61 Op. Att'y Gen. 346 (1972)
 
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Wisconsin Attorney General Opinions

10 August 1972.

Small Claims Court   Records

A judge may destroy records without making a
copy per Section 59.715(20)(c), Stats., only
if he deems such both "obsolete and useless."

RAY A. SUNDET,
Corporation Counsel, La Crosse County

You ask my opinion concerning whether or not
records of county small claims court from the
period 1955 through 1962 may be destroyed.

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Our office has previously ruled that no
public records may be destroyed without
express legislative authority.

46 OAG 8 (1957)

Section 59.715(20), Stats., referring to
obsolete county records, provides:

  "Destruction of obsolete county records.
   Whenever necessary to gain needed vault
   and filing space, county or court
   officers and the custodian of the
   records of all courts of record in the
   state may, subject to Sections 59.716
   and 59.717, destroy obsolete records in
   their custody as follows: . . ."

59.715(20)

   Court records and exhibits in any civil,
   criminal action and proceeding, or
   probate proceedings of any nature
   under the jurisdiction of the courts of
   record in the state, provided the same
   shall first be photographed or
   microphotographed and preserved as
   provided in s. 889.30 in all cases
   except exhibits not of a documentary
   nature:

59.715(20)(a)

   After 10 years from the entry of a
   final order or judgment therein, or

59.715(20)(b)

   After 10 years from the date when the
   same shall have been commenced; provided
   that the same shall have been dormant
   for 10 years and that the destruction
   thereof shall be authorized by the order
   of the judge of the court whose records
   are to be destroyed, or

59.715(20)(c)

   Upon a written order of the judge of the
   court, the records of which are to be
   destroyed, the records and exhibits of
   that court which the judge deems
   obsolete and useless, but not including
   inventories and final accounts of
   deceased persons, may be destroyed after
   10 years as provided in Paragraphs (a)
   and (b) without being first reproduced,
   photographed or microphotographed.

Since this section refers to any civil or
criminal proceeding under the jurisdiction
of the courts of record in this state, it
necessarily applies to records in small
claims actions.

In 56 OAG 199, 201 (1967), we advised that
obsolete county record may be destroyed only

  ". . .if it is necessary to gain needed
   vault and filing space," a requirement
   of the first sentence of Section 59.715,
   Stats.

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Further, the records must be offered to the
State Historical Society as required under
Section 59.716, Stats., and the requirements
expressed in Section 59.715(20)(a), (b) and
(c), Stats., concerning time, photocopying
and court order must be complied with.

Under Section 59.715(20)(a), Stats., obsolete
records and exhibits may be destroyed 10
years after entry of final order or judgment,
and under Subsection 59.715(20)(b), they may
be destroyed 10 years after commencement of
an action if the case has been dormant for 10
years, and the judge whose records are
unvalued provides his written approval.

Unlike Subsection 59.715(20)(c), destruction
of records under Subsection 59.715(20)(a) and
59.715(b) must be preceded by photocopying.

Since a proper photograph or microphotograph
is "deemed to be an original record for all
purposes," by Section 889.30, Stats.,
destruction of the actual original records
would have no practical effect on the rights
of any person who, for any reason, would ever
need those records.

It would appear, therefore, that the small
claims records you inquire about could be
destroyed, if they are photocopied and the
other statutory requirements met, without
regard to the various statutes of limitation
you mention in your letter.

It should be noted, however, that one of the
statutory requirements for photocopying of
county records under Section 889.30, Stats.,
is approval by the county board.

A different situation exists under
Section 59.715(20)(c), Stats., where
court records may be destroyed without
being photographed if the judge deems
them "obsolete and useless."

This appears to be a higher standard than
that set forth in Subsection (20)(a) and
59.715(b) where the term "obsolete" alone
applies.

Since records destroyed under Subsection
59.715(20)(c) would be gone forever,
their potential usefulness must
be examined very carefully.

Before a judge deems a case's record
"obsolete and useless," he must consider
the various statutes of limitation which
may apply including Sections 270.75, 270.79,
893.16(1), 270.95, and 272.04, Stats., which
you mention in your letter.

Further, in certain real estate cases, the
record may have potential usefulness for very
many years and control the disposition of
subsequent actions commenced within the 30-
or 60-year period of limitation provided for
in Section 893.15, Stats.

Full compliance with Section 59.715(20)(c),
Stats., would seem to require that the judge
review each record individually.

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If it has the potential of serving any useful
purpose, however remote, the record may only
be destroyed under the auspices of Subsection
59.715(20)(a) and (b), both of which require
photocopying.

RWW:PH

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