DANIEL L. LAROCQUE, District Attorney, Marathon County.

Attorney General of Wisconsin — Opinion.
December 24, 1971.

MicrofilmingAuthorized Records — (Formal) — Registers of deeds in counties under 500,000 cannot utilize microfilming to comply with initial duty to record or file documents unless county board has elected to be controlled by ch. 228, Stats., as permitted by sec. 228.07, Stats., created by ch. 104, Laws of 1971. Sections 59.512 and 889.30, Stats., authorize such officer, with county board approval, to make microfilm copies of original records.

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ROBERT W. WARREN, Attorney General

DANIEL L. LAROCQUE, District Attorney, Marathon County

You have requested my opinion whether the provisions of sec. 59.512, Stats., regarding the microfilming of records of deeds, mortgages or other instruments, when authorized by the county board, permit the register of deeds, in a county under 500,000 population, to utilize the process of microfilming for filing and recording so as to create the primary or original record he is required to keep under sec. 59.51 (1), Stats.

I am of the opinion that they do not.

Chapter 228, Stats., does permit recording officers in counties of over 500,000 population to utilize microfilming as a means of filing or recording documents. That chapter is referred to in sec. 59.51
(1), Stats. However, the reference is not for the purpose of authorizing counties of under 500,000 to utilize the provisions of ch. 228 or otherwise rely solely on the microfilm process if they choose.

Chapter 104, Laws of 1971, created sec. 228.07, Stats., effective November 7, 1971, to provide that any county can, by county board resolution, elect to be controlled by ch. 228 Stats. Registers of deeds in counties which so qualify can utilize microfilming to comply with the initial duty to record or file documents. While ch. 228 does provide for a system of recording and copying to insure accuracy, preservation, identification, accessibility, inspection, copying and certification, counties should carefully investigate the benefits to be derived from contemplated use of ch. 228 before electing, since the cost of equipment and administrative procedure necessary to comply with the standards may be substantial.

Section 59.51, Stats., provides in part:

“59.51 Register of deeds; duties. The register of deeds shall:

“(1) Record or cause to be recorded in suitable books to be kept in his office, correctly and legibly all deeds,

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mortgages, maps, instruments and writings authorized by law to be recorded in his office and left with him for that purpose, provided such documents have plainly printed or typewritten thereon the names of the grantors, grantees, witnesses and notary. Any county, by county board resolution duly adopted, may combine the separate books or volumes for deeds, mortgages, miscellaneous instruments, attachments, lis pendens, sales and notices, certificates of organization of corporations, plats or other recorded or filed instruments or classes of documents as long as separate indexes are maintained. Notwithstanding any other provisions of the statutes, any county adopting a system of microfilming or like process pursuant to ch. 228 may substitute the headings, reel and image (frame) for volume and page where recorded and different classes of instruments may be recorded, reproduced of copied on the same reel or part of a reel. * * *”

Section 59.512, Stats., provides:

“59.512 Register of deeds; microfilming. Upon the request of the register of deeds, any county, by county board resolution, may authorize the register of deeds to photograph or microfilm records of deeds, mortgages or other instruments relating to real property in accordance with the requirements of s. 889.30 (3) and to store the original records within the county at a place designated by the county board. The storage place for the original records shall be reasonably safe and shall provide for the preservation of the records authorized to be stored under this section. The register of deeds shall keep a photograph or microfilm copy of such records in conveniently accessible files in his office and shall provide for examination of such reproduction in enlarged, easily readable form upon request. Compliance with this section satisfies the requirement of s. 59.51 (1) that the register of deeds shall keep such records in his office. The register of deeds may make certified copies reproduced from an authorized photograph or from the original records.”

Section 889.30 (1) and (2), Stats., as amended by ch. 69, Laws of 1971, provides:

“(1) The powers granted by this section shall not be exercised except with the prior approval of the county board of

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supervisors evidenced by resolution duly adopted. The board shall approve the type of microform to be used in copying, including without restriction because of enumeration, reel, cartridge, microfiche, jacket, aperture card or camera card.

“(2) Any elected or appointed officer of any county or the court clerk of any court maintained in whole or in part by the county including all courts of record in the state may cause any of the public records, papers, documents, or court records listed in s. 59.715 and kept by him to be photographed, microphotographed or otherwise reproduced on film.”

Whereas sec. 228.01 and sec. 228.07, Stats., created by ch. 104, Laws of 1971, authorize county officers in counties of over 500,000 population and other qualifying counties “to file or record” by microfilming, and thus make a record, sec. 59.512 and sec. 889.30 (2), Stats., authorize county officers, when authorized by the county board, to “copy” records by the microfilm process. The copy is to be deemed an original “for all purposes” by reason of sec. 889.30 (3). That section, however, is concerned with documentary evidence and while the copy shall “stand in lieu of and have all the effect of the original document and shall be admissible in evidence,” it is not in fact the original record.

Section 59.512, Stats., provides that the register of deeds may microfilm “records of deeds, mortgages.” He must store the original records in a storage place designated by the county board. The microfilm is retained in his office to comply with the requirement of sec. 59.51 (1), Stats. Either the microfilm or the original record can be the basis of a certified copy.

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