Hollister Free Lance

9/30/03

Talks stall in county records case

By Kollin Kosmicki

A legal fight between a Pacific Grove man and San Benito County over access to public records had been inching toward an out-of-court settlement.

But now the Pacific Grove man challenging a recently transformed county policy is frustrated with negotiations and the case may head back to litigation.

"San Benito County has done a lot of really sleazy things in my opinion. At this point, I'm just pretty pissed off," said Gary Baley, president of Abstract Information Services and the man who filed the suit.

Baley initially filed the suit in early May because the county no longer provided public access to original copies of records held by the Recorder's Office. Instead, the county started divulging those documents in Sept. 2002 over the Internet for a $500 per month subscription fee.

Baley's company publishes 25 different types of documents - including many from the Recorder's Office - in a local weekly abstract. His clients include property appraisers, financial institutions and newspapers.

He also does similar business in Monterey and Santa Cruz counties, which maintain traditional methods of access to records.

Baley not only opposes the subscription fee here, but he also claims the files used on the Web site are subject to tampering before publication.

Darren Bogie, the deputy county counsel on the case, did not return phone calls Monday.

Baley maintains the county is violating the California Public Records Act. The law states every local agency must provide open access to public records, which include the documents of Baley's interest at the Recorder's Office.

"Selling information over the Internet is in violation of public law," Baley said.

About a month ago, county attorneys approached Baley's lawyer to settle the case out of court. Since then, Baley claims the county changed another Recorder's Office policy which enhanced Baley's frustrations and, ultimately, his ability to put out the abstract.

According to Baley, the county lowered its holding time of original documents from six weeks to 24 hours. That makes it virtually impossible - even if Baley wins a potential case - for him to access all the documents, he said.

Recorder John Hodges, however, said the county did not change its policy. In the past, the office was merely behind schedule, he said, and the retention policy for documents hasn't changed. It has been to "get it, check it, scan it and send it back out," Hodges said.

At one time, the Recorder's Office had a three-month delay - which Hodges attributed to a conversion to the new system, along with health problems within the office.

Regardless, Baley's business in San Benito County has been "crippled," he said, because his publication has been released later than usual for the past year and no longer includes images. Before the county's change, an employee of Abstract Information Services would use a laptop to scan hard copies of originals, which were then published that same week.

With the Internet service, Baley said he could still obtain the appropriate images for his publication. But he is "philosophically opposed" - not only to paying a subscription for public records, but also to the alleged opportunities for mischief.

Earlier this year, Baley pointed out how he inadvertently uncovered a real estate scam in Monterey County by thumbing through suspicious deeds copied from the Recorder's Office there. FBI officials are now involved with the case, he said.

"It may turn out to be the largest real estate scam in California history," he said.

Meanwhile, if the San Benito matter goes back to litigation and the county loses, Baley's attorney has been told the county would appeal and garner an "amicus curiae" from Monterey and Santa Cruz counties, Baley said. That means those two jurisdictions could also testify in favor of the county's position.

Monterey Assistant County Counsel Lee Blankenship said he hasn't talked with San Benito County officials about the Baley case.

While Baley says other counties' officials could potentially testify in court, he is not allowed to use, as evidence, his business experience in those counties to demonstrate credibility. At a July hearing, Superior Court Judge Harry Tobias struck those points from Baley's case.

Moreover, Baley said lawyers with San Benito County conducted background checks of his dealings in Monterey and Santa Cruz. The investigation came back clean, Baley said.

Baley believes that was hypocritical because if the county had found something questionable about his past, he said, "I'll bet you dollars to donuts, they would be bringing it up."

Now it seems certain, he said, the case will not be settled out of court. He is confident he will win in court, he said, because "the justice system is fair, and I'll get a fair hearing."

"All I've got to say is: Bring it on. This is government gone amok."