Maine’s contract with the company that is modernizing its court records – a project intended to improve access to public information – comes with such exorbitant fees that few people may actually use it.
The agreement with Tyler Technologies sets fees for downloading documents that are among the highest in the country, and it gives the company a cut of every fee paid. Critics say it’s a great deal for Tyler and a bad deal for the state.
“If the public can’t afford to access that system and reap the benefits of having all these documents online, then what really is the point?” said Justin Silverman, executive director of the New England First Amendment Coalition, a Massachusetts nonprofit that defends citizen access to government. “It’s certainly not enriching the public. Maybe it’s enriching the contractor.”
A examination by the Portland Press Herald/Maine Sunday Telegram found:
• The contract sets the fees for downloading documents at $2 for the first page and $1 for each subsequent page. Most states with digital court records charge lower fees, and a small number provide access for free.
• The contract prohibits the state from setting a cap on the cost of each document, something the federal courts and other states have done to keep costs down for the public. As a result, a single 30-page filing in a civil or criminal case would cost $31 in Maine’s system and $3 in the federal system.
• Maine promised to share half of the proceeds of those fees with Tyler. The company is guaranteed at least $250,000 and up to $600,000 from the annual revenue sharing provision, and those amounts increase in future years. Comparable contracts in three other states did not include splitting those fees with Tyler.
• The overall cost of the contract was $17 million when it was signed five years ago, but has since grown to $21 million.
The Maine Judicial Branch, which hired Tyler, refused to answer a list of questions about the contract and the fees. A spokeswoman said the agency’s legal counsel advised against answering questions because of an ongoing lawsuit filed by Courthouse News Service, the Portland Press Herald and other newspapers. That lawsuit is calling for speedier public access to civil filings under the new electronic system and does not address its costs.
In 2016, the state signed a 10-year contract with Tyler, which is headquartered in Texas but has four offices in Maine. The Legislature originally allocated $15 million for the project. As costs have increased, the Judicial Branch has asked for additional state funding, but those requests have not been granted.
Documents related to traffic cases were the first to go live in 2018. At the end of November, some civil and family cases in Bangor courts moved online, along with the statewide Business and Consumer Court, which handles business-related disputes. Other civil and criminal cases are scheduled to go online for Penobscot and Piscataquis County courts this year. The rollout will continue across the state, and the project will not be fully implemented until at least 2022.
Some case types, including mental health civil commitments and some juvenile criminal matters, will not be accessible to the public. Others, like protection from abuse cases and divorce records, will only be accessible to the public at a courthouse. But many documents, like indictments in adult criminal cases and complaints in lawsuits, will be available online. Courthouses will have public access computers where people will be able to view entire documents at no cost, although they will need to pay for printed copies.
The system online right now for people who don’t go to a courthouse, called Odyssey, allows free searches by name or docket number. Maine added $1.7 million to its contract with Tyler Technologies last year to buy a more elaborate platform called re:Search. In addition to basic searches, it will offer paid subscriptions for extra features, like the ability to save searches or get alerts about certain cases. Two plans currently advertised cost either $99 and $900 a year.
For the first time, that agreement for re:Search introduced fees for accessing documents and a promise to share revenue with Tyler.
Right now, Odyssey users can see two pages of a document for free before a per-page charge kicks in. Amy Quinlan, a spokeswoman for the Judicial Branch, said in January that re:Search will allow a free preview of up to 25 pages, but she did not answer a question last week about whether that feature will still be included. She also would not answer a question last week about when re:Search will go live in Maine.
Courts in many states have moved their records online in recent years, but their approaches vary widely. The majority publish only basic information about cases on a web portal and do not include actual documents. But those that do put records online generally set lesser fees to download those documents than what is planned in Maine. In many states, the fees are nominal. In a small number, access is free.
For example, Hawaii charges 10 cents per page or $3 per document, whichever sum is greater. Documents in Arizona cost $10 apiece, but users can also buy subscriptions to get a better deal. Connecticut only puts deocuments in civil, housing and small claims matters online, but does not charge any fees.
Some states have extra costs that Maine does not. For example, Alabama charges $9.99 for a search by name or case number. Documents then cost $5 for the first 20 pages and 50 cents per page for the rest. Kentucky charges only 35 cents per document but also requires subscriptions between $5 and $250 per month, depending on the number of cases needed.
In Maine, the re:Search contract set the fees to download electronic documents at the same rate a user pays to make paper copies at a courthouse. At a courthouse, however, people can look at whole case files for free and take pictures of pages if they do not want to pay for a copy.
Quinlan said in January that the Judicial Branch decided to apply the same per-page fees to online records because of the costs of the Tyler contract. She said annual payments to the company would range between $1.3 million and $1.8 million depending on the year, but she did not answer a question last week asking for a breakdown of those costs.
“As the system is rolled out in more case types and courts, or if we were to receive General Fund dollars, … it is possible that fees could be adjusted or perhaps eliminated,” Quinlan said in January.
That would require renegotiations with Tyler under the contract, and Quinlan did not answer a question last week about whether the Judicial Branch was pursuing that option.
Jim McMillan is the principal court management consultant at the National Center for State Courts, a Virginia nonprofit that provides support to courts across the country. He did not speak directly to the contract in Maine but said fees are often necessary to cover operating costs, especially if lawmakers like those in Maine have not dedicated enough money for a project.
“It’s all nice and good when the Legislature gives the money to do it,” McMillan said.
The contract outlines recurring payments to Tyler for maintenance, tech support, electronic filing and other ongoing services. The re:Search agreement added another annual expense. After next year, the state will be required to start paying Tyler half of the revenue from document downloads and re:Search subscriptions. The company is guaranteed at least $250,000 and up to $600,000 for each remaining year of the contract.
Some files include just a few short documents, but more complex cases can have hundreds of pages.
For example, the Portland Regional Chamber of Commerce filed a lawsuit in Cumberland County Superior Court last year to challenge a minimum wage increase approved by voters, a matter of significant public interest. The initial complaint and exhibits are 37 pages, so that document alone would cost $38 in the electronic system, and $19 would go to Tyler.
The case has since progressed to the Maine Supreme Judicial Court, where the parties filed more than 300 pages combined in nine separate briefs. That means the cost of those documents would be hundreds of dollars.
Maine’s revenue sharing deal is unusual based on a review of re:Search contracts obtained and shared by Courthouse News Service, a national outlet that reports on civil litigation. Illinois, Texas and New Mexico have also signed statewide agreements with Tyler for that platform. They allow the company to keep most revenue from subscriptions, but none share fees from document purchases. Illinois and Texas also charge less expensive fees than Maine for access to those records, while New Mexico does not charge fees at all.
Representatives from the courts in Texas and Illinois did not return multiple emails and calls about their own contracts with Tyler Technologies. Suzanne Winsor, who works with the electronic system in New Mexico, said the courts there are still implementing re:Search, but lawmakers decided to pay for the full cost of its electronic system in the budget and not through user fees.
It was not clear whether those states shared revenue with the company in other ways. A Tyler spokeswoman deferred to the Maine Judicial Branch on specific questions about the contract and did not answer a question about revenue sharing with other states. She said the courts themselves set the fees for accessing electronic court documents.
“The business model for re:Search is that the basic search function is free and Tyler collects revenues for premium features such as the ability to save searches or search for specific text within documents,” Nina Minney wrote in an email. “Each client agreement is based upon the requirements of that state partner. We defer to the client for details about their Tyler contract.”
Critics balked at the idea that a private company would profit from public information.
“We’re clearly vying for the worst financial arrangement in the country,” said Jim Campbell, president of the Maine Freedom of Information Coalition.
Bill Girdner, editor of Courthouse News Service, recently called Maine “a patsy” in a recent column about its Tyler contract.
“That public record that belongs to the people of Maine is being used as an income source for this really big corporation,” Girdner said in an interview.
In Maine, the Supreme Judicial Court decided in 2018 that the public would be able to access most court documents online for a fee, which was not set at the time. In August, the court published rules for the electronic system that again mention the fee but do not specify an amount.
The court can grant a waiver if cost is a barrier, but Quinlan said in January that the process to request one is not yet in place, and she did not answer a question about that waiver last week. The rules also include an exception to the fees for parties and attorneys of record, who can access documents in their own cases at no cost. It is not clear whether they will need to pay to look at documents in other cases as part of their research.
Federal courts use a digital document system that charges 10 cents per page and typically has a cap of $3 for documents. Amber Tucker, the president-elect of the Maine Association of Criminal Defense Lawyers, said court-appointed attorneys can look at other federal cases for free. She said she often researches jury instructions, sentencing memorandums, briefs or other documents as she prepares for her own cases.
“It’s really turned out to be a helpful tool,” Tucker said. “It’s disappointing if that’s not going to be the same way that an attorney can use the state system.”
In February, the court put out a call for public comments on ways to improve the electronic system. The state had signed the agreement for re:Search four months earlier.
“Maine taxpayers fund our court systems – everything from the courtroom to the backroom administrative offices,” Lynda Clancy, editorial director of the Penobscot Bay Pilot and the president of the Maine Press Association, wrote in an email to the Press Herald/Sunday Telegram. “It is disheartening to know that the contract that the state signed with a private company is already in place, and that the state is just now asking for public comments. The interests of Maine citizens, especially those who cannot afford to pay these exorbitant prices, have been nothing but further marginalized.”
Silverman, from the New England First Amendment Coalition, described the arrangement as “offensive.”
“When you have these electronic systems in place, there should be more access to documents,” Silverman said. “The public should be able to more easily get the records they need and not have a more difficult time. … I really question why the courts would have such a system if the public is not going to experience the benefits that can come with having more documents received and stored electronically.”
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