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Supreme Court Orders

Retention of Court Records

In the Matter of Amendment of Supreme Court Rules:
SCR Chapter 72 - Retention of Court Records

Order 97-03

On March 11, 1997, the Director of State Courts, on behalf of the Wisconsin Court Records Management Committee, filed a petition seeking the amendment of the Supreme Court Rules, chapter 72, to provide periods of time for the retention of court records, including those maintained as official or original information on electronic or optical storage systems.

IT IS ORDERED that a public hearing on the petition shall be held in the Supreme Court Room in the State Capitol, Madison, Wis., on Jan. 13, 1998, at 1:30 p.m.

IT IS FURTHER ORDERED that the court's conference in the matter shall be held promptly following the public hearing.

IT IS FURTHER ORDERED that notice of the hearing be given by a single publication of a copy of this order and of the petition in the official state newspaper and in an official publication of the State Bar of Wisconsin not more than 60 days nor less than 30 days before the date of the hearing.
Dated at Madison, Wis., this 22nd day of September, 1997.

By the court:
Marilyn L. Graves, Clerk

Petition

The Director of State Courts for and on the recommendation of the Wisconsin Court Records Management Committee, a committee created by the director to recommend uniform standards and procedures for the effective management of court records, petitions the Court to amend and create the following rules.

Create SCR 72.01 (la) as follows:

SCR 72.01 (1a) Incarcerated Persons Records. Files containing prisoner litigation correspondence, pleadings, etc., usually a habeas corpus or writ of certiorari kept in group files until reviewed by a judge to determine if action can be filed without payment of filing fees and court costs. If action meets filing criteria as a civil action, it becomes a civil case and is retained in accordance with SCR 72.01 (1). If not accepted, retain for 5 years after date of submission.

NOTE: Committee of Chief Judges recommends 5 year retention for purposes of review and research.

Amend SCR 72.01 (6) as follows:

72.01 (6) Lien claims. A statutory lien filed for services performed or materials provided: until satisfaction, expiration or entry of judgment, whichever occurs first., except:

(6a) Construction liens - 2 years from the date of filing the lien claim with the clerk of court if no action is brought and no summons and complaint is filed.

(6b) Condominium liens - 3 years after the date of filing the statement of condominium lien with the clerk of court if no action is brought to foreclose the lien.

NOTE: Wisconsin statutes create a variety of liens that have different time limitations and foreclosure procedures, which generally precludes a uniform retention period. Two of the most commonly filed liens are the construction lien and condominium lien. Per § 779.06(l): No lien under § 779.01 (construction) shall exist and no action to enforce the lien shall be maintained unless within 6 months from the date the labor or materials were furnished a claim is filed with the clerk of court, and unless within 2 years from the date of filing the lien claim an action is brought and a summons and complaint filed. Per § 703.16(4): All assessments, until paid, constitute a lien on the condominium units on which they are assessed if a statement of lien is filed with the clerk of court within 2 years after the assessment was due. Under § 703.16(8), no action may be brought to foreclose a lien unless brought within 3 years following the recording of the statement of condominium lien.

Amend SCR 72.01 (11),(12),(13),(14) as follows:

SCR 72.01(11) Family case files. All papers deposited with the clerk of courts in every proceeding commenced under chapter 767 of the statutes: 50 30 years after entry of judgment of divorce or entry of final order; except after 30 years, any case file for which support or maintenance payments are continuing to be made, 7 years after final payment or after order terminating maintenance is filed.

SCR 72.01(12) Family court record. A history and index of proceedings kept in book or card form: 50 30 years after entry of judgment of divorce or entry of final order; except after 30 years, any court record for which related support or maintenance payments are continuing to be made, 7 years after final payment or after order terminating maintenance is filed.

SCR 72.01(13) Family court minute record. A brief statement of in-court proceedings commenced under chapter 767 of the statutes, generally maintained in the case file: 50 30 years after entry of judgment of divorce or entry of final order; except after 30 years, any court minutes for which related support or maintenance payments are continuing to be made, 7 years after final payment or after order terminating maintenance is filed.

SCR 72.01(14) Family maintenance and support payment records. Record of family maintenance and child support payments received by the clerk of circuit court: 50 30 years after entry of judgment of divorce or entry of final order; except after 30 years, any payment records for which related support or maintenance payments are continuing to be made, 7 years after final payment or after order terminating maintenance is filed.

NOTE: Retention allows 30 years for children to come of age after entry of the judgment of divorce or entry of the final order. The retention allows a minimum of 30 years for maintenance and support payments after entry of judgment of divorce or entry of final order. The retention permits sufficient time for enforcement of a family judgment/order. Information needed after 30 years resulting from the judgment or order exists with other sources: bureau of vital statistics, social security administration, support (KIDS) and adoption agencies, parties to the action, etc. For those very few cases where payments may be continuing beyond 30 years, the record is retained for 7 years after final payment or after the filing of the order terminating maintenance.

Amend SCR 72.01 (15),(16),(17) as follows:

SCR 72.01(15) Felony case files. All papers deposited with the clerk of courts in every proceeding commenced under chapter 968 of the statutes for felony offenses, including commitment of an inmate papers filed under chapter 980: 50 years after entry of final judgment; for Class A felonies, 75 years after entry of final judgment.

SCR 72.01(16) Felony court record. A history and index of criminal proceedings kept in book, or card form, or electronic or optical format, including commitment of an inmate court records: 50 years after entry of final judgment; for Class A felonies, 75 years after final judgment.

SCR 72.01(17) Felony minute record. A brief statement of in-court proceedings in a felony action, generally maintained in the case file, including commitment of an inmate minutes: 50 years after entry of final judgment; for Class A felonies, 75 years after final judgment.

Repeal SCR 72.01 (21),(22),(23):

72.01 (21) Misdemeanor traffic files. All papers deposited with the clerk of circuit court in every proceeding commenced under chapter 968 of the statutes for motor vehicle offenses: 6 years after entry of final judgment.

72.01 (22) Misdemeanor traffic court record. A history and index of proceedings under chapter 968 of the statutes for misdemeanor traffic offenses traffic kept in book or card form: 6 years after entry of final judgment.

72.01 (23) Misdemeanor traffic minute record. A brief statement of in-court proceedings in a misdemeanor traffic action, generally maintained in the case file: 6 years after entry of final judgment.

NOTE: Misdemeanor Traffic records are now included under SCR 72.01(18),(19),(20) -Misdemeanor Case Files, Court Record and Minute Record and retained 20 years like all criminal misdemeanor records (not 6 years). 1993 Wis. Act 317 amended § 342.12(4)(a), § 343.305(10)(b), § 346.65(2w) and other Chap. 343, 346 and 940 statutes, increasing to 10 years (from 5 years) the period for counting prior convictions, refusals and revocations when determining penalties for offenses related to operating a motor vehicle while under the influence of an intoxicant.

Amend SCR 72.01 (24),(24a),(24m) as follows:

72.01 (24) Traffic Forfeiture, conservation forfeiture and ordinance violation case files. All papers deposited with the clerk of circuit court in every proceeding commenced under chapters 29, 30, 48, 66, 125, 167, 343, 345, and 350 and 938 of the statutes: 6 5 years after entry of final judgment.

72.01 (24a) Traffic Forfeiture, conservation forfeiture and ordinance violation court record. A history and index of proceedings kept in book or card form: 6 5 years after entry of final judgment.

72.01 (24m) Traffic forfeiture, conservation forfeiture and ordinance violation minute record. A brief statement of in-court proceedings in a forfeiture or ordinance violation action, generally maintained in the case file: 6 5 years after entry of final judgment.

NOTE: § 351.02, Wis. Stats. defines habitual traffic offenders based on convictions during the previous five years. This can include twelve or more convictions of traffic regulation moving violations within a 5 year period. Conservation violations may have enhanced penalties if they occur within a five year period (§ 29.995, Wis. Stats.). Traffic forfeiture and ordinance violation records are unnecessary after 5 years since final case dispositions are certified to the Department of Transportation (DOT) and the DOT record is retained for over 10 years and is the basis for counting prior convictions. Specifically, § 351.02(l) and (1m) states "any person ... whose record, as maintained by the department shows that the person has accumulated the number of convictions ... committed within a five year period." The Department of Transportation maintains records of traffic convictions, suspensions and revocations. The certified record is prima facie evidence that the person named was duly convicted by the court (§ 351.03). A person denying such facts has the burden of proving the facts were wrong.

Criminal misdemeanor traffic records are under SCR 72.01(18),(19),(20) and are retained for 20 years (not 6 years) like all criminal misdemeanor records. 1993 Wis. Act 317 amended § 342.12(4)(a), § 343.305(10)(b), § 346.65(2w) and other Chap. 343, 346 and 940 statutes, increasing to 10 years (from 5 years) the period for counting prior convictions, refusals and revocations when determining penalties for offenses related to operating a motor vehicle while under the influence of an intoxicant. While the change in the retention period seems minor, the volume of paper records kept statewide is considerable.

Amend SCR 72.01 (41),(43),(44) as follows:

72.01(41) Juvenile delinquency, juveniles in need of protection and services (JIPS) and children in need of protection and services (CHIPS) case files. All papers deposited with the clerk of circuit court, register in probate or clerk of court for juvenile matters in every proceeding commenced under chapters 48 or 938 of the statutes: 10 4 years after 18th birthday of juvenile or child; 8 years after 18th birthday of juvenile or child if adjudicated delinquent for committing an act that would be punishable as a Class A or B felony if committed by an adult.

72.01(43) Juvenile/JIPS/CHIPS court record. A history and index of proceedings under chapters 48 or 938 of the statutes kept in book or card form: 10 4 years after 18th birthday of juvenile or child; 8 years after 18th birthday of juvenile or child if adjudicated delinquent for committing an act that would be punishable as a Class A or B felony if committed by an adult.

72.01(44) Juvenile/JIPS/CHIPS minute record. A brief statement of in-court proceedings commenced under chapters 48 or 938 of the statutes, generally maintained in the case file: 10 4 years after the 18th birthday of the juvenile or child; 8 years after 18th birthday of juvenile or child if adjudicated delinquent for committing an act that would be punishable as a Class A or B felony if committed by an adult.

NOTE: Per § 938.35(lm): Dispositions under Chapters 48 and 938 of allegations under § 938.12 or § 938.13(12) shall bar any future proceeding on the same matter in criminal court when the juvenile reaches the age of 17. This does not affect proceedings in criminal court which have been transferred under 938.18.

Per § 938.355(4)(a): Any order made before the juvenile reaches the age of majority shall be effective for a time up to one year after its entry unless the court specifies a shorter time period.

Per § 938.355(4)(b): A judge may make an order under §§ 938.34(4d) and (4m) apply for 2 years or until juvenile turns 18, whichever is earlier. A judge shall make an order under § 938.34(4h) apply for 5 years, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class B felony if committed by an adult, or until the juvenile reaches 25 years of age, if the juvenile is adjudicated delinquent for committing an act that would be punishable as a Class A felony if committed by an adult. The 8 year retention for juvenile's adjudicated delinquent for committing an act that would be punishable as a Class A or B felony if committed by an adult would preserve the juvenile record for a minimum of one full year past the 25th birthday.

Amend SCR 72.01 (47) as follows:

72.01 (47) Court reporter notes. Verbatim stenographic, or shorthand, audio or video notes produced by a court reporter or other verbatim record of in-court proceedings: 10 years after hearing.

NOTE: Clarifies that the 10 year retention of court reporter "verbatim" notes includes audio and video transcripts. Audio and video tape is more susceptible to deterioration over time if not stored properly and also is more "hardware" dependent (example: VHS vs Beta format).

Amend SCR 72.01 (53),(54),(55) as follows:

72.01 (53) Juror questionnaires. A form sent to determine eligibility of prospective jurors: 3 4 years after panel service.

72.01 (54) Jury array. A list of qualified persons selected by jury commissioners to serve as jurors: 3 4 years after panel service.

72.01 (55) Record of jurors. A record of jurors summoned to serve on juries: 3 4 years after panel service.

NOTE: Per § 756.28(2) - Effective July 1, 1997, juror eligibility for jury service is extended to four years.

Create SCR 72.01 (63) as follows:

72.01 (63) Coroner inquest records - No retention: per § 979.08(6) after validated and signed by the judge or court commissioner, the record of the inquest is delivered to the district attorney for consideration. The district attorney may deliver the inquest record to the coroner or medical examiner for safekeeping.

NOTE: Per § 979.08(6) - After delivery of a verdict by the inquest jury "any verdict so rendered, after being validated and signed by the judge or court commissioner, together with the record of the inquest, shall be delivered to the district attorney for consideration. After considering the verdict and record, the district attorney may deliver the entire inquest record, or any part thereof, to the coroner or medical examiner for safekeeping."

Amend SCR 72.05 as follows:

SCR 72.05 Retention of court records maintained as official or original information on electronic or optical storage systems. Court records specified in SCR 72.01 and maintained as official or original information on electronic or optical storage systems shall be retained in the custody of the court for the minimum time periods specified in SCR 72.01. The system maintaining the court records shall meet all of the following requirements:

(1) The information retained shall be in a usable legible and accessible format capable of accurately reproducing the original or of sustaining readability over the time periods specified in SCR 72.01.

(1a) "Accessible" means the information is arranged, identified, indexed and maintained in a manner that permits location and retrieval in a readable format within a reasonable time by use of the proper hardware and software.

(1b) "Authenticity" means being actually and reliably what is claimed and implies the ability to substantiate it.

(1c) "Accurately reproduce" means when displayed on a retrieval device or reproduced on paper, all information exhibits a high degree of legibility and readability.

(1d) "Legible" means when displayed on a retrieval device or reproduced on paper the quality of the letters, numbers or symbols that enables the user to identify them positively and quickly to the exclusion of all other letters, numbers or symbols.

(1e) "Minimum standards" means the minimum base level of technical and/or operational quality necessary to accurately reproduce in an accessible, legible and readable format, over a required period of time, the information captured on the electronic or optical storage system.

(1f) "Readability" means the quality of a group of letters, numbers or symbols being recognized as words or complete numbers or distinct symbols.

NOTE: Reference Department of Administration Adm. Rule 12.03 definitions; Adm. Rule 12.5(3) and § 16.61(7)(a)4; Black's Law and Webster's Dictionary.

(2) Operational and technical procedures shall ensure that protect the authenticity, confidentiality, accuracy, and reliability of the information captured and provide the appropriate level of security are provided to safeguard the integrity of the electronic or optically imaged information.

(2a) Verify the legibility and readability of a statistically significant sampling of electronic or optically imaged records to ensure, to a 99.5% degree of confidence, that the information or images are legible and readable in accordance with SCR 72.05(1d) and 72.05(1f). Original optical images that are not legible or readable, shall be flagged and re-scanned for optimum image enhancement. Illegible images shall contain a scanned notation "best possible image."

(2b) Provide a suitable technical level of security to protect electronic or optical imaged records that are statutorily deemed to be sealed, impounded or confidential and implement procedures to restrict access to only those parties authorized by statute or court order to access such records.

(2c) Provide in good working order the hardware and software needed to retrieve, read and timely reproduce on paper any record retained on electronic or optical storage systems.

(3) Procedures shall be available in place and implemented for the backup, recovery and storage of electronically or optically stored records to protect those records against media destruction or deterioration and information loss.

(3a) Maintain, for disaster recovery purposes, at least one electronically or optically stored backup copy of all automated or optically imaged records and data using accepted computer backup procedures. Store backup copies in a separate location under appropriate environmental storage conditions. Implement a schedule to regularly update or supplement backup copies as a normal part of operations.

(3b) Maintain at least one set of documentation for the electronic or optical systems that produced the automated or optically imaged records for the retention period of those records. Regularly update or supplement such documentation when revisions are made.

(3c) Conduct inspections of a statistically significant sampling of electronic or optically imaged records at least once every 3 years to verify, to a 99.5% degree of confidence, that there has been no degradation of the electronic medium or of image quality.

(4) A media retention and conversion-review schedule shall be established to ensure that electronically or optically stored information is reviewed for data conversion or recertification at least once every 5 3 years or more frequently when necessary to prevent the physical loss of data or technological obsolescence of the medium.

(4a) Transfer and verify off-line electronic data or records stored on optical disk to new media or new optical disk before 50% of the manufacturer's certified useful life of the original media/disk is exceeded. Disk "useful life" is determined by the manufacturer's certified disk playback stability measured in years.

(4b) Records electronically or optically stored that have reached their minimum legal retention period specified in SCR 72.01 that do not have historical or research value may be destroyed. For CCAP (Circuit Court Automation Program) or other electronic court data systems and WORM (Write-Once-Read-Many times) optical disk systems, records should be organized and formatted to permit the off-line disk or optical WORM disk as a whole to be destroyed. For WORM disks, the destruction of the index to the obsolete record is sufficient.

(4c) Court records electronically or optically stored that are expunged by court order as determined under § 973.015 and § 938.355(4m), Wis. Stats., shall be expunged by sealing or otherwise restricting access to the electronic or optical stored record. This includes records stored off-line and on backup media. This may involve the obliteration of the index to the expunged record.

(4d) Protect electronically or optically stored records with "archival" value (historical, or research value) beyond the legal retention periods specified in SCR 72.01 from destruction or media deterioration and transfer such records in a computer industry-accepted standard universal format, along with technical documentation, to the state historical society of Wisconsin.

(5) A written plan shall be provided to the director of state courts for prior approval to ensure compliance with subs. (1) to (4) before a new electronic or optical imaging record system is implemented and before an existing system is enhanced. The plan should also indicate:

(5a) That a feasibility study was conducted and an analysis made of the system's cost and conversion costs compared to ongoing current costs.

(5b) That a data migration plan has been developed for the retention period of those electronically or optically stored records.

(5c) That, if an optical imaging system, the custodian of the record executed a statement of intent and purpose indicating:

(5d) That the statement of intent and purpose was provided to the director of state courts office.

NOTE: The amendments are intended to codify standards for the transfer, capture and storage of court information and/or documents on electronic or optical imaging systems for the required legal retention period. The proposed amendments parallel or are based on Wisconsin Statutes 16.61(5), 16.61(7)(a), 16.61(8)(a), 228.03(l) and (2); Department of Administration Chapter Adm. 12 rules; Rules of Evidence (Chapters 901 to 911, Wis. Stats.) Amendments are also based on standards and guidelines proposed by the National Archives and Records Administration, National Association of Government Archives and Records Administrators and the Association for Information and Image Management. The rule for expunction of electronic or optically imaged records (per §§ 973.015 and 938.355(4m), Wis. Stats.) is based on the proposed Chief Judges' petition on expunction, State vs. Anderson [160 Wis. 2d 435 (Ct. App. 1991) and 130 Wis. 2d 376], DOA Adm Rule 12.08(2) and Black's Law Dictionary definition of expunge.

Dated this 11th day of March, 1997.

For: The Wisconsin Court Records Management Committee

By: J. Denis Moran, Director of State Courts

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