Wisconsin Attorney General Opinions

Opinion # OAG 4-84

5 January 1984

CLERK OF COURT; FEES;
PUBLIC RECORDS; REGISTER IN PROBATE;
The alphabetical index which the register in
probate must maintain pursuant to Section
851.72(5) is not a court record and thus
is open to public access under
Sections 59.14(1) and 19.31.

The index may not, however, contain results
of proceedings under chapters 55 and 880.

The $4.00 search fee of Section 814.66(1)(j)
applies only when a person fails to furnish
the docket or file number or when a search
is conducted to ascertain the existence
or non-existence of a record.

The charge for a one page certified copy from
the register in probate or clerk of court is
comprised of an initial $3.00 certifying fee
and a $1.00 per page fee and is thus $4.00.

DAVID H. RAIHLE,
Corporation Counsel Chippewa County

You have asked several questions relating to
access to certain public records and the
fees which the register in probate and
the clerk of court may charge for
providing such access.

Your first question concerns the alphabetical
index of court records which the register in
probate is required to maintain pursuant to
Section 851.72(5), Stats.

You indicate that this index "contains
matters that are closed by the restrictions
of 880.33(6) and Chapter 55."

I have been informed that currently in
Chippewa County a single unified index
includes probate records, the names of
people who have been placed under
protective services and the names
of people who have been
found incompetent.

Specifically you ask: "Pursuant to the open
records law, does the public have access
to the alphabetical index which
contains closed matters?"

In my opinion, the public should have access
to the alphabetical index which the register
in probate is required to maintain pursuant
to Section 851.72.

Those matters which are not accessible by the
public because of Sections 55.06(17)(a) and
880.33(6) should not be maintained in the
alphabetical index.

Section 59.14(1) provides that the register
in probate must allow public inspection of
all books and papers which are required
to be maintained in that office.

73 OAG 16  17  18  19  20  END

This Section grants "an absolute right of
inspection subject only to reasonable
administrative regulations . . "

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 553,
334 N.W.2d 252 (1983).

The court in Bilder recognized an
exception to this rule where there
is a countervailing statute.

Sections 55.06(17)(a) and 880.33(6), however,
are not countervailing statutes because they
provide exceptions for court records but not
for indices to court records.

The alphabetical index which the register in
probate is required to maintain pursuant
to Section 851.72(5) must therefore
be accessible.

Similarly, the Wisconsin public
records law declares a

   "presumption of complete
    public access . . . ."

Section 19.31, Stats.

The Legislature has recognized as a matter of
public policy that there are areas where
countervailing interests override the public
interest in access to public records.

Sections 55.06(17)(a) and 880.33(6), however,
once again only restrict access to the court
records and not to the index to the court
records.

Chapter 55 provides for protective services
for people in need of such services such as
the developmentally disabled, the chronically
mentally ill and the mentally retarded.

Section 55.06(17)(a) provides: "Any records
of the court pertaining to protective
services or placement proceedings . .
are not open to public inspection . ."

The statute provides exceptions for the
subject of the proceedings, for the subject's
guardian, attorney and guardian ad litem,
and for other persons with the consent
of the subject or by court order.

Section 880.33 describes the procedures to be
used in determining incompetency. Section
880.33(6) provides: "All court records
pertinent to the finding of incompetency
are closed but subject to access as
provided in Section 55.06(17).

The fact that a person has been found
incompetent is accessible to any person who
demonstrates to the custodian of the records
a need for that information."

The alphabetical index required by Section
851.72(5) is not a court record.

Section 851.72(5) requires that the register
in probate "keep an alphabetical index to
the court record and the file containing
the original documents or microfilm
copies thereof."

Because the index is not a part of the court
record, Sections 55.06(17)(a) and 880.33(6)
do not prevent public access to the
alphabetical index.

The alphabetical index should not, however,
disclose the results of incompetency or
protective services proceedings.

73 OAG 16  17  18  19  20  END

The alphabetical index can only inform the
user where such information is located.

My answer is guided by a previous opinion and
the legislative history of the statutes
following that opinion.

In 1978 I stated that under the former public
records law, Section 19.21, et. seq., and
under former Section 880.33(6), an
alphabetical index of names of proposed wards
and a docket containing a list of all
documents filed with the register of probate
in Milwaukee County were open to public
inspection because they were not court
records pertinent to the finding of
incompetency.

67 Op. Att'y Gen. 130 (1978).

In contrast, I said that under the former
Section 55.06(17) there could be no public
access to an index of persons placed under
protective services because the statute at
that time forbad disclosure of "any records
of the department, court, or other agency
pertaining to a person who is protected
under this chapter . . . ."

The Legislature responded by adding the
second sentence of Section 880.33(6)
and by amending Section 55.06(17).

Chapter 379, Laws of 1981.

By amending Section 880.33(6), the
Legislature allowed limited access
to the fact that a person had been
found incompetent to those people
who showed a need for the information.

The alphabetical index, therefore,
should not disclose the results
of an incompetency proceeding.

A person desiring this information must
demonstrate a need for the information.

The change in Section 55.06(17)(a) has
broadened access for records under
the protective service system.

The Section now only bars access to "court
records pertaining to protective services or
placement proceedings" rather than to "any
records of the department, court or agency
pertaining to a person who is protected..."

The index to these records is thus no
longer protected from public access.

The alphabetical index which the register in
probate must maintain pursuant to Section
851.72(5) is therefore not a court record
and is thus open to public access under
Sections 59.14(1) and 19.31.

The index may not however contain results of
proceedings held under chapters 55 and 880.

The most a person searching the index would
be able to determine is that such a
proceeding occurred.

He or she can then find out further
information only if he or she fits under an
exception listed in Section 55.06(17) or by
demonstrating a need for that information
under Section 880.33(6).

73 OAG 16  17  18  19  20  END

Your second question asks: "If the public has
no access to the alphabetical index and the
Register in Probate locates the case number
for a party, does the search fee provided by
Wis. Stat. 814.66(1)(j) of $4.00 apply?"

In my opinion, the search fee does not apply.

As discussed above, the public has complete
access to the alphabetical index by virtue
of Sections 59.14(1) and 19.31.

The fee imposed by Section 814.66(1)(j) is
applicable only when a person fails to
furnish the docket or file number or when a
search is conducted to ascertain the
existence or non-existence of a record.

Your third and fourth questions concern the
application of Sections 814.66(1)(g) and (h)
and 814.61(5)(a) and (10), which provide fees
to be charged by the register in probate and
the clerk of court respectively for issuing
certificates and for providing copies.

Specifically you ask:

When a party secures a certified copy
from the Register in Probate of a court
record, should the Register charge $3.00
for certifying and the $1.00 for either
comparing or copying? In effect, is the
cost of one certified page $4.00?. . .

When the Clerk certifies a copy, should
she charge the $3.00 under (5)(a), $1.00
under (10), or the combination of the
two for a total charge of $4.00
per copy?

In my opinion, the cost of a one page
certified copy in both situations is $4.00.

Section 814.66(1)(g) provides that the
register in probate shall collect $3.00
for each certificate issued.

This fee is an initial fee for
certifying the document.

Section 814.66(1)(h) imposes an additional
$1.00 per page charge for "copies,
certified or otherwise."

The fee for a one page certified copy would
thus be $4.00 and the fee for a two page
certified copy would be $5.00.

Similarly, Section 814.61(5)(a) provides that
the clerk of court shall collect a fee of
$3.00 for issuing certificates.

This fee is the initial fee for
certifying the document.

Section 814.61(10) provides that the clerk
shall collect a $1.00 per page fee "for
copies, certified or otherwise . ."

As in Section 814.66, the $1.00 per page
charge is added to the initial $3.00
certifying fee.

73 OAG 16  17  18  19  20  END

Thus, the fee for a one page certified copy
is once again $4.00 and for a two page
certified copy is once again $5.00.

BCL:WHW

 

73 OAG 16  17  18  19  20  END