OPINION NO. OAG 9-83,

Wisconsin Attorney General Opinions

1 March 1983

Public Records;

The custodian of public records may not
require that a requester for copies of
records pay the cost of unrequested
certification.

The custodian may furnish copies of records
rather than allow the requester the use
of the custodian's copying equipment.

Unless a fee for copies of records is
established by state law, a custodian
may not charge more than the actual
and direct cost of reproduction.

JERILYN KOLBA,
Register of Deeds Juneau County

You have asked several questions concerning
the law of public records, chapter 335,
Laws of 1981, which took effect on
January 1, 1983.

The answer to most of your questions can be
provided by referring to section 19.35(1)(b),
Stats., which reads:

     Except as otherwise provided by law, any
     requester has a right to inspect a
     record and to make or receive a copy of
     a record which appears in written form.

     If a requester requests a copy of the
     record, the authority having custody of
     the record may, at its option, permit
     the requester to photocopy the record
     or provide the requester with a copy
     substantially as readable as the
     original.

Your first question reads:

1.   office policy has always been that if a
     person wants a copy of a document of
     record in this office, that we make them
     a certified copy charging the fee as
     prescribed in Sec. 59.57(4) and
     409.407(2)(b).

     We have never made uncertified copies
     of a document of record.

     We have an old DA opinion which says we
     do not have to make uncertified copies.

     Can we now be forced to make an
     uncertified copy?

 

72 OAG 36  37  38  39

A requester for copies of public records is
not required to pay for certified copies if
certification is not requested because the
law clearly allows inspection and obtaining
copies without paying for certification.

Thus, if a requester merely asks for copies
of records in your possession, you are
required, at your option, either to
furnish copies or allow the
requester to photocopy them.

By reason of section 19.35(3)(a), [1] where
a copy is requested, the fees allowable under
section 59.57(4) would be the referenced fees
stated in section 59.57(1) without the
separately stated certificate fee
established in section 59.57(4).

The fee for supplying the certified statement
of data from records of financing statements
pursuant to section 409.407(2)(b) is

     $3 if the request for the certificate is
     in the standard form prescribed by the
     secretary of state and otherwise shall
     be $4, plus $1 for each financing
     statement and for each statement
     of assignment reported therein.

The last sentence of
section 409.407(2)(b) reads:

     Upon request the filing officer shall
     furnish a certified copy of any filed
     financing statement or statement of
     assignment for a uniform fee of $1
     for each page of the copied statement
     plus 50 cents for the certificate."

If the requester asks for certified copies,
the plain language of the statute controls.

If the requester merely asks for copies
without certification, the filing officer
must furnish the copies, if reproducing
facilities are available, under the
provisions of section 19.35(1)(b),
quoted above.

It is my opinion, however, that the
Legislature has, by the language
just quoted from section 409.407(2)(b),
established the fee for such copy at

"$1 for each page of a copied statement..."

Your second question reads:

2.   For the safety and integrity of our
     record, no one is allowed to remove
     pages from a book, or take microfilm
     or commercial code documents from the
     file for the purpose of making their
     own copies.

     Can we keep them from using the record
     themselves  for the purpose of making
     copies and avoiding the certified
     copy charge?

 

72 OAG 36  37  38  39

Under the statutory language quoted above,
you, as custodian, may at your option

   permit the requester to photocopy
   the record or provide the requester
   with a copy substantially as readable
   as the original.

Nevertheless, you may not prohibit a
requester from copying records if the only
reason therefor is to require the requester
to pay the fee for certifying copies.

Your third question reads:

3.   This office has a Xerox copier and
     Microfilm printer which is run
     exclusively by the personnal [sic]
     of this office.

     This has always been the practice
     and insures that the machines are
     always in working order for us.

     Can we refuse to let the
     public use these machines?

Section 19.35(2) provides:

     The authority shall provide any person
     who is authorized to inspect or copy a
     record under subsection 19.35(1)(a), (b)
     or (f) with facilities comparable to
     those used by its employes to inspect,
     copy and abstract the record during
     established office hours.

     An authority is not required by this
     subsection to purchase or lease
     photocopying, duplicating,
     photographic or other equipment or to
     provide a separate room for the
     inspection, copying or abstracting of
     records.

Section 19.35(1)(b) gives the custodian the
option to either permit the requester to
photocopy records or to receive copies.

If the custodian exercises the option to
furnish copies rather than to allow the
requester to copy, the custodian need not
authorize the requester copying facilities
as provided in section 19.35(2).

Thus, you may refuse to allow the public to
use your reproducing facilities if you opt
to provide requested copies reproduced
through other means.

The custodian cannot refuse a requester
the right to inspect the actual record.

A requester must be permitted to use
facilities and equipment comparable
to those used by employes of the
authority to inspect such records.

Your last question reads:

4.   Our County Board has established a fee
     for copies (of other than documents of
     record) which are made on our copy
     machine which some may consider
     in excess of the actual, necessary
     and direct cost of reproduction
     (Section 19.35(3)(a)). Can they insist
     upon getting the copies for less?

 

72 OAG 36  37  38  39

Section 19.35(3)(a) provides:

     An authority may impose a fee upon the
     requester of a copy of a record which
     may not exceed the actual, necessary
     and direct cost of reproduction and
     transcription of the record, unless
     a fee is otherwise specifically
     established or authorized to be
     established by law.

The answer to your final question is that,
under the statutory provision just cited,
fees for furnishing copies may not exceed
the "actual, necessary and direct cost" of
providing copies unless a fee is otherwise
specifically established by law as, for
example, in the discussion of your question
numbered 1. Section 19.37(4) provides for a
substantial forfeiture against any authority
or legal custodian who arbitrarily and
capriciously denies or delays response to a
request or charges excessive fees.

The law relating to the right of the public
to inspect and copy or receive copies of
public records springs from the concept that
public records belong to the public.

Chapter 335, Laws of 1981, essentially
codifies this right.

The custodian's duty is to insure that public
records are maintained and available for
inspection. It is from this duty that the
custodian's duty to protect the integrity of
public records flows. Thus, the law provides
that the authority may adopt such rules and
procedures as will insure the integrity and
safety of the records in his or her custody.

BCL:WHW

[1]

Section 19.35(3)(a) provides:

An authority may impose a fee upon the
requester of a copy of a record which
may not exceed the actual, necessary
and direct cost of reproduction and
transcription of the record, unless
a fee is otherwise specifically
established or authorized to be
established by law.
 

72 OAG 36  37  38  39