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AGO 1966 No. 110 - October 05, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


OFFICES AND OFFICERS ‑- COUNTY ‑- AUDITOR ‑- MICROFILMING OF LEGAL INSTRUMENTS.

A county auditor is not authorized by RCW 65.04.040, as amended by § 1, chapter 254, Laws of 1959, to microfilm recordings of legal instruments recorded in his office prior to the statutory amendment and then to destroy the original recordings under RCW 40.14.070.

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                                                                 October 5, 1966

Honorable Sidney McAlpin
State Archivist
General Administration Building
Olympia, Washington

                                                                                                              Cite as:  AGO 65-66 No. 11

Dear Sir:

            By letter previously acknowledged you have requested the advice of this office relative to the microfilming and disposition of legal recordings in county auditors' offices in the various counties.  Your question may be paraphrased as follows:

            Is a county auditor authorized by RCW 65.04.040, as amended by § 1, chapter 254, Laws of 1959, to microfilm recordings of instruments previously recorded in his office and then to destroy the original recordings under RCW 40.14.070?

            We answer your question in the negative.

                                                                     ANALYSIS

            RCW 65.04.040, as amended by § 1, chapter 254, Laws of 1959, provides as follows:

            "Any state, county, or municipal officer charged with the duty of recording instruments in public records, may, in lieu of transcription, record them by a photographic or photomechanical process, which produces a clear, legible, and durable record and which has been tested and approved  [[Orig. Op. Page 2]] for the intended purpose by the state archivist.

            "In addition, the county auditor, in the exercise of his duty of recording instruments in public records, may, in lieu of transcription, record all instruments, which he is charged by law to record, except plats, by any photographic, photostatic, microfilm, microcard, miniature photographic or other process which actually reproduces or forms a durable medium for so reproducing the original, and which has been tested and approved for the intended purpose by the state archivist.  If the county auditor, in lieu of transcription, records any instrument by a process herein enumerated which produces a miniature copy of the original it shall not be necessary thereafter to make any notations or marginal notes, which are otherwise required by law, thereon:  Provided, That in lieu of making said notations thereon, the auditor shall immediately make a note of such in both the direct and inverted indexes and other appropriate indexes, in the column headed 'remarks', opposite the appropriate entry."  (Emphasis supplied.)

            By chapter 246, Laws of 1957 (chapter 40.14 RCW) the legislature enacted a comprehensive statute relating to the custody, disposition, preservation and destruction of public records.  For the purposes of the act, § 1 (RCW 40.14.010) defines and classifies public records.  Section 7, (RCW 40.14.070) which is material to your inquiry provides in pertinent part as follows:

            "County, municipal and other local government agencies may request authority to destroynoncurrent public records having no further administrative or legal value by submitting to the division of archives and records management, lists of such records, in triplicate, on forms prepared by the division.  The archivist and the chief examiner of the division of municipal  [[Orig. Op. Page 3]] corporations of the office of the state auditor and a representative appointed by the attorney general shall review such lists, and either may veto the destruction of any or all items contained therein.  No official public record of any local governmental unit shall be destroyed until it is either photographed, microphotographed, photostated, or reproduced on film, or until it is ten years old."  (Emphasis supplied.)

            RCW 65.04.040,supra, authorizes the recording of certain instruments in a particular manner, in lieu of transcription, whereas RCW 40.14.070,supra, authorizes the destruction of certain public records.  The question is whether these statutes can be read to authorize a county auditor to rerecord his prior original recordings by microfilming them and then to destroy the original recordings.  An answer to this question requires a determination of legislative intent.  Legislative intent is to be found, in so far as possible, from the language of the statutes under construction.  Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948).  Of course, in doubtful cases arising on account of ambiguities in statutes, it is necessary to resort to other related statutes because such statutes should be read together wherever possible as constituting one organic entirety.  Paltro v. Aetna Casualty & Surety Co., 119 Wash. 101, 204 Pac. 1044 (1922).  A particular rule of statutory construction necessary to be noted here is that statutes speak prospectively, and not retrospectively, unless the legislature has clearly indicated otherwise.  Fay v. Allied Stores Corp., 43 Wn.2d 512, 262 P.2d 189 (1953).

            As we read the provisions of RCW 65.04.040, supra, as amended by § 1, chapter 254, Laws of 1959, we note a clearly-expressed legislative intent:

            (a) That certain public officers may record certain records by photographic or other similar processes, in lieu of transcription;

            (b) That a county auditor may record instruments (other than plats) by such means, including the use of microfilm, in lieu of the traditional transcription of records; and

            (c) That in such latter case the auditor is authorized to dispense with notations or marginal notes on the original or  [[Orig. Op. Page 4]] recorded instrument, but is expressly required to make a note of such items in ". . . both the direct and inverted indexes and other appropriate indexes, in the column headed 'remarks', opposite the appropriate entry."

            In other words, the 1959 amendment of RCW 65.04.040 authorized certain new procedures which could be utilized by county auditors in recording instruments.  Since instruments are recorded by a county auditor when received, it is apparent that this statute was intended to operate prospectively.  That is, a county auditor was authorized to adopt the new recording methods as to recordings made after the effective date of the 1959 amendment.  See, AGO 59-60 No. 67.  Therefore, it appears that although the legislature by its 1959 amendment authorized these new methods of recording to reduce the ever-increasing volume of public records, it did not by that statute authorize a means for reducing in volume those records which had already been recorded.

            As previously indicated in this opinion, RCW 40.14.070, supra, provides an existing means by which the volume of public records may be reduced in size.  However, the difficulty in utilizing that statute with regard to the type of records here under consideration arises because of so much of the statute as provides:

            "County, municipal and other local government agencies may request authority to destroynoncurrent public records having no further administrative or legal value. . ."  (Emphasis supplied.)

            The records to which you refer simply do not meet this requirement; i.e., they are records relating to property transfers and titles, and do have current administrative and legal value.

            Because of the doubts we have expressed herein as to the existence of legal authority to destroy these recordings, and in view of the gravity of the question; i.e., the destruction of current records affecting title to property, we must answer your question in the negative.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General

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