OPINION NO. OAG 94-79,

Wisconsin Attorney General Opinions

19 October 1979

Clerk of Courts;
Courts; Public Records;

After a transcript of court proceedings is
filed with the clerk of court, any person
may, pursuant to Sections 19.21(2) and
59.14(1), Stats., examine or copy
such transcript.

MATTHEW F. ANICH,
District Attorney Ashland County

You have asked for assistance in resolving
the issue of whether transcripts of court
proceedings which have been filed with the
clerk of court may be photocopied by
individuals at their expense or whether such
individuals must request the court reporter
to provide a copy at the statutorily
prescribed fee.

Apparently the clerk of court and the court
reporter view Sections 19.21 and 59.14,
Stats., in conflict with
Section 757.57(5), Stats.

 

68 OAG 313  314  315  316

It is my opinion that these statutes
may be read together without conflict.

Section 757.57(5), Stats., relates to an
initial request from a party that the court
reporter's notes be transcribed.

Even though the notes are not the property of
the reporter but rather are the property of
the court, the statute provides for a
specific amount of compensation to the
court reporter for transcribing the notes.

At any time a party requests that the court
reporter make original or copy transcripts
and certify their correctness, the court
reporter is entitled to the stated fee.

Section 757.57(5), Stats., is limited to the
plain meaning of the words of the statute.

The subject matter is requests from a

     party to an action or proceeding" for
     a "typewritten transcript . . . and .
     . . copies . . . of the testimony and
     proceedings reported by him or her in
     the action or proceeding."

There can be no doubt that this section
concerns a party requesting the initial
transcription of the court reporter notes.

The statute provides for compensation in this
situation, and it is only when the statute
specifically or by some general provision
allows compensation that a court reporter
may claim it.

8 Op. Att'y Gen. 2 (1919).

Once the court reporter makes the transcript
and files it with the clerk of court it
falls within the provisions of
Sections 19.21 and 59.14, Stats.

The court reporter does not retain a
proprietary interest in either the original
notes, 31 Op. Att'y Gen. 219(1942), or the
typewritten transcript the reporter has made.

You state:

     The Court Reporter takes the position
     that a person desiring a copy of a
     transcript is required to notify
     the Court Reporter for a copy since the
     Court Reporter has a proprietary
     interest in the typewritten
     transcript the reporter has made.

     Otherwise, the reporter argues, an
     individual could photocopy the original
     typewritten transcript the Court
     Reporter makes and thereafter sell
     copies of it for a profit bypassing
     the reporter that did the work.

If the reporter is attempting to establish
some form of quasi-copyright protection,
he is in error.

A person who copies or takes down and
transcribes dictation is not an author.

Since the transcripts do not contain a
distinctive individuality of the court
reporter's mind, the transcripts and the
reporter enjoy no copyright protection.

18 Am. Jur. 2d
Copyrights and Literacy Property Section 37.

 

68 OAG 313  314  315  316

It is my opinion that the controlling
statute is Section 19.21, Stats.,
which states, in part:

19.21     CUSTODY AND DELIVERY OF OFFICIAL
          PROPERTY AND RECORDS.

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 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(2)  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
          mentioned in Subsection 19.21(1).

          Any person may, at his own expense
          and under such reasonable
          regulations as the custodian
          prescribes, copy or duplicate any
          materials, including but not
          limited to blueprints, slides,
          photographs and drawings.

          Duplication of university expansion
          materials may be performed away
          from the office of the
          custodian if necessary.

When this is read in conjunction with Section
59.14(1), Stats., which states that the clerk
of circuit court shall open to the
examination of any person all books and
papers required to be kept in his office and
permit any person to make notes and copies,
it is clear that the Legislature intended
that such material be available for copying.

57 Op. Att'y Gen. 138 (1968)
and
59 Op. Att'y Gen. 144 (1970)

previously addressed the legislative mandate
of Section 19.21(2), Stats., and stated that
any member of the public, regardless of
motive, must be allowed access for
examination and copying of typed
material within Section 19.21,
Stats., at his own expense.

I do not think that one can argue that the
intent of Section 757.57(5), Stats., was to
prevent the creation or existence of
noncertified transcripts via photocopying
the court's files.

I say this because the original transcript is
certified by the court reporter and any
person may, upon tendering the legal fee,
require the clerk of court to furnish
certified copies of the original
transcript pursuant to Section 889.18(3),
Stats. 60 Op. Att'y Gen. 470 (1971).

 

68 OAG 313  314  315  316

As my predecessor stated in that opinion,
the legislative intent is heavily weighed in
favor of permitting access; Section 19.21(4),
Stats. provides a penalty for unreasonable
denial of such examination and copying; and
Section 889.18(3), Stats., provides an
additional forfeiture for an unreasonable
refusal to make copies.

This is a clear indication that, in
Wisconsin, official records, including
transcripts produced by court reporters, are
open to public inspection and copying.

BCL:SDE
 

68 OAG 313  314  315  316