Court rules against counties on public access

A Cumberland businessman has won a Superior Court case against six Maine counties for violation of the state’s public access law and for overcharging fees for copies of public records.

The court’s ruling sets a new standard for what Maine government can charge for copies of public records.

John Simpson, who owns MacImage of Maine, sought to obtain digital copies of the records stored in registries in six Maine counties — Androscoggin, Aroostook, Cumberland, Knox, Penobscot and York — to create his own document database.

In 2009, he submitted Freedom of Access Act requests for access to the documents and filed suit in Cumberland County Superior Court after the counties failed to provide the copies at a reasonable price.

The estimated cost of copies of 2.75 million real estate images in Androscoggin County was $330,000. In Cumberland County, the quote was more than $12 million and, in Penobscot county the cost was estimated to be $4 million, or $1 per page for 4 million images.

According to Justice Thomas Warren’s ruling, “the court ... understands the counties’ and the registers’ evident desire to maintain the integrity of their registries against an entity they perceive as an interloper and to protect their sources of revenue against competition. However, that does not permit them to charge fees that cannot be justified under the Freedom of Access Law.”

County registrars of deeds have steadfastly argued that providing MacImage with copies of their databases would allow MacImage — a commercial entity — to alter the documents, compromising the integrity of the documents in the counties' care. The court did not find that argument compelling, nor did it see fit to justify setting fees based on the commercial or noncommercial use of the material.

According to Sigmund Schutz of Preti, Flaherty, the lawyer representing Simpson, “MacImage expects that the decision will clear the way for a discounted and user-friendly website allowing one-stop shopping to inspect and copy any land record at any registry of deeds in Maine,” allowing customers an alternative to paying upward of $1.50 per page at separate registries of deeds.

Schutz said Warren’s ruling is an order for the counties to provide MacImage copies of what it has been asking for since September 2009, and “the cost is a few thousand dollars as compared to the hundreds of thousands of dollars that the counties wanted to charge.”

According to lawyer Bryan Dench, who represents Androscoggin County, the ruling essentially means a person could conceivably walk away with all of a county's records — which can consist of nearly 3 million images of deeds and other documents — for $1,000 or slightly more.

"These records have to be turned over, basically for nothing," Dench said. "It has a very significant fiscal impact."

Dench, a champion of freedom of access, said the counties do not want to keep records from the public. They only want to be allowed to charge a reasonable price to cover the cost of providing them.

"We're just trying to be fair to the taxpayers who underwrote the cost of creating these valuable records," Dench said.

Before the ruling, MacImage had fought one court case in Hancock County over the $1.50-per-page fee charged by that county. The court sided with MacImage and determined it was not a reasonable fee for a request for land records that includes thousands of pages electronically scanned.

In defending their decision to charge MacImage millions in copying costs, the counties argued that they are required to be financially self-supporting by law and must be able to recover their costs to scan and maintain millions of documents.

The court disagreed, concluding that state law does not authorize counties to charge fees based on overall costs of maintaining their data because “whether or not electronic copies were ever requested by or are ever produced to MacImage, the registries have already created their electronic databases of land records" for the registries’ general and respective uses. The cost for counties to scan and store records does not change whether MacImage, or any commercial entity, seeks access to records, so the counties cannot charge to recover standard operating costs.

The counties have 10 days from Tuesday, Feb. 22, to file an appeal. Schutz said he expects an appeal and that Simpson is prepared for that development, but “at the same time MacImage hopes to work with the counties to resolve this amicably without more expensive litigation.”