OFFICES AND OFFICERS ‑- STATE ‑- COMMISSIONER OF PUBLIC LANDS ‑- FUNDS ‑- PUBLIC RECORDS

OFFICES AND OFFICERS ‑- STATE ‑- COMMISSIONER OF PUBLIC LANDS ‑- FUNDS ‑- PUBLIC RECORDS

The records of funds deposited by the commissioner of public lands in approved state depositories, pursuant to RCW 43.85.130 and 43.85.140, are available for public inspection in accordance with RCW 43.88.200.

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                                                              September 12, 1972

Honorable Bert L. Cole
Commissioner of Public Lands
Box 168
Olympia, Washington 98504

                                                                                                                 Cite as:  AGO 1972 No. 20

Dear Sir:

            This is written in response to your recent request for an opinion of this office on the following question:

            ". . .  Are the records of funds deposited by the Commissioner of Public Lands, in approved state depositories, pursuant to RCW 43.85.130 and 43.85.140 public records?"

            We answer this question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            As we understand it, the funds to which your question refers are, basically, monies which have been deposited by purchasers of timber or other valuable materials on state lands pursuant to the following provisions of RCW 79.01.132:

            "When any timber, fallen timber, stone, gravel, or other valuable material on state lands is sold separate from the land, it may be sold as a lump sum sale or as a scale sale:  Provided, That upon  [[Orig. Op. Page 2]] the request of the purchaser, any lump sum sale over five thousand dollars appraised value shall be on the installment plan.  Lump sum sales under five thousand dollars appraised value shall be paid for in cash.  A total deposit of not to exceed twenty-five percent of the actual or projected purchase price, but in the case of lump sum sales over five thousand dollars not less than five thousand dollars, shall be made on the day of the sale, as provided in RCW 79.01.204, and the operator shall notify the commissioner before any timber is cut and before removal or processing of any valuable materials on the sale area, at which time the commissioner may require additional payment.  The amount of such additional payments shall at all times equal or exceed the value of timber cut and other valuable materials processed or removed and said deposit shall be maintained until all valuable materials are removed:  And provided further, That said deposit may be applied as the final payment for said materials."  (Emphasis supplied.)

            With respect to the handling of these monies, RCW 43.85.130 provides as follows:

            "The commissioner of public lands shall deposit daily all moneys and fees collected or received by him in the discharge of his official duties, including all moneys and fees which remain in his custody and control awaiting disposition under the provisions of the land laws, or the action of the department of natural resources:Provided, That all moneys collected or received by him, belonging to the state at the time, or to any department or institution thereof, in payment of principal and interest under outstanding contracts and leases, where no question is raised as to the right of the state to receive payment, shall be paid to the state treasurer daily in the manner provided by law.

            "Money shall not be deemed to have been paid to the state upon any sale or lease of land until it has been paid to the state treasurer."

             [[Orig. Op. Page 3]]

            Also to be noted is RCW 43.85.140, which provides that

            "The deposit of all moneys other than the moneys paid to the state treasurer as required by law, shall be made only in special depositaries.  The depositaries shall be designated and selected by the state finance committee in the manner provided for the designation of state depositaries, and after such selection and designation by the committee notice thereof shall be given to the commissioner of public lands, and the commissioner shall thereupon make daily deposits therein of the moneys in his official custody and control."

            Your question is whether the records of funds deposited by the commissioner of public lands pursuant to these statutes are "public records" to which members of the public may demand access.  Before addressing ourselves to this question we should note and comment briefly upon the context in which it has been asked.  Presently pending before the Thurston County Superior Court is an application for a writ of mandamus to require you to ". . . release and reveal . . ." information contained in the records in question to a certain private citizen.1/   You have asked for our opinion on the matter in order to assist you in determining how to respond to that action and you have further agreed to abide by our answer.  Therefore, even though we do not ordinarily issue opinions on questions which are in litigation, we deem it appropriate in this case to do so.  The distinguishing feature here is that we are dealing with a question asked by a party to the lawsuit itself who is, in addition, a state officer who is entitled to our advice and representation in the litigation.  See, RCW 43.10.030.  For this reason, the policy considerations underlying our ordinary position are not applicable here.

            With this explanation in mind and without commenting on any other issues which may be involved with respect to the litigation we turn, now, to your question.

            In the absence of a governing statute dealing with particular records in the custody of a public official,  [[Orig. Op. Page 4]] public access to such records is dependent upon an application of certain common-law rules which have been laid down by the courts over the years.  Under these rules, not all records in the custody of a public official constitute "public records"; instead, this term (for purposes of public access) applies only to those records which the public agency having custody is required by law to maintain.  See, e.g.,State ex rel. Cook v. Reed, 36 Wash. 638, 79 Pac. 306 (1905).  Conversely, as stated in AGO 57-58 No. 84 [[to Pollution Control Commission on June 19, 1957]], copy enclosed,

            ". . . where the legislature has not required that a public agency or department maintain certain records, and thereby denominated them public records, the availability for examination of such records is within the discretion of the administrative head of the particular department or agency.  51 OAG 176 [[AGO 51-53-176 to B. J. McLean, State Representative on November 27, 1951]]."

            However in the case of records to which your question refers we have an instance, in our opinion, in which the legislature has affirmatively spoken.  By its enactment of RCW 43.88.200, codifying the provisions of § 20, chapter 328, Laws of 1959 (commonly known as the state budget and accounting act), the legislature has provided that:

            "All agency records reflecting financial transactions, such records being defined for purposes of this chapter to mean books of account, financial statements, and supporting records including expense vouchers and other evidences of obligation, shall be deemed to be public records and shall be available for public inspection in the agency concerned during official working hours."

            The term "agency," as used in this section, is defined by RCW 43.88.020 (4)2/ to mean and include

            ". . . every state office, officer, each institution, whether educational, correctional or other, and every department, division, board and commission,  [[Orig. Op. Page 5]] except as otherwise provided in this chapter."