BANGOR, Maine — The Maine Supreme Judicial Court on Tuesday ruled unanimously in favor of six counties in a lawsuit over the bulk copying of electronic documents in registries of deeds. The justices also upheld a 2011 law that set the fees counties may charge for electronic copies of documents.
The decision preserves an important revenue stream for counties, according to Peter Marchesi, the Waterville attorney who represented the counties.
The court’s ruling reversed a lower court’s decision in favor of John Simpson, owner of MacImage of Maine LLC. He filed Freedom of Access requests in 2009 with the counties to create his own statewide document database. In November 2009, the Cumberland businessman sued Androscoggin, Aroostook, Cumberland, Knox, Penobscot and York counties in Androscoggin County Superior Court, alleging that the fees the counties wanted to charge for digitized documents were unreasonable. The price quoted by Penobscot County was $1 per page for 4 million pages.
Justice Thomas Warren ruled in Simpson’s favor in early 2011 and the counties appealed the case to the Maine Supreme Judicial Court. While the appeal was pending, the Legislature passed a bill that set the fees counties may charge for copies of records at registries of deeds.
The Maine Supreme Judicial Court, which heard oral arguments in the appeal in December, focused its ruling on the new law, not the original lawsuit.
“The Legislature was required to balance the public’s interest in access to the records with the governmental costs of making those records available,” Chief Justice Leigh I. Saufley wrote for the court in the 28-page decision. “It has done so in an area of evolving technology and varied fiscal considerations. … We conclude that the Legislature had a rational basis for acting to resolve an issue of important public interest.
“The means employed to address the issue may have resulted in reduced anticipated revenues for MacImage and Simpson, but the Legislature could have balanced their private interests with the counties’ and the public’s interests to design its legislative solution, and this type of exercise of its legislative power is neither arbitrary nor capricious.”
The law the justices upheld Tuesday set standardized fees that replaced those charged by each individual county for copies of documents at registries of deeds. Before the law was passed, there was no statewide standardized fee schedule.
Simpson’s attorney, Sigmund Schutz of Portland, on Tuesday said the decision would make it difficult for entrepreneurs such as his client to launch new endeavors when lawmakers are able to enact statutes as business plans are being implemented.
“The Legislature changed the rules of game more than halfway through the legal process,” the lawyer said.
Schutz said he did not know if Simpson would go forward with his business plan or not. The attorney said that without a statewide website, people seeking online records must search each county’s website individually and pay for documents separately if they are obtained from different registry of deeds offices.
The American Civil Liberties Union of Maine also criticized the court’s decision. The organization filed a “friend of the court” brief in the appeal in support of Simpson.
“The legislature erected unreasonable barriers to public access, and we believed that those barriers were also illegal,” Zachary Heiden, an ACLU of Maine attorney, said Tuesday in an email. “We are disappointed in the court’s ruling today.
“Information about land records and real estate transactions are matters of serious public concern, as the recent global economic crisis demonstrated,” he said. “The public needs the ability to access public information as easily as possible. It is now up to the legislature to fix the situation.”
Historically, counties around the state have relied on income from selling copies of documents tiled with their registries of deeds and, to a lesser extent, probate.
Susan Bulay, register of deeds for Penobscot County, estimated in 2009 that the county could lose between $150,000 and $200,000 in income annually if MacImages’ lawsuit was successful because people would be able to buy land records from Simpson’s site for less than they could from the county.
In defending their decision to charge MacImage millions in copying costs, the counties argued before Justice Thomas Warren in October 2010 in Androscoggin County Superior Court 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, according to previously published reports.
Warren 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 judge ruled.
The taxpayers of the counties have expended inordinate amounts of effort and tax dollars to establish these records and data bases over the centuries that the plaintiffs wanted to have for next to nothing and market for their own profit. It’s only right and fair that the commercial operators should have to pay the county government and reimburse the taxpayers for the actual cost of establishing and maintaining these records for the benefit of all.
Put this into perspective: Penobscot County deed records have been scanned. They are already digitized. You can easily call up a scan of a particular deed. That costs nothing. Yet the county is saying you must pay to print that scan, even though it costs nothing to look at it. The scan has already been paid for by taxpayers. I’m sorry, but I’ll continue to print the screen. There’s no justification for the county to say I can’t do that. Those are public documents — I aready own the scans.
Yes, it’s frustrating. They charge you to print something using your own ink and paper. I can see charging you if you go in there and want the registry to print it for you. But not to print it yourself. And a lot of the counties require you to pay them $50/mo to have access to FREE records and then still charge you to print them yourselves! Even to print the list of records!
This is a kick in the pants for historical research carried out by people of limited means. The most wonderful material is of no use if it can’t be copied due to cost. This is a down side of maintaining a revenue stream.
You can view it for free at the County or online. Our property taxes would go sky high if we just left everyone go in and get this stuff for free. The counties need to cover their costs.
View it for free at county, provided you can get there, still have to copy it for bucks. Some counties round about New England are all on line. Provided you can get access to book and page numbers you can access material on the computer and print it yourself. But the further back in time you go the tougher it gets in lots of venues. A good example of revenue strangulation is the Machias Town Clerk at the courthouse who holds micro film for Machias newspapers from their inception. The film viewer was broken as of last fall and it was not possible to make copies for any amount of money and no funds available to get a repairman up there to fix it. So all that material is basically useless. No happy medium it seems unless you can print your own.
Although I equally fear rising property taxes, I don’t think that justifies the counties balancing their budgets by charging outrageous fees for copies of public records…..If you go to Staples or any other private, for-profit company, you will pay 10 cents or some pitiful fee for copies, while the registries – public, NOT for-profit agencies – are charging at dollar or more…..Plus, the counties’ arguments that they need to “cover their costs” is equally absurd because all of the counties testified at trial with Macimage that the money they make from recording fees alone is DOUBLE what their operating costs are; thus all of the money they make off of copy fees are pure, unnecessary profit.
It costs almost next to nothing to maintain the digitized documents on hard drives. Digital storage is cheap these days.
“While the appeal was pending, the Legislature passed a bill that set the fees counties may charge for copies of records at registries of deeds.”
Hmmm… while appeal is in work; call the “lawmakers” aqnd get them to dream up a dollar amount!
The Supreme Judicial Court goofed on this one. Fees are supposed to be in line with actual costs of a requested reproduction. They are not designed for public entities to generate revenue. The Legislature needs to revisit the law to make this clear.
The Legislature will not revisit the law because it is the Legislature who so cowardly caved to the Counties’ requests to begin with and amended the law. LD 1499, the law that the Legislature passed with the express purpose of negating Macimage’s lawsuit and that the Maine Supreme Court just upheld, authorizes Counties to consider their revenue needs in setting a reasonable fee, basically authorizing the Counties to charge any fee that they damn well please, regardless of how outrageous it is. Since it was the Legislature who passed this law knowing full well that they were allowing the Counties’ exorbitant fees to continue by doing so, why on earth would they go back and revise it to make be in line with the actual cost of making the document? That would be the fair, logical, common-sense thing to do, which is exactly why it will not happen.
“The Legislature changed the rules of game more than halfway through the legal process,” the lawyer said.”
The name of the game is “Maine – Open for Business”
Correct
As they have done with the Maine Retirement System.
… open for business.
I would say that $1 is reasonable, they have to upkeep their machines, pay people to help him and get the pages for him. I do not think the Tax payers of this State should be giving him this for free, he is starting a business with this information and will be making money off from this. Why should we foot the bill?
The machines’ upkeep is the cost of government. Servers these days cost very little. Hard drives cost very little as well. The Internet connection is already there.
The company wasn’t asking for the records at no charge. It was asking for copies at the actual cost of copying them digitally.
The state charges $15 for the right to view a surveyors map of my road frontage.. Yet the state says local communities can’t charge more than $1 per page.
$1 doesn’t even cover the costs much less create a revenue stream.
I think the really interesting part of all of this is that MacImage was the company who got paid by the counties to implement the digitized system. The company then comes back and wants to make more money by using the system to sell records to others. I understand that the company is simply being creative in making a profit, however, it is a bit much to expect the counties to lose money in order for the company to make a greater profit.
EXplain how the counties would “lose” money by providing copies at actual reproduction costs?
Well Macimage was only paid by one county: Hancock. Macimage and Hancock worked together for many years and Macimage created Maine’s first online registry database for Hancock County. It was in 2006 when a new Register of Deeds came to town that Macimage was essentially fired by Hancock County. Macimage offered to digitize the registries for the other 15 counties and even offered in writing to guarantee the current profits for the counties if they worked together with Macimage in making a centralized, state-wide registry database that consolidated the records of all 16 counties into one website. The counties refused Macimage’s offer though, and preferred to waste hundreds of thousands of taxpayer dollars fighting a three and a half year legal battle (October 2008 – March 2012) rather than creating a partnership with Macimage that would have benefited attorneys, abstractors, surveyors, and the public at large.
I was aware of the problem between Hancock County and Macimage, and I presumed that Macimage had done the imaging work for all the counties.
http://bangor-launch.newspackstaging.com/2009/08/13/news/hancock-county-ordered-to-pay-firm/
From all the stories I have read, Macimage sued the counties, and the counties fought the law suit.
Yes, Macimage sued the counties and the counties fought the lawsuit. But prior to suing the counties, Macimage attempted for several months to negotiate a win-win settlement with the counties, offering incredibly generous prices for digitizing all of the records for all of the counties, since many of these counties have hundreds of years of documents that are still available in paper only (such as Franklin which is only digitized back to 1984!). Macimage also offered to do what it had done for Hancock on a state-wide scale, create an online database for all 16 counties and serve as the IT Company for this centralized, consolidated website. But the Counties ignored or rejected Macimage’s offer, and Macimage then filed suit.
By the way, anyone interested in learning the details of this case can check out this website – it contains all of the court decisions, briefs, and other relevant documents concerning the case. The second website is the Maine Supreme Court’s decision.
http://homepage.mac.com/coachjs/macimageofmaine/foaa/case.html
http://statecasefiles.justia.com/documents/maine/supreme-court/2012-me-44.pdf?ts=1332950752
After what happened between Hancock County and Macimage, can you not understand that the other counties would be very reluctant to deal with Macimage? I think you will find that it was a problem that did not make the other counties comfortable with Macimage.
You may be right. There are two sides to every story of course. Having followed this lawsuit since it began, I have read both sides thoroughly, and I think it is worth noting that Macimage and Hancock worked together seamlessly for 10 years and that relationship only ended when Hancock elected a new register when their old one retired. So I think that if the counties had paid close attention to the facts and heard Macimage out and given Macimage a chance they may have been pleasantly surprised. But I for one am inclined to agree with John Simpson (having heard it straight from several Registers of Deeds myself) that the issue was not Macimage’s ability to work well with the Counties, but the Counties irrational view that these public records somehow belonged to them, and feeling that Macimage was trying to steal them from the Counties (despite the fact that they belong to the public, NOT the registries).
Also, if my memory serves me right, the first county MacImage sold the system to was Hancock County. After the system was implemented MacImage claimed that they owned the county records. This company is very creative.
I bet the company said it owned the IMAGES of the records. There’s a big difference.
You are correct.
Macimage did not SELL the system to Hancock, it created the system for Hancock at Hancock’s request and Hancock County’s profits greatly increased after Macimage made their online database for them even after the payments to Macimage. Macimage sued Hancock in two different lawsuits; one was for unpaid work done by Macimage, and the second was the predecessor to the lawsuit that this article addresses – a lawsuit against Hancock only to determine whether Maine’s Freedom of Access Act permitted one-dollar or more fees for digital images that had already been digitized at a great profit to the counties.
It’s nice to see that one branch of government actually gets something accomplished. I may not always agree with the courts, but they do get things done.