State ex rel. Data Trace Info. Servs., L.L.C. v. Cuyahoga Cnty. Fiscal Officer

• Decision Date: 29 February 2012
• Docket Number: No. 2010–2029.,2010–2029.
• Citation: 2012 -Ohio- 753,131 Ohio St.3d 255,963 N.E.2d 1288
• Parties: The STATE ex rel. DATA TRACE INFORMATION SERVICES, L.L.C. et al. v. CUYAHOGA COUNTY FISCAL OFFICER.
• Court: Ohio Supreme Court

131 Ohio St.3d 255

2012 -Ohio- 753

963 N.E.2d 1288

The STATE ex rel. DATA TRACE INFORMATION SERVICES, L.L.C. et al.

v.CUYAHOGA COUNTY FISCAL OFFICER.

No. 2010–2029.

Supreme Court of Ohio.

Submitted Jan. 3, 2012.Decided Feb. 29, 2012.

Baker & Hostetler, L.L.P., David Marburger, Michael Mumford, Cleveland, and John Blanton, for relators.

McDonald Hopkins, L.L.C., David T. Movius, and Matthew J. Cavanagh, Cleveland, for respondent.

Lucy A. Dalglish, urging granting of the writ for amicus curiae Reporters Committee for Freedom of the Press.Zeiger, Tigges & Little, L.L.P., Marion H. Little Jr., and Kris Banvard, Columbus, urging granting of the writ for amicus curiae Ohio Land Title Association.Graydon, Head & Ritchey, L.L.P., and John C. Greiner, Cincinnati, urging granting of the writ for amicus curiae Ohio Newspaper Association.PER CURIAM.

[Ohio St.3d 256] {¶ 1} This is an action for a writ of mandamus to compel respondent, the Cuyahoga County fiscal officer, to provide to relators, private companies that store and index electronic images of records and information taken from the records that county recorders have recorded and officials representing those companies, copies of electronic images of all documents recorded in the Cuyahoga County Recorder's Office in the months of July and August 2010 on compact discs, to provide those copies based on their actual cost rather than $2 per electronic image of each page, and to amend the office's public-records policy to comply with the law. Because the requested electronic images constitute records subject to disclosure under the Public Records Act and relators are entitled to copies of those electronic records at actual cost rather than at the higher statutory charge for photocopying documents, we grant the writ to compel the fiscal officer to provide the requested electronic copies at actual cost. Insofar as the current public-records policy of the recorder's office does not controvert this result, however, we deny the writ insofar as it seeks to amend the policy.

Facts

{¶ 2} Relators Data Trace Information Services, L.L.C. and Property Insight, L.L.C. are limited-liability companies that were created by separate title-insurance companies. Data Trace and Property Insight store and organize digital images of and information taken from deeds, mortgages, liens, leases, releases, and other public records that county recorders' offices record. Their clients are companies that evaluate and insure the quality of title to land.

{¶ 3} From 1997 until mid–1998, Patrick O'Malley served as the Cuyahoga County recorder. During O'Malley's tenure as county recorder, the office changed from a paper-based system of managing recorded instruments to a computer-based system. By 1999, the recorder's office recorded deeds and other instruments by electronically scanning the originals to create digital images of them and storing those images in the office's computer system.

{¶ 4} The office procedure is as follows. Persons desiring to file a deed, mortgage, or other instrument with the county recorder tender the instrument and the applicable recording fee to one of the cashiers in the recorder's office. The recorder's office assigns an automated file number to the instrument that shows the date the county recorded the instrument and the sequence in which the instrument is recorded that day. An adhesive label listing the file number and the time of filing is attached to the document, the person's name and telephone number are obtained in case any problem with the document arises, the document is scanned into the recorder's computer system with a digital scanner, and the original paper document is returned to the person tendering it.

{¶ 5} The recorder's office makes a backup copy of the digital images of all the instruments recorded every single day on a compact disc. These backup copies [Ohio St.3d 257] are referred to as master CDs. Using the information that appears on the electronically recorded instruments, the recorder's office also enters certain information into the computer system that results in the office's grantor-grantee index.

{¶ 6} Beginning in 1999, the recorder's office copied the master CDs onto several blank CDs and provided the CDs for a fee of $50 to various companies, including Data Trace and Property Insight. Those companies also paid a fee of $5,000 each year for regularly updated copies of the recorder's office's grantor-grantee index.

{¶ 7} Neither Data Trace nor Property Insight evaluates the quality of title to land. Instead, they provide access to their databases and searching capabilities, which are more detailed and comprehensive than Cuyahoga County's database and search options.

{¶ 8} In July 2008, Lillian Greene became Cuyahoga County recorder. In September 2009, Greene notified Data Trace and Property Insight that she was increasing the $5,000 annual fee for the updated grantor-grantee index to $7,500 as a result of the “recent county budget crisis” but that the $50 fee for single CDs of the office's daily recordings would remain the same. In the spring of 2010, the recorder's office notified Data Trace and Property Insight that it would no longer be providing CD copies of its daily digital images from its master CDs. Instead, the recorder's office advised the companies that it would give them only paper printouts of the digital copies of the recorded instruments at a fee of $2 per page. The recorder's office purchases blank CDs for use in its routine course of business at a rate of $31.81 for 100 discs.

{¶ 9} On October 5, 2010, Data Trace and Property Insight sent letters to the Cuyahoga County recorder requesting that Greene provide CDs containing electronic copies of all documents publicly recorded in her office in July and August 2010. The letters were sent on their behalf by relator Michael Stutzman, the operations manager of Data Trace, and relator Michael Carsella, the vice president of Midwest operations of Property Insight. The companies objected to the recorder's recently adopted policy or practice of imposing a charge for all copies of recorded documents, whether images or paper, of $2 per page or image, and requested that the recorder amend her policy of charging more than the actual cost of copying the electronic images of the recorded documents onto CD. The then existing public-records policy adopted by the recorder's office included a section that provided that “[t]he charge for downloaded computer files to a compact disc is $1.00 per disc.”

{¶ 10} After three weeks without a response from the recorder, Data Trace and Property Insight filed a public-records mandamus action against the Cuyahoga County recorder in this court in case No. 2010–1823. By letters dated [Ohio St.3d 258] November 16, 2010, the recorder's office finally responded to the companies' October 5, 2010 requests by specifying that it would provide the requested materials upon payment of the statutory fees required by R.C. 317.32. The recorder then moved to dismiss case No. 2010–1823 because the companies had not registered to do business in Ohio. The companies filed an application to dismiss the case, which we granted on November 30, 2010. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Recorder, 127 Ohio St.3d 1439, 2010-Ohio-5806, 937 N.E.2d 569.

{¶ 11} Data Trace and Property Insight registered and paid the fees to do business in Ohio. On November 24, 2010, relators, Data Trace, Property Insight, Stutzman, and Carsella, filed this public-records mandamus case against the Cuyahoga County recorder. On January 5, 2011, relators deposed Recorder Greene, who claimed that the recorder's office's public-records policy, which provided that the charge for downloaded computer files to compact disc was $1 per disc, did not apply to the companies' requests for the electronically recorded instruments because they were not public records.

{¶ 12} After the deposition, around January 10, 2011, the recorder adopted a public-records policy that deleted the fee of $1 per compact disc for downloading computer files and replaced it with a policy that provides that the “cost for copies is $2.00 per page for recorded documents * * * and $.05 per page for all administrative or non-recorded documents,” with public-records requests pertaining “to any documents that document the organization, functions, policies, decisions, procedures and operations of the office, subject to certain exemptions under state and federal law.”

{¶ 13} In January 2011, Cuyahoga County's new charter form of government became effective. The Cuyahoga County Council adopted a public-records policy that specified that “[t]he charge for computer files downloaded to a compact disc shall be the actual cost, not to exceed $1.26 per disc.”

{¶ 14} Under the charter, the Cuyahoga County fiscal officer “shall exercise all powers and perform all duties now or hereafter vested in or imposed by general law upon * * * county recorders.” Article V, Section 5.02(1), Cuyahoga County Charter. Therefore, the Cuyahoga County fiscal officer is substituted for the Cuyahoga County recorder as the respondent in this case. S.Ct.Prac.R. 10.2 and Civ.R. 25(D)(1). Although there is no longer a county recorder, the recorder's office still remains. See http:// recorder. cuyahoga county. us.

{¶ 15} In February 2011, relators filed a motion for leave to file an amended complaint. In their amended complaint, relators request a writ of mandamus to (1) compel the fiscal officer to provide the requested copies of recorded instruments on compact discs, (2) amend the policy and practice to allow for copying electronically stored recorded instruments onto CDs and to provide electronic [Ohio St.3d 259] copies to relators and other members of the public at cost, and (3) restore the policy limiting the fee charged for electronic copies of records to $1 per CD with no per-page fee.

{¶ 16} In March 2011, after relators became...