May 22, 2018
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Penobscot County supports appeal in document request case

By Judy Harrison, BDN Staff

BANGOR, Maine — The Penobscot County commissioners voted unanimously Tuesday to appeal to the Maine Supreme Judicial Court a decision they believe would force them to provide copies of public documents to Cumberland businessman John Simpson for less than it costs to produce them.

Last month, Justice Thomas Warren ruled that fees charged by Androscoggin, Aroostook, Cumberland, Knox, Penobscot and York counties can’t be justified.

Edward Gould, the Bangor lawyer who represents Penobscot County in the case, said Wednesday that he expected the other five counties to support the appeal. He said he and their attorneys also plan to seek a stay of Warren’s decision while the appeal is pending.

Simpson, the owner of MacImage of Maine, filed Freedom of Access requests in 2009 for digital copies of records in the six counties’ registries of deeds to create his own document database. Among the prices quoted by the counties were $12 million by Cumberland, and $4 million by Penobscot, or $1 per page for 4 million pages, according to previously published reports.

“The court understands the counties’ and the registers’ evident desire to maintain the integrity of their registries against an entity they perceive as an interloper and to protect their sources of revenue against competition,” Warren wrote in his decision last week.

Simpson’s attorney, Sigmund Schutz of Portland, said last week that “MacImage expects that the decision will clear the way for a discounted and user-friendly website allowing one-stop shopping to inspect and copy any land record at any registry of deeds in Maine.” He said the decision also will give customers an alternative to paying upward of $1.50 per page at separate registries of deeds around the state.

What Simpson is asking for, Gould said Wednesday, would require Penobscot, Androscoggin and Aroostook counties — which all use the same system to digitize and store documents — to make costly software and hardware upgrades to their electronic data systems at taxpayers’ expense.

Although the judge said Simpson would have to contribute to those costs, the decision left open the question of whether counties — or perhaps state agencies and the judiciary — would have to make similar upgrades to comply with future requests for electronic copies of large numbers of documents by individuals or businesses, Gould said.

Historically, counties around the state have relied on income from selling copies of documents filed with their registries of deeds and, to a lesser extent, probate.

Susan Bulay, registrar of deeds for Penobscot County, estimated in 2009 that the county could lose between $150,000 and $200,000 in income annually if the lawsuit was successful because people could buy land records from MacImage for less than they could from the county.

In defending their decision to charge MacImage millions in copying costs, the counties argued before Warren in October 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.

The judge 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, Warren ruled.

“We need the [state supreme court] to address this decision, which seems very misguided to me,” Penobscot County Commissioner Peter Baldacci, a Bangor lawyer, said Tuesday. “This ruling turns the state’s right-to-know law on its head.”

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