Last week, the Supreme Court held that electronically maintained court records are not subject to the Public Records Act, reversing a unanimous opinion of the Court of Appeals. While the Court’s opinion in LexisNexis Risk Data Mgmt. v. N.C. Administrative Office of the Courts does not protect the records from public disclosure, it requires private parties to enter into a licensing agreement with the Administrative Office of the Courts (AOC) in order to access the records electronically.
This high-profile dispute started in 2011 when LexisNexis submitted a public records request to the AOC and the Wake County Clerk of Superior Court, seeking an index of all computer databases which contain criminal records information. LexisNexis, of course, offers a variety of services for purchase, including a tool to obtain detailed information about individuals culled from public sources, useful for background checks, collections, and other endeavors. LexisNexis’s broad request here encompassed the Automated Criminal/Infraction System (ACIS), an electronic compilation of all North Carolina criminal records. AOC created and maintains the ACIS, but the data is entered by each of the 100 county Clerks of Superior Court. Each clerk has a level of control over the data he or she enters, such that another Clerk’s office cannot change the data. Some of the information entered into the database is public, some is not. An interested party can access the public information through various measures, including the “green-screen” public terminals and the physical records. LexisNexis sought an electronic copy of the entire database.
The AOC refused to provide the ACIS database to LexisNexis, noting that the database could be accessed via a non-exclusive licensing agreement pursuant to N.C. Gen. Stat. § 7A-109(d). The Wake County Clerk responded that she did not have any responsive records. LexisNexis then filed suit against both under the Public Records Act, seeking to have the ACIS declared a public document and to compel production of the database.
The trial court ruled that neither defendant had violated the Public Records Act and that requiring AOC to provide a copy of the database would negate § 7A-109(d), which provides that the AOC may enter into nonexclusive contracts to provide remote access to electronic court records in order to facilitate public access to court records. Last year, the Court of Appeals reversed the judgment as to the AOC, concluding that the ACIS is separate and distinct from the physical court record and that § 7A-109(d) is not mutually exclusive with the Public Records Act and simply provides an additional method of access.
This past Friday, the Supreme Court reversed. While noting that the Public Records Act is designed to provide liberal access to public records, it also noted that the statute itself anticipates exceptions. Relying on the old maxim that a specific statute governing the same subject will prevail over a general statute, the Court held that § 7A-109 is a separate statute addressing access to a specific kind of public records – court records. While the Public Records Act and § 7A-109 have similar mechanisms to promote liberal access, good government, and affordability, they are not identical. Thus, the Court concluded that § 7A-109 controlled the records request, not the Public Records Act. Furthermore, the Court held, because § 7A-109(d) relates specifically to electronically-maintained records, it provides the only avenue for accessing the ACIS.
Not to worry, the opinion does not leave room for the AOC to fleece the public with exorbitant rates for its licensing agreements – as the Court pointed out, § 7A-109(d) requires that the license agreements contain “reasonable cost recovery terms.” Thus, the expense faced by the public should not vary significantly from the Public Records Act, which provides that records shall be provided for free or at the actual cost of reproducing the information.
In short, you can access the ACIS, you just can’t get a copy for yourself.