65 Op. Att'y Gen. 31 (1976)
 
65 OAG 31  32  33  34  35

Wisconsin Attorney General Opinions

Opinion # OAG 12-76

25 February 1976

Public Records; Register of Deeds;

Register of deeds can deny public access to
so-called confidential portions of
certificates of marriages and fetal deaths
only on a case-by-case basis and specific
reasons must be given in each case.

That portion of 53 OAG 22 (1964)
inconsistent herewith is withdrawn.

DANIEL G. GOLDEN,
District Attorney Portage County

You request my opinion whether the register
of deeds may limit the right of any person to
inspect and copy certificates of marriages
and fetal deaths recorded in his office.

You state that a portion of State of
Wisconsin Form VS-20 (Marriage) is
labelled "CONFIDENTIAL INFORMATION" and
that a similar section of State of Wisconsin
Form VS-18 (Fetal Death) is headed

"CONFIDENTIAL INFORMATION FOR
MEDICAL AND HEALTH USE ONLY."

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You indicate that the register of deeds has
been following advice given by a former
attorney general with respect to withholding
portions of certificates of live births.

Part of that certificate,
State of Wisconsin Form VS-1, is headed:

"CONFIDENTIAL INFORMATION FOR
MEDICAL AND HEALTH USE ONLY."

In 53 OAG 22 (1964), it was stated that
much of the confidential portion of the
birth record contained information furnished
by the patient to the physician within the
professional relationship and that the
register of deeds, in furnishing a certified
copy, should omit the confidential section
and should indicate that the copy furnished
included only the nonconfidential portion.

You inquire whether the same procedure can be
followed with respect to certificates of
marriages and fetal deaths.

It is my opinion that the procedure suggested
in 53 OAG 22 (1964) cannot be followed as a
general policy but that the custodian of the
record in each case must determine whether it
is in the public interest to withhold any
portion of the three certificates involved.

If the custodian denies the right of
inspection and copying, or denies the
person seeking a certified copy access
to the whole record, he must state
specific reasons for his denial.

The person seeking inspection or a full
copy would then have a right to seek to
compel furnishing of the entire document
by a mandamus action.

In such case the court would review the
record in camera and determine whether
the reasons given by the custodian
were sufficient to deny inspection or
certification of the entire record.

Beckon v. Emery (1967),
36 Wis.2d 510,
153 N.W.2d 501;

State ex rel. Youmans v. Owens (1965),
28 Wis.2d 672,
137 N.W.2d 47.

There is no question that certificates
of marriages, births, and fetal deaths
are public records, authorized by law
to be registered, filed, and indexed
by the register of deeds.

Sections 59.51(7) and 69.21, Stats.

He is directed to allow "any person" to
examine, take notes from, or make copies
of all books and papers required to be
kept in his office.

Section 59.14(1) Stats.

Similarly, Section 19.21(2), Stats.,
provides that:

   Except as expressly provided otherwise,
   any person may with proper care, during
   office hours and subject to such orders
   or regulations as the custodian thereof
   prescribes, examine or copy any of the
   property or things . . . [required by
   law to be kept by said custodian].

   Any person may, at his own expense and
   under such reasonable regulations as the
   custodian prescribes, copy or duplicate
   any materials. .

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Finally, the register of deeds
is authorized to furnish

   any applicant a certified copy of a
   record . . . . of any birth, fetal
   death, death, marriage or divorce.

Section 69.23(1), Stats.

He is also required to furnish a certified
copy of any record in his office to "any
person, on demand and payment of the legal
fees therefor . . . ."

Section 59.51(8), Stats. Section 889.18(3),
Stats., provides for a forfeiture for any
officer who unreasonably refuses to furnish
a certified copy of a record when tendered
the legal fee therefor.

Clearly, certificates of marriages, fetal
deaths, and births, except certificates of
illegitimate births (see Section 69.30(1),
Stats.), are subject to inspection and
copying by any person.

The general rule of full inspection is
qualified only where there are specific
statutory restrictions to the contrary,
or where the custodian states specific,
sufficient reasons for denial of disclosure.

The custodian may impose reasonable
rules and regulations on the
examination and copying of records.

See 58 OAG 67 (1969).

Section 69.05, Stats., provides that the
state registrar shall prepare forms of
certificate of births, fetal deaths and
marriages, among others.

State of Wisconsin Form VS-20,
the marriage certificate, asks for the
following information under the section
headed "Confidential Information": color
(race); number of this marriage; whether the
last marriage ended by death, divorce, or
annulment; date last marriage ended; usual
occupation; kind of business or industry;
and information as to service in the
U.S. Armed Forces.

There is no statute making such information
confidential and it is questionable whether
a pledge of confidence would have to be
used to secure any of it.

All items, with the exception of information
as to prior service in the U.S. Armed Forces,
are required by Section 245.18, Stats.,
which governs the contents of
marriage certificates.

It is my opinion that the register of deeds
could not limit inspection or copying of that
portion of the certificate unless some other
special circumstance existed which would
constitute sufficient reason in a given case.

Section 69.34(1), Stats., provides that

the certificate of fetal death shall
contain such items as the department
of health and social services
determines are necessary . .

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The portion of the fetal death certificate
which is headed "CONFIDENTIAL" calls for
information on race, education of mother
and father, previous deliveries, number
born dead, number living, prenatal visits,
whether birth was legitimate, birth weight,
injuries to fetus, congenital malformations
or anomalies of fetus, type of delivery and
instruments and surgical procedures used,
complications related to pregnancy,
complications not related to pregnancy,
and complications of labor.

There is no statute making such information
confidential, except in the case of an
illegitimate birth, where the whole
certificate is confidential.

Section 69.30(1), Stats.

That section provides that all certificate of
illegitimate births shall be kept in a
separate file and are subject to public
inspection only on court order.

Information concerning congenital
malformations is not necessarily
confidential, though it is subject
to limited privilege.

Section 69.32(1), Stats., requires a
physician, midwife, parent, guardian or other
responsible person to make a separate report
to the department explaining the nature of
congenital deformities.

Such report is in addition to any notice
required in a birth certificate.

Section 69.32(2), Stats., provides:

The reports, notices or explanations of
all cases of congenital deformity or
physical defect provided for by this
section shall be treated as confidential
to the extent that the name or address
of the deformed or defective person
shall not be published by any newspaper,
magazine or other paper or publication
of general or special circulation.

I am not aware of any reason why data
regarding race, education of the parents,
birth weight, previous deliveries, number
living and born dead are confidential.

It is questionable whether a pledge of
confidence is necessary to secure the
information as it is required by a form
promulgated pursuant to statute.

While medical, personal and social histories
are involved, such information can, in the
usual case, be withheld only if disclosure
would unduly damage reputations.

State ex rel. Youmans v. Owens, supra.

The possibility of some damage to reputations
or mere embarrassment would not justify
withholding the information.

BCL:RJV

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