Wisconsin Legislature: oag1-03

The contract provision employed by Barron County goes further than the foregoing alternative devices and broadly prohibits the sale or dissemination of copies except in the limited circumstances you have defined relating to preparation of title opinions. This contract provision Barron and certain other counties employ is certainly not prohibited under the broad language of Wis. Stat. § 59.43(2)(c). In addition, the authority to insist on such a provision may arguably be implied from the registers’ clear authority to require contract provisions protecting the integrity and identity of the original records. Cf. State v. P.G. Miron Construction Company, 181 Wis. 2d 1045, 1055-56, 512 N.W.2d 499 (1994) (statutory authority of state agency to enter into building contracts under Wis. Stat. § 16.85 includes implied authority to agree to arbitration provisions in such contracts).

[=OAG 1-03, 4-5] I conclude, therefore, that registers likely have implied authority to insist that contracts pursuant to Wis. Stat. § 59.43(2)(c) include provisions binding the contractor not to sell or disseminate copies of the uncertified records received under such contracts. Under the circumstances, however, I recommend that the Legislature consider clarifying the scope of registers’ contracting authority in this respect.

Although you did not initially ask what fees registers are required to charge for electronic copies of records, it is clear from subsequent correspondence from you and from other interested parties that this question also requires resolution, either by this office or through clarifying legislation. The fee question arises inevitably when a requester seeks electronic copies of records relating to real property and the requester has not entered into a contract authorized by Wis. Stat. § 59.43(2)(c) for uncertified copies of complete daily recordings.

If a requester seeks paper copies of such records without the benefit of a contract under Wis. Stat. § 59.43(2)(c), the fee provisions of Wis. Stat. § 59.43(2)(b) clearly apply. That is, the requester must pay “$2 for the first page plus $1 for each additional page.” Id. “Page” is defined in Wis. Stat. § 59.43(2)(a)1., as “one side of a single sheet of paper.” See ch. 278, sec. 2, Laws of 1967. Alternatively, if electronic copies are provided pursuant to a contract under Wis. Stat. § 59.43(2)(c), the negotiated contract rate applies. Under that provision, the contract rate may be less than the statutory fee, but in no event less than the “cost of labor and material plus a reasonable allowance for plant and depreciation of equipment used.”

When applied to electronic copies of recorded documents, however, the language of Wis. Stat. § 59.43(2)(b) becomes ambiguous. That is, reasonably well-informed persons may differ as to whether the statutory fee applies to electronic copies, or if not, whether the general limitation on copying fees contained in the public records statute, Wis. Stat. § 19.35(3)(a), applies by default.[3] The ambiguity is particularly acute because the fee provisions of Wis. Stat. § 59.43(2) are mandatory and have long been recognized as express exceptions to the significantly more limited copying charges required by Wis. Stat. § 19.35(3).

When a statute is ambiguous, statutory interpretation is required to discern the intent of the Legislature. See State v. Sweat, 208 Wis. 2d 409, 415-17, 561 N.W.2d 695 (1997). In order to ascertain legislative intent, one examines the subject matter, purpose, context, scope and history of the statute. Id. at 415. In determining the meaning of a single word or phrase, it is necessary to view the word or phrase in light of the entire statute. Id. at 416.

[=OAG 1-03, 5-6] Wisconsin Stat. § 59.43(2), as a whole plainly evidences an intent to set forth a comprehensive, mandatory fee schedule for the fees registers “shall receive.” Indeed, the subsection is entitled “REGISTER OF DEEDS; FEES.” Although the title is not part of the statute and cannot prevail over its language, the title can be a persuasive indicator of legislative intent. See Teunas, 142 Wis. 2d at 509; Pure Milk Products Coop. v. NFO, 64 Wis. 2d 241, 253, 219 N.W.2d 564 (1974). Moreover, the structure and language of the fee provisions of Wis. Stat. § 59.43(2) contain no reference to the much more restricted fee provision contained in the general public records statute.

In the context of Wis. Stat. § 59.43 as a whole, detailed page specifications are significant at the time the original document is recorded. Furthermore, the pagination of the original document is retained for purposes of access, storage and reproduction of copies, although the actual storage of documents now may include paper, microfilm or photography, optical disk and electronic storage formats. In fact, various provisions of Wis. Stat. § 59.43 expressly recognize the equivalency under the statute of the original paper document and the stored electronic or photographic image. Cf. Wis. Stat. § 59.43(1)(a) (authorizing substitution of electronic file names or microfilm image for the original volume and page designations for purposes of recording); 59.43(1)(d) (requiring registers to keep and safely maintain “documents, images of recorded documents and indexes”).

As a result of this technological reformation, the source document itself is now frequently stored or maintained only in an electronic or photographic format. Even so, the pagination of the original document remains a basic unit by which the image of the recorded document is accessed, identified and reproduced.

Finally, the legislative history of the current Wis. Stat. § 59.54(2)(b) and (4) clearly supports the conclusion that, although several successive Legislatures have authorized storage of real property records by use of microfilm, optical disks and electronic media, the Legislature has never deviated from the directive that registers ordinarily must charge for copies by the page, regardless of whether those pages are reproduced on paper or in an electronic image.

The language of what is now Wis. Stat. § 59.43(2)(b) has remained remarkably stable for many decades except for occasional changes in the unit fee registers shall receive. For example, the reference to “copies of any records or papers” has appeared in the statutes since at least 1919, see Wis. Stat. § 59.57(4) (1919). From 1919 until 1968, the unit charge was “per folio,” when the unit was changed to “per page” and “page” was defined. See ch. 278, sec. 2, Laws of 1967. The current charge for copying ($2 for the first page plus $1 for each additional page) was instituted at the same time, in 1968, and has not been changed since then (see id; cf. Wis. Stat. § 59.43(2)(b)).

[=OAG 1-03, 6-7] Current Wis. Stat. § 59.43(4), entitled “REGISTER OF DEEDS; MICROFILMING AND OPTICAL DISK AND ELECTRONIC STORAGE,” was created in 1969 and originally dealt only with microfilm storage. See ch. 440, Laws of 1969, creating Wis. Stat. § 59.512 (1969). In 1991, Wis. Stat. § 59.512 was amended to authorize storage of deeds, mortgages and other instruments relating to real property on optical disks. 1991 Wisconsin Act 39, sec. 1612j. At the same time, the fee statute (then Wis. Stat. § 59.57(4), now Wis. Stat. § 59.43(2)(b)) was amended expressly to exempt the Department of Revenue from payment of copying fees, although the fees for copies of records stored on optical disk remained unchanged. 1991 Wisconsin Act 39, sec. 1615. The Legislative Fiscal Bureau note accompanying the drafting record for this provision indicates that the 1991 amendments were regarded as having no effect on the base budget.

The storage provisions were again amended in 1995, first by the substantive amendment authorizing electronic storage, 1993 Wisconsin Act 27, sec. 3294. As with the 1991 amendment, there is no indication in the legislative history of that session law that the Legislature anticipated any change in revenue or intended any change in the fees applicable to copies for electronically stored records. See Vol. 1, 1995-97 Wisconsin State Budget, Comparative Summary of Budget Provisions at 108 (Legislative Fiscal Bureau, December 1995). Finally, again in 1995, numerous separate statutory provisions relating to registers of deeds were consolidated and renumbered, resulting in the current comprehensive statute, Wis. Stat. § 59.43, including subsection (2)(b), the copying fee provision, and subsection (4), the record storage provision.

Thus, the legislative history of Wis. Stat. § 59.43(2)(b) reveals that the fee provisions themselves have remained the same for decades. At the same time, successive statutory amendments authorizing storage and, in turn, access and copying by means of electronic or photographic media have resulted in ambiguity concerning their application. In my opinion, had the Legislature intended to alter registers’ fees and expected program revenues as a consequence of authorizing electronic or optical disk storage, such a major funding change would almost certainly have been reflected in the legislative history of those provisions. There is, however, no evidence whatever in the legislative history of Wis. Stat. § 59.43 that the Legislature intended to alter registers’ statutory fees and to apply, by default, the much more limited fee provisions of the public records statute, Wis. Stat. § 19.35(3)(a). Based on the language, context, purpose and legislative history of Wis. Stat. § 59.43(2)(b) and (4), it is most reasonable to conclude that the fee provisions of Wis. Stat. § 59.43 are intended as an express exception to the general fee provisions of the public records statute.

Moreover, the contrary conclusion—that registers must provide electronic copies of real property records limited to the “actual, necessary and direct cost of reproduction” would substantially nullify the legislative directive in the contract provision of Wis. Stat. § 59.43(2)(c) that the negotiated contract price can be less than the regular statutory fee but “in no event . . . less than cost of labor and material plus a reasonable allowance for plant and depreciation of equipment used.” Under Wis. Stat. § 59.43(2)(c), title companies and others having a commercial interest in obtaining the complete daily recordings and filings are given the opportunity to negotiate a “volume discount” contract price less than the statutory fee, yet significant enough for registers to be able to function based on the anticipated revenue. At present, many registers provide electronic copies of complete daily recordings to contractors. The incentive to seek a favorable contract price under Wis. Stat. § 59.43(2)(c) is eliminated if the charge for those electronic copies is already limited to the actual, necessary and direct cost of producing those electronic copies.

[=OAG 1-03, 8] After careful examination of Wis. Stat. § 59.43 as a whole and Wis. Stat. § 59.43(2)(b) in particular, I conclude that Wis. Stat. § 59.43(2)(b) governs the fee registers of deeds must charge for electronic copies of mortgages, deeds or other instruments relating to real property, unless the requester has negotiated a different price pursuant to a contract authorized by Wis. Stat. § 59.43(2)(c). I emphasize, however, that the fee provisions of Wis. Stat. § 59.43(2) are an express statutory exception to fees permitted under the public records statute generally. Moveover, my conclusion is based on, and limited to, the language and clear legislative history of Wis. Stat. § 59.43 itself. Because the electronic storage provisions of Wis. Stat. § 59.43(4) have rendered the fee provisions of Wis. Stat. § 59.49(2)(b) ambiguous, the Legislature may wish to consider clarifying legislation.

Very truly yours,

Peggy A. Lautenschlager

Attorney General

[=OAG 1-03, 8-9]PAL:MMF:mmp

c: J. Bushnell Nielsen

Attorney for Wisconsin Land Title Association

Larry D. Eckert, President

Wisconsin Register of Deeds’ Association

Todd J. Liebman, Past President

Wisconsin Corporation Counsel Association

John C. Jacques

Interim Corporation Counsel

Brown County

Laverne Michalek

Corporation Counsel

Trempealeau County

Marlotte Dascher

Trempealeau County Abstract Company

Yianni Pantis

Attorney for First American Real Estate Solutions

Jane C. Licht

Dane County

Cathy Williquette

Brown County

Marilyn Mueller

Kewaunee County

[=OAG 1-03, 10]Summary: Registers of deeds entering into contracts pursuant to Wis. Stat. § 59.43(2)(c) may insist on provisions protecting the identity and integrity of records obtained pursuant to such contracts and protecting the public. Authority to require provisions directly prohibiting the contracting party from selling or disseminating copies of such records is not prohibited and may reasonably be implied from the general contracting authority of sec. 59.43(2)(c). The fee requirements of Wis. Stat. § 59.43(2)(b), not those of the public records statute, Wis. Stat. § 19.35(3), apply to electronic copies of records obtained pursuant to Wis. Stat. § 59.43(4), unless the requester has entered into a contract authorized by Wis. Stat. § 59.43(2)(c).

You agree that this language should not be interpreted to prohibit providing copies of records when used for purposes of a title opinion and that the contract language can be modified to state that the distribution of copies used in support of title opinions is not prohibited.

One register provided us with an example of a marketing letter mailed to potential customers in Illinois offering to obtain certified copies of property deeds at the cost of $79.50 when the same document can be purchased directly from the appropriate office in Illinois for a fraction of the quoted price.

Wis. Stat. § 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 . . . unless a fee is otherwise specifically established . . . by law.