MacImage of Maine, LLC v. Androscoggin Cnty.

• Decision Date: 27 March 2012
• Docket Number: Docket No. Cum–11–127.
• Citation: 40 A.3d 975,2012 ME 44
• Parties: MacIMAGE OF MAINE, LLC, et al. v. ANDROSCOGGIN COUNTY et al.
• Court: Maine Supreme Court

2012 ME 44

40 A.3d 975

MacIMAGE OF MAINE, LLC, et al.

v.ANDROSCOGGIN COUNTY et al.

Docket No. Cum–11–127.

Supreme Judicial Court of Maine.

Argued: Dec. 13, 2011.Decided: March 27, 2012.

Bryan M. Dench, Esq., and Michael S. Malloy, Esq., Skelton, Taintor & Abbott, Auburn, for appellant Androscoggin County.

Peter T. Marchesi, Esq. (orally), and Cassandra S. Shaffer, Esq., Wheeler & Arey, P.A., Waterville, for appellants Aroostook County and Knox County.

Brendan P. Rielly, Esq., and Patricia M. Dunn, Esq., Jensen Baird Gardner & Henry, Portland, for appellant Cumberland County.Edward W. Gould, Esq., and Joseph M. Bethony, Esq., Gross, Minsky, & Mogul, P.A., Bangor, for appellant Penobscot County.Gene R. Libby, Esq., and Hillary J. Massey, Esq., Libby O'Brien Kingsley & Champion, LLC, Kennebunk, for appellant York County.Sigmund D. Schutz, Esq. (orally), Preti Flaherty Beliveau & Pachios, LLP, Portland, for cross-appellant MacImage of Maine, LLC.John P. Simpson (orally), cross-appellant pro se.Frank M. Underkuffler, Esq. (orally), Farmington, for amici curiae Franklin County and Sagadahoc County.Kelly W. McDonald, Esq. (orally), and Chelsea E. Callanan, Esq., Murray, Plumb & Murray, Portland, and Zachary Heiden, American Civil Liberties Union Foundation of Maine, Portland, on the briefs, for amicus curiae American Civil Liberties Union Foundation of Maine.Patrick Strawbridge, Esq. (orally), Bingham McCutchen LLP, Boston, Massachusetts, for amicus curiae Maine Freedom of Information Coalition.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SAUFLEY, C.J.

[¶ 1] In this appeal, we are presented with a question of first impression regarding the bulk copying of county registry documents. Specifically, MacImage of Maine, LLC, and its principal, John P. Simpson, have asked the six Maine counties involved in this appeal to provide to them, in a specified digital format, copies of every document contained in the counties' registries of deeds, including the indexes to the recorded documents. The recorded documents are already available to MacImage and the public for viewing in the registries and online, and they are available for individual copying. MacImage, however, seeks a bulk, digital delivery of all such documents and all indexes in order to create a private database with a proprietary search engine through which it would offer what it describes as improved, consolidated search and retrieval services to the public for a profit. The counties have agreed to provide electronic copies of the registries' recorded documents, but disputes over the fees that the counties may charge for the requested electronic information precipitated this litigation and the appeals by the counties and the cross-appeals by MacImage and Simpson. We have consolidated all pending appeals.

[¶ 2] The counties argue that the Superior Court (Cumberland County, Warren, J.) erred in determining that they may not charge the fees that they proposed in their responses to the MacImage and Simpson requests. We reach the following conclusions: the real estate records held by county registries of deeds, along with the indexes to those records, are available to the public pursuant to 33 M.R.S. § 651 (2011); ¹ reasonable fees for responding to bulk requests for records and indexes,² including the transfer of electronic data, have been established by the Legislature through recent legislation, see P.L.2011, ch. 378 (effective June 16, 2011); that legislation is applicable to the dispute before us; and the responses of all but two of the six counties before us, agreeing to provide the requested records in bulk and setting the costs for transferring the data, fall within the applicable law's parameters for reasonable fees. Accordingly, we vacate the judgment of the Superior Court, which entered its judgment before the most recent legislation was passed, and we remand for entry of judgment in favor of Androscoggin, Cumberland, Knox, and York Counties and for further proceedings regarding Aroostook and Penobscot Counties.³

I. BACKGROUND

A. Electronic Records in the Registries of Deeds

[¶ 3] As state and local governments have become more sophisticated in their electronic recordkeeping, the ease of effectuating electronic transfers has led to requests for the bulk delivery of complete compilations of various types of government records. Bulk requests were rarely received in a purely paper-based system, given the labor and costs required to reproduce large quantities of paper documents.

[¶ 4] In response to the technological advances that have enabled a more efficient flow of public information, and the resulting increased interest in obtaining that electronic information at low cost for private commercial use, some states have preemptively legislated the conditions for allowing bulk access. For example, in New Mexico, a copy of a database will be provided if the recipient agrees, among other things, “not to use the database for any ... commercial purpose unless the purpose and use is approved in writing by the state agency that created the database.” N.M. Stat. Ann. § 14–3–15.1(C)(2) (LexisNexis 2012). In Michigan, the Legislature acted more broadly to confer on registers of deeds the discretion to satisfy information requests “using a medium selected by the register of deeds.” Mich. Comp. Laws Serv. § 565.551(2)(a) (LexisNexis 2011). About fifteen to forty percent of counties in the United States require users of bulk online records to enter into a contract agreeing not to use the records for commercial purposes. U.S. Gov't Accountability Office, GAO–08–1009R, Social Security Numbers in Bulk and Online Records 22 (2008).

[¶ 5] In Maine, it appears that the Legislature was made aware of the policy considerations related to registry records, see 33 M.R.S. § 651, only after MacImage made its requests and alerted county and state government to the potential for disputes over the availability of the electronic documents in bulk and the fees that could be charged for bulk transfers.⁴ Accordingly, when MacImage made its requests for digital copies of every document contained in each county's registry, the statutes addressing fees for copies of registry records were still written in terms that were designed for a paper-based county registry system. That registry system, which calls for the recording and indexing of land-transfer records in each county, has existed in Maine since 1821. See P.L. 1821, ch. 36 (effective Feb. 20, 1821); P.L. 1821, ch. 98 (effective Mar. 19, 1821). Pursuant to long-existing statutes, Maine's counties provide the public service of recording private and public land transactions and making the information publicly available for a reasonable fee. See P.L. 1821, ch. 98, § 3; see also 33 M.R.S. § 751(14) (2009); 33 M.R.S. § 751(14–B), (14–C) (2011).

[¶ 6] The purpose of Maine's registries of deeds, as in other states, is to provide a common base of information regarding the ownership and configuration of real estate in Maine. See 33 M.R.S. § 651 (2011) (requiring the registers of deeds to record and index instruments conveying real property interests). All of the documents recorded within the counties' registries are, by statute, always available to the public for reasonable fees, and the parties do not dispute the public availability of the registry records in this case. Rather, as the following procedural history demonstrates, the issue before us relates to the reasonableness of the fees charged by the county registries for providing bulk transfers of electronic copies.

B. Procedural History

[¶ 7] The following facts are not in dispute. In September 2009, MacImage sent requests to several Maine counties seeking “[a]ccess to inspect and copy all land records available on the Registry [of Deeds] website” and “[c]opies of all the electronic data files used by the Registry's document recording system and the Registry's website.” At the time, the county commissioners were authorized by statute to determine “a reasonable fee” to charge for making copies and abstracts from the registries' records. 33 M.R.S. § 751(14) (2009). The statute did not expressly address bulk information requests or the electronic indexes. See id. MacImage requested both the electronic document images of the registries' land records and the grantor-grantee indexes. Simpson also personally requested electronic copies of the counties' land records and indexes.

[¶ 8] At the time that the counties responded to MacImage's and Simpson's requests, the relevant statute governing the copying of records at the county registries provided in full:

Except as provided in any other provision of law, registers of deeds shall receive the following fees for:

....

14. Abstracts and copies. Making abstracts and copies from the records, a reasonable fee as determined by the county commissioners.

33 M.R.S. § 751 (2009).

[¶ 9] It appears that the counties had not previously been asked to provide such bulk data from their relatively recently digitalized document systems. Each county ultimately agreed to provide the requested land records in an electronic format, though two of the counties—Aroostook and Penobscot—failed to offer electronic copies of the index pages for a fee. The fees identified in several of the counties' responses included costs for the specific formatting of the documents in the format requested by MacImage, including payment to the database contractors who administered the counties' digital systems for technological support in handling the requests.⁵

[¶ 10] All of the counties at issue offered to make electronic copies of the land records available to the public for specified fees:

• Androscoggin County offered to provide the copies at a rate of $0.12 per image, plus $3,600 for recorded documents and $15,000 for indexes to cover costs owed to its database contractor. It also offered access to the digital information through its...