60 Op. Att'y Gen. 459 (1971)
 
60 OAG 459  460  461  462

Wisconsin Attorney General Opinions

24 December 1971

Microfilming. Authorized Records. (Formal)

Registers of deeds in counties under 500,000
cannot utilize microfilming to comply with
initial duty to record or file documents
unless county board has elected to be
controlled by Chapter 228, Stats., as
permitted by Section 228.07, Stats.,
created by Chapter 104, Laws of 1971.

Sections 59.512 and 889.30, Stats., authorize
such officer, with county board approval, to
make microfilm copies of original records.

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DANIEL L. LAROCQUE,
District Attorney, Marathon County

You have requested my opinion whether the
provisions of Section 59.512, Stats.,
regarding the microfilming of records of
deeds, mortgages or other instruments, when
authorized by the county board, permit the
register of deeds, in a county under 500,000
population, to utilize the process of
microfilming for filing and recording so as
to create the primary or original record he
is required to keep under Section 59.51(1),
Stats.

I am of the opinion that they do not.

Chapter 228, Stats., does permit recording
officers in counties of over 500,000
population to utilize microfilming as a means
of filing or recording documents.

That chapter is referred to in
Section 59.51(1), Stats.

However, the reference is not for the purpose
of authorizing counties of under 500,000 to
utilize the provisions of Chapter 228 or
otherwise rely solely on the microfilm
process if they choose.

Chapter 104, Laws of 1971, created Section
228.07, Stats., effective November 7, 1971,
to provide that any county can, by county
board resolution, elect to be controlled
by Chapter 228 Stats.

Registers of deeds in counties which so
qualify can utilize microfilming to
comply with the initial duty to
record or file documents.

While Chapter 228 does provide for a system
of recording and copying to insure accuracy,
preservation, identification, accessibility,
inspection, copying and certification,
counties should carefully investigate the
benefits to be derived from contemplated use
of Chapter 228 before electing, since the
cost of equipment and administrative
procedure necessary to comply with the
standards may be substantial.

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Section 59.51, Stats., provides in part:

59.51

   Register of deeds; duties.

   The register of deeds shall:

59.51(1)

   Record or cause to be recorded in
   suitable books to be kept in his office,
   correctly and legibly all deeds,
   mortgages, maps, instruments and
   writings authorized by law to be
   recorded in his office and left with him
   for that purpose, provided such
   documents have plainly printed or
   typewritten thereon the names of the
   grantors, grantees, witnesses and
   notary.

   Any county, by county board resolution
   duly adopted, may combine the separate
   books or volumes for deeds, mortgages,
   miscellaneous instruments, attachments,
   lis pendens, sales and notices,
   certificates of organization of
   corporations, plats or other recorded or
   filed instruments or classes of
   documents as long as separate indexes
   are maintained.

   Notwithstanding any other provisions of
   the statutes, any county adopting a
   system of microfilming or like process
   pursuant to Chapter 228 may substitute
   the headings, reel and image (frame) for
   volume and page where recorded and
   different classes of instruments may be
   recorded, reproduced of copied on the
   same reel or part of a reel. . . . .

Section 59.512, Stats., provides:

59.512

   Register of deeds; microfilming.

   Upon the request of the register of
   deeds, any county, by county board
   resolution, may authorize the register
   of deeds to photograph or microfilm
   records of deeds, mortgages or other
   instruments relating to real property in
   accordance with the requirements of
   Section 889.30(3) and to store the
   original records within the county at a
   place designated by the county board.

   The storage place for the original
   records shall be reasonably safe and
   shall provide for the preservation of
   the records authorized to be stored
   under this section.

   The register of deeds shall keep a
   photograph or microfilm copy of such
   records in conveniently accessible files
   in his office and shall provide for
   examination of such reproduction in
   enlarged, easily readable form upon
   request.

   Compliance with this section satisfies
   the requirement of Section 59.51(1) that
   the register of deeds shall keep such
   records in his office.

   The register of deeds may make certified
   copies reproduced from an authorized
   photograph or from the original
   records."

   Section 889.30(1) and (2), Stats., as
   amended by Chapter 69, Laws of 1971,
   provides:

889.30(1)

   The powers granted by this section shall
   not be exercised except with the prior
   approval of the county board of
   supervisors evidenced by
   resolution duly adopted.

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   The board shall approve the type
   of microform to be used in copying,
   including without restriction because
   of enumeration, reel, cartridge,
   microfiche, jacket, aperture
   card or camera card.
 

889.30(2)

   Any elected or appointed officer of any
   county or the court clerk of any court
   maintained in whole or in part by the
   county including all courts of record in
   the state may cause any of the public
   records, papers, documents, or court
   records listed in Section 59.715 and
   kept by him to be photographed,
   microphotographed or otherwise
   reproduced on film.

Whereas Section 228.01 and Section 228.07,
Stats., created by Chapter 104, Laws of 1971,
authorize county officers in counties of over
500,000 population and other qualifying
counties "to file or record" by microfilming,
and thus make a record, Section 59.512 and
Section 889.30(2), Stats., authorize county
officers, when authorized by the county
board, to "copy" records by the
microfilm process.

The copy is to be deemed an original "for all
purposes" by reason of Section 889.30(3).

That section, however, is concerned with
documentary evidence and while the copy shall
"stand in lieu of and have all the effect of
the original document and shall be admissible
in evidence," it is not in fact the original
record.

Section 59.512, Stats., provides that the
register of deeds may microfilm "records
of deeds, mortgages."

He must store the original records in a
storage place designated by the county board.

The microfilm is retained in his office
to comply with the requirement of
Section 59.51(1), Stats.

Either the microfilm or the original record
can be the basis of a certified copy.

RWW:RJV

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END