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, 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
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
Register of Deeds
Dane County
Cathy Williquette
Register of Deeds
Brown County
Marilyn Mueller
Register of Deeds
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).