship ends?
As more divorce records are uploaded to MCRO each day, Minnesota must reassess the extent of access the public should have to a family’s greatest challenges. It’s time for Minnesota to join the growing consensus among states by limiting online access to family law cases.
The spectrum of confidentiality in divorce decrees across the nation
Other states provide any number of options for the path Minnesota might choose. Across the country, states presumptively restrict access to records in family law cases.[11] Missouri, for one, allows public access to electronic case records, except for final civil judgment in “domestic relations proceedings including, but not limited to, dissolution proceedings, paternity proceedings, and modifications thereof.”[12] Likewise, New York mandates that officers of the court in a divorce action “shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof” by anyone other than a party to the case or their counsel, “except by order of the court.”[13]
Still other states protect party privacy in family law cases by limiting who can access divorce records, what information can be accessed, and how that information can be accessed.[14] So Pennsylvania and Massachusetts limit access to divorce filings to the attorneys of record.[15] Similarly, Utah only allows the parties and their attorneys to access divorce filings.[16] Meanwhile, California permits the sealing of pleadings that state the location or otherwise provide identifying information about the parties’ finances and debts.[17] South Carolina and Florida take a similar approach, requiring attorneys and parties to redact personal information before e-filing pleadings.[18]
And the vast majority of states at least allow restrictions on access to certain court documents upon the motion/request of a party and/or a hearing.[19] These states tend to require some showing that: (1) that the public interest in disclosure is outweighed by a legitimate or overriding interest in confidentiality, (2) making the pertinent record confidential is the least restrictive means of protecting the overriding interest, and (3) the restriction is narrowly tailored to the overriding interest. On the extreme end, California requires all three findings and even requires the requesting party to show “there is no less restrictive means of achieving the overriding interest.”[20]
Even some states that allow full access to divorce records nonetheless restrict that access to records kept at the courthouse. Thus, in Wisconsin, the public can access any nonsealed document by going to the county clerk of court’s office, but only parties and their lawyers can electronically access filed documents.[21]
Minnesota’s Schumacher balancing test
Minnesota has long existed on the more pro-access end of the national spectrum, recognizing the common law right to inspect and copy civil court records, but providing some categories of sensitive information (tax returns, paystubs, bank statements) that parties may keep confidential.[22]
Thus, family law records, like all other court records, can only be made nonpublic under the test in test in Minneapolis Star & Tribune Co. v. Schumacher.[23] Under Schumacher’s balancing test, courts must weigh the interests supporting access (including the presumption in favor of access) against the interests in denying access.[24] Those factors include the right to privacy, safety concerns, and potential for improper use of the sealed file.[25] Under this test, the party requesting to keep the record sealed must show “strong countervailing reasons why access should be restricted.”[26]
The Judicial Branch has supplemented Schumacher’s test with the Rules of Public Access to Records of the Judicial Branch.[27] Rule 4 of those public access rules governs the type of cases and documents that are required to be non-accessible while setting guidelines for how to restrict access to other cases and documents. Those rules of public access similarly reflect a strong presumption in favor of public court documents, limiting access only to domestic abuse and harassment records, certain juvenile cases, and pre-adjudication paternity proceedings.[28] In doing so, the rules required any court considering sealing a civil case to consider the factors in Schumacher.[29] But the rules of public access makes no specific mention of how public access should be handled in particular divorce and custody proceedings.
The intersection of Rule 4 and family court rose to prominence more recently when two prominent Minnesotans had their divorces fall within the public eye. In 2016, the Star Tribune unsealed the 2006 divorce of Prince Rogers Nelson from Manuela Testolini[30] previously made confidential by agreement. Applying the Schumacher factors, the district court rejected Ms. Testolini’s concerns for her privacy as “stale,” given the nine years since the divorce.[31] And against that concern for privacy, the district court balanced the public’s right to access the court documents in order to inspect the actions of the state, which sits as a third party in divorce proceedings.[32] Based on those considerations, the district court unsealed the Nelsons’ divorce file.
In 2018, the Star Tribune moved to unseal then-Congressman Keith Ellison’s 2012 divorce from Minneapolis School Board Member Kim Ellison, when Mr. Ellison ran for attorney general. Again, the district court unsealed the file, relying on Minnesota’s policy that “all court records—including divorce records—are presumptively public, unless narrow, clearly-delineated exclusions apply.”[33] Once unsealed, details of the Ellisons’ divorce made their way into media.[34]
Of course, these cases might seem remarkable—a celebrity and a candidate for public office—until we remember that all orders, decrees, notices, and appellate opinions are publicly available in all family cases, including divorces and custody proceedings,[35] regardless of the fame, wealth, or public profile of the spouses.
While many parties (particularly those with the resources to hire counsel) have stipulated to limit public access to their case, most such orders are unlikely to withstand scrutiny absent “inflammatory” allegations.[36] So in Strosahl v. Strosahl, husband asked to seal the divorce after a “contentious trial” and accusations of domestic abuse, out of concern for the harm it could cause his employment.[37] Years later, wife changed her mind and sought to unseal the divorce records.[38] After the district court denied her request, the court of appeals reversed and remanded for further consideration of the strong presumption favoring public access.[39] On remand, the district court concluded that husband had failed to present “strong enough evidence of personal harm to warrant sealing of the record.”[40] So four years after they agreed to seal the divorce case, the Strosahls’ divorce was made public. By contrast, Anderson v. Anderson affirmed the sealing of a file in contentious post-decree custody litigation, but only after noting the “inflammatory” nature of the accusations that “implicate[d] substantial privacy interests.”[41]
Concerns for family cases
No one wants their dirty laundry aired for their neighbors to see. While the personal can very well be political, sometimes it’s just personal—especially to the people involved.
This is particularly true with respect to the impact of open access on children. Courts and practitioners often remind parents that they should do their best to keep their children insulated from the impacts of divorce. Statute even bases custody decisions (in part) on a parents’ ability to “[m]inimize exposure of the child to parental conflict.”[42] Yet minutes after the divorce is final, the decree—including detailed findings about intimate aspects of a family’s life—is posted online, searchable by name, for anyone with internet connection or a smartphone. We are being naïve if we imagine that children won’t access these records, or have them accessed by others with more malign motives (including bullying).
Parents’ privacy rights also matter. Very few people would want the intimate details of their lives posted online for the world to see. A parent’s sexuality, sexual history, or gender identity. A parent or child’s mental health history or chemical use. Or even the more banal (but still private) details of wealth (or debts) and incomes. These facts about a person’s life are (rightly, we think) regarded as private enough that it falls to each individual to decide what they feel comfortable disclosing. Yet when a marriage or relationship ends, we force these disclosures on parties as the price of court assistance. And then we force courts to make detailed findings on what they learn, all of which is then available for public consumption online.
And the impact of these harms (like so many others) falls hardest on those with the fewest resources. Parties of means have (and use) the ability to circumvent public access through a combination of non-public agreements,[43] alternative decision-makers,[44] and choice of forums. But lower- and middle-class Minnesotans often have no such choices as they try to navigate an unfamiliar justice system without the benefit of lawyers.
Why? Ideals of public access seem too airy an answer—particularly when the solution could be as simple as removing online access to family law filings and returning access to the courthouse counter. One thing is certain: We should not demand of Minnesotans a detailed accounting of their private lives with a promise that those details will live forever on the internet.
MICHAEL P. BOULETTE is an attorney at Taft Stettinius & Hollister LLP. He litigates high-stakes divorce and child custody cases, regularly handling multi-million-dollar divorces involving closely held businesses, commercial real estate valuation, fraud and concealed assets, executive benefits, trusts, and inherited wealth, in addition to high-conflict custody cases with allegations of abuse, alienation, or mental health complications.
SEUNGWON CHUNG is an associate in Taft’s domestic relations group. He was recently part of a team of Minneapolis attorneys recognized as 2022 Attorneys of the Year by Minnesota Lawyer.
ABBY SUNBERG is a Taft litigation associate with experience in commercial litigation, domestic relations, and wealth transfer litigation. She was recently part of a team of Minneapolis attorneys recognized as 2022 Attorneys of the Year by Minnesota Lawyer.
Notes
[1] See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).
[2] Id. at 598.
[3] Id.
[4] Nixon, 435 U.S. at 598.
[5] Id.: Minneapolis Star & Tribute Co. v. Schumacher. 392 N.W.2d 197 (Minn. 1986).
[6] Marshal S. Willick, Closed Hearings, Sealed Files, Privacy, and Public Access: Why the Rules Are the Way They Are, and What They Should Be Going Forward, Willick Law Group (8/16/2021), https://www.willicklawgroup.com/vol-73-closed-hearings-sealed-files-privacy-and-public-access-why-the-rules-are-the-way-they-are-and-what-they-should-be-going-forward/ .
[7] 514 A.2d 1374, 1379–80 (Pa. Super. Ct. 1986).
[8] Gale Humphrey Carpenter, Comment, Protecting the Privacy of Divorcing Parties: The Move Toward Pseudonymous Filing, 17 J. of the Am. Acad. of Matrim. Law. 105, 112 (2001).
[9] Peter A. Winn, Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information, 79 Wash. L. Rev. 307, 321 (2004).
[10] Id.
[11] Miss. Elec. Ct. P. 5(D) (restricting internet access to divorce records to counsel of record and court staff); see also N.D.C.C. §14-05-24.3 (North Dakota’s statute prohibiting public access to “the property and debt listing of the parties to a divorce”).
[12] Mo. S. Ct. Op. R. 2.04(2)(B).
[13] NY CLS Dom. Rel. §235(1).
[14] Laura W. Morgan, Preserving Practical Obscurity in Divorce Records in the Age of E-Filing and Online Access, 31 J. of the Am. Acad. of Matrim. Law. 405, 412–13 (2019).
[15] See Pa. R.C.P. 1930.1; Mass. Trial Ct. R. 5(b)
[16] See Utah R. of Jud. Administration 4-202.02(3)
[17] See Cal. Fam. Code §2024.6. But see In re the Marriage of Burkle, 135 Cal. App. 4th 1045, (Cal. Ct. App. 2006) (finding the statute to unconstitutionally limit the press’s access to divorce records).
[18] SCRCP 41.2; FL ST GEN PRAC AND ADMIN Rule 2.425.
[19] Alabama allows sealing of a divorce record upon motion, Ex part Barze, 184 So. 3d 1012, but prohibits the press’s right to access such files. Ex parte Balogun, 516 So. 2d 606. See also, Alaska R. of Admin. 37.6; Ariz. Fam. Law Proc. R. 17; Fla. R. Jud. Admin. 2.420(c)(9); Burn Ind. Code Ann. §5-14-3-5.5; Iowa Code §598.26; E. & W.D. Ky. LR 5.7; E.D. La. LR 5.6; E.D. Mich. LR 5.3; Nev. Rev. Stat. Ann. §125.110; N. J. Court Rules, R. 1:38-11;M.D.N.C. Civ. Prac. 5.4; 51 Okl. St. §24A.30; ORS §1.040; R. I. Gen. Laws §8-10-21; Tenn. Sup. Ct. R. 34; Tex. R. Civ. P. 76a; Vt. Pub. Acc. Ct. Rec. Rule 6; WY R. Access to Ct. Records Rule 8.
[20] NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337; Johanson v. Eighth Judicial Dist. Court of Nev., 182 P.3d 94 (2008).
[21] Peggy Hurley, Public Access to Circuit Court Records, Wis. Legis. Couns. (2019), https://docs.legis.wisconsin.gov/misc/lc/issue_briefs/2019/courts_and_criminal_law/ib_court_records_ph_2019_10_01 .
[22] Minn. R. Gen. Prac. 11.01.
[23] 392 N.W.2d 197 (Minn. 1986).
[24] Id. at 202–203.
[25] Id.
[26] Id. at 205–206.
[27] Minn. R. Pub. Access to Recs. of the Jud. Branch, adopted 2/1/1988.
[28] Minn. R. Pub. Access to Recs. of the Jud. Branch 4.
[29] Minn. R. Pub. Access to Recs. of the Jud. Branch 4, subd. 2.
[30] In the Marriage of Manuela Nelson and Prince Rogers Nelson, Hennepin County Court File No. 27-FA-06-3597.
[31] Order Unsealing Court File dated Aug. 15, 2016, Hennepin County Court File No. 27-FA-06-3597 at 11.
[32] Id. at 15.
[33] See Order Unsealing Court File dated Oct. 12, 2018, Hennepin County Court File No. 27-FA-11-7451, at 4; see also Minn. R. Pub. Access to Records of the Jud. Branch R. 2.
[34] See e.g., Stephen Montemayor, Keith Ellison divorce file shows no abuse allegation against him by ex-wife, Star Tribune (10/17/ 2018), https://www.startribune.com/keith-ellison-divorce-file-shows-no-abuse-allegation-against-him-by-ex-wife/497840751/; Deanna Paul, In unsealed divorce records, Rep. Keith Ellison says ex-wife abused him, Washington Post (10/17/2018), https://www.washingtonpost.com/politics/2018/10/17/unsealed-divorce-records-rep-keith-ellison-says-ex-wife-abused-him/;
[35] See Minnesota Court Records Online (MCRO), Minnesota Judicial Branch, https://mncourts.gov/Access-Case-Records/MCRO.aspx.
[36] Strosdahl v. Strosdahl, A20-0189, 2020 WL 5507842 (Minn. Ct. App. 9/14/2020); Anderson v. Anderson, No. A12-0018, 2012 WL 3641293 (Minn. Ct. App. 8/27/2012).
[37] Id. at *1.
[38] Id.
[39] Id. at *2.
[40] See Findings of Fact, Conclusions of Law, and Order on Motions dated 2/26/2021, Strosahl v. Strosahl, Carver County Court File No. 10-FA-16-404 at 5.
[41] Id.
[42] See Minn. Stat. §518.17, subd. 1(12).
[43] Minn. R. Pub. Access. To Recs. of the Jud. Branch 4, subd.2.
[44] Minn. Gen. R. Prac. 114.