A Perk for the Powerful No More

Illegal sealing of divorce records ends, except for one case

May 5, 2010 at 2:06 pm

For a long time, one of the perks of being well-connected and, typically, well-to-do in Hamilton County was a divorce proceeding was insulated from public view. Until three or four years ago, it was a common practice among Domestic Relations Court judges to seal divorce files simply because the parties wanted to keep their aborted marriages encrypted as “Sealed Case v. Sealed Case.”

Some of the county’s most prominent citizens availed themselves of the court’s willingness to skirt the Ohio public records law, which they had the right to do back then. Among them were former Cincinnati Reds General Manager Jim Bowden, former Provident Bank President Allen Davis and former Procter & Gamble CEO A.G. Lafley.

Perhaps one must be wealthy, if not just shy or thin-skinned, to understand their desire for privacy.

In his divorce, details of which came out in a civil suit, Davis had to give his wife half his stake in the Check ‘n Go payday loan chain, a partition valued at $16 million. He kept the mansion in Indian Hill, the most expensive home ever built in Hamilton County. The Lafleys’ divorce, unsealed on this reporter’s request in 2007, resulted in a down-the-middle division of an estate worth $125 million, mostly in securities but also covering multiple homes.

Keep in mind that the average couple going through divorce in Hamilton County courts during the “easy seal era” was much less likely to have the laundry of their split sheltered from public view. It could be that they never asked for a seal, or that they didn’t have the right lawyers. As a result, their affidavits of income and assets and their accusations of infidelity, violence and abandonment were – and are – laid out for anyone to see.

But it appears that Hamilton County now frowns on processing divorces in secret.

Following the issuance of an opinion by the Hamilton County Prosecuting Attorney’s office clarifying that divorce files are public records, the county’s three Domestic Relations Court judges have sealed only one divorce file since the beginning of 2008. The judges routinely grant requests to block Internet access to documents, but those files are available for inspection in person, in compliance with state law.

Susan Tolbert, the court’s administrative judge, says she would have to review back cases to explain why divorce files were sealed in the past; she didn’t know simply off the top of her head. The court still would entertain requests to seal cases, she adds, but with the caveat to the parties that the seals won’t withstand a public records request.

“I would have a hearing and listen to their reasons (for the seal),” Tolbert says. “I would certainly have to explain to anyone making such a request that public records are, by statute, public records. If anybody makes a request for them, it has to be complied with.”

The Ohio Supreme Court put into effect a new set of rules July 1, 2009, that does anything but make that clear. Although the so-called Rules of Superintendence presume that court records are open to the public, they let a court restrict public access to documents in any case “if it finds by clear and convincing evidence that the presumption of allowing public access is outweighed by a higher interest.”

The rules, which superseded provisions of the Ohio Public Records Act in cases beginning July 1 and after, don’t define “higher interest,” only acknowledging that there are statutory exemptions to public access to court files.

Ohio laws protect the confidentiality of juvenile records and allow for the sealing of case files of people exonerated of crimes, for example. But the new public access rules also allow judges to determine “whether public policy is served” by sealing documents. They also let judges consider parties’ “individual privacy rights and interests.”

Kevin Shook, a media lawyer for the Frost Brown Todd legal firm in Columbus, says the new rules could be read as giving judges latitude to block public access to court files on flimsy grounds.

“The new rules give judges very little guidance regarding the circumstances in which information can be sealed,” Shook says. “My concern is that some judges might broadly interpret this as an invitation to seal records that are nothing more than embarrassing. I think that would be a serious mistake and a step backward.”

Shook, chairman of the Ohio State Bar Association’s Media Law Committee, says there should be a higher standard for court documents to be sealed.

“Should it be something that you request and you get it? Absolutely not,” he says. “There needs to be a balance between the privacy of bank account and Social Security numbers and the public’s right to know what’s going on in the courts.”

Omitting or blotting out numbers that could lead to identity theft or entry to bank accounts, he adds, should suffice in achieving that balance.

So what were the grounds for the blanket sealing of the only divorce case sealed in Hamilton County in the last 29 months?

The divorce between Lauren Chesley Cohen and James Dickson Cohen was filed Feb. 24. She is the daughter of millionaire litigator Stan Chesley, while he's a real estate developer. On the same day, both parties asked that the case be sealed. “In support hereof, the parties state that their privacy interests in maintaining the confidentiality of this domestic relations case file outweigh the public interest in access to the record,” wrote their attorneys, Jeffrey Goodman and Gregory Adams.

Judge Elizabeth Mattingly ordered the case sealed that day. Her one-sentence order offers no sign of having been presented with clear and convincing evidence that the Cohens’ desire for privacy outweighed the presumption of public access to the case file.

The divorce was finalized April 6. CityBeat requested access to the case file and, without having to take legal action or file a formal public records request, received it two weeks later.

The suit contains no reputation-damaging allegations of marital misconduct, only the garden-variety trappings of an Indian Hill marriage gone sour: A $3.3 million house left to the wife, a $673,288 home equity payment to the husband, child-support payments to the wife and the disclosure of $806,000 in combined annual income.

In other words, merely the same kind of information that prompted Hamilton County’s plugged-in crowd to seek judicial favors in the past and immunize their breakups from public records laws.