Oregon Advisory Opinions June 06, 1958: OAG 58-89 (June 6, 1958)

OAG 58-89.

The question presented is whether or not an initiative petition for a state measure is subject to inspection by a third party while it is in the hands of the county clerk for the purpose of having the names checked against the registration rolls and prior to the formal filing with the Secretary of State.

There are a number of statutes in Oregon which deal with the right of inspection of public writings or records. Unless it is otherwise provided, any citizen of this state has the right to inspect any "public writing" of this state: ORS 192.010. ORS 192.030 provides:

"All officers having custody of any state, county, school, city or town records shall furnish proper and reasonable opportunities for inspection and examination of records and files in their respective offices, and reasonable facilities for making memoranda or abstracts therefrom, during the usual business hours, to all persons having occasion to make examination of them for any lawful purpose. The custodian of the records and files may make reasonable rules and regulations necessary for the protection of the records and files and to prevent the interference with the regular discharge of the duties of such officer."

It is our opinion that this statute is not applicable as it is concerned solely with "records" of the various governmental agencies mentioned. The petition at the time it is submitted to the county clerk for the verification of signatures and the affixing of his certificate is not a record and does not become a record until it is filed in the office of the Secretary of State as provided in ORS 254.030. Of course the voter registration list against which the petition is compared is a record and may be inspected, but this is distinct from the petition itself. Two other statutes bearing upon the question are ORS 43.010 and 43.020, which read:

"Public writings are the written acts, or records of the acts, of the sovereign authority, official bodies and tribunals and public officers, legislative, judicial and executive, of this state, the United States, a sister state or a foreign country." ORS 43.010

"Public writings are divided into:

"(1) Laws.

"(2) Judicial records.

"(3) Other official documents.

"(4) Public records, kept in this state, of private writings." ORS 43.020

A petition submitted for verification is neither the written act nor the record of an act of the clerk nor of any other official of the state or county. It is the act of private individuals and by the submission to the county clerk for verification it is not converted to his act. The petition is not filed or recorded with the clerk and his duty and function are solely for the comparison of signatures and the verification of the authenticity of them. No requirement is imposed that a copy or record of the petitions or of his certificate be made or retained in his files. We conclude that the petition does not become by delivery to the county clerk a public writing within the language of ORS 43.010 and 43.020.

As a corollary to this conclusion it follows that the petition remains a private writing until it is filed with the Secretary of State. This result is confirmed by the provision that the clerk shall return the petition with his certificate to the person from whom he received it. ORS 254.040 (4). The significance of this factor is, we believe, important as is recognized in State v. McGrath, (Mont. 1937) 67 P. (2d) 838, where the court in permitting inspection commented on the distinction between the Montana statute which required the clerk to forward the verified petition directly to the Secretary of State rather than return it, as in Oregon, to the person submitting it.

Clearly, if the petition is a private writing, as we conclude, no right of inspection exists in any one except the person who presented it to the clerk, or perhaps a signator. Further, as a private writing the clerk has no right to permit inspection of the petition by any