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Tuesday, December 16, 2014

Ind. Gov't. - More on "In Spencer County, more than $200,000 worth of public records were copied without payment"

Updating this ILB post from Dec. 10th, the ILB has received a copy of a ND Ind. order from Dec. 4, 2013 in a similar case, also involving LPS Real Estate Data Solutions, and another Indiana county, St. Joseph.

Here, in an order denying a motion for judgment on the pleadings, LPS unsuccessfully contended that St. Joseph County cannot have it both ways:

On November 24, 2011, Defendant LPS Real Estate Data Solutions Inc. (“LPS”) entered into an Agreement with the Recorder, whereby they agreed to pay a monthly access fee in order to access and abstract documents from the Recorder’s databases. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement is attached to the complaint as an exhibit. [DE 29-1]. Under the Agreement, LPS paid a $500 monthly fee for unlimited access to the Laredo system. [DE 30 ¶¶ 8, 9 and DE 29-1]. The Agreement also contained a clause stating that “[c]opies of documents made from the Laredo system shall be charged $1.00 per page as per statute.” [DE 29-1 ¶ 8A].

St. Joseph County alleges that in March 2013, it discovered that LPS downloaded 42,606 documents or 191,924 pages from the Laredo system without paying for the copies. [DE 29 ¶ 10]. Though LPS had presumably paid its monthly access fees as called for in the Agreement, St. Joseph County alleges that LPS breached the Agreement by failing to pay an additional $1.00 per page copy fee for documents it downloaded from the Laredo system. [DE 29 ¶ 11]. St. Joseph County accordingly initiated this action on May 13, 2013 by filing a complaint against LPS Real Estate Data Solutions, Inc., and LPS Applied Analytics LLC. [DE 1].

From the Court's discussion:
The parties’ dispute centers around the extent of the Recorder’s authority to charge fees relating to its provision of enhanced access to its public records. “As an additional means of inspecting and copying public records,” Indiana law authorizes any local public agency to “provide enhanced access to public records maintained by the public agency.” Ind. Code § 5-14- 3-3.6(b). Enhanced access is defined as the “inspection” of a public record by anyone other than the governmental entity and that “(1) is by means of an electronic device other than an electronic device provided by a public agency in the office of the public agency; or (2) requires the compilation or creation of a list or report that does not result in the permanent electronic storage of the information.” Id. § 5-14-3-2(f). The public agency may fulfill its duty of enhanced public access by “enter[ing] into a contract with a third party under which the public agency provides enhanced access to the person through the third party’s computer gateway or otherwise . . . .” Id. § 5-14-3-3.6(c)(2). If the agency contracts with a third party to provide the enhanced access, it may charge the individual receiving access a “reasonable fee to either the third party to a contract or to the public agency, or both.” Id. § 5-14-3-3.6(e). The statute does not specifically define “reasonable.” * * *

[T]he Court simply cannot conclude at the pleading stage, without any factual development, whether the fees the Recorder seeks to collect would be reasonable. Reasonableness is by its nature a fact-intensive inquiry, and without any information as to the actual cost to the Recorder of providing the services at issue or the prices it charges other consumers for those same services, and without any case law interpreting the boundaries of reasonableness in this context, judgment on the pleadings is not warranted on this basis. * * *

St. Joseph County invokes several other sources for the Recorder’s authority to collect the fees at issue, but neither properly applies. It suggests that the statute governing the fees a county recorder must charge requires the Recorder to charge $1 for each of the copies at issue. The specific provision requires a recorder to charge: “[o]ne dollar ($1) per page not larger than eight and one-half (8 1/2) inches by fourteen (14) inches for furnishing copies of records and two dollars ($2) per page that is larger than eight and one-half (8 1/2) inches by fourteen (14) inches.” Id. § 36-2-7-10(b)(5). However, by referencing page sizes, this provision plainly applies to paper copies of records that the Recorder “furnish[es],” not to the electronic copies at issue here, so this provision does not independently justify the fees in question. * * *

In conclusion, the Recorder is authorized to charge a reasonable fee for the enhanced access services it provided to LPS. However, the Court cannot conclude on the basis of only the pleadings whether the fees at issue are reasonable. Therefore, the Court cannot conclude that the Agreement’s incorporation of Indiana law prohibits such charges or that the Agreement is void as ultra vires. Accordingly, LPS’ motion for judgment on the pleadings is DENIED.

Posted by Marcia Oddi on December 16, 2014 01:19 PM
Posted to Indiana Government