                            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.
                                   -2-
    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.
                              -3-
         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.
                                  -4-
            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
                                    -5-
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.
                                     -6-
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.
                                -7-




                         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,
                                    -8-
           [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.
                               -9-
“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
                                -10-
     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).
                                  -11-
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. . . .
                                -12-
            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
                                  -13-
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
                                    -14-
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.
                               -15-
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.
