67 Op. Att'y Gen. 130 (1978)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 31-78

28 April 1978.

County Court;
Incompetents;
Public Records;

Register In Probate, Section 880.33(6),
Stats., requires closing only of documents
filed with the register in probate with
respect to Chapter 880 proceedings while
Section 55.06(17). Stats., requires the
closing of all records filed with respect to
Chapter 55 proceedings including index,
docket and files maintained by the register
in probate.

ROBERT P. RUSSELL.,
Corporation County Milwaukee County

You have asked my opinion as to what records
maintained in the office of the register in
probate are closed to public inspection by
virtue of Sections 880.33(6) and 55.06(17).
Stats., as amended by Chapter 393,
Laws of 1975.

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For the reasons given below, Section
880.33(6) closes access by the public only to
records containing actual documents filed
with respect to Chapter 880 proceedings.

Section 55.06(17) requires closing of public
access to all records including index, docket
and documents filed with respect to Chapter
55 proceedings.

I. Section 880.33(6), Stats.

In general, Chapter 880 provides for the
possible appointment of a guardian for
minors, incompetents and spendthrifts upon
the filing of a petition and a court hearing.
Section 880.33(6), Stats., provides:

All court records pertinent to the
finding of incompetency are closed
but subject to access as provided
in Section 55.06(17)."

Different counties in the state may have
slightly different methods of maintaining
court records of proceedings pursuant to
Chapter 880.

However, pursuant to Section 253.32, Stats.,
such records generally include:

(1) an alphabetical index
    of names of proposed wards,

(2) a docket containing a list of
    all documents filed with the
    register of probate and

(3) a file containing the
    documents themselves.

In my opinion, only the file containing the
documents themselves are "records pertinent
to the finding of incompetency."

Only the documents themselves provide
information which the court uses to find that
an individual is "substantially incapable of
managing his property or caring for himself
by reason of infirmities of aging,
developmental disabilities, or other like
incapacities" (Section 880.01 (4), Stats.).
The index and docket are not pertinent
to the court's consideration.

I believe such a strict interpretation of
Section 880.33, Stats., is consistent with
the public policy expressed in Section 19.21,
et seq., Stats., as described in

Beckon v. Emery,
36 Wis.2d 510, 518,
153 N.W.2d 501 (1967):

   . . there is an absolute right to
   inspect a public document in the absence
   of specifically stated sufficient
   reasons to the contrary. . .

II. Section 55.06(17), Stats.

In general Chapter 55, Stats., provides for
protective service for those who because of
the infirmities of age, mental retardation
or other developmental disabilities or
like incapacities are impaired in their
ability to adequately provide for
their own care or custody.

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Such protective service may include protetive
placement which is accomplished pursuant to
Section 55.06, Stats.

In pertinent part, Section 55.06 provides:

55.06(1)

   . . . No protective placement may be
   ordered unless there is a determination
   of incompetency in accordance with
   Chapter 880, except in the case of a
   minor who is alleged to be
   developmentally disabled, and there is a
   finding of a need for protective
   placement in accordance with
   Subsection 55.06(2) . . .

55.06(2)

The department, an agency, a guardian or
any interested person may petition the
county court to provide protective
placement for an individual who:

   In common practice, findings of
   incompetency under Chapter 880 and a
   need for protective placement under
   Section 55.06, Stats., are made
   at one court hearing.

Finally Section 55.06(17), Stats., provides:

Any records of the department, court or
other agency pertaining to a person who
is protected under this chapter or for
whom application has ever been made for
such protection are not open to public
inspection. Information contained in
such records may not be disclosed
publicly in such a manner as to identify
individuals, but the record shall be
available on application for cause to
persons approved by the court or at the
request of a guardian, ward or attorney
of a ward.

Reports under Subsection 55.06(8)(C)
shall be provided to the guardian or
proposed ward, the guardian ad litem and
the attorney of a ward upon request.

The language used in Section 55.06(17)
is different than that used in
Section 880.33(6).

Section 55.06(17) forbids the
disclosure of any record

pertaining to a person who is protected
under this chapter or for whom
application has ever been made
for such protection

By contrast, Section 880.33(6), Stats.,
forbids disclosure of records pertinent
to the finding of incompetency.

In my opinion Section 55.06(17), Stats.,
requires the closing of all three types
of records outlined above: the index,
the docket and the documents file.

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All three pertain to the individual by
identifying him in the index, by listing
documents filed with reference to the court's
determination of his needs and dates of court
action and by preserving the documents filed
with respect to his hearing.

Although I have opined that the index and
docket of hearings conducted pursuant to
Chapter 880 may be open to the public, if
such records also include information
pertaining to hearings conducted
pursuant to Chapter 55, the index
and docket must then be closed.

In
State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681,
137 N.W.2d 470 (1965),
the court commented on the public's right to
open records as reflected in common law:

   . . the right to inspect public
   documents and records at common
   law is not absolute.

   There may be situations where the harm
   done to the public interest may outweigh
   the right of a member of the public to
   have access to particular public records
   or documents.

   Thus, the one must be balanced against
   the other in determining whether to
   permit inspection. . . .

It is my opinion that the Legislature has
balanced these interests and, in closing
all court records, has given more weight
to the interest of the individual
protected under Chapter 55 than
to the interest of the public.

III.

Date of effectiveness of Sections 880.33(6)
and 55.06(17), Stats.

The general rule of statutory construction
with respect to the retroactive or
prospective operation of statutes was stated

in

Swanke v. Oneida County,
265 Wis. 92, 99,
60 N.W.2d 756, 62 N.W.2d 7 (1953):

   . . a law will not be construed as
   retroactive unless the act clearly, by
   express language or necessary
   implication, indicates that the
   legislature intended a retroactive
   application.

   The rule is the converse of the
   general principle that statute
   are to operate prospectively . .

Section 55.06(17), Stats.,
provides for the closing of:

   Any records of the department, court or
   other agency pertaining to a person who
   is protected under this chapter or for
   whom application has ever been made
   for such protection . . . .

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In my opinion, the reference to persons
for whom application has ever been made
is express language indicating a legislative
intent that the statute be given retroactive
effect to the effective date of Chapter 284,
Laws of 1973, which created Chapter 55,
Protective Services.

Section 880.33(6), Stats., contains no such
similar language. Therefore, it is my opinion
that Section 880.33(6) should be given
prospective effect only.

Changes in recording required by this section
need only be made with respect to proceedings
commenced on or after June 9, 1976.

I am troubled by the practical effect of this
opinion on bondsmen and title examiners for
abstract and title insurance companies.

While the conclusion stated seems
inescapable, the harsh result on bondsmen and
title examiners who need access to the index
and docket of Chapter 55 proceedings could
be alleviated by having the court give
blanket approval under Section 55.06(17),
Stats., to title examiners and bondsmen.

The clerks of court could be instructed to
treat requests for access by these persons as
"applications for cause."

I would hope that the Legislature would
reconsider both Section 880.33(6) and
Section 55.06(17) at the next opportunity.

BCL:WHW

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