High court hears Cumberland company's public access case

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PORTLAND — Six Maine counties are hoping the state’s highest court will overturn a lower court decision that sided with a Cumberland company seeking registry of deeds documents at a lower cost than the counties want to charge.

MacImage of Maine, joined by the American Civil Liberties Union of Maine and the Maine Freedom of Information Coalition, argued Dec. 13 that the registries of deeds’ records are public under state law and that the public is allowed to inspect and copy those records at a reasonable cost.

The company intends to create a website containing the registries of deeds records and charge for access.

“All along for me, it’s been as much about a business venture as it has been about providing a better … public service, and stepping in and making things work better where government hasn’t been able to do so,” MacImage owner John Simpson said last week.

“It’s been a very long road, and hopefully we’ve paved the way that will make it easier for other people trying to get public records in the future,” he said.

A gratifying aspect of the appeal is the involvement of the Maine Freedom of Information Coalition and ACLU of Maine joining MacImage’s cause, Simpson said.

Sigmund Schutz, a Portland lawyer who represents MacImage, said a legislative effort to retroactively impose a different fee schedule for public records is unconstitutional.

“It’s hard to get the court to declare a law unconstitutional,” Simpson said. “That’s the biggest hurdle we have to overcome here. I think we have a good shot at it; I think we’ve made some very good arguments.”

When MacImage sent its request for all electronic data files for six counties’ land records and grantor-grantee indexes, it was told the cost would be more than $1 million.

MacImage sued after the counties failed to provide the requested documents at what the company considered a “reasonable” price.

A Maine Superior Court judge found earlier this year in favor of MacImage. He said he was sympathetic to the counties, who sought to “maintain the integrity of their registries against an entity they perceive as an interloper and to protect their sources of revenue against competition.”

But, Justice Thomas Warren said, “that does not permit them to charge fees that cannot be justified under the Freedom of Access law.”

The counties appealed Warren’s ruling.

Peter Marchesi, a Waterville lawyer representing the counties of Androscoggin, Aroostook, Cumberland, Knox, Penobscot and York, said the issue isn’t whether the documents at the registries are public, but rather in what format the information is available and at what cost.

The counties are willing to provide the documents in the form that the public now views and copies them. The counties don’t want to change their software, change or reconfigure their databases. That would require new capital investment in software and hardware to accommodate one member of the public.

Marchesi, during oral arguments before the Maine Supreme Judicial Court, said the counties have contractual obligations to vendors that control the software the counties use at their respective registries of deeds and those vendors control the formatting.

Chief Justice Leigh Saufley said that factoring in the cost of paying the various vendors to make the data available “might be appropriate to this discussion,” but “it’s very clear … government cannot keep records from the public that the Legislature has said must be made public by contracting with a private party who then says, ‘I’m not giving them out.'”

Marchesi said the issues are cost and method of delivery.

Schutz said the counties only have to let MacImage plug into their computers and external hard drives, then type into their computers commands that would start the upload process. He said MacImage would provide the hardware and manpower to complete the process.

Asked by Justice Warren Silver whether there might be data on a county computer that isn’t in the public record and shouldn’t be uploaded, Schutz said the county could simply edit out that information.

Saufley said, “It’s not a plug and play issue,” because redacting information from the database would require some level of technical expertise to sort through the database for which information is public and which is not.

Schutz said Maine’s Freedom of Access Act allows a public entity to charge a fee for those services.

What, Justice Donald Alexander asked, would prevent someone from going to every town and demanding all public records in a desired format?

The state law allowing members of the public to access public records is “not designed to make a government job easy,” said Patrick Strawbridge, who represented the Maine Freedom of Information Coalition. “It’s designed to make it open.”

Saufley asked whether the public access law addresses the issue of formatting.

The law says the documents have to provided in the manner they’re kept, unless they’re not kept in an “easily discernible format.” If they must be reduced in order to make them accessible, the public entity can charge a reasonable fee to cover that cost, Strawbridge said.

A decision is not expected for several months.

Staff writer Alex Lear contributed to this story. Christopher Williams is a staff writer at the Sun Journal in Lewiston. He can be reached at cwilliams@sunjournal.com.