From the March, 2002 issue of The Title Insurance Law Newsletter
In the latest of a series of Michigan decisions about the cost of public records, a court of appeals has ruled that the cost of county tax records purchased in bulk is determined by the state Freedom of Information Act, not the per-page statutory fee. The court showed its unhappiness with the title company victory by saying it was "bound" to follow its own recent decision on the same issue, and by asking the chief judge to convene a special panel "to address this issue."
The Title Office submitted a Michigan Freedom of Information Act request to buy four counties' current tax records in electronic format. The FOIA says that records must be provided at the "actual incremental cost" of reproduction. The treasurers all responded that they would be happy to sell the records, but only at the statutory fee of 25 cents per record. The cost of the base records in the four counties under the statutory charge would have been about $120,000. In addition, the court noted, "the exact figures change as the counties continue to update their property tax records."
The Title Office filed suit, asking for an order directing the treasurers to sell the tax records at their actual cost. The title agency won the same lawsuit against another treasurer in April of this year. Oakland County Treasurer v. The Title Office, Inc., 245 Mich.App. 196, 627 N.W.2d 317 (2001) was reported in the May, 2001 issue of the Newsletter. The treasurers in the current case raised the same defense, that their statutory fee trumped the FOIA. The trial court ruled in favor of the title agent.
The appeals court clearly wanted to side with the treasurers despite its own prior decision in Oakland County. It would have allowed the statutory fee based on a liberal interpretation of the meaning of a "transcript," which the court somehow found to be different from the record itself. Also, the court would have rejected The Title Office's argument that the treasurer statute (which goes by the acronym TARA) does not apply to electronic records:
"Plaintiff also argues that the Legislature could not have intended the TARA to apply to electronic copies of county records because the Legislature enacted the statute in 1895, before the invention of computers.
However, if we accepted plaintiff's logic, then we would also be compelled to hold that the schedule of fees contained in the TARA does not properly apply to typewritten copies or photocopies of county records, because the 1895 Legislature could not have envisioned the invention of typewriters or photocopy machines. The Legislature chose to frame the statute in broad terms, applying to "any paper or record" on file in the treasurer's office. MCL 48.101. This language is certainly broad enough to include records that are not maintained on paper."
The court's hands were tied, because it had already ruled the other way in Oakland County. That did not stop the court from disparaging its own prior decision:
"We disagree with the Oakland County panel's conclusion, for the reasons set forth above. We believe that the language of the TARA is broad enough to cover electronic copies of records kept on file in the offices of the county treasurers. Further, we believe that the TARA clearly falls within the second exception to the FOIA cost provisions, for situations where "the amount of the fee for providing a copy of the public record is otherwise specifically provided by an act or statute." MCL 15.234(4). However, despite our disagreement with the Oakland County decision, we are bound to apply its holding here, pursuant to MCR 7.215(I)(1)."
The Van Buren decision closely follows Tuscola County Bd. of Comm'rs v. Tuscola County Abst. Co., 2001 WL 1585279 (Mich.App.) (unpublished), reported in the January, 2002 issue. In that case, the register of deeds was given the discretion to force a title company to pay the per-page statutory fee for real estate records, rather than a bulk charge, even for copies made by the title agency in the past on its own courthouse copier. Thus, Michigan leads the way in the spasmodic national struggle over whether or not the government has the right to profit from the sale of real estate records.
Title Office, Inc. v. Van Buren County Treasurer, ___ N.W.2d ___, 2002 WL 89023 (Mich.App.).
