(dissenting).
I respectfully dissent.
On the premise that no specific statute or formal university policy required UNM to maintain a student employment referral service, the majority concludes that the Employment Office had no mandatory obligation or duty to make or keep a record of student complaints. For purposes of the Inspection of Public Records Act, the majority then appears to require a “legal mandate for operation of the Employment Office,” and tacitly accepts a definition of “public records” as those records that public officers are authorized and required by law to keep. UNM urged the adoption of that definition, and the trial court accordingly had concluded that the records in question were not required by law to be kept.
We should reject a definition that would limit public records only to those records which a public officer is authorized and required by law to keep. A canvass of the inspection of public records statutes of other states reveals that “public record” is .expansively defined but then narrowed by specifically delineated exemptions. See R. Bouchard and J. Franklin, Guidebook to the Freedom of Information and Privacy Acts, state statutes appendix (1987).
Under the New Mexico Inspection of Public Records Act, the legislature seems quite rationally to have chosen to consider “public records” universally as records kept by an agency of the government. To this universe of records it has applied specific exceptions as suggested by a rule of reason. Of course, the universe of records is made up of countless parts, each with its unique nature. Because of its many parts, it is very difficult to describe this universe with particularity and considered thought. The parts, on the other hand, rationally may be considered when their appropriateness as an exception is raised in the legislature or in the courts under real circumstances.
The right to inspect records kept by an agency of the government was given universally; the exceptions are to be taken selectively by the legislature or the courts according to the rule of reason. I believe it was to advance this thought, rather than to beg the issue of what comprises a public record, that the Court said in State ex rel. Newsome v. Alarid, 90 N.M. 790, 568 P.2d 1236 (1977), that: “We hold that a citizen has a fundamental right to have access to public records. The citizen’s right to know is the rule and secrecy is the exception. Where there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed.” 90 N.M. at 797, 568 P.2d at 1243. Absent legislative delineation, public policy countervailing the right of inspection is to be discerned through application of the rule of reason.
Public business is the business of the public. Every citizen should be entitled to inspect public records unless the records fall within one of the enumerated categories exempt from disclosure or unless public policy militates against disclosure.1 To initiate an inspection, an individual only needs to satisfy the custodian of the public record that he or she is a citizen and that the inspection is for a lawful purpose. 90 N.M. at 798, 568 P.2d at 1244. Once an individual satisfies these prerequisites, a custodian who refuses access has the burden “to justify why the records sought to be examined should not be furnished.” Id. Justification, to be considered on petition for writ of mandamus, must be supported by evidence in the record. State ex rel. Blanchard v. City Comm’rs, 106 N.M. 769, 750 P.2d 469 (Ct.App.1988). The custodian does not satisfy this burden by simply categorizing the requested document as a record exempt from disclosure under the Act. Conspicuously lacking from the record in this case is any factual development by UNM to substantiate its reasons for withholding the documents sought by Spadaro.2 The trial court did not conduct an in camera inspection of the requested public records as recommended by the Newsome court. See 90 N.M. at 796, 568 P.2d at 1242.
Notwithstanding the majority’s tortured reading of the stipulated facts to the contrary, it is clear that the Employment Office is staffed by public employees, funded with public monies, and operated under the auspices of UNM’s Department of Student Financial Aid and Career Services. Neither the trial court nor the parties interpreted or argued the stipulation to identify the Employment Office or its employees as other than a public office or public employees. Furthermore, although the complaints were not made by a public employee, they were received and preserved by a public employee of defendant UNM. Under these circumstances, I find to be without merit UNM’s argument that the recordation of these complaints did not constitute the making of a public record. The trial court was in error in concluding that the records are not public records. The majority of this Court is in error in concluding that the records are not public records. At issue is whether there was a contrary statute or a public policy that countervailed Spadaro’s right of inspection.
I conclude with the following observation. In Newsome, this Court discussed at great length the Act at issue here and the appropriate procedure for resolving disputes concerning the right to inspect public records. The Newsome court recognized that whether to disclose certain public records would require the trial court to balance “the benefits accruing to the agency from non-disclosure against the harm which may result to the public if such records are not made available for inspection.” 90 N.M. at 795, 568 P.2d at 1241 (quoting MacEwan v. Holm, 226 Or. 27, 46, 359 P.2d 413, 422 (1961)). In reaching a determination based upon such a balancing of interests,
the trial judge must ever bear in mind that public policy favors the right of inspection of public records and documents, and, it is only in the exceptional case that inspection should be denied____ If ... disclosure of only a portion [of a record] is found to be prejudicial to the public interest, the trial judge has the power to direct such portion to be taped over before granting inspection.
90 N.M. at 796, 568 P.2d at 1242, (quoting State ex rel. Youmans v. Owens, 28 Wisc. 2d 672, 682-683, 137 N.W.2d 470, 475 (1965), modified on denial of rehearing, 20 Wisc.2d 672, 139 N.W.2d 241 (1966)).
I would reverse and remand to the district court with instructions to proceed to determine whether a public policy does exist that may countervail the right to inspect these public records.
WALTERS, J., concurs.. As noted in State ex rel Attorney General v. First Judicial District, 96 N.M. 254, 260, 629 P.2d 330, 336 (1981), public records excepted from the public’s right to know may be subject, to the same- extent as records held in the private sector, to discovery in a case in which the material is relevant to the issues presented. The right to know the public business is a different question from the right of discovery under judicial process in a case where the material is relevant to the issues presented.
. Before the trial court, counsel for Spadaro took the position that "only UNM would want to argue facts because basically we say they are public records. They are not obviously an academic file, so it would appear to me to be the burden of UNM to fit them within one of the exceptions.”