68 Op. Att'y Gen. 17 (1979)
 
68 OAG 17  18  19  20

OPINION NO. OAG 7-79,

Wisconsin Attorney General Opinions

2 February 1998

District Attorney;
Public Records;

District attorneys do not presently possess
legal authorization to destroy documentary
materials, made or received in connection
with the transaction of public business, and
retained by them as evidence of their
activities or functions because of the
information they contain, even though the
documents are found in closed files.

 
68 OAG 17  18  19  20

MARK A. MANGERSON,
District Attorney Oneida County

You ask whether district attorneys are
authorized by law to destroy closed files,
and, if so, whether any such authorization
is limited in terms of time and content.

A preliminary inquiry must be whether there
is some legal requirement that district
attorneys retain closed files, for, unless
there is an express obligation to preserve
them in the first place, there is no need
for an express authorization to destroy
them later.

I am unaware of any provision of law
which requires district attorneys
to retain closed files as such.

Section 19.21(1), Stats., however, requires
district attorneys, as county officers, to
preserve some papers in the nature of
public records which ordinarily
are placed in their files.

That statute directs every public officer to:

19.21(1)  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.

Although at first glance this language
appears to compel the preservation of every
item that ever comes into the possession or
control of district attorneys, as long as
their possession of it is not illegal, in my
opinion the statute should be construed more
sensibly to require only the preservation of
papers of a documentary nature, evidencing
the activities of the prosecutor's office.

Such a construction is suggested
by the carefully limited opinion
of the supreme court in

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

The court made clear that public officers
were not constrained by the preservation
statute to keep

     purely fugitive papers
     having no relation to
     the function of the office.
Id.,

251 Wis. at 370, 371.

And, while the court declined to list the
items which are required to be preserved, it
limited those things generally to papers
specifically required to be kept by public
officers, and to "written memorials" made by
public officers within their authority when
the writings "constitute a convenient,
appropriate, or customary method of
discharging the duties of the office."

Id. at 371.

 
68 OAG 17  18  19  20

Use of the word "memorials," which the
opinion's subsequent discussion shows was
informed, indicates that those papers which
are required to be preserved are ones which
were written at least in part for the purpose
of preserving remembrance or memory of what
the author had done to discharge the duties
of his office.

See generally Webster's Third New
International Dictionary, "memorial,"
Page 1409.

That same construction also is suggested
by a recent opinion of this office.

63 Op. Att'y Gen. 272, 276 (1974) indicated
that Section 19.21(1), Stats., was to be read
in pari materia with what is now Section
16.61, Stats., providing more particularly
for the preservation and destruction of the
records of state agencies and officers.

Those state records which are required to be
retained are "documentary materials" made or
received "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 they contain."

Section 16.61(2)(a), Stats.

Viewing Section 19.21(1) together with
Sections 59.715, 59.716 and 59.717, Stats.,
which expressly permit the destruction of
specified county records, further supports
the construction that I find appropriate.

In naming the records which might be
destroyed, the Legislature provided insight
into the sort of records which it had
intended county officers to preserve.

Each of the records enumerated is a
documentary memorial of some sort.

It is not practical to list all the types of
papers which district attorneys must preserve
as public records pursuant to Section
19.21(1), Stats.

As a rule of thumb, though, these include
such documents as a district attorney would
want his predecessor to have placed and
retained in a file if he were attempting
later to learn what had occurred in a case.

Examples include statements of witnesses,
reports of scientific testing, charging
documents, transcripts, motions with
supporting affidavits and legal memoranda
and written decisions of the court.

In identifying these documents as public
records I do not mean to intimate that they
necessarily are open to public inspection.
It long has been the rule that documentary
evidence in the files of a district attorney
constitutes an exception to the rule
permitting citizens to inspect papers in
the possession of public officials.

 
68 OAG 17  18  19  20

State ex rel. Lynch v. County Court,
82 Wis.2d 454, 463-468,
262 N.W.2d 773 (1978);

International Union v. Gooding,
251 Wis. at 372.

See also

Beckon v. Emery,
36 Wis.2d 510, 516,
153 N.W.2d 501 (1967);

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681,
137 N.W.2d 470 (1965).

Informal notations having particular
significance only to the person who prepares
a file need not be retained.

As was recognized in 63 Op. Att'y Gen. 272,
supra at 276, county officers have discretion
to destroy fugitive papers, scrap papers,
work sheets, preliminary drafts, surplus
copies and similar papers deemed unnecessary
to evidence the functions and activities of
their respective offices.

See also
International Union v. Gooding,
251 Wis. at 371, 372.

Regrettably, I have been unable to find any
provision of law which permits district
attorneys to destroy after a time those
papers which they initially are
required to retain.

Since the Legislature has provided for the
destruction of the records of all state
officers, Sections 16.61(4) and (5), Stats.,
of all municipal officers, Sections 19.21(5)
and (6), Stats., and of many county officers
including county courts, Sections 59.715,
59.716 and 59.717, Stats., it seems that
failure to provide for the destruction of
the records of district attorneys
is simple oversight.

Perhaps appropriate remedial legislation
paralleling Section 59.715(20), Stats.,
dealing with court records and exhibits,
could be proposed by the Wisconsin District
Attorneys Association.

Since any records which might be subject to
discovery by the defense in the event a new
trial is ordered must be preserved as public
records, there is no need to discuss further
your next question, whether a district
attorney must preserve some of his records on
the contingency that a conviction may be
reopened at some subsequent time.

BCL:TJB
 
 
68 OAG 17  18  19  20