Getting Government Caught Up On Public Records Technologies
Sometimes we run into situations that remind us that the rest of the world just hasn’t quite caught up with electronic document management yet. We know from Freedom of Information Act requests that governments have sometimes been guilty of overcharging for access to public records. We were treated to a dilly of a case recently courtesy of the New York Times, which posted a dramatic reading of a deposition for an Ohio Supreme Court case regarding access to government records.
The video is well worth watching if you have six minutes to spare, but here’s a summary of the case: In 2010, the Cuyahoga County Recorder’s Office made a change to its pricing policy for copies of county records, such as real estate title documents. Instead of the public being able to purchase digital copies of the records for $50 per CD, the Recorder’s Office announced that requestors would have to pay $2 per page for printed-out, hard copies of the documents. Digital copies would no longer be made available. All of these documents, it should be noted, were being stored digitally by the Recorder’s Office. To justify this price, the Recorder’s Office claimed that the digitally stored versions of the documents were not legally considered public records—if they were, by law, they would need to be provided to the public “at cost.”
Several companies that used these records in their business sued the Recorder’s Office to continue to have access to the files on CD, at the actual cost of copying the digital documents to a CD.
While the New York Times’ dramatic reading isn’t the first time this case has gotten media attention, it did boast someone identifying himself as David Marburger, the plaintiff’s attorney in the case, providing his perspective on the pricing proposal. Writing in the New York Times comments section, “Marburger” notes that at $2 for every paper page represented digitally on a CD, a person wanting copies of 20 CDs’ worth of records would have to pay the Recorder’s Office $208,000 (as compared to $1,000 at the previous rate of $50 per CD).
Just taking depositions for the case took two years and required more than 600 pages of depositions. However, it never went to trial. Instead, the Ohio Supreme Court ruled that the Recorder’s Office needed to make the files available on CD—for $1 per CD. This meant that for 20 CDs’ worth of records, the County Recorder’s office went from charging $1,000 to wanting to charge $208,000 to being ordered by the court to charge…$20.
In a 7-0 decision on February 29, 2012, wrote the Court’s public information office, the court denied the claim that the real estate title documents were not public records. Having stipulated that, the court went on to reject the argument that the office was authorized to charge a fee of $2 per page for copies of the documents—since they were, in fact, public records, they needed to be provided at cost, the court ruled. The plaintiffs claimed that making the copies on a CD would cost only about a dollar, and the county office didn’t provide any evidence contrary to that, so the court agreed with the plaintiffs and ruled that the office could charge $1 per CD. (Ironically, by the time the case was settled, the office had already changed its public records policy, and no longer included the $2 per page charge.)
Especially in these days of rising expenses and looking to find a way to keep the IT department from being a cost center, it’s tempting to look for ways to recoup costs. Unfortunately, take it too far, and the backlash can be quite dramatic.
