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Lawsuit Debates County's Control of Public Record Access
Jarrod A. Clabaugh, Source of Title

Lawsuits have recently been brought against county recorders by large title companies and title plants in an effort to gain access to counties’ public record databases without having to pay a fee for access and for free copies of documents contained within the digital record. The lawsuits make various claims, including the claim that limited access to online bulk records is a violation of a state’s freedom of information acts.

One such lawsuit involves the Cook County, Illinois recorder and one of the nation’s largest title insurers and operators of title plants. In April 2005, First American filed a lawsuit against the Cook County Recorder Eugene “Gene” Moore accusing Moore and his office of violating the Freedom of Information Act and for violating an Illinois county code that stated a county could not charge for access to records if they were placed online. The title insurance company claims in the suit that the recorder’s action of blocking them from having free access to the bulk distribution of land data records violates the company’s freedom of information rights.

In an exclusive interview with Source of Title, Ray Wolverton, the Cook County Executive Assistant to the Chief Deputy, related what the title plant claims the county has done and defended his office’s actions against the bulk release of the public record without a fee to companies who plan on reselling the very information they obtain without any cost to them. During the interview, Wolverton expressed what caused the lawsuit while noting the previous relationship that First American and other title companies and plants, such as Chicago Title and Stewart Title, shared prior to the enactment of Illinois legislation allowing recorders of deeds to charge for the bulk distribution of information.

According to the indicated Illinois legislation, “any county may provide Internet access to public records maintained in electronic form. This access shall be provided at no charge to the public. Any county that provides public Internet access to records maintained in electronic form may also enter into a contractual arrangement for the dissemination of the same electronic data in bulk or compiled form.” The code also states that “if, but only if, a county provides free Internet access to public records maintained in electronic form, the county may charge a fee for the dissemination of the electronic data in bulk or compiled form, but the fee may not exceed 110 percent of the actual cost, if any, of providing the electronic data in bulk or compiled form.”

"We are allowed to provide Internet access to public records provided in electronic form,” said Wolverton. “There will be no charge to the public. We are able to enter into contractual arrangements for the dissemination of the same information in bulk or compiled form, allowing us to charge up to 110 percent of the cost. If we are in a county exceeding three million, which we are, the fees gathered will go into a recorder’s automation fund.”

These large title plants want the access to the information that we gather for the public and they often demand that it is given to them for free or next to nothing, added Wolverton.  He believes that the title plants fail to realize the cost associated with the funding, personnel and maintenance of building the extensive record’s databases in the first place. While other title plants pay to utilize the county’s records, First American expects different treatment by demanding to have access to the records for free.

The judge in the case, Amy St. Eve, was quick to note that certain claims made by First American were defunct, such as the idea that Cook County’s actions violated the Illinois Freedom of Information Act.

“Basically, we are the point where the judge basically threw out, or dismissed, the FOIA claims,” said Wolverton. “What remains to be seen is whether or not we violated the county’s act, which I don’t believe we did and that will be settled out probably in February.”

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