October 5, 2010

Maine trial tests limits on county fees for records

Maine registries of deeds are resisting a company's demand to be allowed to copy their databases.

By Dennis Hoey dhoey@pressherald.com
Staff Writer

PORTLAND — A trial that will test how much county governments can charge for copies of millions of public records began Monday in Cumberland County Superior Court.

John Simpson, general manager of MacImage of Maine, an information technology company based in Cumberland, has sued six counties, contending that under Maine's Freedom of Access Act they are obligated to provide him copies of their registries of deeds databases at a reasonable cost.

Simpson wants to create a statewide database of property records and launch a website where real estate professionals, bankers, title abstractors, genealogists and others who need copies of titles and deeds can pay fees and access the information. He estimates that the site would be used by more than 20,000 people each year.

Simpson says his attempts to access the property record databases have been denied or put off, and the counties have quoted him enormous fees for accessing the data.

Simpson argues that the documents are already in computer databases that "can be copied easily, quickly and almost at no cost," but the counties want to charge him a total of more than $1 million for digital copies.

He says he is willing to pay the cost of copying, but Androscoggin, Aroostook, Cumberland, Knox, Penobscot and York counties have quoted fees that no Maine business could afford.

Cumberland County, for instance, has offered to make a copy of its database available if Simpson pays its software vendor, Xerox, $300,000. Penobscot County refuses to make a digital copy, offering instead to copy its microfilm for $100,000.

The counties say Simpson is entitled to inspect the records, but their registries are not set up to handle such a wide-ranging request without some expense. They also express concern about exposing county records to a security breach or computer virus.

"The statute says a person has the right to inspect and copy records. But it's not about having complete access to a county's database," said Bryan Dench, the Auburn-based attorney who is representing Androscoggin County.

Dench, who describes himself as a Freedom of Access advocate -- he often represents the Sun Journal newspaper in Lewiston in related matters -- said the issue is more about how a county would accommodate such a massive request.

Simpson and his attorney, Sigmund Schutz of Preti Flaherty in Portland, disagree. They say the records in question could easily be made available.

Schutz said the records, which once were on paper, have been compiled in digital databases.

"It's not just about making a profit," Schutz said. "This case has wide implications for the future of Maine's public record laws."

He said the counties are trying to profit from information that is owned by the public.

"We feel this case has substantial public interest. If we lose, then the public would lose the right to access electronic records at a reasonable fee," he said.

Last year, Simpson sued Hancock County in a similar case and won.

Justice Thomas Warren, who also is presiding over the trial in Portland, ruled that Hancock County's charge of $240,000 for a bulk purchase of records was not reasonable, so it violated the Freedom of Access Act.

After Warren's ruling, Simpson said, he was allowed access to those records at no cost.

Cumberland County's attorneys, Patricia Dunn and Brendan Rielly of Portland, could not be reached Monday.

In their trial brief, they say that "Cumberland County's Registry of Deeds does not have the capacity to provide the type of bulk download that Simpson seeks. The registry is configured to handle recording, not database management and certainly not bulk electronic copying and transfer."

Dunn and Rielly said Simpson should not be allowed to dictate the means by which the county responds to his request. They argued that there is no requirement in state law that the county reconfigure its hardware and software to satisfy an individual's needs.

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