[75 Ariz. 77] Conner & Jones, of Tucson, for appellant.
Fred O. Wilson, Atty. Gen., Perry M. Ling, Chief Asst. Atty. Gen., and Charles C. Stidham, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment of the superior court dismissing the petition for mandamus filed by William R. Mathews, editor of the Arizona Daily Star, against Honorable Dan E. Garvey as Governor of the state, seeking the right to inspect certain documents in the Governor's office. With a change in administration the Honorable Howard Pyle, the present Governor, was substituted as party defendant and adopted the answer of his predecessor.
The facts are that Governor Garvey called upon the Attorney General to make an investigation of the affairs of the office of State Land Commissioner, O. C. Williams, and report to him the result of such investigation. The Attorney General complied with the request and furnished the information in writing to Governor Garvey. The petitioner, according to defendant's answer, has heretofore been given access to, and published, the report but failed to obtain a view of certain other documents in connection therewith, to the inspection of which he claims to be entitled.
The petitioner claims that these matters are public records and are subject to inspection by the public, and especially that as an editor of a daily newspaper he has an interest which entitles him to an inspection thereof in the performance of his duties to [75 Ariz. 78] the public as such publisher. The Governor in his answer thereto denies that the report and accompanying documents are public records and denies that the editor of a newspaper has any special interest in inspecting the documents which entitles him to any, or greater right, than that possessed by other members of society. The Governor further claims that the letter and supplemental documents sought by petitioner are confidenial in nature; that it would be detrimental to the best interest of the state to permit a public inspection of their contents and therefore they should not be open to the inspection of the public at large. He further alleges that as the Governor of the state the duty devolves upon him to determine what information reaching him in his official capacity shall be made public, and that he has determined that such documents contain confidential information and the publication of the contents thereof would not be to the best interest of the state. His position is that the Governor's determination is final and not subject to review by the courts.
The statutes upon which petitioner relies are section 4-102, A.C.A.1939, which reads as follows:
'Records to be kept.--The governor shall keep a record of his official acts; an account of his official expenses and disbursements, including the incidental expenses of his department; a register of all appointments made by him, with
date of commission, names of the appointee and predecessor, and shall keep in his office all documents received by him in his official capacity.' (Emphasis supplied.)
Section 12-412, A.C.A.1939, provides insofar as pertinent here:
'Records open to public--* * * Public records and other matters in the office of any officer are at all times during office hours open to the inspection of any person. * * *' (Emphasis supplied.)
A public record is defined as follows:
'A public record, strictly speaking, is one made by a public officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or to serve as a memorial of official transactions for public reference.'
State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301-303; People ex rel. Stenstrom v. Harnett, 131 Misc. 75, 226 N.Y.S. 338-341; People v. Purcell, 22 Cal.App.2d 126, 70 P.2d 706. Also a record is a 'public record' which is required by law to be kept, or necessary to be kept in the discharge of a duty imposed by law or directed by law to serve as a memorial and evidence of something written, said or done. Robison v. Fishback, 175 Ind. 132, 93 N.E. 666-669, L.R.A. 1917B, 1179; Amos v. Gunn, 84 Fla. 285, 94 So. 615-634; Steiner v. Mcmillan, 59 Mont. 30, 195 P. 836-837. It [75 Ariz. 79] has also been held that a written record of transactions of a public officer in his office, which is a convenient and appropriate method of discharging his duties, and is kept by him as such, whether required by express provisions of law or not, is admissible as a public record. People v. Purcell, supra, and State v. Ewert, 52 S.D. 619, 219 N.W. 817-826.
It will be observed that section 4-102, supra, provides that the Governor shall keep a record of his official acts and certain other things. Under the definition above given that a record which the law requires to be made is a public record, the official acts of the Governor and accounting of his official expenses and disbursements including incidental expenses of his department, and a register of appointments made by him, etc., are public records. This section also says that the Governor 'shall keep in his office all documents ...