Daniel P. Bach
Deputy Attorney General
114 East, State Capitol
P.O. Box 7857
Madison, WI 53707-7857
October 2, 2003
Mr. John Muench
Corporation Counsel
Barron County
330 East LaSalle Avenue, Room 207
Barron, WI 54812
Dear Mr. Muench:
You have sought my opinion concerning the scope of the authority of county registers of deeds, with approval from their respective county boards, to negotiate contracts pursuant to Wis. Stat. § 59.43(2)(c) “to provide noncertified copies of the complete daily recordings and filings of documents pertaining to real property for a consideration to be determined by the board.” During the course of considering your request, we have had the benefit of additional information and legal argument from the Wisconsin Registers of Deeds Association, the Wisconsin Land Title Association, the County Corporation Counsel Association, from several individual registers of deeds and corporation counsel and from representatives of two private businesses interested in this matter. From the volume of material we have received, the questions that must be addressed can be distilled as follows:
First, do county registers have the statutory authority to insist that contracts pursuant to Wis. Stat. § 59.43(2)(c) include provisions prohibiting the contracting party from selling or disseminating copies of the records they receive pursuant to such contracts? Second, if an entity requests electronic copies of records maintained pursuant to Wis. Stat. § 59.43(4) in lieu of entering into a contract for such copies pursuant to Wis. Stat. § 59.43(2)(c) or otherwise, what is the statutory fee that registers may charge for such electronic copies of recorded documents? [=OAG 1-03, 1-2] For the reasons discussed below, I conclude that registers may insist on provisions protecting the integrity and identity of records obtained pursuant to such contracts and protecting the public as well. Moreover, the authority to require provisions prohibiting the sale or dissemination of such records by the contractor is not prohibited and may reasonably be implied from the broad language of Wis. Stat. § 59.43(2)(c). Finally, I conclude, based on the language, context and legislative history of Wis. Stat. § 59.43 as a whole, that the fee requirements of Wis. Stat. § 59.43(2)(b), and not those of the general 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). Because the latter conclusion is contrary to informal views expressed in earlier correspondence by my staff, I will explain our reconsideration of this question in some detail. Resolution of the questions stated above requires interpretation of both Wis. Stat. § 59.43, a lengthy statute defining the duties of registers of deeds and specifying the fees registers shall receive, and provisions of the public records statute, Wis. Stat. §§ 19.31‑19.39. Statutes relating to the same subject are to be construed together and harmonized. State v. Robinson, 140 Wis. 2d 673, 677, 412 N.W.2d 535 (Ct. App. 1987). A statute “may not be considered in a vacuum, but must be considered in reference to the statute as a whole and in reference to statutes dealing with the same general subject matter.” Aero Auto Parts, Inc. v. Dept. of Transp., 78 Wis. 2d 235, 239, 253 N.W.2d 896 (1977). Nonetheless, the rules of statutory construction generally require that specific statutory provisions take precedence over general provisions. In re Marriage of Meyer v. Meyer, 2000 WI 132, 239 Wis. 2d 731, ¶ 26, 620 N.W.2d 382. Your primary question concerns the scope of the county’s and, in turn, the register’s authority to enter into contracts pursuant to Wis. Stat. § 59.43(2)(c), which provides: Notwithstanding any other provision of law the register of deeds with the approval and consent of the board may enter into contracts with [specified entities] . . . to provide noncertified copies of the complete daily recordings and filings of documents pertaining to real property for a consideration to be determined by the board which in no event shall be less than cost of labor and material plus a reasonable allowance for plant and depreciation of equipment used.
In recent years, registers in various counties, including Barron County, have required that county-approved contracts for copies of complete daily recordings pursuant to Wis. Stat. § 59.43(2)(c) contain a condition that the contracting party must agree not to sell or disseminate copies of the duplicated records received under the contract. Various contractors have challenged the county registers’ authority to insist on this particular provision in the contracts, thus prompting your inquiry. No one has cited any direct authority on this question nor has our research located any. Accordingly, I will analyze the issue based on general legal principles. A county or a county officer has only such power as is conferred by statute, either expressly or by clear implication. See Maier v. Racine County, 1 Wis. 2d 384, 385, 84 N.W.2d 76 (1957); St. ex rel. Teunas v. Kenosha County, 142 Wis. 2d 498, 504, 418 N.W.2d 833 (1988). The state constitution of 1848 established the register of deeds as an office of county government in each county. See generally Wisconsin Register of Deeds Association’s website home page, www.wrdaonline.org. [=OAG 1-03, 3]Under Wis. Stat. § 54.43, registers must perform a variety of significant duties related to recording interests in land and other vital records. These duties include, inter alia, recording all deeds, mortgages and a wide variety of instruments and writings authorized by law to be recorded, Wis. Stat. § 59.43(1)(a). Today, the actual recording of real property records may be done by means of photography, microfilming, recording on optical disks or in electronic format, Wis. Stat. § 59.43(4). Registers are required to “[k]eep safely and maintain the documents, images of recorded documents . . .” and the various indexes specified in Wis. Stat. §§ 59.43 and 84.095; to make and deliver copies, including certified copies, of recorded documents; to file documents related to security interests and to maintain them for public inspection, among other duties. See Wis. Stat. § 59.43(1)(d)-(t). A comprehensive schedule of fees the registers “shall receive” for performing their various statutory functions is set forth in Wis. Stat. § 59.43(2)(a), including recording fees and fees for copying and certification of records. The ordinary fee “[e]very register of deeds shall receive . . .” for providing copies of records is set forth in Wis. Stat. § 59.43(2)(b): “For copies of any records or papers, $2 for the first page plus $1 for each additional page, plus $1 for the certificate of the register of deeds, except that the department of revenue is exempt from the fees under this paragraph.” The statutory fee for providing uncertified copies of “the complete daily recordings and filings of documents pertaining to real property” may be modified by contracts authorized by the county board pursuant to Wis. Stat. § 59.43(2)(c). However, the statute specifies that the negotiated contract fee can “in no event” be less than the cost of labor and material plus a reasonable allowance for plant and depreciation. Id. In contrast, the fee provisions of the public records statute, which apply “unless a fee is otherwise established…by law,” limit copying fees to “the actual, necessary and direct cost of reproduction and transcription.” See Wis. Stat. § 19.35(3)(a). For at least a century, the office of register of deeds has been what we now call a “program revenue” agency. Cf. Verges v. Milwaukee Co., 116 Wis. 191, 193, 196-201, 93 N.W. 44 (1903). That is, the activities of the office, including payment of salaries and the purchase of expensive equipment required to maintain a growing volume of records, are funded by the revenue generated from recording and copying fees. Indeed, this funding mechanism has enabled most county registers to invest in the modern technology and equipment necessary to streamline their operations and to handle significant increases in recording and related activities, despite the fact that statutory recording and copying fees have remained the same for many years. See ch. 278, sec. 2, Laws of 1967. [=OAG 1-03, 3-4] In this context, you ask, first, whether county registers have the statutory authority to insist that contracts pursuant to Wis. Stat. § 59.43(2)(c) include provisions prohibiting the contracting party from “‘sell[ing] or disseminat[ing]’” copies of the records they receive pursuant to such contracts. Because registers plainly lack express authority to insist on such a prohibition, the real question is whether such authority may be clearly or necessarily implied. See Maier, 1 Wis. 2d at 385; Teunas, 142 Wis. 2d at 504. Given the scope of registers’ duties relating to recording, indexing, copying and maintaining copies of documents relating to real property, I conclude that registers clearly have general authority to insist on contract provisions designed to protect the identity and integrity of copies of records sold under contracts pursuant to Wis. Stat. § 59.43(2(c). In addition, given the public purposes for which property records are maintained, registers may also require provisions that protect the public generally. For example, because copies of complete daily recordings are now frequently provided in electronic format and with relative ease may be altered, registers may reasonably insist that uncertified records provided under contract contain disclaimers concerning the identity and integrity of copies not provided directly by registers. In addition, because of the relative ease with which unscrupulous entrepreneurs may seek to market copies of such records, registers may want to insist on provisions requiring that contractors provide notice to potential customers that copies are available from county registers at nominal cost. 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. 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, 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
