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Cuyahoga Ohio County Loses Copier Case; Spent $55K On Losing Effort
CLEVELAND, Ohio — Cuyahoga County violated state law for two years by trying to charge more than $200,000 for CDs loaded with copies of property records, the Ohio Supreme Court ruled Wednesday.
The high court said in a 7-0 decision that the county must provide CDs of recorded deeds and mortgages for $1, ending a dispute that cost county taxpayers as much as $55,000 in legal fees and garnered international attention because of a county employee’s verbal acrobatics in defining the word "photocopier" during a deposition.
"They tried so hard to back up a ridiculous position," said Lucy Dalglish, an attorney for the Arlington, Va.-based Reporters Committee for Freedom of the Press. "And the really unfortunate part of this situation was that the answer was so obvious. The public had to spend so much money to defend this ridiculous proposition."
The dispute dates to November 2010, when two title information companies sued then-county Recorder Lillian Greene over her policy of charging $2 a page for property records contained on a CD.
The companies argued the county must provide copies of master CDs — which the county makes each day to backup digital images of documents recorded — at cost, as required the state’s public records law.
Greene and her staff based their charges on a state law that requires a $2-per-page fee to photocopy or fax documents. Based on that law, they argued that CDs containing copies of 104,000 pages of records should cost $208,000.
"A copy is a copy is a copy," attorney David Movius, whom the county hired to fight the suit, said last year.
Greene was removed from office by a charter voters approved in 2009. But when county Executive Ed FitzGerald took office in January 2011, he continued to defend Greene’s position.
On Wednesday, county Law Director Majeed Makhlouf defended the decision to continue fighting the lawsuit, arguing that state law governing records is confusing.
"You needed clarity on the law," Makhlouf said. "The county had already spent so much money. We thought, let’s get it clarified once and for all."
But the seven Supreme Court justices found no confusion.
"There is no conflict, much less an irreconcilable one," the court wrote in its opinion. "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."
The ruling says the county’s argument "lacks merit."
At least 60 Ohio counties have long abided by the law, charging between $1 and $20 for discs loaded with property records, according to the opinion.
Cuyahoga County’s public records policy, revised by County Council last February, now mandates that the cost of CDs cannot not exceed $1.26. Single discs are free.
David Marburger, the lawyer representing the title-information companies, called the lawsuit a waste of taxpayer money.
The companies had repeatedly offered to pay Cuyahoga County more than $50 for daily copies of master CDs, said Marburger, who has represented The Plain Dealer in disputes. The county could have ended the lawsuit and made more than $25,000 a year.
"Why not work out an acceptable compromise with these companies, which the companies were practically begging the county to do?" Marburger said. "Somebody has terrible judgment in the county."
Matt Carroll, FitzGerald’s chief of staff, said the county’s attorney believed the county had to abide by the $2-a-page law.
"We felt constrained by what the law said," Carroll said. "The court noted there were two statutes that needed to be interpreted… It had to define photocopy in order to come to that conclusion."
The definition of photocopy was a highlight of the case.
Lawrence Patterson, then the acting head of information technology for the recorder’s division of the county fiscal office, testified that he could not say if photocopiers had ever been used in the office.
"When you say ‘photocopying machine,’ what do you mean?" asked Patterson, when questioned by Marburger.
Patterson still works for the county, making $65,000 a year.
Greene’s former chief of staff, John Kandah, testified that he did not know deeds and mortgages are available to the public.
"I’ve got to plead ignorant on that one," said Kandah, who has since been laid off.
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