The Lawletter Vol 38 No 4
Data collected by the government have traditionally been presented to the public through official government publications. As the world moves deeper into the Age of the Internet, however, governments have increasingly stopped printing data reports. Instead, data reports are often published on an official government website. This fundamental change poses an evidentiary challenge for parties seeking to rely upon government-collected data.
A good example from the field of family law is the consumer price index ("CPI"), an index of price data produced monthly by the federal Bureau of Labor Statistics ("BLS"). It is not uncommon for a support provision in a divorce settlement to include a provision increasing the payments periodically, based upon changes in the CPI. Some states do not allow the court to insert such an escalator clause into its own order, but settlement agreements containing self-modifying support provisions are generally enforceable. See In re Marriage of Strieby, 255 P.3d 34 (Kan. Ct. App. 2011); West v. West, 891 So. 2d 203 (Miss. 2004); Payne v. Payne, 635 S.W.2d 18 (Mo. 1982).
When an escalator clause is based upon the CPI, how can the CPI be proven? This question was presented to the North Carolina Court of Appeals in the unpublished decision of Blackburn v. Bugg, 723 S.E.2d 585, 2012 WL 1332728 (N.C. Ct. App. 2012) (unpublished table disposition). The plaintiff in that case went to the website of the BLS, http://stats.bls.gov, and simply printed a list of the CPI for different years and months. The defendant objected that the printout had not been properly authenticated and was in any event inadmissible hearsay.
The trial court disagreed, and the appellate court affirmed:
[W]e discern no abuse of discretion in the trial court's admission of Plaintiff's CPI evidence. Plaintiff offered testimony, including the exhibits at issue, to prove the amount of CPI payments owed by Defendant at the time of trial. Defendant offered no evidence of his own CPI calculations, nor evidence to dispute Plaintiff's calculations. Plaintiff's exhibits consisted of computer printouts—which Plaintiff testified she obtained from a website operated by the United States Department of Labor—and her own handwritten calculations, which she computed using the CPI figures obtained from the government website. Plaintiff's testimony, in addition to the "UNITED STATES DEPARTMENT OF LABOR BUREAU OF LABOR STATISTICS" heading displayed on the printouts, was sufficient to prove that the computer printouts were what Plaintiff purported them to be. See N.C. Gen.Stat. § 8C-1, Rule 901 (2011). Moreover, we note that the CPI information set forth in the computer printouts is public information readily available and subject to judicial notice. See N.C. Gen.Stat. § 8C-1, Rule 201 (2011).
2012 WL 1332728, at *4.
To summarize, the computer printout was properly authenticated by the plaintiff's testimony that she had printed the document from an official government website. The official heading at the top of the document was also evidence that the document was what it claimed to be.
While the court did not mention the fact, another important point regarding a printout of a website is that the Web browser often automatically prints the Web address of the site at the bottom of the printout. This information allows any user to verify the printout simply by entering the same Web address into a browser, and it makes detection of fraudulent printouts a relatively easy process.
The court further held that the CPI is a fact of which the court can take judicial notice. This holding was based upon North Carolina Rule of Evidence 201, which provides:
(b) Kinds of facts.—A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
N.C. R. Evid. 201(b). Thus, the CPI is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"—the official BLS website.
Finally, while the court did not address the point, it is worth noting that the CPI surely falls within the scope of the hearsay exemption for "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law." Id. R. 803(8) (emphasis added). Observing and reporting price data is one of the core duties of the BLS.
As more government data is reported primarily on the Internet, evidentiary issues involving websites are likely to grow in frequency. A time may well come when the hearsay exception for public records is applied primarily or even exclusively to government websites.