Opinion No. Oag 9-83, (1983)

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?

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),^* 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?

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 (Sec. 19.35 (2))?

Section 19.35 (2) provides:

The authority shall provide any person who is authorized to inspect or copy a record under sub. (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 section19.35 (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 (Sec. 19.35 (3)(a)). Can they insist upon getting the copies for less?

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. Section19.37 (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

^* 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."