Chapter 16

16.61(4)(b) (b) State agencies shall submit records retention schedules for all public records series in their custody to the board for its approval within one year after each record series has been received or created unless a shorter period of retention is authorized by law, in which case a retention schedule shall be submitted within that period. The board may alter retention periods for any records series; but if retention for a certain period is specifically required by law, the board may not decrease the length of that period. The board may not authorize the destruction of any public records during the period specified in s. 19.35 (5).

16.61(4)(c) (c) A records retention schedule approved by the board on or after March 17, 1988, is effective for 10 years, unless otherwise specified by the board. At the end of the effective period, an agency shall resubmit a retention schedule for approval by the board. During the effective period, if approved by the board and the board has assigned a disposal authorization number to the public record or record series, a state agency may dispose of a public record or record series according to the disposition requirements of the schedule without further approval by the board.

16.61(5) (5) Transfer of public records to optical disc or electronic format.

16.61(5)(a) (a) Subject to rules promulgated by the department under s. 16.611, any state agency may transfer to or maintain in optical disc or electronic format any public record in its custody and retain the public record in that format only.

16.61(5)(b) (b) Subject to rules promulgated by the department under s. 16.611, state agencies shall maintain procedures to ensure the authenticity, accuracy, reliability, and accessibility of public records transferred to or maintained in optical disc or electronic format under par. (a).

16.61(5)(c) (c) Subject to rules promulgated by the department under s. 16.611, state agencies that transfer to or maintain in optical disc or electronic format public records in their custody shall ensure that the public records stored in that format are protected from unauthorized destruction.

16.61(6) (6) Procedure for microfilm reproduction of public records. Any state agency desiring to microfilm public records shall submit a request to the board for the microfilm reproduction of each records series to be reproduced together with any information the board requires. In granting or denying approval, the board shall consider factors such as the long-term value of the public records, the cost-effectiveness of microfilm reproduction compared with other records management techniques and the technology appropriate for the specific application. Upon receiving written approval from the board, any state agency may cause any public record to be microfilmed in compliance with this section and rules adopted pursuant thereto.

16.61(7) (7) When copy deemed original record; standards for reproduction of public records.

16.61(7)(a) (a) Any microfilm reproduction of an original record, or a copy generated from an original record stored in optical disc or electronic format, is deemed an original public record if all of the following conditions are met:

16.61(7)(a)1. 1. Any device used to reproduce the record on film or to transfer the record to optical disc or electronic format and generate a copy of the record from optical disc or electronic format accurately reproduces the content of the original.

16.61(7)(a)2. 2. The reproduction is on film that complies with the minimum standards of quality for microfilm reproductions, as established by rule of the board, or the optical disc or electronic copy and the copy generated from optical disc or electronic format comply with the minimum standards of quality for such copies, as established by rule of the department under s. 16.611.

16.61(7)(a)3. 3. The film is processed and developed in accordance with the minimum standards established by the board.

16.61(7)(a)4. 4. The record is arranged, identified, and indexed so that any individual document or component of the record can be located with the use of proper equipment.

16.61(7)(a)5. 5. The state agency records and forms officer or other person designated by the head of the state agency or the custodian of any other record executes a statement of intent and purpose describing the record to be reproduced or transferred to optical disc or electronic format, the disposition of the original record, the disposal authorization number assigned by the board for public records of state agencies, the enabling ordinance or resolution for cities, towns, villages, or school districts, or the resolution that authorizes the reproduction, optical imaging, or electronic formatting for counties when required, and executes a certificate verifying that the record was received or created and microfilmed or transferred to optical disc or electronic format in the normal course of business and that the statement of intent and purpose is properly recorded as directed by the board.

16.61(7)(b) (b) The statement of intent and purpose executed under par. (a) 5. is presumptive evidence of compliance with all conditions and standards prescribed by this subsection.

16.61(7)(c) (c) Any microfilm reproduction of an original record which was made prior to April 18, 1986, in accordance with the standards in effect under the applicable laws and rules for authenticating the record at the time the reproduction was made is deemed an original record.

16.61(8) (8) Admissible in evidence.

16.61(8)(a) (a) Any microfilm reproduction of a public record meeting the requirements of sub. (7) or copy of a public record generated from an original record stored in optical disc or electronic format in compliance with this section shall be taken as, stand in lieu of, and have all the effect of the original document and shall be admissible in evidence in all courts and all other tribunals or agencies, administrative or otherwise, in all cases where the original document is admissible.

16.61(8)(b) (b) Any enlarged copy of a microfilm reproduction of a public record made as provided by this section or any enlarged copy of a public record generated from an original record stored in optical disc or electronic format in compliance with this section that is certified by the custodian as provided in s. 889.08 shall have the same force as an actual-size copy.

16.61(9) (9) Preservation of reproductions. Provision shall be made for the preservation of any microfilm reproductions of public records and of any public records stored in optical disc or electronic format in conveniently accessible files in the agency of origin or its successor or in the state archives.

16.61(10) (10) Contracts for copying. Contracts for microfilm reproduction, optical imaging or electronic storage of public records to be performed as provided in this section shall be made by the secretary as provided in ss. 16.70 to 16.77 and the cost of making such reproductions or optical discs or of electronic storage shall be paid out of the appropriation of the state agency having the reproduction made or the storage performed.

16.61(11) (11) Authority to reproduce records. Nothing in this section shall be construed to prohibit the responsible officer of any state agency from reproducing any document by any method when it is necessary to do so in the course of carrying out duties or functions in any case other than where the original document is to be destroyed; but no original public record may be destroyed after microfilming, optical imaging or electronic storage without the approval of the board unless authorized under sub. (4) or (5).

16.61(12) (12) Access to reproductions and copies. All persons may examine and use the microfilm reproductions of public records and copies of public records generated from optical disc or electronic storage subject to such reasonable rules as may be made by the responsible officer of the state agency having custody of the same.

16.61(13) (13) Historical society and university archives as depositories.

16.61(13)(a) (a) The historical society, as trustee for the state, shall be the ultimate depository of the archives of the state, and the board may transfer to the society such original records and reproductions as it deems proper and worthy of permanent preservation, including records and reproductions which the custodian thereof has been specifically directed by statute to preserve or keep in the custodian’s office. The permanent preservation of records of the University of Wisconsin System may be accomplished under par. (b). The society may deposit in the regional depositories established under s. 44.10, title remaining with the society, the records of state agencies or their district or regional offices which are primarily created in the geographic area serviced by the depository, but the records of all central departments, offices, establishments and agencies shall remain in the main archives in the capital city under the society’s immediate jurisdiction, except that the society may place the records temporarily at a regional depository for periods of time to be determined by the society. Nothing in this subsection nor in ch. 44 prevents the society’s taking the steps for the safety of articles and materials entrusted to its care in library, museum or archives, including temporary removal to safer locations, dictated by emergency conditions arising from a state of war, civil rebellion or other catastrophe.

16.61(13)(b) (b) The board may designate an archival depository at each university as defined in s. 36.05 (13) which shall meet standards for university archival depositories established by the board with the advice of the board of regents and the historical society or their respective designated representatives. The board may transfer to the appropriate university archival depository all original records and reproductions the board deems worthy of permanent preservation.

16.61(13)(c) (c) The historical society shall, in cooperation with the staff of the board, as soon as practicable, adequately and conveniently classify and arrange the state records or other official materials transferred to its care, for permanent preservation under this section and keep the records and other official materials accessible to all persons interested, under proper and reasonable rules promulgated by the historical society, consistent with s. 19.35. Copies of the records and other official materials shall, on application of any citizen of this state interested therein, be made and certified by the director of the historical society, or an authorized representative in charge, which certificate shall have the same force as if made by the official originally in charge of them.

16.61(13)(d) (d)

16.61(13)(d)1. 1. Except as provided in subd. 2., records which have a confidential character while in the possession of the original custodian shall retain their confidential character after transfer to the historical society unless the board of curators of the historical society, with the concurrence of the original custodian or the custodian’s legal successor, determines that the records shall be made accessible to the public under such proper and reasonable rules as the historical society promulgates. If the original custodian or the custodian’s legal successor is no longer in existence, confidential records formerly in that person’s possession may not be released by the board of curators unless the release is first approved by the public records board. For public records and other official materials transferred to the care of the university archival depository under par. (b), the chancellor of the university preserving the records shall have the power and duties assigned to the historical society under this section.

16.61(13)(d)2. 2. Notwithstanding subd. 1., a record which is transferred to an archival depository under this subsection and which has a confidential character shall be open to inspection and available for copying 75 years after creation of the record unless the custodian, pursuant to ss. 19.34 and 19.35, determines that the record shall be kept confidential.

16.61(13)(e) (e) This subsection does not apply to patient health care records, as defined in s. 146.81 (4), that are in the custody or control of the department of health services.

16.61 History History: 1975 c. 41 ss. 15, 52; 1975 c. 198 s. 65; 1975 c. 199; Stats. 1975 s. 16.61; 1977 c. 418; 1979 c. 32, 79, 93; 1979 c. 361 s. 113; 1981 c. 335; 1981 c. 350 ss. 9 to 12, 13; 1981 c. 391; 1983 a. 27, 524; 1985 a. 180 ss. 5 to 17, 30m; 1985 a. 332 s. 251 (1); 1987 a. 147 ss. 1 to 16, 25; 1987 a. 186; 1989 a. 31, 107, 248, 359; 1991 a. 39, 185, 269, 285, 315; 1993 a. 172, 213; 1995 a. 27 ss. 309 to 347, 9126 (19); 1995 a. 216, 225; 2001 a. 16; 2003 a. 33; 2007 a. 20 s. 9121 (6) (a); 2009 a. 42 ss. 2, 152; 2015 a. 196.

16.61 Cross-reference Cross-reference: See also s. Adm 12.01, Wis. adm. code.

16.611 16.611 State public records; optical disc and electronic storage.

16.611(1) (1) In this section, “public records” has the meaning given under s. 16.61 (2) (b).

16.611(2) (2) 

16.611(2)(a) (a) The department shall prescribe, by rule, procedures for the transfer of public records and records of the University of Wisconsin Hospitals and Clinics Authority and of the Wisconsin Aerospace Authority to optical disc or electronic format and for the maintenance of such records stored in optical disc or electronic format, including procedures to ensure the authenticity, accuracy, reliability, and accessibility of any public records or records of the University of Wisconsin Hospitals and Clinics Authority or of the Wisconsin Aerospace Authority so transferred and procedures to ensure that such records are protected from unauthorized destruction.

16.611(2)(b) (b) The department shall prescribe, by rule, procedures governing the operation of its optical disc and electronic storage facility under s. 16.62 (1) (bm).

16.611(2)(c) (c) The department shall prescribe, by rule, qualitative standards for optical discs and for copies of documents generated from optical discs used to store public records and records of the University of Wisconsin Hospitals and Clinics Authority and of the Wisconsin Aerospace Authority.

16.611(2)(d) (d) The department shall prescribe, by rule, qualitative standards for the storage of public records in electronic format and for copies of public records stored in electronic format.

16.611(3) (3) Prior to submitting any proposed rule prescribed under sub. (2) to the legislative council staff under s. 227.15 (1), the department shall refer the proposed rule to the public records board for its recommendations.

16.611 History History: 1991 a. 39; 1995 a. 27, 216; 2005 a. 335; 2015 a. 196.

16.611 Cross-reference Cross-reference: See also s. Adm 12.01, Wis. adm. code.

16.612 16.612 Local government records; optical disc and electronic storage standards.

16.612(1) (1) In this section, “local governmental unit” has the meaning given under s. 19.42 (7u).

16.612(2) (2) 

16.612(2)(a) (a) The department shall prescribe, by rule, qualitative standards for optical discs and for copies of documents generated from optical discs used to store materials filed with local governmental units. Prior to submitting any such rule to the legislative council staff under s. 227.15 (1), the department shall refer the rule to the public records board for its recommendations.

16.612(2)(b) (b) The department shall prescribe, by rule, qualitative standards for the storage of public records in electronic format and for copies of documents generated from electronically stored materials filed with local governmental units. Prior to submitting any such rule to the legislative council staff under s. 227.15 (1), the department shall refer the rule to the public records board for its recommendations.

16.612 History History: 1991 a. 39; 1993 a. 172; 1995 a. 27; 2015 a. 196.

16.612 Cross-reference Cross-reference: See also s. Adm 12.01, Wis. adm. code.

16.62 16.62 Records management service.

16.62(1) (1) The department shall establish and maintain a records management service:

16.62(1)(a) (a) To advise and assist state agencies and the University of Wisconsin Hospitals and Clinics Authority in the establishment and operation of records management programs through the issuance of standards and procedures and provision of technical and management consulting services.

16.62(1)(b) (b) To operate a state records center and a central microfilm facility for state agencies and the University of Wisconsin Hospitals and Clinics Authority and to promulgate rules necessary for efficient operation of the facilities.

16.62(1)(bm) (bm) To operate a storage facility for storage of public records and records of the University of Wisconsin Hospitals and Clinics Authority in optical disc or electronic format in accordance with rules, promulgated by the department under s. 16.611, governing operation of the facility.

16.62(1)(c) (c) To periodically audit the records management programs of state agencies and the University of Wisconsin Hospitals and Clinics Authority and recommend improvements in records management practices.

16.62(2) (2) The department may establish user charges for records storage and retrieval services, with any moneys collected to be credited to the appropriation account under s. 20.505 (1) (im) or (kb). Such charges shall be structured to encourage efficient utilization of the services.

16.62(3) (3) The department may establish user fees for the services of the public records board. Any moneys collected shall be credited to the appropriation account under s. 20.505 (1) (kb).

16.62 History History: 1975 c. 41, 224; Stats. 1975 s. 16.62; 1977 c. 29, 418; 1979 c. 34 s. 2102 (1) (b), (c); 1979 c. 175; 1981 c. 350; 1983 a. 27 ss. 87, 88, 1804 to 1806; 1985 a. 180 s. 30m; 1987 a. 27; 1987 a. 147 s. 25; 1991 a. 39; 1995 a. 27, 216; 2001 a. 16; 2015 a. 196.

16.63 16.63 Sale of state’s rights to tobacco settlement agreement payments.

16.63(1) (1) In this section:

16.63(1)(a) (a) “Purchaser” means any person who has purchased the state’s right to receive any of the payments under the tobacco settlement agreement.

16.63(1)(b) (b) “Tobacco settlement agreement” means the Attorneys General Master Tobacco Settlement Agreement of November 23, 1998.

16.63(1)(c) (c) “Tobacco settlement revenues” means the right to receive settlement payments arising from or pursuant to the tobacco settlement agreement and all direct or indirect proceeds of that right.

16.63(2) (2) Before July 1, 2009, the secretary may sell for cash or other consideration the state’s right to receive any of the payments under the tobacco settlement agreement.

16.63(3) (3) The secretary may organize one or more nonstock corporations under ch. 181 or limited liability companies under ch. 183 for any purpose related to the sale of the state’s right to receive any of the payments under the tobacco settlement agreement and may take any action necessary to facilitate and complete the sale.

16.63(3m) (3m) 

16.63(3m)(a) (a) If the secretary sells the state’s right to receive any of the payments under the tobacco settlement agreement, the secretary shall require, as a condition of the sale, that the purchaser notify the secretary if any bonds or other obligations are issued that are secured by any of the payments and provide the secretary with all information on the distribution of the bond or obligation proceeds.

16.63(3m)(b) (b) The secretary shall submit a report to the joint committee on finance that includes all of the information provided to the secretary by the purchaser under par. (a).

16.63(4) (4) 

16.63(4)(a) (a) Tobacco settlement revenues may not be considered proceeds of any property that is not tobacco settlement revenues.

16.63(4)(b) (b) Except as otherwise provided in this subsection, the creation, perfection, and enforcement of security interests in tobacco settlement revenues are governed by ch. 409. Notwithstanding ch. 409, with regard to creating, perfecting, and enforcing a valid security interest in tobacco settlement revenues:

16.63(4)(b)1. 1. If this state or the Wisconsin Health and Educational Facilities Authority is the debtor in the transaction, the proper place to file the required financing statement to perfect the security interest is the department of financial institutions.

16.63(4)(b)2. 2. The required financing statement shall include a description of collateral that describes the collateral as general intangibles consisting of the right to receive settlement payments arising from or pursuant to the tobacco settlement agreement and all proceeds of that right. The required financing statement may include any additional description of collateral that is legally sufficient under the laws of this state.

16.63(4)(b)3. 3. The tobacco settlement revenues are general intangibles for purposes of ch. 409.

16.63(4)(b)4. 4. A security interest perfected under this paragraph is enforceable against the debtor, any assignee or grantee, and all 3rd parties, including creditors under any lien obtained by judicial proceedings, subject only to the rights of any 3rd parties holding security interests in the tobacco settlement revenues previously perfected under this paragraph. Unless the applicable security agreement provides otherwise, a perfected security interest in the tobacco settlement revenues is a continuously perfected security interest in all tobacco settlement revenues existing on the date of the agreement or arising after the date of the agreement. A security interest perfected under this paragraph has priority over any other lien created by operation of law or otherwise, which subsequently attaches to the tobacco settlement revenues.

16.63(4)(b)5. 5. The priority of a security interest created under this paragraph is not affected by the commingling of proceeds arising from the tobacco settlement revenues with other amounts.

16.63(4)(c) (c) The sale, assignment, and transfer of tobacco settlement revenues are governed by this paragraph. All of the following apply to a sale, assignment, or transfer under this paragraph:

16.63(4)(c)1. 1. The sale, assignment, or transfer is an absolute transfer of, and not a pledge of or secured transaction relating to, the seller’s right, title, and interest in, to, and under the tobacco settlement revenues, if the documents governing the transaction expressly state that the transaction is a sale or other absolute transfer. After such a transaction, the tobacco settlement revenues are not subject to any claims of the seller or the seller’s creditors, other than creditors holding a prior security interest in the tobacco settlement revenues perfected under par. (b).

16.63(4)(c)2. 2. The characterization of the sale, assignment, or transfer as an absolute transfer under subd. 1. and the corresponding characterization of the purchaser’s property interest is not affected by any of the following factors:

16.63(4)(c)2.a. a. Commingling of amounts arising with respect to the tobacco settlement revenues with other amounts.

16.63(4)(c)2.b. b. The retention by the seller of a partial or residual interest, including an equity interest, in the tobacco settlement revenues, whether direct or indirect, or whether subordinate or otherwise.

16.63(4)(c)2.c. c. The sale, assignment, or transfer of only a portion of the tobacco settlement revenues or an undivided interest in the tobacco settlement revenues.

16.63(4)(c)2.d. d. Any recourse that the purchaser or its assignees may have against the seller.

16.63(4)(c)2.e. e. Whether the seller is responsible for collecting payments due under the tobacco settlement revenues or for otherwise enforcing any of the tobacco settlement revenues or retains legal title to the tobacco settlement revenues for the purpose of these collection activities.

16.63(4)(c)2.f. f. The treatment of the sale, assignment, or transfer for tax purposes.

16.63(4)(c)3. 3. The sale, assignment, or transfer is perfected automatically as against 3rd parties, including any 3rd parties with liens created by operation of law or otherwise, upon attachment under ch. 409.

16.63(4)(c)4. 4. Nothing in this subsection precludes consideration of the factors listed in subd. 2. a. to e. in determining whether the sale, assignment, or transfer is a sale for tax purposes. The characterization of the sale, assignment, or transfer as an absolute transfer under subd. 1. may not be considered in determining whether the sale, assignment, or transfer is a sale for tax purposes.

16.63(5) (5) If the secretary sells the state’s right to receive any of the payments under the tobacco settlement agreement, the state pledges to and agrees with any purchaser or subsequent transferee of the state’s right to receive any of the payments under the tobacco settlement agreement that the state will not limit or alter its powers to fulfill the terms of the tobacco settlement agreement, nor will the state in any way impair the rights and remedies provided under the tobacco settlement agreement. The state also pledges to and agrees with any purchaser or subsequent transferee of the state’s right to receive any of the payments under the tobacco settlement agreement that the state will pay all costs and expenses in connection with any action or proceeding brought by or on behalf of the purchaser or any subsequent transferee related to the state’s not fulfilling the terms of the tobacco settlement agreement. The secretary may include this pledge and agreement of the state in any contract that is entered into by the secretary under this section.