PUBLIC RECORDS ‑- POLLUTION CONTROL COMMISSION ‑- INSPECTION OF FILES BY PUBLIC

PUBLIC RECORDS ‑- POLLUTION CONTROL COMMISSION ‑- INSPECTION OF FILES BY PUBLIC

Records and files of a commission of this state required by statute to be maintained by that commission are "public records" which legitimately interested members of the public have the right to inspect.  Whether access should be allowed to other records and files of such a commission is a matter of discretion vested with the administrative head of the commission.

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                                                                   June 19, 1957

Mr. Alfred T. Neale
Pollution Control Commission
224 Old Capitol Building
Olympia, Washington                                                                                                                Cite as:  AGO 57-58 No. 84

Dear Sir:

            By letter, dated May 13, 1957, you have requested an opinion of this office regarding the impending formulation of a policy by the pollution control commission as to whether the files of the commission should be afforded to the public for inspection and, possibly, for the making of copies thereof.  We paraphrase your question as follows:

            Must the pollution control commission make the following types of records available for public inspection:

            (1) Original and copies of correspondence from individuals, private industry, governmental and other agencies;

            (2) Original and carbon copies of analyses of industrial and municipal sewage treatment plant effluents;

            (3) Information supplied to the commission by those seeking permits in compliance with the appropriate statute?

                                                                     ANALYSIS

             [[Orig. Op. Page 2]]   Our answer is that the public has right of access to all records which the commission is required to keep by statute.  Whether access should be allowed to other records and files of the commission is a matter of discretion vested with its administrative head.                                                                           

            InFayette County v. Martin, 279 Ky. 387, 130 S.W. (2d) 838, the court quoted the following passage from C.J. § 40:

            "At common law a person may inspect public records in which he has an interest or make copies or memoranda thereof, when a necessity for such inspection is shown and the purpose does not seem to be improper, and where the disclosure would not be detrimental to the public interest; . . ."

            See alsoNorth v. Foley, 238 App. Div. 731, 265 N.Y.S. 780, and 45 Am.Jur. on Records and Recording Act § 17.

            The inspection must be for a legitimate purpose.  45 Am.Jur. on Records and Recording Acts § 19.  See alsoNowack v. Auditor General, 243 Michigan 200, 219 N.W. 749, 60 A.L.R. 1351.

            This office has previously adopted a similar viewpoint as to what public records are rightfully open to examination of the public, stating that only those need be allowed to inspect public records who have "an interest in the record and a necessity for examination."  37 O.A.G. 299, 300 [[1937 OAG 299]].

            As stated above, the right of inspection is necessarily accompanied by the right to make copies of the particular public records.  45 Am. Jur. on Records and Recording Acts § 15.  Furthermore, an attorney who is retained by an individual having the right of inspection is also to be afforded that right.  Brewer v. Watson, 61 Ala. 310, 60 A.L.R. 1373.

            Thus, members of the public in this state, in the absence of express statutory authority have a common law right to the inspection, and the copying, ofpublic records in which there exists a legitimate interest and a necessity for examination.

            All records maintained by the various departments of government are not,  [[Orig. Op. Page 3]] however, public records.  In denying that the appellant had a right of inspection of certain memoranda and records maintained by a county treasurer at public expense but not by direction of statute, our court stated as follows:

            "They were not public records open to inspection by the public, as a matter of right, unless they were such as the law required to be kept."  State ex rel. Cook v. Reed, 36 Wash. 638, 640.

            InState ex rel. Price v. Peterson, 198 Wash. 490, 497, the court, in discussing the right of inspection of records maintained by an administrator who was by statute required to keep records and reports only as the county commissioners directed, said:

            "We do not think it follows that, because one is a public officer, all records and reports of such officer are public records, which the public is entitled to inspect."

            Thus, 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 O.A.G. 176 [[Opinion No. 51-53-176 to B. J. McLean, State Representative on November 27, 1951]].

            The pollution control commission must maintain certain records by statute which consequently are public records.  Both RCW 43.54.040 and RCW 90.48.030 authorize the commission to adopt rules, regulations, standards, and procedures to effectuate its purpose.  RCW 42.32.010 provides that no commission of this state shall adopt any rules or regulations, etc., except in public meetings; and RCW 43.54.040, cited above, also states that the commission "shall keep a complete record of all its proceedings".  Furthermore, RCW 42.32.030 requires that the minutes of regular and special meetings of a commission are to be open to public inspection.

            It is our opinion that the types of records of which you have inquired are not required by the above statutes to be maintained.  Therefore, they are not public records, and may be examined by the public only at the discretion of the administrative head of the commission.

             [[Orig. Op. Page 4]]

            We have taken cognizance of Chapter 246, Laws of 1957, regarding "Public Records‑-State Archives," § 1 of which is herewith quoted:

            "As used in this act, the term 'public records' shall include any paper, correspondence, form, book, photograph, film sound recording, map drawing, or other document, regardless of physical form or characteristics, and including all copies thereof, that have been made by any agency of the state of Washington or received by it in connection with the transaction of public business."  (Emphasis supplied)

            It is our opinion that the legislature did not intend that this definition should extend to subjects other than state archives.  This conclusion is reached from the words of limitation "as used in this act."  The intent of the legislature is ". . . determined from reading the act itself, construing the term and provisions therein according to their ordinary meaning, and giving consideration to the purposes and objects sought to be accomplished by the legislative enactment."  State ex rel. State Retirement Board v. Yelle, 31 Wn. (2d) 87, 111.

            We have further taken into consideration Chapter 40.04 RCW entitled "Public Documents" and have concluded that this statute is not applicable to the question posed under the same reasoning as above.

            We trust that the foregoing will prove helpful.

Yours very truly,

JOHN J. O'CONNELL
Attorney General

ERNEST M. FURNIA
Assistant Attorney General