Chapter 19

19.015 History History: 1971 c. 154; 1983 a. 192; 1989 a. 56; 1993 a. 399.

19.02 19.02 Actions by individuals. Any person injured by the act, neglect or default of any officer, except the state officers, the officer’s deputies or other persons which constitutes a breach of the condition of the official bond of the officer, may maintain an action in that person’s name against the officer and the officer’s sureties upon such bond for the recovery of any damages the person may have sustained by reason thereof, without leave and without any assignment of any such bond.

19.02 History History: 1991 a. 316.

19.03 19.03 Security for costs; notice of action.

19.03(1) (1) Every person commencing an action against any officer and sureties upon an official bond, except the obligee named therein, shall give security for costs by an undertaking as prescribed in s. 814.28 (3), and a copy thereof shall be served upon the defendants at the time of the service of the summons. In all such actions if final judgment is rendered against the plaintiff the same may be entered against the plaintiff and the sureties to such undertaking for all the lawful costs and disbursements of the defendants in such action, by whatever court awarded.

19.03(2) (2) The plaintiff in any such action shall, within 10 days after the service of the summons therein, deliver a notice of the commencement of such action to the officer who has the legal custody of such official bond, who shall file the same in his or her office in connection with such bond.

19.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 773 (1975); 1975 c. 218; 1991 a. 316.

19.04 19.04 Other actions on same bond. No action brought upon an official bond shall be barred or dismissed by reason merely that any former action shall have been prosecuted on such bond, but any payment of damages made or collected from the sureties or any of them on any judgment in an action previously begun by any party on such bond shall be applied as a total or partial discharge of the penal sum of such bond, and such defense or partial defense may be pleaded by answer or supplemental answer as may be proper. The verdict and judgment in every such action shall be for no more than the actual damages sustained or damages, penalty or forfeiture awarded, besides costs. The court may, when it shall be necessary for the protection of such sureties, stay execution on any judgment rendered in such actions until the final determination of any actions so previously commenced and until the final determination of any other action commenced before judgment entered in any such action.

19.05 19.05 Execution; lien of judgment.

19.05(1) (1) Whenever a judgment is rendered against any officer and the officer’s sureties on the officer’s official bond in any court other than the circuit court of the county in which the officer’s official bond is filed, no execution for the collection of the judgment shall issue from the other court unless the plaintiff, the plaintiff’s agent or the plaintiff’s attorney shall make and file with the court an affidavit showing each of the following:

19.05(1)(a) (a) That no other judgment has been rendered in any court in an action upon the officer’s bond against the sureties of the bond that remains in whole or in part unpaid.

19.05(1)(b) (b) That no other action upon the officer’s bond against the sureties was pending and undetermined in any other court at the time of the entry of the judgment.

19.05(2) (2) A transcript of a judgment described in sub. (1) may be entered in the judgment and lien docket in other counties, shall constitute a lien, and may be enforced, in all respects the same as if it were an ordinary judgment, for the recovery of money, except as provided otherwise in sub. (1).

19.05 History History: 1991 a. 316; 1995 a. 224.

19.06 19.06 Sureties, how relieved. Whenever several judgments shall be recovered against the sureties on any official bond in actions which shall have been commenced before the date of the entry of the last of such judgments the aggregate of which, exclusive of costs, shall exceed the sum for which such sureties remain liable at the time of the commencement of such actions, they may discharge themselves from all further liability upon such judgments by paying into court the sum for which they are then liable, together with the costs recovered on such judgments; or the court may, upon motion supported by affidavit, order that no execution for more than a proportional share of such judgments shall be issued thereon against the property of such sureties or either of them and that upon payment or collection of such proportional share they shall be discharged from the judgment or judgments upon which such proportional share shall be paid or collected. When the money is paid into court by the sureties as above specified the same, exclusive of the costs so paid in, shall be distributed by an order of the court to the several plaintiffs in such judgments in proportion to the amount of their respective judgments. But every judgment shall have precedence of payment over all judgments in other actions commenced after the date of the recovery of such judgment.

19.06 History History: 1979 c. 110 s. 60 (11).

19.07 19.07 Bonds of public officers and employees.

19.07(1) (1) Civil service employees; blanket bonds.

19.07(1)(a) (a) The surety bond of any civil service employee of a city, village, town or county may be canceled in the manner provided by sub. (3).

19.07(1)(b) (b) Any number of officers, department heads or employees may be combined in a schedule or blanket bond, where such bond is to be filed in the same place, and in the event such bond is executed by a corporate surety company, payment of the premium therefor is to be made from the same fund or appropriation prescribed in s. 19.01.

19.07(2) (2) Continuation of obligation. Unless canceled pursuant to this section, every such bond shall continue in full force and effect.

19.07(3) (3) Cancellation of bond.

19.07(3)(a) (a) Any city, village, town or county by their respective governing body may cancel such bond or bonds of any one employee or any number of employees by giving written notice to the surety by registered mail, such cancellation to be effective 15 days after receipt of such notice.

19.07(3)(b) (b) When a surety, either personal or corporate, on such bond, shall desire to be released from such bond, the surety may give notice in writing that the surety desires to be released by giving written notice by registered mail, to the clerk of the respective city, village, town or county, and such cancellation shall be permitted if approved by the governing body thereof, such cancellation to be effective 15 days after receipt of such notice. This section shall not be construed to operate as a release of the sureties for liabilities incurred previous to the expiration of the 15 days’ notice.

19.07(3)(c) (c) Whenever a surety bond is canceled in the manner provided by this section, a proportional refund shall be made of the premium paid thereon.

19.07 History History: 1979 c. 110 s. 60 (11); 1991 a. 316; 1993 a. 246.

19.10 19.10 Oaths. Each of the officers enumerated in s. 8.25 (4) (a) or (5) shall take and subscribe the oath of office prescribed by article IV, section 28, of the constitution, as follows: The governor and lieutenant governor, before entering upon the duties of office; the secretary of state, treasurer, attorney general, state superintendent and each district attorney, within 20 days after receiving notice of election and before entering upon the duties of office.

19.10 History History: 1983 a. 192; 1989 a. 31; 1991 a. 39.

19.11 19.11 Official bonds.

19.11(1) (1) The secretary of state and treasurer shall each furnish a bond to the state, at the time each takes and subscribes the oath of office required of that officer, conditioned for the faithful discharge of the duties of the office, and the officer’s duties as a member of the board of commissioners of public lands, and in the investment of the funds arising therefrom. The bond of each of said officers shall be further conditioned for the faithful performance by all persons appointed or employed by the officer in his or her office of their duties and trusts therein, and for the delivery over to the officer’s successor in office, or to any person authorized by law to receive the same, of all moneys, books, records, deeds, bonds, securities and other property and effects of whatsoever nature belonging to the officer’s offices.

19.11(2) (2) Each of said bonds shall be subject to the approval of the governor and shall be guaranteed by resident freeholders of this state, or by a surety company as provided in s. 632.17 (2). The amount of each such bond, and the number of sureties thereon if guaranteed by resident freeholders, shall be as follows: secretary of state, $25,000, with sufficient sureties; and treasurer, $100,000, with not less than 6 sureties.

19.11(3) (3) The treasurer shall give an additional bond when required by the governor.

19.11(4) (4) The governor shall require the treasurer to give additional bond, within such time, in such reasonable amount not exceeding the funds in the treasury, and with such security as the governor shall direct and approve, whenever the funds in the treasury exceed the amount of the treasurer’s bond; or whenever the governor deems the treasurer’s bond insufficient by reason of the insolvency, death or removal from the state of any of the sureties, or from any other cause.

19.11 History History: 1975 c. 375 s. 44; 1991 a. 316; 2017 a. 59.

19.12 19.12 Bond premiums payable from public funds. Any public officer required by law to give a suretyship obligation may pay the lawful premium for the execution of the obligation out of any moneys available for the payment of expenses of the office or department, unless payment is otherwise provided for or is prohibited by law.

19.12 History History: 1977 c. 339.

subch. II of ch. 19 SUBCHAPTER II

PUBLIC RECORDS AND PROPERTY

19.21 19.21 Custody and delivery of official property and records.

19.21(1) (1) Each and every officer of the state, or of any county, town, city, village, school district, or other municipality or district, is the legal custodian of and shall safely keep and preserve all property and things received from the officer’s predecessor or other persons and required by law to be filed, deposited, or kept in the officer’s office, or which are in the lawful possession or control of the officer or the officer’s deputies, or to the possession or control of which the officer or the officer’s deputies may be lawfully entitled, as such officers.

19.21(2) (2) Upon the expiration of each such officer’s term of office, or whenever the office becomes vacant, the officer, or on the officer’s death the officer’s legal representative, shall on demand deliver to the officer’s successor all such property and things then in the officer’s custody, and the officer’s successor shall receipt therefor to said officer, who shall file said receipt, as the case may be, in the office of the secretary of state, county clerk, town clerk, city clerk, village clerk, school district clerk, or clerk or other secretarial officer of the municipality or district, respectively; but if a vacancy occurs before such successor is qualified, such property and things shall be delivered to and be receipted for by such secretary or clerk, respectively, on behalf of the successor, to be delivered to such successor upon the latter’s receipt.

19.21(3) (3) Any person who violates this section shall, in addition to any other liability or penalty, civil or criminal, forfeit not less than $25 nor more than $2,000; such forfeiture to be enforced by a civil action on behalf of, and the proceeds to be paid into the treasury of the state, municipality, or district, as the case may be.

19.21(4) (4) 

19.21(4)(a) (a) Any city council, village board or town board may provide by ordinance for the destruction of obsolete public records. Prior to the destruction at least 60 days’ notice in writing of such destruction shall be given the historical society which shall preserve any such records it determines to be of historical interest. The historical society may, upon application, waive such notice. No assessment roll containing forest crop acreage may be destroyed without prior approval of the secretary of revenue. This paragraph does not apply to school records of a 1st class city school district.

19.21(4)(b) (b) The period of time any town, city or village public record is kept before destruction shall be as prescribed by ordinance unless a specific period of time is provided by statute. The period prescribed in the ordinance may not be less than 2 years with respect to water stubs, receipts of current billings and customer’s ledgers of any municipal utility, and 7 years for other records unless a shorter period has been fixed by the public records board under s. 16.61 (3) (e) and except as provided under sub. (7). This paragraph does not apply to school records of a 1st class city school district.

19.21(4)(c) (c) Any local governmental unit or agency may provide for the keeping and preservation of public records kept by that governmental unit through the use of microfilm or another reproductive device, optical imaging or electronic formatting. A local governmental unit or agency shall make such provision by ordinance or resolution. Any such action by a subunit of a local governmental unit or agency shall be in conformity with the action of the unit or agency of which it is a part. Any photographic reproduction of a record authorized to be reproduced under this paragraph is deemed an original record for all purposes if it meets the applicable standards established in ss. 16.61 (7) and 16.612. This paragraph does not apply to public records kept by counties electing to be governed by ch. 228.

19.21(4)(cm) (cm) Paragraph (c) does not apply to court records kept by a clerk of circuit court and subject to SCR chapter 72.

19.21(5) (5) 

19.21(5)(a) (a) Any county having a population of 750,000 or more may provide by ordinance for the destruction of obsolete public records, except for court records subject to SCR chapter 72.

19.21(5)(b) (b) Any county having a population of less than 750,000 may provide by ordinance for the destruction of obsolete public records, subject to s. 59.52 (4) (b) and (c), except for court records governed by SCR chapter 72.

19.21(5)(c) (c) The period of time any public record shall be kept before destruction shall be determined by ordinance except that in all counties the specific period of time expressed within s. 7.23 or 59.52 (4) (a) or any other law requiring a specific retention period shall apply. The period of time prescribed in the ordinance for the destruction of all records not governed by s. 7.23 or 59.52 (4) (a) or any other law prescribing a specific retention period may not be less than 7 years, unless a shorter period is fixed by the public records board under s. 16.61 (3) (e).

19.21(5)(d) (d)

19.21(5)(d)1. 1. Except as provided in subd. 2., prior to any destruction of records under this subsection, except those specified within s. 59.52 (4) (a), at least 60 days’ notice of such destruction shall be given in writing, to the historical society, which may preserve any records it determines to be of historical interest. Notice is not required for any records for which destruction has previously been approved by the historical society or in which the society has indicated that it has no interest for historical purposes. Records which have a confidential character while in the possession of the original custodian shall retain such confidential character after transfer to the historical society unless the director of the historical society, with the concurrence of the original custodian, determines that such records shall be made accessible to the public under such proper and reasonable rules as the historical society promulgates.

19.21(5)(d)2. 2. Subdivision 1. does not apply to patient health care records, as defined in s. 146.81 (4), that are in the custody or control of a local health department, as defined in s. 250.01 (4).

19.21(5)(e) (e) The county board of any county may provide, by ordinance, a program for the keeping, preservation, retention and disposition of public records including the establishment of a committee on public records and may institute a records management service for the county and may appropriate funds to accomplish such purposes.

19.21(5)(f) (f) District attorney records are state records and are subject to s. 978.07.

19.21(6) (6) A school district may provide for the destruction of obsolete school records. Prior to any such destruction, at least 60 days’ notice in writing of such destruction shall be given to the historical society, which shall preserve any records it determines to be of historical interest. The historical society may, upon application, waive the notice. The period of time a school district record shall be kept before destruction shall be not less than 7 years, unless a shorter period is fixed by the public records board under s. 16.61 (3) (e) and except as provided under sub. (7). This section does not apply to pupil records under s. 118.125.

19.21(7) (7) Notwithstanding any minimum period of time for retention set under s. 16.61 (3) (e), any taped recording of a meeting, as defined in s. 19.82 (2), by any governmental body, as defined under s. 19.82 (1), of a city, village, town or school district may be destroyed no sooner than 90 days after the minutes have been approved and published if the purpose of the recording was to make minutes of the meeting.

19.21(8) (8) Any metropolitan sewerage commission created under ss. 200.21 to 200.65 may provide for the destruction of obsolete commission records. No record of the metropolitan sewerage district may be destroyed except by action of the commission specifically authorizing the destruction of that record. Prior to any destruction of records under this subsection, the commission shall give at least 60 days’ prior notice of the proposed destruction to the state historical society, which may preserve records it determines to be of historical interest. Upon the application of the commission, the state historical society may waive this notice. Except as provided under sub. (7), the commission may only destroy a record under this subsection after 7 years elapse from the date of the record’s creation, unless a shorter period is fixed by the public records board under s. 16.61 (3) (e).

19.21 History History: 1971 c. 215; 1975 c. 41 s. 52; 1977 c. 202; 1979 c. 35, 221; 1981 c. 191, 282, 335; 1981 c. 350 s. 13; 1981 c. 391; 1983 a. 532; 1985 a. 180 ss. 22, 30m; 1985 a. 225; 1985 a. 332 s. 251 (1); Sup. Ct. Order, 136 Wis. 2d xi (1987); 1987 a. 147 ss. 20, 25; 1989 a. 248; 1991 a. 39, 185, 316; 1993 a. 27, 60, 172; 1995 a. 27, 201; 1999 a. 150 s. 672; 2017 a. 207 s. 5.

19.21 Annotation Sub. (1) provides that a police chief, as an officer of a municipality, is the legal custodian of all records of that officer’s department. Town of La Grange v. Auchinleck, 216 Wis. 2d 84, 573 N.W.2d 232 (Ct. App. 1997), 96-3313.

19.21 Annotation This section relates to records retention and is not a part of the public records law. An agency’s alleged failure to keep sought-after records may not be attacked under the public records law. State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.

19.21 Annotation Under sub. (1), district attorneys must indefinitely preserve papers of a documentary nature evidencing activities of a prosecutor’s office. 68 Atty. Gen. 17.

19.21 Annotation A county with a population under 500,000 [now 750,000] may by ordinance under sub. (6) [now sub. (5)] provide for the destruction of obsolete case records maintained by the county social services agency under s. 48.59 (1). 70 Atty. Gen. 196.

19.21 Annotation A VTAE [technical college] district is a “school district” under sub. (7) [now sub. (6)]. 71 Atty. Gen. 9.

19.22 19.22 Proceedings to compel the delivery of official property.

19.22(1) (1) If any public officer refuses or neglects to deliver to his or her successor any official property or things as required in s. 19.21, or if the property or things shall come to the hands of any other person who refuses or neglects, on demand, to deliver them to the successor in the office, the successor may make complaint to any circuit judge for the county where the person refusing or neglecting resides. If the judge is satisfied by the oath of the complainant and other testimony as may be offered that the property or things are withheld, the judge shall grant an order directing the person so refusing to show cause, within some short and reasonable time, why the person should not be compelled to deliver the property or things.

19.22(2) (2) At the time appointed, or at any other time to which the matter may be adjourned, upon due proof of service of the order issued under sub. (1), if the person complained against makes affidavit before the judge that the person has delivered to the person’s successor all of the official property and things in the person’s custody or possession pertaining to the office, within the person’s knowledge, the person complained against shall be discharged and all further proceedings in the matter before the judge shall cease.

19.22(3) (3) If the person complained against does not make such affidavit the matter shall proceed as follows:

19.22(3)(a) (a) The judge shall inquire further into the matters set forth in the complaint, and if it appears that any such property or things are withheld by the person complained against the judge shall by warrant commit the person complained against to the county jail, there to remain until the delivery of such property and things to the complainant or until the person complained against be otherwise discharged according to law.

19.22(3)(b) (b) If required by the complainant the judge shall also issue a warrant, directed to the sheriff or any constable of the county, commanding the sheriff or constable in the daytime to search such places as shall be designated in such warrant for such official property and things as were in the custody of the officer whose term of office expired or whose office became vacant, or of which the officer was the legal custodian, and seize and bring them before the judge issuing such warrant.

19.22(3)(c) (c) When any such property or things are brought before the judge by virtue of such warrant, the judge shall inquire whether the same pertain to such office, and if it thereupon appears that the property or things pertain thereto the judge shall order the delivery of the property or things to the complainant.

19.22 History History: 1977 c. 449; 1991 a. 316; 1993 a. 213.

19.23 19.23 Transfer of records or materials to historical society.

19.23(1) (1) Any public records, in any state office, that are not required for current use may, in the discretion of the public records board, be transferred into the custody of the historical society, as provided in s. 16.61.

19.23(2) (2) The proper officer of any county, city, village, town, school district or other local governmental unit, may under s. 44.09 (1) offer title and transfer custody to the historical society of any records deemed by the society to be of permanent historical importance.

19.23(3) (3) The proper officer of any court may, on order of the judge of that court, transfer to the historical society title to such court records as have been photographed or microphotographed or which have been on file for at least 75 years, and which are deemed by the society to be of permanent historical value.

19.23(4) (4) Any other articles or materials which are of historic value and are not required for current use may, in the discretion of the department or agency where such articles or materials are located, be transferred into the custody of the historical society as trustee for the state, and shall thereupon become part of the permanent collections of said society.

19.23 History History: 1975 c. 41 s. 52; 1981 c. 350 s. 13; 1985 a. 180 s. 30m; 1987 a. 147 s. 25; 1991 a. 226; 1995 a. 27.

19.24 19.24 Refusal to deliver money, etc., to successor. Any public officer whatever, in this state, who shall, at the expiration of the officer’s term of office, refuse or willfully neglect to deliver, on demand, to the officer’s successor in office, after such successor shall have been duly qualified and be entitled to said office according to law, all moneys, records, books, papers or other property belonging to the office and in the officer’s hands or under the officer’s control by virtue thereof, shall be imprisoned not more than 6 months or fined not more than $100.

19.24 History History: 1991 a. 316.

19.25 19.25 State officers may require searches, etc., without fees. The secretary of state, treasurer and attorney general, respectively, are authorized to require searches in the respective offices of each other and in the offices of the clerk of the supreme court, of the court of appeals, of the circuit courts, of the registers of deeds for any papers, records or documents necessary to the discharge of the duties of their respective offices, and to require copies thereof and extracts therefrom without the payment of any fee or charge whatever.

19.25 History History: 1977 c. 187, 449.

19.31 19.31 Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.

19.31 History History: 1981 c. 335, 391.

19.31 Annotation An agency cannot promulgate an administrative rule that creates an exception to the open records law. Chvala v. Bubolz, 204 Wis. 2d 82, 552 N.W.2d 892 (Ct. App. 1996), 95-3120.

19.31 Annotation Although the requester referred to the federal Freedom of Information Act, a letter that clearly described open records and had all the earmarkings of an open records request was in fact an open records request and triggered, at minimum, a duty to respond. ECO, Inc. v. City of Elkhorn, 2002 WI App 302, 259 Wis. 2d 276, 655 N.W.2d 510, 02-0216.

19.31 Annotation The public records law addresses the duty to disclose records; it does not address the duty to retain records. An agency’s alleged failure to keep sought-after records may not be attacked under the public records law. Section 19.21 relates to records retention and is not a part of the public records law. State ex rel. Gehl v. Connors, 2007 WI App 238, 306 Wis. 2d 247, 742 N.W.2d 530, 06-2455.

19.31 Annotation Absent a clear statutory exception, a limitation under the common law, or an overriding public interest in keeping a public record confidential, the public records law shall be construed in every instance with a presumption of complete public access. As the denial of public access generally is contrary to the public interest, access may be denied only in an exceptional case. An exceptional case exists when the facts are such that the public policy interests favoring nondisclosure outweigh the public policy interests favoring disclosure, notwithstanding the strong presumption favoring disclosure. Hagen v. Board of Regents, 2018 WI App 43, 383 Wis. 2d 567, 916 N.W.2d 198, 17-2058.