Wednesday, March 17, 2010

More Government Fees: Barring the way to public records

Published in the Portland Phoenix

The Maine Legislature is considering a move that will make it more difficult for concerned citizens to find out what their government is up to. Many branches of state, county, and local government already violate the spirit of public access by charging large fees for photocopies — or even electronic versions — of documents public officials have already been paid to create and archive for posterity. It could be about to get a lot worse.

Sure, officials allow you to look at public documents for free during business hours, but if you want to share something with a friend (or attorney) or read a long document overnight, you'll need a copy. State law specifies that copying charges have to be related to the actual cost of making the copy, but some offices — legally — charge as much as $2 per page, which is 2000 percent more than the dime Portland-based XPress Copy charges walk-in customers for the same service at its for-profit business.

The new proposal comes from the counties' registries of deeds, which store property-ownership documents. Those offices rake in millions more than their annual expenses from other sources, and funnel profits to other county programs. Now they are asking lawmakers to change the state's open-government laws to let them charge even more, by adding non-copy-related costs to their already top-scale photocopying fees.

The move, in LD 1554, a bill being debated in the Legislature this week, has a Falmouth business owner objecting in court, freedom-of-information advocates concerned, and registers of deeds statewide playing political defense.

The businessman, John Simpson, of MacImage of Maine, is the reason for much of this kerfuffle, though he says he's just trying to meet the needs of a very small niche market — title researchers and others who property-records examinations and are frustrated with the patchwork systems Maine's registries of deeds use. He wants to get all of the records from all of the registries and offer online access to them in one place, rather than requiring researchers to visit as many as 18 different places to see property records from around the state.

"Most of the counties have Web sites that are difficult to use," he says, and each county's records are separate (with some counties having two different registries with separate online systems). He has asked for the records, in bulk, to be provided electronically at little or no cost. Refusals from several counties have led to lawsuits, only one of which has been settled — against Hancock County, in Simpson's favor.

His insistence has the counties fearing competition for their budgets. For example, Cumberland County's Registry of Deeds spends a total of $800,000 a year in operations and capital investments. The office takes in $1.5 million in recording fees from people and companies involved in property transactions, and a further $600,000 annually in photocopying fees, according to county budget documents.

Bob Howe, a professional lobbyist who serves as executive director of the Maine County Commissioners Association, says any losses in photocopying revenue would have to be made up by raising property taxes on homeowners.

"The counties are concerned revenue is at risk," Simpson says, but "the real issue is a control issue." It's hard to fault his perception, when you hear objections like those raised by Pamela Lovley, the Cumberland County register of deeds, and her counterpart in Hancock County, Julie Curtis.

They don't dispute that the records should be available to the public — for inspection — but say they are worried about what might happen when someone like Simpson gets copies, expressing concern, for example, about whether Simpson's database will be complete and accurate.

Simpson says that's his problem, not the counties', and observes that nobody is forced to pay for his service if they find it of no use. The issue is not what he is going to do with the information, he says, but why the counties won't allow people to get inexpensive copies of public documents. "For whatever reason, they like to think of these as their own property," he says.

He has the backing of Maine's open-government advocates, including Mal Leary, president of Maine Freedom of Information Coalition, who notes that the registers' request would carve out "a back door exemption" to the state's freedom of access law. Specifically, he says, it would raise costs to the public for acquiring public records. While every other state, county, and local agency must charge "reasonable" copying fees related to the actual cost of copying, this proposal would allow the registries of deeds to include other expensive factors, like data-storage costs and the price of keeping the documents secure — which the registries must pay for whether anyone wants copies or not.

Worse, Leary says, is that when a fee is set, "there is no way to appeal it. . . . There ought to be some check and balance to what's reasonable . . . so you don't end up with counties balancing their budgets" on photocopying fees.

The Lewiston Sun Journal has editorialized on the matter, asking rhetorically which agency will next be allowed to exempt itself from statewide open-records laws, if this effort succeeds.

Oddly, Lovley claims the registries' proposal will not raise fees. She even goes so far as to say that if lawmakers allow her office to factor in hundreds of thousands of dollars of capital investment — and the millions of taxpayer dollars spent in the past — the result will be the opposite: "I think at some point you'll probably see some of our copy fees will go down."

But that argument doesn't impress Simpson: "They're already making a huge profit before making copies," he says. "It's not fair and it restricts access."