The Sun Journal editorial “Registry records are public, and must remain so,” which appeared in your Feb. 3 edition appears to have been based on a quick examination of two pieces of legislation without first having done sufficient investigative work. Your vigilance in pursuit of a free press is admirable, but your omission of some key facts is not.

The Freedom of Access Act was enacted in the early 1970s in order to ensure that the public’s business was conducted in public view. It requires that meetings be open to the public, with limited exceptions, and that records of public or government business be open to public inspection.

I happen to have co-authored the first citizens’ guide to that law in my then capacity as executive director of the Maine Civil Liberties Union; my co-author was an official with the Maine League of Women Voters. FOAA was then popularly known as the “Sunshine Law,” “The Open Meetings Law” or “The Open Records Law.” It was enacted in response to widespread concerns that too much public business was being conducted outside of open meetings, such as in a first selectman’s kitchen or a downtown restaurant. Fortunately, the law has largely succeeded in achieving its goal of ending those practices.

Decades if not hundreds of years before enactment of FOAA, certain documents maintained in county registries of deeds were required to be available to the public, including deeds, mortgages and other land-related records. The vast majority of these documents bear no connection with public or government business, but it is nevertheless critical they be available for public inspection and copying. To suggest that county officials believe otherwise is flat wrong.

The law that requires deeds to be open to the public is found in Title 33 of the Maine statutes. It serves an entirely different public purpose than FOAA serves. Deeds and related records must be public so it can be verified who owns what land, who has a lien on that land, and so forth. This has nothing to do with open meetings or records of public business, except in the few cases where a public body is a party to the real estate transaction.

The editorial mentions court action in a case known as MacImage v. Hancock County and indicates that the court ruled that records at county registries of deeds are subject to FOAA. The court was never asked to rule on that question since neither side in the dispute asked it to and said in its decision, “[t]here is no dispute” on that point since neither side had rasied it. The court proceeded on the assumption that FOAA did apply without ever actually ruling that was so, but in so doing spent several pages in its decision wrestling with the question of which of two overlapping and potentially conflicting laws applied in the case: FOAA or the Title 33 provisions governing registries of deeds.

To take the position that FOAA applies to the records of private transactions stored at county registries of deeds serves no useful public purpose, except to confuse the situation. Neither LD 1554 nor LD 1714 would shield so much as a single piece of paper, an inch of microfilm or a single digital byte from public view. To suggest otherwise fails to give your readers the whole truth. Title 33 will, as it has always done, ensure public access to these documents. But the legislation may clear up whatever confusion continues to exist about which law governs that access, and which law governs the fees one must pay to obtain copies of the records. The court’s decision did not clear this up, but simply drew attention to this confusion.

Registries of Deeds exist to serve the needs of everyone, not just those who would benefit from the fruits of the labor paid for by everyone who uses and pays for those registries. It is a perversion of FOAA to allow MacImage or anyone else to get cheap or free access to copies of millions of records after all the hard work has been done and paid for by the thousands of people and businesses who have paid for those records to be recorded, catalogued, microfilmed and digitized. It has nothing to do with ensuring that the public’s business is public. And it undercuts the revenue needed to continue supporting this necessary function.

The Sun Journal editorial erroneously states that LD 1554 attempts to raise fees from $2 to $4 after the court ruled that even $2 was too high. You are confusing two fees, the recording fee in the first instance, and the copying fee in the second. The law has long specified the exact dollar amount which may be charged for recording documents and the court did not rule on the amount of those fees since their is no ambiguity there. But the law on copying fees is especially vague, saying only that they must be “reasonable.” That was the entire basis of the lawsuit in Hancock County.

When the court struck down Hancock County’s copying fees due to the vagueness of the statute adopted by the Legislature, the county immediately lost a sizable source of revenue used to support its operations. Without increasing recording fees or taking some other action to recoup that revenue, the only place left for Hancock County to go is to its property taxpayers. The Hancock County Commissioners and their colleagues throughout the state would prefer not to take that route, and instead prefer to continue to rely on the users of the registries of deeds to underwrite that function. As far as we know, the users of that service are fine with that arrangement as they have been for so many years.

County government isn’t the only level of government seeing FOAA used for personal gain. It is happening with certain state records, such as driver’s licenses, motor vehicle accident reports and a host of other documents. Lawyers of the ambulance-chasing variety, telemarketing firms and others are using FOAA for a very different purpose than that for which it was enacted. There is nothing evil in this; it is simply capitalism at work. But we believe it is a discussion worth having at the Legislature whether some limitations ought to be placed on the ability of commercial interests to benefit in this way from the fruits of the labors paid for by the taxpayers or users of certain government functions.

These FOAA requests are placing increased burdens on state and county employees, and the costs of that increased time and effort ought to be borne by those who benefit from it, and not by the rest of us.

Thank you for your continued vigilance in support of a free press and open government. But please don’t paint county officials as villains who are attempting to deprive the public of access to records when they are not.

Robert S. Howe is a former state legislator and a principal in the Augusta-based firm of Howe, Cahill & Company whose clients include county government. He is a native of Gorham, Maine, and holds a master’s degree in public administration from Harvard’s John F. Kennedy School of Government.

Editor’s note: In the MacImage of Maine vs. Hancock County ruling, a declaratory judgment was issued “that defendant is required under the Freedom of Access Law to provide electronic copies of the documents requested in plaintiff’s September 29, 2008, request without charging $1.50 per page.” That judgment included both public and private transactions requested by MacImage of Maine, so it is not the Sun Journal’s position that FOAA applies to records of private transactions. It is the judgment of the Cumberland County Superior Court. LDs 1714 and 1554 ask the Legislature to remove the authority of FOAA from Registers of Deeds as it pertains to public access to records and complying with requests for copies of records, respectively, limiting authority for this access to Title 33.

Copy the Story Link