OAG1-03

  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

  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).

1

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.

2

  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.

3

  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.