dissenting.
My reasons for disagreement with the majority are twofold. First, I think that the “records” sought to be examined by plaintiff are not “public writings or records” in the sense employed by ORS 43.020 or as construed by the majority. Secondly, I feel the majority opinion expands definition of “the right to know” beyond what is necessary to arrive at a conclusion in this case. I entertain the belief that “the right to know” and what in fact constitutes a public record should be determined in the light of the circumstances attending the request and the particular legislation which produces the “records” that a given plaintiff desires to inspect.
I subscribe to the statement from State v. Keller, *50143 Or 589, 601, 21 P2d 807, and quoted in the majority opinion:
“* # *. The public must always have access to all public records required to be kept or made by a public official unless the statute specially provides otherwise.”
And I add that the courts should always be vigilant to protect the public’s right of access to all public records when in fact a “public record” is the subject of inquiry.
“The right to know” is not, however, an absolute which can compel a discovery of everything done by a given officer or state agency under the color of claim that every writing in the possession of such officer or agency is a “public record” to be exposed on demand of any member of the public no matter how praiseworthy may be the party’s motives.
The majority takes cognizance of the existence of such limitations. They note the existence of authority concerning: “information received in confidence” or if “disclosure would be detrimental to the best interests of the state”; and “documentary evidence in the hands of a district attorney.” Other limitations on “the right to know” are supplied by many statutes. Two very familiar instances are the prohibitions which prevent disclosure of income tax returns and the minutes of the grand jury (ORS 132.410).
My own position here is aptly expressed by U. S. District Judge Leon R. Yanlcwich in his statement taken from an article in 48 NW L Rev 527, 530, reading:
“Only documents which present ultimate actions should be accessible to the public. Those which are merely part of the preliminary steps by which the *51conclusion was reached should become public only in the discretion of the particular agency.”
In the same article Judge Yankwieh also observes: * * If the record is one that is not kept pursuant to law or as a part of the duty to be discharged by the officer, and is not required to be filed or recorded, it is not subject to public inspection. * * *” (NW L Rev, supra, at 529) Again, at page 530: “* * * in the last analysis, only the memorials representing * * * ultimate action are, in a sense, public. * * *” Those familiar with the record of Judge Yankwieh will hesitate to impute to him any inclination to deprive the public of information of public nature which it has a right to know.
In line with the view of Judge Yankwieh, the majority observes that “it has been held that writings are not public records if they are ‘merely incidental to the administration of the affairs of office.’ ” This is followed by supporting citations to which I add: McGarrahan v. New Idria Mining Co., 96 US 316, 24 L ed 630; Lefebvre v. Somersworth Shoe Co., 93 NH 354, 41 A2d 924, 926; 45 Am Jur 429, Records and Recording Law § 20; Cherkis v. Impellitteri, 307 NY 132, 120 NE2d 530; see, also, 282 App Div 467, 124 NYS2d 816 (another appeal in the same case), where it is said: “There are obvious distinctions between papers for use in an investigation and a culminating official report at the conclusion of the investigation.” (124 NYS2d at 817) See, also, 20 Am Jur 866, Evidence § 1027, concerning the admissibility as evidence of reports in contradistinction to records of investigation upon which reports in the nature of public records depend and where it stated:
“According to the theory advanced by some courts, a record of a primary fact made by a public *52official in the performance of official duty is, or may he made by legislation, competent prima facie evidence as to the existence of that fact, but records of investigations and inquiries conducted either voluntarily or pursuant to requirement of law by public officers concerning causes and effects, and involving the exercise of judgment and discretion, expressions of opinion, and the making of conclusions, are not admissible in evidence as public records. * *
cited by the court in Steel v. Johnson, 9 Wash2d 347, 115 P2d 145, one of the cases referred to in the majority opinion.
It is a familiar canon of construction that statutes are to be interpreted so as to fulfill the policies and attain the results which the legislature had in mind. The Act of 1957 leaves no uncertainty in that respect.
The genesis and purpose of ch 399, Oregon Laws 1957 (OPS 453.610 to 453.650, inclusive), hereinafter called the Act of 1957, illustrates the necessity for a cautious approach in interpretation as to what is in fact a public record and the careful avoidance of possible dangers if the State Board of Health is compelled to prematurely exhibit to plaintiff any part of its data before the formulation of its conclusions in the form of required standards and regulations.
It is impossible to arrive at a sound conclusion in this matter without first taking cognizance of the unusual subject matter of the Act of 1957 and of the importance of the results hoped to be achieved thereby.
The Act is clearly designed with the hope to create by regulations a shield to the lives and happiness of every citizen of the state which will be protective against the potential dangers incident to the use of the most powerful force yet known to man. The legis*53lature is here dealing with one aspect of atomic power and its dangerous impact on all living things.
The seriousness of this situation which confronted the legislature is reflected in Section 1, which reads:
“Whereas radiation can be instrumental in the improvement of health, welfare and productivity of the public if properly utilized, and may impair the health, welfare and productivity of the public and the industrial and agricultural potentials of the state if improperly utilized, it hereby is declared to be the public policy of this state to encourage the constructive uses of radiation and to control any associated harmful effects.”
The complexity and extent, chemically and physically, of the problem is demonstrated by the definition of “radiation” found in Section 2(1):
“ ‘Radiation’ means gamma rays, X rays, alpha and beta particles, high speed electrons, neutrons, protons and other nuclear particles; but does not include sound or radio waves, or visible, infrared or ultraviolet light.”
Most of the elements referred to have the potentials of great good and great danger to human beings unless properly regulated and controlled.
That it will take time and study of not less than two years before complete or appropriate regulations can be devised is directed by Section 3 which provides:
“The State Board of Health, after making a two-year study of the problem, shall promulgate regulations and standards, in conformance with the policy expressed in section 1 of this Act, for the safe use, handling, disposal and control of all radiation sources within this state * *
The legislature realized that an investigation made solely by the State Board of Health could not be sue*54cessful without taking into account “nationally accepted standards.” This is disclosed by Sections 4 and 5 of the Act of 1957.
It also recognized that the problem is one of complexity beyond the ken of the Board, acting alone. It, therefore, directed that body to bring to its aid as an advisory committee five persons “who because of their training and experience are qualified to advise” the Board in such matters.
Thus, we find when we read the Act of 1957 in its entirety the legislature was not only conscious of the magnitude of the dangers of nuclear radiation, but properly sensitive to the necessity of long and earnest research and study by the best minds available before a sound set of regulations could be promulgated for public protection.
The Act directs inquiry into a scientific area which is in its infancy, constantly being changed by new discoveries and new evaluations in terms of safety or danger. When we speak of the relative newness of atomic power we need only recall that not more than 15 years ago the world learned in dramatic and catastrophic fashion of the potentialities of nuclear energy, and of the tragic results of the “fallout” when uncontrolled. Day by day since then we are informed of things which are the result of scientific experimentation and experience which tend on one hand to heighten the public apprehension and on the other to still or limit its fears.
It is, however, impossible to conceive that the ultimate success of the legislative mandate can be, if ever, achieved without (1) the counsel of those steeped by experience and scientific training in the physical and chemical attributes of “gamma rays, X rays, alpha and beta particles, high speed electrons, neutrons, protons *55and other nuclear particles” (Section 2(1), Act of 1957); and (2) a long season of uninterrupted experimentation and research from day to day both within and without the state before sound averages of experience can be obtained upon which to predicate adequate “regulations and standards” for public protection and “in accordance with nationally accepted standards” (Section 4, Act of 1957).
The limitation imposed by Section 4, supra, reveals that the final conclusions of the Board must necessarily depend upon an active collaboration with national health agencies having the facilities and equipment for greater and more accurate accumulation of information. Recalling as we can do, that most, if not all, of the nuclear “fallout” which gives concern is the product of military tests and experimentation, it is conceivable that no sound regulation or standard can be formulated by a state agency such as the State Board of Health with any indifference to the vast source of material collected by the War Department and then only subject to such limitations in use as a federal agency may properly impose. In the meantime, the data and reports collected from these sources can at best lead only to tentative conclusions before the full period of investigation is terminated.
With these matters in mind, should we give legal character to the demands of the curious who cannot patiently await the final conclusions of the State Board of Health by conferring on each separate seeker, as plaintiff, the right to interrupt and inquire progress of inquiry at any preliminary stage. Bend Pub. Co. v. Haner, 118 Or 105, 244 P 868 (1926), was our earliest decision on the subject of right to “inspect” public records. We said at page 110: “To those persons only who have occasion to examine the records for some *56lawful purpose, and not from mere curiosity, will a writ of mandamus be granted: * * (Emphasis supplied.)
Plaintiff first demanded to examine the Board’s records in April, 1958. At that time the Board had not yet reached the midpoint of its authorized two-year study.
What was plaintiff’s purpose? Because, as he testified, he felt that as a scientist he “was in a position to apply this information more intelligently than the general public, and that it was [his] duty to give any information I could to the people to help them so that they would know of the dangers and take whatever steps were appropriate to protect themselves.” He approached this self-assumed public responsibility by demanding a right to see everything the Board had.
When asked: “Do you contemplate that you might spread an alarm if you got certain information?”, Dr. MacEwan answered, “Yes.” When questioned as to what he meant by spreading an alarm, he replied: “What I mean is, if I find there is a large amount of radio-activity in the atmosphere here, in the drinking water, or in the rain water, I would do everything I could to see to it that the people generally were informed of this, so that they might influence their legislators in Washington to put a stop to the bomb tests; that more work would be done in scientific laboratories to attempt to devise means of protecting people from the effects of that radiation, and in these ways to give people the opportunity to know what hazards they were subject to, and be in a position to take steps to do something about it.”
Except to influence the cessation of bomb tests, what plaintiff seeks to do by his inquiry midway in the Board’s investigation or before the Board reaches *57a sound conclusion as to desirable regulations and standards, is precisely what the legislature has impowered the Board to do for all members of the public. Plaintiff, however, would pick and choose as he pleased from the records and broadcast his conclusions as supported by the incomplete data of a state agency.
What is plaintiff’s proposed method of disseminating the information obtained from his examination of the Board’s accumulated data? “I would speak to the people that I knew; I would address groups; I would inform the newspapers; I would write letters to the newspapers; I would write to my congressmen; things of this sort.”
Plaintiff arrogates to himself a tremendous responsibility when he suggests that he, alone, by examining such data as the Board had at the time of his request could evaluate it and, as he proposes in justification, then advise the public what would be best calculated to guard against or minimize the effects of such radiation. Before the Board had yet completed its statutory task, plaintiff has the astounding temerity to proclaim that he can better do, in shorter time, and will do for the public that which the law says the Board of Health can and should do after two years of investigation. In short, he proposes for himself the role of a scientific Paul Revere, but with this difference: Revere made certain the British were coming before giving the alarm.
It is a matter of common knowledge that “radiation,” as described in the Act, may at times be found in many forms and substances—air, water, nrilk, rain, snow, animal tissues and products for food consumption. We also know that the degree of content is variable. Being so, research results may reflect a higher degree of radiation at one day or season of the year *58than another and more particularly after a given military test of nuclear power. To permit any person to examine and report on data which may reflect an extraordinarily high degree for a limited period or an extraordinarily low potential of radiation, might well breed an overanxiety complex in the public or induce a conclusion of unwarranted confidence in its safety. For such an inquisitor to go forth, as plaintiff proposes, and broadcast his conclusions predicated upon the incomplete findings of the Board as authoritative advice to the public could easily result in infinite harm.
If any legislative act demonstrates the cogency of Judge Yankwich’s observations and the soundness of the above citations which follow that statement, certainly it is the Act of 1957. The majority torture the meaning of words when they accord to the data resulting from the Board’s preliminary investigations the legal status of “public records” or “public writings.”
The right to know is not the prerogative of an interloper or intermeddler who assumes to himself the office of a public counselor and to use for his purposes incomplete data gathered by others to whom has been assigned by statute the duty to give such advice.
In denying plaintiff the right to inspect all records of the Board on the subject of radiation before its task is finished, we do not take from him his right to know, but merely suspend or defer the privilege of inquiry until the Board reaches a point of final conclusion and reflects its judgment in its determination of what are proper regulations and standards for the public use and protection. "When the Board thus completes the work imposed by the Act of 1957, then plaintiff and all others properly interested should have the privilege of examining the final report and all data marshaled by the Board in support of its conclusions.
*59I, therefore, think the judgment should be affirmed. Justices Perry and Sloan concur in this dissent.