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Court Holds County Must Provide Digital Copies of Title Records at Actual Cost of Copying Data to Compact Discs

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2010-2029.  State ex rel. Data Trace Information Servs., L.L.C. v. Cuyahoga Cty. Fiscal Officer, Slip Opinion No. 2012-Ohio-753.
In Mandamus.  Writ granted in part and denied in part.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, O'Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-753.pdf

(February 29, 2012) The Supreme Court of Ohio today granted a writ of mandamus ordering the Cuyahoga County Fiscal Officer to provide electronic copies of real estate title documents that have been recorded and scanned into the county’s computers to persons requesting such copies at the actual cost of copying the digital images of the requested documents onto a compact disc.

In a 7-0 per curiam decision, the court denied a claim by the fiscal officer that real estate title documents recorded and maintained by the county are not “records” as defined by the Public Records Act. The court also rejected the fiscal officer’s argument that a specific provision of state law, R.C. 317.32, authorized him to charge a fee of $2 per page for copies of recorded documents.

The case involved a policy adopted by the Cuyahoga County Recorder’s Office in the spring of 2010 under which that office stopped providing two companies, Data Trace Information Services LLC and Property Insight LLC, with compact discs (CDs) containing digital images of all the real estate title documents filed in the recorder’s office for a fee of $50 per disc. Instead, the recorder’s office announced that in the future it would provide the companies only with paper printouts of the digital copies of recorded documents, at a fee of $2 per page.

In October 2010, Data Trace and Property Insight sent letters to County Recorder Lillian Greene requesting that her office provide them with CDs containing digital copies of all documents that had been recorded by her office in July and August 2010. The letters requested that Greene amend her policy of charging $2 per page or image for copies of recorded documents, and provide the requested copies at the actual cost of copying the electronic images of recorded documents onto a CD. In November 2010, the recorder’s office responded by specifying that it would provide the requested materials upon payment of the $2 per page fee required by R.C. 317.32.

In November 2010, Data Trace and Property Insight filed an original action in the Supreme Court of Ohio seeking a writ of mandamus to compel the recorder to comply with the Public Records Act by making copies of the requested documents available to them in electronic form on CDs, and by providing those copies at the actual cost of copying the digital images of recorded documents onto a CD. The complaint also asked the court to order the recorder’s office to amend its written public records policy to comply with the law.
In January 2011, Cuyahoga County implemented its new charter form of county government. As a result of that transition, the county fiscal office assumed all of the powers and duties formerly vested in the county recorder’s office. The Cuyahoga County fiscal officer was therefore substituted as respondent in the mandamus action. In depositions and written pleadings filed with the court, the fiscal officer reasserted claims previously advanced by the recorder that the requested title documents were not public records subject to mandatory disclosure, and that R.C. 317.32 authorized the county to charge a fee of $2 per page for copies of recorded documents.

In today’s per curiam decision, the court unanimously rejected the arguments advanced by the fiscal officer and ordered that copies of the documents sought by Data Trace and Property Insight be provided to them in electronic form, at the county’s actual cost of copying the digital images of recorded documents on to CDs.

With regard to the status of the real estate title documents maintained by county recorders, the Court wrote: “The fiscal officer contends that documents recorded in a county recorder’s office are not records subject to R.C. 149.43, because they do not document the organization, functions, policies, decisions, operations, or other activities of the recorder’s office.  Instead, according to the fiscal officer, they document the independent acts of third parties who present the instruments to the officer for recording. The fiscal officer’s contention lacks merit. ...  County recorders have various statutory duties, including keeping certain records (R.C. 317.08), recording certified matter in reference to bankruptcy (R.C. 317.10), indorsing the date, precise time of presentation, and file number of deeds or other written instruments that are required or authorized by statute to be recorded and that are presented to the recorder for that purpose (R.C. 317.13), making and keeping up direct and reverse indexes of the names of parties to instruments received for record (R.C. 317.18), and keeping a daily register of deeds and mortgages (R.C. 317.19).”

“The instruments that the county recorder’s office electronically records and places into the office’s computer system reflect the office’s compliance with its many statutory duties and its exercise of discretion over the recording process. The electronic records thus manifestly document the organization, functions, policies, decisions, operations, or other activities of the recorder’s office. ...
In fact, the chief of staff of the recorder’s office acknowledged that providing copies of recorded instruments to the public is a primary function of the office. ... Therefore, the written instruments electronically recorded by the recorder’s office are records under R.C. 149.011(G) and 149.43, the Public Records Act.”

In rejecting the fiscal officer’s argument that R.C. 317.32 supersedes the Public Records Act requirement that requested records be provided “at cost,” the court wrote:  “Relators claim that the requested CDs containing copies of electronically recorded instruments from July and August 2010 would likely have an actual cost of no more than $1 per CD and that they should pay this fee under R.C. 149.43(B). The fiscal officer counters that R.C. 317.32 controls the cost of the requested copies.  Subsection (I) of R.C. 317.32 provides that the county recorder shall charge $2 per page for photocopying a recorded document.”

“The plain and ordinary meaning of ‘photocopy’ is ‘a negative or positive photographic reproduction of graphic matter (as a drawing or printing),’ and the common definition of ‘photograph’ is ‘a picture, image, or likeness obtained by photography.’ ... Photocopying relies on copying physical pages one at a time. By contrast, copying electronic images of recorded documents onto a CD involves no photography or xerography and is done through stored computer memory, and the data is stored not in terms of ‘pages’ but in terms of sequences of 1s and 0s.  No paper is involved in the process.”   

“Therefore, the plain meaning of ‘photocopying’ does not encompass relators’ requests that the fiscal officer copy onto a CD electronically recorded instruments. There is no conflict, much less an irreconcilable one, between R.C. 317.32(I) and 149.43(B)(1) for the requested records. In cases in which photocopying physical pages of recorded documents is requested, a county recorder shall charge $2 per page. ... In cases in which CDs containing electronically recorded documents are requested, the county recorder shall charge the actual cost of the copies. ... Because relators claim that the actual cost is no more than $1 per CD, and the fiscal officer did not submit evidence establishing a different actual cost, relators are entitled to the requested records at that cost.”

With regard to the relators’ request that the court order amendments to the county recorder’s written public records policy, the court wrote: “Cuyahoga County adopted a new public-records policy in January 2011, which the fiscal officer claims superseded the recorder’s office’s policy that relators contest here.  Relators do not claim otherwise.  Because the policy adopted by the Cuyahoga County Council in 2011 does not have the same defect regarding the charge for electronic copies that was contained in the recorder’s office policy they contested, relators are not entitled to a writ of mandamus to compel the fiscal officer to amend a policy that, evidently, no longer exists.”

“Based on the foregoing, we grant a writ of mandamus to compel the Cuyahoga County fiscal officer to provide to relators copies of electronic images of all documents recorded in the Cuyahoga County Recorder’s Office in July and August 2010 on compact discs at a cost of $1 per disc. Because the county’s existing public-records policy does not violate the requirement to charge the actual cost of these records, however, we deny the writ of mandamus insofar as it seeks to amend a policy that is no longer effective.  By so holding, we recognize that the Public Records Act ‘protects the general right of the people of Ohio to monitor the decisions of their own government though the more specific right to freely access public records.’”

David L. Marburger, 216.621.0200, for Data Trace Info. Services LLC and Property Insight LLC.

David T. Movius, 216.348.5400, for Cuyahoga County Fiscal Officer.