LexisNexis Risk Data Management Inc., and LexisNexis Risk Solutions Inc. v. North Carolina Administrative Office of the Courts

A database of North Carolina court records is not a public record, according to the state Supreme Court.

In 2011, Lexis requested a copy of the AOC’s Automated Criminal/Infraction System (ACIS) under the Public Records Act. When the AOC refused, Lexis sued under the Act seeking a declaration that the ACIS database is a public record under the Act and requiring AOC to provide a copy.

ACIS is a database of all criminal records in the state. Individual Clerks of Court around the state enter the information by duplicating information in the physical records. Inside each Clerk’s office is a small terminal the public can also use to search ACIS. For remote access to ACIS, AOC requires a separate contract for access.

The trial court sided with the AOC on the pleadings. The appellate court unanimously reversed, concluding that the ACIS database is, in fact, a public record and that the AOC is the custodian of that record. LexisNexis Risk Data Mgmt. Inc. v. N.C. Admin. Office of the Courts, ___ N.C. App. ___, 754 S.E.2d 223 (2014). Specifically, the appellate concluded that ACIS is an “electronic data-processing record” under § 132-1(a) and thus is a public record subject to disclosure under the Public Records Act.

The Supreme Court disagreed. The General Assembly’s enactment of § 7A-109, the court concluded, created a separate, more specific public right of access to court records than the general right of access to public records in the Act. Section 7A-109 (d) provides, in part:

[i]n order to facilitate public access to court records, except where public access is prohibited by law, the [AOC] Director 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.

The Court concluded that this more specific language addressing “remote electronic access” to court records prevails over the more general language of the Act, and that it means that the AOC has the authority to limit access to the database. In short, the Court held that the legislature intended that remote electronic access to ACIS be available only by contract under § 7A-109, and remanded the case.

But the Court deviated from precedent. Here are some excerpts from the Court’s own opinion that suggest it should have reached the opposite conclusion:

This Court has consistently found that “it is clear that the legislature intended to provide that, as a general rule, the public would have liberal access to public records.” News & Observer Publ’g Co. v. State ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984) (citation omitted); see also State Emps. Ass’n of N.C. v. N.C. Dep’t of State Treasurer, 364 N.C. 205, 211, 695 S.E.2d 91, 95 (2010)

However, the Public Records Act anticipates that exceptions may apply, see N.C.G.S. § 132-1(b) (2013) (“[I]t is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise specifically provided by law.” (emphasis mine).

Put another way, public agency records are public unless there is a specific statutory exception. News & Observer Publ’g Co. v. Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). The plain language of the Act includes “electronic data-processing records.”.N.C. Gen. Stat. § 132-1(a).

So why interpret § 7A-109 (d), which begins with the clause “[in] order to facilitate public access” to mean that access is limited? I’ve heard from some more cynical attorneys who feel that the Court’s interpretation is a financial protectionist measure. Court in the state are under funded, and the legislature thus far has not been proactive about fully funding them. Initiatives like electronic filing require additional funding. The ACIS contract provide a reliable stream of revenue to the courts.

I’m not sure the reason, but I worry about the decision’s implication that a “specific” exemption to the Public Records Act can be vaguely worded and not, in fact, specific.