February 24, 2011

Preti Flaherty Prevails in FOAA Case: Superior Court Rules in Favor of MacImage of Maine

Preti Flaherty Prevails in Precedent Setting FOAA Case:
Superior Court Rules in Favor of MacImage of Maine

February 24, 2011 (Portland, ME) – Preti Flaherty announced today that its client, MacImage of Maine, has received a favorable ruling by the Cumberland County Superior Court in a Freedom of Access Act case against six Maine Counties. Superior Court Justice Thomas Warren ruled that the six counties' exorbitant fees for copies of deeds and other land records illegally denied access to public records and thus violated the Freedom of Access Act -- the State's public records law -- and Title 33, which governs copies of registry of deeds records.

This precedent setting trial, which began in October, 2010, tested how much government can charge for a copy of an electronic database containing millions of digital land records. The case pitted Preti Flaherty's client, entrepreneur John Simpson, who seeks to build a state-wide clearinghouse of land records, against six Maine Counties who proposed to charge about $1 million for copies of public records. The Counties include Androscoggin, Aroostook, Cumberland, Knox, Penobscot, and York. Mr. Simpson is general manager of MacImage of Maine, LLC and is represented by attorney Sigmund Schutz of the law firm Preti Flaherty.

According to Schutz, "The Court ordered that the counties provide to our client, MacImage, a copy of what it has been asking for since September of 2009. The cost is a few thousand dollars as compared to the hundreds of thousands or millions of dollars that the counties wanted to charge."

MacImage expects that the decision will clear the way for a reasonably-priced and user-friendly website allowing one-stop-shopping to inspect and copy any land record at any registry of deeds in Maine. At present, each county has a separate website, with separate copy fees that range up to $3.00 per page.

Schutz added, "We expect an appeal, and are prepared for an appeal. At the same time, MacImage remains open to working with the counties to resolve this amicably without more expensive litigation."

After fighting a three-year long battle to secure copies of public records databases from Maine Counties, Mr. Simpson is optimistic that the legal issues have now been settled. Simpson said, "It's a shame so much time and money had to be wasted fighting in court when win-win opportunities exist that would benefit all parties. However, that's water over the dam now. I am very grateful for Justice Warren's ruling. I am also very grateful to have had such a talented and hard-working Freedom of Access Law attorney to represent me in this case."

Background Information:

Although millions of documents are at stake, they are already in a computer database that can be copied easily, quickly, and at almost no cost. Mr. Simpson had offered to pay the cost of copying based on the formula set out by the Court, but the Counties quoted enormous fees that neither Mr. Simpson nor any Maine business could afford to pay. The service Simpson wants to provide would save thousands of people time and money and would reduce the cost of obtaining a mortgage.

Cumberland County, for example, offered to make a copy of its database only if Mr. Simpson pays its software vendor, the copy giant Xerox, $300,000. The County claimed that it would cost that much to copy its database. In response, Mr. Simpson said, "The cost to copy a database of land records is no more than a few hundred dollars. I would be willing to copy these land records at no charge to the County and pay for any inconvenience."

Penobscot County refused to make a digital copy, offering instead to copy its microfilm for the hefty charge of $100,000. Penobscot's software vendor quoted a fee of $1,000 to make a digital copy in the Fall of 2009, but the County refused to allow a copy of anything other than its microfilm. Androscoggin, Aroostook, Knox, and York Counties all proposed fees of tens or hundreds of thousands of dollars.

Ten years ago, MacImage of Maine built the first website in Maine to provide Internet access to documents filed in a registry of deeds. For several years, the website MacImage hosted for Hancock County was the only Maine registry of deeds website. Title researchers, real estate professionals, bankers and others who needed copies of deeds from other counties had to go to their county courthouse and search for those documents in registry books.

In recent years, all Maine counties have made land records available on websites. However, there is no one website which provides fast and efficient access to all land records in the State. According to Simpson, this is a problem for those who perform statewide property searches or need copies of land records from several counties. Those persons could have to set up accounts with as many as 16 separate registry websites, each of which has its own fee structure. And, since five different companies currently host registry websites for Maine counties, there are five different computer systems to master.

The Superior Court ruled on September 1, 2009 in MacImage of Maine v. Hancock County, that documents in Maine registries of deeds are public records within the meaning of the Freedom of Access Law and, therefore, Maine counties may not prevent MacImage of Maine from obtaining copies of those documents at a reasonable cost.

Prior to the MacImage v. Hancock County decision, registry of deeds offices in Maine refused to provide bulk access to electronic copies of their documents. Copies of documents had to be purchased one at a time for prices as high as $3.00 per page. The court decision did not address whether a price of $1.50 per page for copies purchased individually was reasonable, but did find that charging $240,000 for a bulk purchase of copies of all documents filed during 2007 and 2008 was not reasonable and constituted constructive denial of access to public records and thus violated Maine's Freedom of Access law.

On September 9, 2009 MacImage announced plans to expand its www.RegistryofDeeds.com website to provide access to all land records (deeds, mortgages, liens etc.) in the State of Maine. A statewide registry of deeds website will be another first for MacImage of Maine.

On September 28, 2009, MacImage sent requests to 16 Maine Registry of Deeds offices under the Maine Freedom of Access Act to inspect and obtain copies of public land records (deeds, mortgages, liens, etc.). MacImage planned to provide access to those documents on the company's www.RegistryofDeeds.com website. This was the first active step in acquiring this information since the September 1 decision in Maine's Superior Court which made it possible for MacImage to obtain copies of all the electronic records needed for the statewide registry website.

About Preti Flaherty

Preti Flaherty has offices in Portland and Augusta, ME, Concord, NH, Boston, MA, Bedminster, NJ, and Washington, DC. With more than 90 attorneys, the firm counsels clients in the areas of business law, climate strategy, energy, environmental, estate planning, health care, intellectual property, labor and employment, legislative and regulatory, litigation, technology and telecommunications. More information about the firm is available at www.preti.com.