County refusing to give up registry of deeds database

FARMINGTON – The attorney representing Franklin County briefed commissioners Tuesday on pending legal action regarding an attempt to get a complete electronic copy of the registry of deeds.

In October, a privately-owned company, MacImage of Maine, requested a complete electronic copy of the roughly 600,000 images maintained by the Franklin County registry of deeds. This request, along with 14 similar requests sent to every county except Hancock County, was made under the state’s Freedom of Access Act. Specifically, FOAA’s Chapter 13, Section 408, which deals with “public records available for public inspection and copying.”

MacImage recently won a court case against Hancock County in Cumberland County Superior Court, with Justice Thomas Warren ruling that electronic copies of the registry must be made available to the company. Warren found that Hancock County’s argument that a copy cost of $1.50 per page did not fall under a FOAA provision that allows a governmental entity to “charge a reasonable fee to cover the cost of copying.”

MacImage’s general manager, John Simpson of Cumberland Foreside, has said once the information is posted on his site, free access to view the information would be provided but a fee would be charged for printable copies. Currently that fee is 75 cents, which is less than what counties like Franklin County charge. The potential reduction in revenue is a serious one; the county uses the $40,000 in annual revenues from deed copies to defray the cost of staffing and operating the registry.

In 13 counties, except for Hancock, Franklin and Sagadahoc County, commissioners and their legal advisors have said they intend to cooperate with MacImage and have begun attempting to estimate what a “reasonable fee” for a mass electronic copy would be. Franklin and Sagadahoc County, on the other hand, are contesting the issue.

The counties’ attorney, Frank Underkuffler, filed a series of defenses with the Cumberland court. He said Tuesday that the company’s request goes beyond a simple request for public information.

“They really want a streaming flow of market-ready data,” he told commissioners. MacImage has requested that Franklin County work with BROWNtech, its electronic data management company, to alter its database to allow a constant upload of new information to MacImage.

The county’s Registry of Deeds currently provides free access to the records on its Web site and charges a $1 fee per copy to make paper copies of the information.

Among the counties’ multiple defenses are that the request goes beyond the FOAA, as the county would need to implement time-consuming and costly reforms to set up a new system. Franklin County has already stated that it has spent in excess of $2.5 million to digitize its registry of deeds, an investment that would be wasted should another entity begin undercutting copy prices. Additionally, Underkuffler said, BROWNtech has indicated that it is not willing to make its own proprietary software and system available to a potential competitor.

Furthermore, the counties intend to argue that deeds involving two residents of the county does not constitute “government action” and therefore does not fall under the FOAA. Underkuffler noted that MacImage had used driver licenses, car titles and hunting licenses as examples of documents accessible under FOAA; records that he says are different than private deeds.

“Private deeds are not records of government action,” he said. He noted that if a copy of Winnie the Pooh was inventoried with the Maine State Library system, that book did not become a record of government action.

“If simple custody [of a document] is enough,” he said, “there’s no reason that probate court documents, like wills, couldn’t be next.”

Additionally, the county intends to argue that transfer of data to a private company places it at risk. Currently, the county is covered under the Maine Tort Claims Act should a mistake made at the registry create a potential lawsuit. MacImage, a private company, is not covered under that act and could be sued if information taken from their database resulted in a lawsuit. However, one aspect of MacImage’s request for information is that any repercussions of a mistake be covered by the county.

“It could definitely be a conduit to sue the county,” Underkuffler said. “What you’d have is a potentially uninsurable liability.”

Commissioners expressed concern that other counties appeared to be disinterested in contesting MacImage’s request.

“We’re saying that your business plan is not part of FOAA,” Commissioner Gary McGrane, of Jay, said. “I’m surprised that the other counties are not bellying up to the bar here. Frankly, I’m disappointed.”

Commissioner Fred Hardy, of New Sharon, noted that losses in the registry’s revenues would likely need to be made up by increased taxes. The county is required to display deeds in the registry, whether MacImage is selling cheaper copies or not, so cuts in that department’s operational budget are not likely.

“We’re still going to need people in that office,” Hardy said. “They aren’t going to be doing any less work.”

“No,” Underkuffler agreed, “they’re going to be doing more, because they’ll be working for MacImage.”

MacImage has three weeks to file a response to the county’s arguments, although they could ask for a extension. Franklin and Sagadahoc County would then have a week to issue counter-responses.