Registry records are public, and must remain so

There are two really bad bills being heard at the State House this week, both of which ask to exempt Maine's registries of deeds from the state's Freedom of Access Act.

These registries contain records from hundreds of years of commercial, public and private property transactions. And, since property taxes are the foundation on which Maine's public revenue rests, the public has a very keen right to know who buys which property from whom, for what consideration and, perhaps, what purpose.

Will Rogers had it right. No one is making more land, so our need to know who owns existing land is intense and absolute.

The bills — LD 1554, An Act Regarding Document Fees at County Registries of Deeds, sponsored by Rep. Patsy Crockett of Augusta, and LD 1714, An Act to Protect Information Maintained by Registers of Deeds, sponsored by Rep. Sharon Treat of Hallowell — do not protect the public.

Both bills were filed in direct response to the counties' collective irritation with an FOAA request from Cumberland-based MacImage of Maine for digital copies of thousands of deeds on file. In Hancock County, a superior court ordered the registry to produce these copies for a reasonable fee, ruling the deeds are public records under FOAA.

And, now, the response by the counties is to exempt themselves from the law?

Because they've been ordered to follow the law? We, as individuals, don't have that luxury.

In addition to exempting the registries from FOAA, Crockett's bill suggests increasing per-page copies from $2 per page to $4 per page. This, in the face of the court ruling that a $2-per-page fee was excessive. The Legislature cannot possibly respond by permitting the fees to double.

We get that MacImage of Maine's request is broad, and we get that there is resistance to seeing a private individual create a database of public records for profit. But John Simpson, who owns MacImage, didn't create entrepreneurship. He's just practicing it. The public must not be punished for Simpson's creativity.

Crockett's bill also recommends that copies of any records sold by any registry to anyone, and then sold to a third person, are stamped "not an official copy." This makes sense, but registries now make copies available in two ways, certified and not certified, so this designation is already being made at the registry level. If registries prefer that the language "not an official copy" be stamped on everything other than certified copies, that's a change that can be made administratively without tinkering with statute.

Attorney Frank Underkuffler, who represents Sagadahoc and Franklin counties in their fight to deny the MacImage request, said he and his clients don't recognize that FOAA applies to registries, even though they've always maintained that their records are public. With all due respect to Underkuffler, never mind that the court has already ruled FOAA applies to registries, FOAA is pretty clear that public records are defined as any records, electronic or otherwise, in the possession or custody of a public agency or public official.

Registries are public agencies operated by public officials who draw public salaries, so the records they possess and maintain are public records. By definition.

What makes the Crockett and Treat bills so bad is that they are written for registries to subvert a court ruling they don't like.

What's next?

School committees exempting themselves from public scrutiny? Or how about boards of selectmen? Why not the governor's office?

Both bills must be rejected with vigorous ought-not-to-pass votes. Anything less would be a conscious denial of the public's right to know.

editorialboard@sunjournal.com

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Comments

JUDY MEYER's picture
staff

Both bills very specifically

Both bills very specifically ask for public access to be exempted, so the proposed change would affect much more than the cost or availability of copies.

Here's the proposed language: Public access to records maintained by a register is governed by this chapter. Title 1, Chapter 13 does not apply to public access to records maintained by a register.

So, if passed, any and all access could be curtailed under Title 33. If that happens, how might someone then do a title search? Or how would municipalities be able to determine titles of ownership for purposes to sending tax bills? How could the IRS or Maine Revenue Service attach liens to properties for unpaid taxes? How could contractors do the same for owners who refuse to pay their bills? There are many functions served by public access to property records, many of which are governmental functions, and some of which are not.

In the case of the Hancock lawsuit, MacImage proved that the fees gathered from copies were not used to keep operating costs down at the registry. The registry was self-sustaining through filing and other fees and the money collected for copies went to pay for other county functions, so it's not right to assume the copy fees collected pay for upkeep of the records and there's no reason to increase the fees based on that argument.

 

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