OPINION NO. OAG 50-81,

Wisconsin Attorney General Opinions

2 October 1981

Counties;
Public Records;

A county with a population under 500,000 may,
by ordinance enacted pursuant to Section
19.21(6), Stats., provide for the destruction
of obsolete case records maintained by the
county social services agency pursuant to
Section 48.59(1), Stats.

KENNETH J. BUKOWSKI, Corporation Counsel
Brown County

You ask when a county with a population under
500,000 may destroy case records maintained
by the county social services agency pursuant
to Section 48.59(1), Stats.

It is my opinion that a county with a
population of under 500,000 may provide for
the destruction of such records by enacting
an ordinance pursuant to Section 19.21(6),
Stats.

Section 48.59(1), Stats., provides, in part:

     The county agency shall keep a complete
     record of the information received from
     the court, the date of reception, all
     available data on the personal and
     family history of the child, the results
     of all tests and examinations given the
     child and a complete history of all
     placements of the child while in the
     legal custody of the county agency.

The general rule is that public records
may not be destroyed without express
legislative authority.

46 Op. Att'y Gen. 8 (1957);
38 Op. Att'y Gen. 22 (1949);
37 Op. Att'y Gen. 330 (1948).

Sections 19.21(6), 59.715 and 889.30, Stats.,
all contain express legislative authority
for counties to destroy certain kinds of
documents.

Section 59.715, Stats., lists approximately
twenty-two categories of records which
may be destroyed upon compliance
with certain conditions.

Since records maintained under the provisions
of Section 48.59(1), Stats., do not fit
within any of these categories, neither
Section 59.715, Stats., nor Section 889.30,
Stats., permit the destruction of original
case records concerning children.

 

70 OAG 196  197  198

Specific legislative authority to destroy
these records is, however, contained in
Section 19.21(6), Stats., which provides:

     Any county having a population of
     500,000 or more may provide by ordinance
     for the destruction of obsolete public
     records without regard to Sections
     59.715 to 59.717 and may undertake a
     management of records service and any
     other county may so provide subject to
     Sections 59.715 to 59.717.

     The period of time any public record
     shall be kept before destruction shall
     be determined by ordinance except that
     in all counties the specific period of
     time expressed within Section 59.715
     shall apply.

     Prior to any destruction of records
     under this subsection, except those
     specified within Section 59.715, at
     least 60 days' notice of such
     destruction shall be given in writing,
     to the historical society, which may
     preserve any records it determines to be
     of historical interest.

     Notice is not required for any records
     for which destruction has previously
     been approved by the historical society
     or in which the society has
     indicated that it has no interest for
     historical purposes.

The emphasized language was derived
from 1979 Assembly Bill 114.

The following language from the Legislative
Reference Bureau's analysis of that bill
clearly indicates that the additional
statutory language authorizes counties with a
population under 500,000 to provide for the
destruction of categories of documents not
listed in Section 59.715, Stats., as long as
the criteria and procedures contained in
Sections 59.715 - 59.717, Stats., are
followed:

     Under current law, the power of towns
     and counties with a population of less
     than 500,000 to destroy obsolete public
     records is limited to certain types of
     records.

     This bill gives all counties and towns
     the power to provide by ordinance for
     the destruction of obsolete public
     records.

     The period of time for retention of the
     records set forth by the ordinance must
     comply with the requirements of specific
     laws and with minimum periods fixed by
     the public records board.

1979 Assembly Bill 114, as amended, was
enacted by the Legislature as
Chapter 35, Laws of 1979.

The Legislative Reference Bureau's statements
concerning minimum requirements set by the
Public Records Board probably refer to
amendments made to Section 19.21(5)(b),
Stats., which does not apply to counties.

 

70 OAG 196  197  198

Shortly after the passage of Chapter 35, Laws
of 1979, the Legislature did, however, amend
Section 16.61(3)(e), Stats., to authorize the
Public Records Board to set minimum periods
of time for the retention of county records.

See Chapter 79, Laws of 1979.

The Public Records Board currently has no
requirements for the retention of case
records maintained pursuant to 48.59(1),
Stats.

The destruction of such records does not
appear to conflict with any provision of
Sections 59.715, 59.716 or 59.717, Stats.

Consequently, an ordinance enacted pursuant
to Section 19.21(6), Stats., could provide
for the destruction of obsolete case records
maintained by the county social services
agency, if the original records are first
offered to the state historical society
within the statutory sixty-day time frame.

In reaching the conclusion that these records
may be destroyed, I have considered the
possibility that Section 19.21(6), Stats.,
might appear to conflict with
Section 48.59(1), Stats.

But it is a cardinal rule of statutory
construction that conflicts between different
statutes, arising by implication or
otherwise, are not favored and will not be
held to exist if the statutes may otherwise
be reasonably construed.

Strong v. Milwaukee,
38 Wis.2d 564, 570,
157 N.W.2d 619 (1968)."

66 Op. Att'y Gen. 158, 159 (1977).

Section 48.59(1), Stats., merely requires
that case records be kept while they are
needed, rather than in perpetuity.

Once those records become obsolete, Section
19.21(6), Stats., permits their destruction
under an ordinance meeting the criteria of
that statute.

BCL:FTC
 
 

70 OAG 196  197  198