63 Op. Att'y Gen. 272 (1974)

Wisconsin Attorney General Opinion

24 July 1974
 
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Schools And School Districts;

Public Records;

Common school districts are presently without
authority to destroy records which fall
within Section 19.21(1), Stats., and
which are not pupil records under
Section 118.125(1), Stats.

Where city school district is involved, city
council could by ordinance provide for
destruction of obsolete school district
records under Section 19.21(5)(a), Stats.

Meaning of public records as related to
school districts discussed.

DORIS J. HANSON, Chairman,
Public Records Board

The Public Records Board requests my opinion
on the following questions:

1.   Under what authority may school
     districts destroy records?

2.   May the State Superintendent of Public
     Instruction or the State Public Records
     Board establish minimum retention
     periods for local school districts'
     records which contain information
     used to  report to the Superintendent
     of Public Instruction?

I have been unable to find any statute which
specifically authorizes school districts
to destroy records.

Section 118.125(3), Stats., created by
Chapter 254, Laws of 1973, does grant
each school board power to adopt rules
establishing the time pupil records shall
be maintained, places a limitation on the
time pupil behavioral records may be
maintained and by implication empowers
school boards to destroy those records
without need of tender to the State
Historical Society.

This new law becomes effective at the
beginning of the 1974 school year.

Under Section 120.13(12), Stats.,
a common school district can:

120.13(12) Historical records.

Under Section 44.09, transfer title to any

school records to the state historical
society which are no longer needed for
the proper administration of the school
district and which the society determines

are of permanent historical interest.

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Section 44.09, Stats., provides in part:

44.09     County, local and court records.
          The proper officer of any county,
          city, village, town, school
          district or other local
          governmental unit may offer,
          and the historical society may
          accept for preservation, title
          to such noncurrent records as
          in the historical society's
          judgment are of permanent
          historical value which
          are no longer needed for
          administrative purposes
          by such local
          governmental unit. . .
 

Section 44.10, Stats., permits the historical
society power to establish regional
depositories which can house school district
records of historical value.

By reason of secs. 120.49 and 120.75, Stats.,
the power to transfer records to the
historical society would be within
powers of a city school district
or unified school district.

Section 19.23(2), Stats., is applicable to
all school districts including those of
cities of the first class, and provides:
 

19.23(2)  The proper officer of any county,
          city, village, town, school
          district or other local
          governmental unit, may under
          Section 44.09 offer title
          and transfer custody to the
          historical  society of any
          records deemed by the
          society to be of permanent
          historical importance.

Under general law in the United States,
public records are the property of the state
or other unit of government and not of the
individual or officer who happens at the
moment to have them in possession.

When they are deposited in the place
designated for them by law, they must remain
and can be removed, transferred, or disposed
of only as provided by statute.
 

66 Am. Jur. 2d, Records and Recording Laws,
Section 10, p. 347.

In 38 OAG 22(1949), it was stated that under
then existing law municipal clerks could not,
absent specific statute, destroy or transfer
to the State Historical Society noncurrent
public records.

Statutes with respect to cities, villages,
and towns have been changed to permit
transfer and destruction under
certain conditions.

63 OAG 272 273 274 275 276 277 278 279

No change has been made with respect to
destruction as far as school districts are
concerned except as to pupil records.

With respect to school districts other than
city school districts, I am of the opinion
that the reasoning in 38 OAG 22 (1949) would
apply to school records other than pupil
records which are public records within
the meaning of Section 19.21(1), Stats.,
except as is herein modified.

Section 120.41(1), Stats., provides
that a city school system does not
constitute a separate legal entity.

Chapter 119, Stats., grants the school
board in cities of the first class
substantial independence.

It is nevertheless closely tied to the city
as the city provides the money and owns the
physical property of the school system.

Village of Brown Deer v.
City of Milwaukee (1956),
274 Wis. 50,
79 N.W.2d 340.

Section 19.21(5), Stats., provides in part:

19.21(5)(a)    Any city council or village
               board may provide by ordinance
               for the destruction of
               obsolete public records.

               Prior to any such destruction
               at least 60 days' notice in
               writing of such destruction
               shall be given the historical
               society which shall preserve
               any such records it determines
               to be of historical interest.

               The historical society may,
               upon application, waive
               such notice. . . . . .

19.21(5)(b)    The period of time any city or
               village public record shall be
               kept before destruction shall
               be as prescribed by ordinance
               unless a specific time is
               provided by statute.

               The period prescribed in such
               ordinance shall be not less
               than 2 years with respect to
               water stubs, receipts of
               current billings and
               customer's ledgers of any
               municipal utility, and
               seven years for other records
               unless a shorter period has
               been fixed by the public
               records board pursuant to
               Section 16.80(3)(e).

I am of the opinion that a city council of a
city operating a city school district or city
council of a city of the first class could,
with the cooperation of the respective school
board, provide by ordinance for the
destruction of obsolete public records of
such school district if the terms of
Section 19.21(5), Stats., are met.

Your inquiry mentions "school records," and a
most difficult question is presented as to
what are "public records," insofar as school
districts are concerned, within the meaning
of Section 19.21(1) and 19.21(3), Stats.,
which provides:

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19.21(1)  Each and every officer of the
          state, or of any county, town,
          city, village, school district, or
          other municipality or district, is
          the legal custodian of and shall
          safely keep and preserve all
          property and things received from
          his predecessor or other persons
          and required by law to be filed,
          deposited, or kept in his office,
          or which are in the lawful
          possession or control of himself
          or his deputies, or to the
          possession or control of
          which he or they may be
          lawfully entitled, as
          such officers. . . . .
 

19.21(3)  Upon the expiration of his term of
          office, or whenever his office
          becomes vacant, each such officer,
          or on his death his legal
          representative, shall on demand
          deliver to his successor all such
          property and things then in his
          custody, and his successor shall
          receipt therefor to said officer,
          who shall file said receipt, as the
          case may be, in the office of the
          secretary of state, county clerk,
          town clerk, city clerk, village
          clerk, school district clerk, or
          clerk or other secretarial officer
          of the municipality or district,
          respectively; but if a  vacancy
          occurs before such successor is
          qualified, such property
          and things shall be delivered

          to and be receipted for by such
          secretary or clerk,
          respectively, on behalf of the

          successor, to be delivered to
          such successor upon the
          latter's receipt.

Independent of statute, "public records"
include not only papers specifically required
to be kept by a public officer, but all
written memorials made by a public officer
within his authority where such writings
constitute a convenient, appropriate, or
customary method of discharging the duties of
the office.

International Union v. Gooding (1947),
251 Wis. 362,
 29 N.W.2d 730.

Section 19.21(1), Stats., goes much further
than this in defining public records in
Wisconsin.  However, even the International
Union case recognizes that this section does
not require an officer to keep, file, and
ultimately deliver to his successor every
paper or communication without respect to the
relation of the paper to the functions of the
office but that an officer may dispose of
purely fugitive papers having no relation to
the function of the office.
38 OAG 22, 23 (1949).

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Section 16.80(2)(a), Stats., provides that
insofar as state agencies are involved:

16.80(2)(a) "Public records"

     means all books, papers, maps,
     photographs, films, recordings, or other
     documentary materials or any copy
     thereof, regardless of physical
     characteristics, made, or received by
     any agency of the state or its officers
     or employes in connection with the
     transaction of public business and
     retained by that agency or its successor
     as evidence of its activities or
     functions because of the information
     contained therein; . . .

While this definition is not directly
applicable to school districts, it is a
codification of case law with respect
to the definition of public records.

It recognizes that an officer has the right
to determine whether a paper which is not
required by law or valid rule to be filed,
deposited, or kept in his office, should be
retained as evidence of the activities or
functions because of the information
contained therein.

I am of the opinion that officers covered by
Section 19.21(1) and (3), Stats., have the
same power and that such power permits the
destruction of fugitive papers, scrap paper,
and in some cases, preliminary work sheets,
drafts, surplus copies, etc.

A given paper may be a public record within
the meaning of Section 19.21(1), Stats., for
the purposes of inspection and copying as
long as it is in the lawful possession or
control of an officer, or his deputies, but
may not necessarily be one which said officer
is required to preserve under Section
19.21(1), Stats., or to deliver to his
successor under Section 19.21(3), Stats.

Under the latter statute he need only deliver
"all such property and things then in his
custody." There are many documents which may
lawfully come into the hands of a public
officer over which he is only entitled to
temporary custody and which may or must be
surrendered to the person owning the same or
for other purposes. For example, certificates
of bonds must be delivered when sold or at
maturity.

All records of a school district are not
necessarily public records under Section
19.21(1), Stats. Section 16.80(2)(a), Stats.,
which defines state public records,
covers matters

          made, or received by any
          agency of the state or
          its officers or employes

Section 19.21(1), Stats., is only concerned
with "Each and every officer of . . any . .
school district" and covers materials

     received from his predecessor or
     other persons and required by law
     to be filed, deposited, or kept in
     his office or which are in the
     lawful possession or control of
     himself or his deputies, or to the
     possession or control of which he
     or they may be lawfully entitled,
     as such officers.

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Certainly the records of the board or those
kept by any officer of the board or to which
they were lawfully entitled would be public
records within Section 19.21(1), Stats.

There is a question, however, as to whether
a superintendent or teacher is a deputy
within the meaning of the statute.

For purposes of Section 19.21(1), Stats.,
I would construe "officers" of the district
as including superintendents and principals
and would treat public records as including
scholastic and administrative records in
their offices.  It is questionable whether
teachers are deputies of any school board
officer.  They may be deputies of the
superintendent or principal within the
meaning of Section 19.21(1), Stats.

We need not here determine whether pupils'
work products including examination papers
are public records within the meaning
of Section 19.21(1), Stats.

Even if they are, it is my opinion that they
can be returned to and kept or destroyed by
the pupil after record is made without
violation of Section 19.21(1), Stats.

It is my opinion that pupil records including
behavioral records and progress records which
are required to be kept are public records.

In
Valentine v.
Independent School Dist. (Iowa 1919),
174 N.W. 334,

it was held that in a graded school system,
records of attainment of individual pupils
must be kept, that such records are the
property of the school district and not of
the teacher, principal, or superintendent,
and are public records to which the pupil
is entitled.
 

Section 118.125(1), Stats., created by
Chapter 254, Laws of 1973, provides:

118.125(1)  PUPIL RECORDS. DEFINITIONS.

In this section:  118.125(1)(a) "Pupil
records" means all records relating to
individual pupils maintained by an elementary
or high school but does not include notes or
records maintained for personal use by a
teacher or other person who is required by
the department under Section 115.28(7) to
hold a certificate, license or permit if such
records and notes are not available to others
nor does it include records necessary for,
and available only to persons involved in,
the psychological treatment of a pupil.

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118.125(1)(b) "Behavioral records"
means those pupil records which include
psychological tests, personality
evaluations, records of conversations,
any written statement relating specifically
to an individual pupil's behavior, relating
specifically to achievement or measurement of

ability, the pupil's physical health records
and any other pupil records which are not
progress records.

118.125(1)(c) "Progress records"
means those pupil records which include the
pupil's grades, a statement of the courses
the pupil has taken, the pupil's attendance
record and records of the pupil's school
extracurricular activities.

Section 118.125(2), Stats., provides that
such pupil records are confidential
except as is expressly provided in
paragraphs 118.125(2)(a) to (g).

In
Board of School Directors of
Milwaukee v. WERC (1969),
42 Wis.2d 637, 655,
168 N.W.2d 92,
it was held that the names, addresses,
salaries, and working conditions of
teachers are a matter of public record
and that the district could not grant
exclusive access to anyone.

Records concerning school administration,
school building plans, curriculum
development, growth projections,
annual meetings, budget, and
state and federal aids would
be covered by the same rule.

In view of the above, it is evident that
further legislation would be desirable to
establish procedures for the orderly transfer
or destruction of all noncurrent records of
school districts.

With respect to your second question,
it can be stated that the Public Records
Board and the State Superintendent of Public
Instruction have only those powers which are
specifically provided by statute or
necessarily implied.

I find no statute which would permit the
Public Records Board to establish minimum
retention periods for all school districts.
Under Section 16.80(3)(e), Stats., the Public
Records Board has power to establish the
minimum period of time before destruction
of any city or village record.

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Since the records of city school districts
and districts in cities of the first class
are city records, in the broad sense,
the Public Records Board could establish
minimum retention periods applicable to
such districts for public records
other than pupil records.

As noted above, Section 19.21(1) and (3),
Stats., places a duty on school district
officers to preserve public records and
transfer them to their successors.

The statutes do not provide a method for the
destruction of records with the exception of
pupil records and those of city school
districts acting in cooperation with
the respective city council.

It is questionable whether there is a need
for the State Superintendent to set minimum
periods of retention in most cases.

However, since Section 115.28(3), Stats.,
does require the State Superintendent to
supervise and inspect public schools and
advise principals and local authorities
thereof, and since Section 115.30, Stats.,
provides that the Department of Public
Instruction may require certain reports,
it is my opinion that the State
Superintendent could by rule
prescribe minimum periods of retention of
school district records which contain
information on which reports to the State
Department of Public Instruction are based.

There is a need for legislation
in this area also.

RWW:RJV

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