NO. COA13-547
NORTH CAROLINA COURT OF APPEALS
Filed: 18 February 2014
LEXISNEXIS RISK DATA MANAGEMENT
INC., a Florida Corporation, and
LEXISNEXIS RISK SOLUTIONS INC., a
Georgia Corporation,
Plaintiffs,
v. Wake County
No. 11 CVS 15832
NORTH CAROLINA ADMINISTRATIVE
OFFICE OF THE COURTS; JOHN W.
SMITH II, in his official capacity
as the Director of the North
Carolina Administrative Office of
the Courts; and NANCY LORRIN
FREEMAN, in her official capacity
as the Clerk of the Wake County
Superior Court,
Defendants.
Appeal by Plaintiffs from order entered 8 February 2013 by
Judge James E. Hardin, Jr., in Wake County Superior Court. Heard
in the Court of Appeals 24 October 2013.
Nelson Mullins Riley & Scarborough LLP, by Reed J. Hollander,
and Meyer, Klipper & Mohr, PLLC, by Christopher A. Mohr, for
Plaintiffs.
Attorney General Roy Cooper, by Special Deputy Attorney
General Grady L. Balentine, Jr., for Defendants.
Arnall Golden Gregory LLP, by W. Jerad Rissler, for amicus
curiae Consumer Data Industry Association.
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Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, for
amici curiae The News and Observer Publishing Co.; Capitol
Broadcasting Company, Inc.; Time-Warner Entertainment-
Advance Newhouse Partnership; DTH Media Corp.; and the North
Carolina Press Foundation, Inc.
STEPHENS, Judge.
Procedural History and Factual Background
This appeal raises the issue of whether the Automated
Criminal/Infraction System database (“ACIS”) is subject to public
disclosure under the North Carolina Public Records Act, N.C. Gen.
Stat. § 132-1 et seq. (“the Act”). In its order dismissing the
matter on the pleadings, the trial court summarized the factual
background of the case as follows:
1. The parties agree there are no facts in
dispute and the matter before the [trial
c]ourt is a question of law.
2. Plaintiffs’ corporations [(collectively
“Lexis”)], which aggregate information from a
variety of public sources, load and operate
databases, and offer information services to
government and private sector clients, bring
this action pursuant to the Public Records
Act.
3. Defendant Administrative Office of the
Courts [(“the AOC”)] administers, supports,
and maintains [ACIS] for the elected [c]lerks
of [s]uperior [c]ourt for the 100 counties of
the State of North Carolina for use as the
electronic storage index of their criminal
records.
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4. ACIS is a real-time criminal records
database that is a compilation of the criminal
court records, including records subject to
disclosure and records not subject to
disclosure, of the 100 [c]lerks of [s]uperior
[c]ourt.
5. The various [c]lerks of [s]uperior [c]ourt
enter the information contained in the
database in real time from the physical
records contained in each of their respective
offices.1 As such, the compilation of records
stored in ACIS is constantly changing. The
information in the database is exactly what is
entered by the [c]lerks of [s]uperior [c]ourt,
and changes to the information are made by the
various [c]lerks accordingly. Not every
employee in each [c]lerk of [s]uperior
[c]ourt’s office can access all of the
information in ACIS, nor can one [c]lerk of
[s]uperior [c]ourt access the records for
modification of another [c]lerk.
6. Clerks of [s]uperior [c]ourt have the
ability to make electronic and paper copies of
criminal records information they enter in the
ACIS database that is subject to disclosure,
and they routinely make such records available
pursuant to public records requests. None of
the 100 [c]lerks of [s]uperior [c]ourt has the
ability to make an electronic copy of the
entire ACIS database.
7. Criminal records information contained in
the ACIS database that is subject to
disclosure is made available by [the] AOC to
the public via remote public access and
extracts of certain information in the ACIS
database is also made available by [the] AOC
to private vendors pursuant to agreements
entered into between them and [the] AOC under
1 Some information contained in ACIS is entered by other public
officials.
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N.C. Gen. Stat. § 7A-109. [The] AOC also makes
criminal records information contained in the
ACIS database available to various
governmental agencies pursuant to agreements
and various statutory mandates.
In the fall of 2011, Lexis sent letters to Defendant John W.
Smith II, in his official capacity as Director of the AOC, and to
Defendant Nancy Lorrin Freeman, in her official capacity as the
elected Clerk of the Wake County Superior Court (“the clerk”).
Citing the Act, Lexis requested an index2 of all computer databases
and an electronic copy of the entire ACIS database.3 In a written
response, the AOC agreed to provide Lexis with “the indexing done
to date for databases maintained by the []AOC and subject to
[section] 132-6.1[,]” but maintained that the statute’s
requirement for compiling indexes “does not apply to databases
created before the effective date [of section 132-6.1, and] ACIS
pre-dates [the effective date.] A]s a result there is no index of
ACIS that we can provide you.”4 Both the AOC and the clerk refused
2 Under the Act, an “index” is a description of various form and
content details about an agency’s database, and it is undisputed
that these indexes are public records. N.C. Gen. Stat. § 132-
6.1(b) (2013).
3 Lexis requested only “non-confidential or non-restricted
information” in ACIS.
4 Lexis’s complaint, discussed supra, did not contain any
allegations regarding an index of ACIS and did not seek a copy
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Lexis’s request for a copy of the ACIS database itself. The AOC
asserted that ACIS is a mainframe application which serves as a
record-keeping tool for clerks of court statewide, but that the
individual clerks are the custodians of the actual records.
Because the Act provides that the duty to disclose public records
lies with their custodian, the AOC asserted that it had “no records
responsive to” Lexis’s request for an electronic copy of ACIS.
The clerk asserted that, while she could enter information from
her county’s criminal records into ACIS, she lacked the ability to
make a copy of the entire database. Accordingly, the clerk also
informed Lexis that she had “no records responsive to” its request.
On 13 October 2011, Lexis filed a complaint alleging that the
clerk’s and the AOC’s refusal to provide an electronic copy of the
ACIS database violates the Act. Lexis sought declarations that
the ACIS database is a public record under the Act and that the
AOC and/or the clerk are custodians of ACIS, as well as an order
requiring the release of ACIS as a public record pursuant to the
Act. Defendants filed a joint answer on 15 December 2011. On 6
February 2012, Lexis moved for judgment on the pleadings.
Following a hearing, by order entered 8 February 2013, the trial
thereof. Accordingly, the AOC’s refusal to provide Lexis with an
index of ACIS was not before the trial court and is not before
this Court on appeal.
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court denied Lexis’s motion, granted judgment on the pleadings in
favor of Defendants, and dismissed the matter. Lexis appeals.
Discussion
On appeal, Lexis brings forward four arguments: that the
trial court (1) misapplied the standard for judgment on the
pleadings by assuming the counter-allegations in Defendants’
answer to be true, and erred in (2) failing to address whether
ACIS is a public record subject to disclosure under the Act, (3)
concluding that the AOC is not the custodian of ACIS, and (4)
denying disclosure of ACIS pursuant to N.C. Gen. Stat. § 7A-109(d).
Because they are closely related and are dispositive of the merits
of Lexis’s position on appeal, we address Lexis’s second and third
arguments together. We reverse and remand the trial court’s order
as to the AOC. In light of this result, we do not address Lexis’s
first argument. We affirm as to the clerk.5
5 Despite having named the clerk as a defendant, Lexis did not
contend in the trial court or on appeal that the clerk is actually
the custodian of the ACIS database. As discussed herein, under
the Act, only the “custodian” of public records has a duty to
provide copies thereof upon request. N.C. Gen. Stat. § 132-6(a)
(2013) (providing that “[e]very custodian of public records shall
. . . furnish copies thereof . . . .”). All parties agree that
the clerk did not create ACIS and does not have the ability to
make a copy of the database. On appeal, Lexis does not argue that
the trial court erred in concluding that the clerk did not violate
the Act when she refused Lexis’s request for a copy of the ACIS
database. Accordingly, we affirm the order to the extent it
concludes that the clerk did not violate the Act.
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Standard of Review
We review a trial court’s ruling on a motion for judgment on
the pleadings de novo. Toomer v. Branch Banking & Trust. Co., 171
N.C. App. 58, 66, 614 S.E.2d 328, 335, disc. review denied, 360
N.C. 78, 623 S.E.2d 263 (2005). “Under a de novo review, the
[appellate] court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” Craig v. New
Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354
(2009) (citation and internal quotation marks omitted).
I. ACIS is a public record and the AOC is its custodian
Lexis argues that the ACIS database is a “public record” as
defined in the Act and the AOC is its custodian. We agree.
The Act provides that
“[p]ublic record” or “public records” shall
mean all documents, papers, letters, maps,
books, photographs, films, sound recordings,
magnetic or other tapes, electronic data-
processing records, artifacts, or other
documentary material, regardless of physical
form or characteristics, made or received
pursuant to law or ordinance in connection
with the transaction of public business by any
agency of North Carolina government or its
subdivisions. . . .
N.C. Gen. Stat. § 132-1(a) (2013) (emphasis added). Further,
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[e]very custodian of public records shall
permit any record in the custodian’s custody
to be inspected and examined at reasonable
times and under reasonable supervision by any
person, and shall, as promptly as possible,
furnish copies thereof upon payment of any
fees as may be prescribed by law. As used
herein, “custodian” does not mean an agency
that holds the public records of other
agencies solely for purposes of storage or
safekeeping or solely to provide data
processing.
N.C. Gen. Stat. § 132-6(a).
Both parties agree that the individual criminal records of
the clerks of court are public records and that the clerks are the
custodians of those records. As required by the Act, the clerk of
court in each county will, upon request, provide copies of the
criminal records for his or her county.6 The disputed issues are
whether ACIS, the database compiling information from those
records, is a public record and, if so, whether the AOC is its
custodian.
As for the first issue, we agree with Lexis’s assertion that,
once the clerks of court enter information from their criminal
records into ACIS, the database becomes a new public record
6As noted supra, the trial court found, and Lexis does not dispute,
that the individual clerks of court cannot provide the records
from any other counties or make a copy of the entire ACIS database.
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“existing distinctly and separately from” the individual criminal
records from which it is created.7 The plain language of the Act
includes “electronic data-processing records” in its definition of
public records. N.C. Gen. Stat. § 132-1(a). In turn, a database
is a
[c]ollection of data or information organized
for rapid search and retrieval, especially by
a computer. Databases are structured to
facilitate storage, retrieval, modification,
and deletion of data in conjunction with
various data-processing operations. A
database consists of a file or set of files
that can be broken down into records, each of
which consists of one or more fields. Fields
are the basic units of data storage. Users
retrieve database information primarily
through queries. Using keywords and sorting
commands, users can rapidly search, rearrange,
group, and select the field in many records to
retrieve or create reports on particular
aggregates of data according to the rules of
the database management system being used.
“Database.” Merriam-Webster.com. Concise Encyclopedia,
http://www.merriam-webster.com/concise/database (last visited
Jan. 23, 2014) (emphasis added). Thus, we conclude that the ACIS
database falls squarely within the definition of a public record
as an electronic data-processing record.8
7 As Lexis correctly observes, the trial court’s order does not
contain a conclusion of law about whether ACIS is a public record.
8 Further, we note that the ACIS database would certainly be
encompassed under the Act’s broadly worded catch-all provision
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Next, as noted supra, the Act provides that the custodian of
public records has the duty to provide the public with copies of
those records when requested. N.C. Gen. Stat. § 132-6(a). The
AOC argues that it is not the custodian of the criminal records
whose information is used to create ACIS. We agree, but find this
assertion inapposite. Lexis is not seeking copies of the criminal
records, but rather a copy of ACIS.
We also reject as misplaced the AOC’s related argument that
it is not the custodian of the information contained in ACIS. The
Act does not refer to custodians of information but of records.
See id. The plain language of the Act requires custodians to
provide copies of their public records and nothing in the Act
suggests that this requirement is obviated because the information
contained in a public record is publically available from some
other source. Many public records contain information that is
derived from and/or contained in other public records. For
example, a city council might use information from its police
department to create a report about crime statistics within its
borders during a given year. Even though the information in the
city council’s report came from the police department and is
including “other documentary material” in the definition of public
records. N.C. Gen. Stat. § 132-1(a).
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available in the police department’s own public records, the city
council’s report is still a public record and the city council is
the custodian of its report. Our State’s Department of Justice
might use information from the city council’s report in creating
a chart comparing crime rates in many different cities. That chart
would in turn become a new public record in the custody of the
Department. Here, the AOC has admitted that it created, maintains,
and controls ACIS and is the only entity with the ability to copy
the database. Thus, ACIS is not the public record of another
agency. Rather, ACIS is a record of the AOC and in the AOC’s
custody.
Further, we find irrelevant the AOC’s observations that
individual clerks of court input information from their counties’
criminal records into ACIS and retain the sole ability to alter
the information they input. In opposing the AOC’s argument on
this point, Lexis cites News & Observer Pub. Co. v. Poole, 330
N.C. 465, 412 S.E.2d 7 (1992). In Poole, the plaintiffs sought
materials . . . compiled on behalf of a
commission appointed by the president of the
University of North Carolina system of higher
education. The Commission’s purpose was to
investigate and report on certain alleged
improprieties relating to the men’s basketball
team at North Carolina State University
(NCSU), one of the system’s component
universities. . . .
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The records sought to be disclosed [we]re
investigative reports prepared for the
Commission by special agents of the State
Bureau of Investigation (SBI), Commission
minutes, and draft reports prepared by
individual Commission members.
Id. at 470, 412 S.E.2d at 10 (emphasis added). The Commission
acknowledged that many of the materials it generated or gathered
were public records, but argued that the reports prepared by the
SBI were not public records, citing a statutory provision which
specifically exempts records and evidence created by the SBI from
the definition of public records under the Act. Id. (citation
omitted). The Supreme Court disagreed, concluding that, “when the
SBI submitted its investigative reports to the Commission, they
became Commission records. As such they are subject to the Public
Records Law and must be disclosed to the same extent that other
Commission materials must be disclosed under that law.” Id. at
473, 412 S.E.2d at 12. Thus, the rule established by Poole is
that, even when one government agency wholly creates a record and
then simply delivers a copy of that record to a second agency, the
second agency becomes a custodian of the record under the Act.
See id.
Here, the case for disclosure under the Act is even stronger
than in Poole. The clerks of court have not simply made copies of
their records and sent them to the AOC. Rather, as explained
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supra, the clerks have acted at the direction of the AOC to create
an entirely new and distinct public record, to wit, ACIS. See
N.C. Gen. Stat. § 7A-109(a) (2013) (“Each clerk [of court] shall
maintain such records, files, dockets[,] and indexes as are
prescribed by rules of the Director of the [AOC].”). For all the
reasons stated above, we hold that ACIS is a public record in the
custody of the AOC.
II. Effect of section 7A-109(d)
We also agree with Lexis that the trial court erred in
concluding that requiring the AOC to provide a copy of ACIS upon
request would “negate the provisions of N.C. Gen. Stat. § 7A-
109(d)[.]”
Subsection (d) of the statute provides:
In order to facilitate public access to court
records, except where public access is
prohibited by law, the Director [of the AOC]
may enter into one or more nonexclusive
contracts under reasonable cost recovery terms
with third parties to provide remote
electronic access to the records by the
public. . . .
N.C. Gen. Stat. § 7A-109(d). Nothing in this subsection limits
the public’s ability to obtain copies of public records under the
Act. The plain language of this subsection simply allows the AOC
to offer an additional method of access to “court records” via
“remote electronic access[.]” Id. Here, Lexis is not seeking
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remote electronic access to ACIS, but rather has requested a copy
of the entire database. As such, the provisions of section 7A-
109(d) are inapposite.
We are sympathetic to the AOC’s argument that, if copies of
the entire ACIS database are available upon request under the Act,
third parties may be discouraged from entering into “contracts
under reasonable cost recovery terms . . . to provide remote
electronic access to [court] records . . . .” Id. However, we
note that section 7A-109(d) is expressly permissive, rather than
mandatory. See id. (providing that “the Director [of the AOC] may
enter into one or more nonexclusive contracts under reasonable
cost recovery terms with third parties”) (emphasis added). If
provision of copies of ACIS under the Act renders the option of
providing remote electronic access unnecessary or not cost-
effective, the AOC can simply decline to offer this additional
method of access.
Our Supreme Court has directed “that in the absence of clear
statutory exemption or exception, documents falling within the
definition of ‘public records’ in the [Act] must be made available
for public inspection.” Poole, 330 N.C. at 486, 412 S.E.2d at 19
(emphasis added). We conclude there is no clear statutory
exemption or exception applicable to the ACIS database.
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Accordingly, as to the AOC, the order of the trial court is
reversed. We remand the matter to the trial court with directions
to enter judgment for Lexis.
AFFIRMED in part; REVERSED and REMANDED in part.
Judges GEER and ERVIN concur.