concurring in the result:
¶ 43 I agree with the majority’s result but not its reasoning. I would affirm the trial court’s Solomonic ruling on the ground that the State upended its non-disclosure argument by disclosing the very questions it now seeks to protect. The State’s release of questions to the newspapers, the web and other media undermines its present contention that its interests in confidentiality outweigh the public interest in disclosure. If the State had not so acted, I would hold that the State need not disclose any test questions at all because doing so destroys the very idea of a “test.” We have good authority to keep test questions confidential. See Carlson v. Pima County, 141 Ariz. 487, 687 P.2d 1242 (1984).
¶ 44 The State education department has also been inconsistent regarding anchor versus non-anchor questions. At first, in the joint proposed statement of uncontested facts, it admitted that approximately 45 scored anchor questions appeared on Form A. Later, it stated that there were no set anchor questions redactable from Form A and that all or most of Form A’s original questions could eventually evolve into anchor questions. Later, it released to the media Form A questions that it said would not be used. Once the State disavows any lasting distinction between anchor and non-anchor questions, release of any test questions seemingly impairs the utility of the remaining questions. Because there is a basis for a distinction, however fuzzy, between anchor and non-anchor questions, there is support in the record for the trial court’s split decision. For that reason I defer to his judgment though, given the State’s disclosures, I would get there by a different route.
¶45 If not for these behaviors by the State, I would avoid this Alice-in-Wonder*353land approach to public education and hold, instead, that all the test questions simply be kept private. “While access and disclosure is the strong policy of the law, the law also recognizes that an unlimited right of inspection may lead to substantial and irreparable private or public harm____” Carlson, 141 Ariz. at 491, 687 P.2d at 1246. A student’s performance on these disclosed questions could well reflect only the ability to memorize the publicized questions.
¶ 46 Equally troubling is the precedential effect of our ruling on some 33 other government tests such as driver’s license and law enforcement exams and college admission tests. Our opinion opens a Pandora’s box for all public tests, intruding into an arena best left to the legislature and forcing the courts to use a newly-honed Ockham’s razor to sever complex from less complex test questions, a task better left to educators than judges.
¶47 Given the State’s prior disclosure of the questions it now insists must be non-disclosed, I concur with the majority’s result, having learned in the process a personally useful academic lesson: The next time I face a difficult test, I can sue to discover the test questions in advance.