Clerk of Court’s denial of mass scanning of foreclosure records affirmed by Court of Appeals

Brooksby v. N.C. Administrative Office of the Courts. Plaintiffs contacted clerks’ offices in ninety North Carolina counties seeking  to copy and scan public foreclosure records using their own staff and equipment. They pulled foreclosure records, then scanned them using cell phones and portable cameras and scanners.

In June 2013, the Randolph County Clerk’s Office denied their request for access to all foreclosure records since 2010 for scanning. In August 2013, they submitted a written request seeking to access the records once per week until they were scanned, or, alternatively, to have the Clerk’s office provide them.

The clerk denied the request through counsel. The response stated that the Clerk “does not have sufficient staff so that someone could supervise such an operation and ensure the integrity of the court’s records.” It offered to allow 15-20 records per week.

Plaintiffs sued under the state’s Public Records Act.

After mediation, the parties agreed to limited scanning (5 records at a time), but plaintiffs pressed for more over the months that followed. Those requests were again denied. The mediation agreement was never reduced to writing.

In 2015, Defendants moved for summary judgment based upon the administrative order form from the county courthouse, an email from Plaintiffs to the Clerk requesting access and affidavits from the Plaintiff’s former counsel and the Assistant Clerk regarding the mediation. The court granted summary judgment.

Plaintiffs argued that the court erred in prohibiting the scanning, and contended there was a factual issue as to whether the Defendants unreasonably restricted their access. The Court of Appeals disagreed. The opinion states:

Here, Plaintiffs failed to forecast evidence of a prima facie case under the Public Records Act because they failed to show that “access to or copies of the requested public records [was] denied.” State Emps. Ass’n of N.C., Inc., 364 N.C. at 207, 695 S.E.2d at 93. Plaintiffs’ evidence shows they were not allowed to access the Clerk’s Office on the explicit terms they requested. While the Court recognizes that there may be circumstances where public officials deny access to records on grounds of resources as a pretext for frustrating the intent of the law to provide open access, we hold under these circumstances no such factual question has been raised. Under the limitations of the Clerk’s Office and the availability of its employees, Defendants made reasonable accommodations to allow Plaintiffs access to the documents in a timely manner.

The issues raised here regard a request for mass records search of all records. The need for the records custodian to maintain the integrity of the records for its own use and the use of others, the custodian’s fiscal responsibility in maintaining the records, the duty to the public, the protection of public resources, and the exigency of the public’s need for the information are some, but not all, of the factors that shape a court’s inquiry in a records request.

This emphasis on fiscal responsibility and protection of public resources over the transparency of records is, in my opinion, problematic. The Public Records Act, as quoted in this very opinion, “[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.”

The Clerk in this case denied the Plaintiffs this. The Clerk did not permit inspection of any record, but limited Plaintiffs to a few records at a time. The Clerk did not permit inspection at reasonable times, but restricted the times the Plaintiffs could spend inspecting the records.

Nevertheless, the Court was able to “note both parties conceded this matter was appropriate for summary judgment.” So, an important note: if you intend to argue that there is a question of material fact as to whether a Clerk or other records custodians actions were reasonable, do not concede the action is appropriate for summary judgment.