78 Op. Att'y Gen. 232 (1989)
 
79 OAG 232   233   234   235   236

Wisconsin Attorney General Opinions

Opinion # OAG 40-89,

14 November 1989

Banks And Banking;
Public Records;
Vital Statistics;
A bank, its employes and agents violate
Section 69.24(1)(a), Stats., when copying
a certified copy of a vital record for
use by the Federal Reserve Bank.

TOBY E SHERRY, Commissioner
Office of Commissioner of Banking

You ask whether a bank violates Section
69.24(1)(a), Stats., by photocopying a
certified copy of a vital record for
use by the Federal Reserve Bank.

Apparently the Federal Reserve Bank of
Chicago recently modified its guidelines
for processing all savings bond reissue
transactions for seventh district
institutions.

If a party desires to redeem or reissue
savings bonds after the death of a person,
the party must provide a certified copy of
the death certificate to the bank.

The bank then will copy the death certificate
and give the original back to that customer.

While at the same time attesting that they
saw a certified copy of the vital record,
the bank then sends the uncertified copy
to the Federal Reserve Bank who then
will pay the bank.

Recent legislation has rendered moot the
earlier opinion in 46 Op. Att'y Gen. 276
(1957) to which you refer in your letter.

Section 69.24(1)(a) was repealed and
recreated with the rest of Subchapter I of
Chapter 69 under 1985 Wisconsin Act 315 and
originally provided:
Any person who does any of the following
shall be fined not more than $10,000 or
imprisoned not more than 2 years or both:

(a) Prepares or issues any paper or film
which purports to be, or carries the
appearance of, an original or a copy of
a vital record, certified or
uncertified, except as provided under
this Subchapter and except for any
hospital which issues any written
announcement of the birth of a person
tothe parents of the person if the
announcement contains plain notice
that the announcement is not
for official use.

 
79 OAG 232   233   234   235   236

Section 69.24(1)(a) was enacted in apparent
response to a substantial increase in the
practice of obtaining and using false
identification documents by manipulating
the existing system.

For example, it was easy for a person to
procure a photocopy of a birth certificate
from a source other than those discussed
in Chapter 69.

This certificate, which might be accurate or
already altered, could be altered to provide
a new identity or other erroneous
identifying information.

The presence of a seal on the altered
document gave it the appearance of a
legitimate certificate.

The Legislature obviously determined that
this evil and its consequences could only
be prevented by a strict measure which
makes copying per se a criminal violation
unless done under the authority of
Subchapter I of Chapter 69.

The language of this statute as originally
enacted is clear and unambiguous and,
therefore, there is no need to resort to
rules of construction or legislative history.

State v. Gilbert,
115 Wis.2d 371, 377,
340 N.W.2d 511 (1983);

In re Estate of Bundy,
81 Wis.2d 32, 40,
259 N.W.2d 701 (1977).

Among other things, it prohibits the
duplication of birth and death certificates
as vital records unless the authority for
duplication and method of duplication are
provided for elsewhere under Subchapter I of
Chapter 69.

Banks and their employes are not among
those authorized by Subchapter I
to duplicate vital records.

With the enactment of 1987 Wisconsin Act 247,
effective April 21, 1988, another exception
was added to the prohibition under Section
69.24(1)(a) for vital records prepared or
issued under Section 610.50. Section 610.50
now provides:

An insurer or an employe, agent or attorney
of an insurer is not subject to Section
69.24(1)(a) for copying a certified copy of a
vital record for the insurer's own internal
administrative use in connection with the
payment of insurance claims or benefits if
the copy is marked "FOR ADMINISTRATIVE USE"
and is retained in the files of
the insurer or attorney.

 
79 OAG 232   233   234   235   236

In addition to an exception created under
state law, a person or entity can benefit
from a broader exemption under federal law.

For example, employers are required to verify
that an individual is not an unauthorized
alien by examining documents establishing
both employment authorization and identity of
the individual including, among other things,
some form of birth record.

8 U.S.C.A. Section 1324a(b)(1)
(West Supp. 1989).

Subparagraph (b)(4) of this Section provides
that "[n]otwithstanding any other provision
of law, the person or entity may copy a
document presented by an individual pursuant
to this subsection and may retain the copy,
but only (except as otherwise permitted under
law) for the purpose of complying with the
requirements of this subsection."

At present I know of no similar exception
under the federal banking laws which would
supersede the prohibition in Section
69.24(1)(a) under the Supremacy Clause
of the United States Constitution.

Although the state statute itself could be
amended to exempt banks and their employes
and agents as was accomplished for insurers,
my position on the current law is consistent
with the interpretation placed upon these
relatively new provisions by the state
registrar and the vital records personnel
within the Department of Health and Social
Services.

When the Legislature empowers an agency to
apply and enforce a statute, the agency's
interpretation of the statute is entitled to
great weight and a rational basis will
sustain its interpretation.

School Dist. of Drummond v. WERC,
121 Wis.2d 126, 133,
358 N.W.2d 285 (1984).

In addition to the clear and unambiguous
language creating the prohibition, neither
the agency nor I can find any federal or
state law exempting banks, their
employes or agents.

The Federal Reserve Bank guidelines are
published by the Bureau of the Public Debt
in a fiscal manual which apparently has no
special force of law.

As there is no special mention or treatment
of these guidelines in any federal banking
legislation or regulations, they are at most
interpretive rules which do not operate to
preempt state law.

See State v. Amoco Oil Co.,

 
79 OAG 232   233   234   235   236

97 Wis.2d 226, 250, 293 N.W.2d 487 (1980).

The very context in which the word
"guidelines" is used in the materials
accompanying your letter further indicates
to me that these guidelines have no special
or preemptive effect.

It should be noted that later subparagraphs
under Section 69.24(1) require a showing of
criminal intent, an element which is assumed
under subparagraph (1)(a).

Unless a person violated some later
subparagraph, I see no reason why the
certified copy could not be used during the
entire process described in your recent
letter.

At present the fee collected by the state
registrar or any local registrar for one
certified copy of a death certificate is $5,
but an additional certified copy of the same
death certificate can be issued at the same
time for only $2. Sec. 69.22(1)(a), Stats.

Although a prompt legislative change could
permit Wisconsin banks to follow the Federal
Reserve Bank guidelines, the Detroit branch
of the Federal Reserve Bank of Chicago has
provided a temporary solution for
Wisconsin banks.

When some Wisconsin banks discovered this
statutory prohibition against copying certain
records, those banks began sending the
originals to the Detroit branch with a
request that they be copied there and
returned.

Instead of engaging in this activity which
would have been illegal in Wisconsin, the
Detroit bank created a special exception for
Wisconsin banks whereby they now send the
original document to the Detroit branch
rather than a photocopy.

The underlying concern for costs incurred by
the bank customers still exists, however,
because under this special exception the
Detroit branch now retains the original.

DJH:DPJ

 
79 OAG 232   233   234   235   236