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Mrs. Mattie Reynolds, Secretary State Board of Bairdrsaaerr andCormetologtatr Littlefield Building Au&in, Texar Dear Madam: opinion No. 

### o-3755 Re: Whatpapera, correspondence, files andbooke of the State Board of Hairdreaeera and Coemetologiets would be considered public records and whowould be privileged to see or examine them? Your requeet-for an opinion of this department dated June 2jj 1941, requires UBto interpret Section 8 of Article 

### 734b,Vernon’8 Annotated Penal Code, in the light of the above question which la contal.ned in your communication. Thia provision of the Penal Code reade a8 follows:

T’SEiCe 8. The said Board shall keep a record of :,ts proceedingt1. It shall keep a register of applicarts for certiffc&es showing the nameof the applicant, the nameoz.dlocati.on of his place of occupation or .buei.ness, ma wkef;therthe applfcant war:granted or refused a certifi.cate. Tte books and recorb of the iBoard sha1.l be prima facie evidence of matters therein contained and a’hall constitute public records.” The words “papers? correepondencep files an.3books,” are broad in their meaning, and of cour8ep it would be impossible for this department to answer specifi.cally by assun:ing the various and descriptive papers, correspondence, fi:.es and books of manykind and character, whi.ch i.nall probability are contained in your office. It will be noted that the statute makesthe

“books and rec.ords” public records and our opin:on herein will only treat and be concerned with those “books and recoruds” in which the public have an interest.

In Words andPhrases, Volume 

### 36, Permanent Edition, p0 

### 533,it is said:

“A ‘record’ is awritten memorial madeby a public officer authorized by law to perform that function, the memorial being intended to 6erve a6 evidence of something written, said or done. Knights and Ladies of America v- Weber, 101 Ill. Appe

### 4813.

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State Board of Hairdressers and Cosmetologiste, Page 2 (O-3755)

The secti,on of the statute above quoted, requires the Board to keep a record of ita proceedings. Bythis is meant each act or step in the conduct of the official bueiness of the Board, including the rules prescribed for its acta, andmoreparticularly, the hearing conducted for the examination of applicants. Generally, where papers or correepondence are not read or considered in connection with the proceedings a8 evidence, material to the conduct of an examination andthe granting or refining of a licenee, the Board would not be required to include or by reference or otherwine record theman CL part of the proceedinge, conlrtituting the “public record.” The Board 16not required to dlscloee to the public, communications between it and ite owninspectore ’ of a secret or confidential nature, not ueed in connection with or incorporated in the record. a8 a part of the proceedinga.

A specific answer therefore to the first part ofthe question can only be determined by the kind and character of each paper, letter, file and book, the u8e to which each 18made, andwhether it is material ae a part of the proceedin.ge or minutea of the Board. Wedonot believe that.every paper, communication. or book that find.0 ita wayto the files or archives of the Board constitute 

### apart of the “public record” or doer this act makethem 80.

The fact that the Act makeebooks and records prima facie evidence of matters contained therein “public records,” denotes that they are to be opened to the inspection of the public. Generally, the word “public” is used In a restrictive Sense and refers only to member8of the public whocan show an interest therein. While the minutes of the Board and rule8 promulgated possibly concern the public at large, only thoee memberswhoare parties to the proceedings in the conduct ~ofthe examination and their repreeentatives are likely to be concerned with or ehowan interest in an applicant’s examination proceedings.

Juet a8the word “public” aI to certain recorde la ueed in a restrictive eense, eo the right of inspection of such records la qualified. Texas appears to fallow the rule which prevaila in certain jurlsdlctionr to the effect that a person seeking access to public records must have an intereat in the record or paper of which inepection is eought, andthat the inepection must be for 8,legitimate purpose. In the caee of Palacion, et al v. Corbett, et al, (Tex. Ct. Civ. App.) 172 S. W. 777, writ refused, the court said:

“There being no decisions of our owncourte upon thin matter, 80far a8 wehave been able to ascertain, we have had recourse to the decisions of the courte of other common-lawstates, and conclude that the opinion of the SupremeCourt of Tennessee, in the ca8e of State ex rel. Welford v. Willlams, 110Term. 549, 75 S. W. 948, 64 L. R. A. 435, constitutes the beet statement of the rules of lawwhich should be applied to this character of case. Wequote from said opinion a8 follows:

“‘In theory the right of examination is absolute, but in practice it is at la& only a matter of discretion, becauee such application is likely at anytime to be refused onthe part ofState Board of Hairdressers and.Cosmetologiste, Page 

### 3 (O-3755)

the custodian of the books end papers sought to be examined, and then the right mustbe forced by mandamus,andthis writ is not of absolute right, but merely of discretion, to be award&donly in a proper case; the fact8 claimed ae authorizing ite issuance to be judged of in every caee by the court, and the writ to be awarded or withheld upon a consideration of all the circumstances presented. So, while the right la, in theory, abeolute, yet it is in practice 80limited by the remedy necessary for ita enforcement SBthat it can be denominated only a "qualified right.""' It ie therefore the opinion of this department that such paperB, written memorunda, letters andboo&e evidencing official acte of the Board and recorded ae a part of the proceedinge thereof, other than eecret or confidential mat;ers, constitute the "public record" of the State Board of Halrdreesers end Cosmetologists, open to the inepection of membersof the public or their duly appointed representative a8they might showan interest therein. This does not meanthat a person has the right to examine .a11or a part of the records fndiscriminately but he can be required to prove hie interest and right of Inspection of that part of the record in which he can showan interest andto thle end, the Board mayformulate reasonable rules and regulation6 under which timely andproper inepectlon maybe had In proper caeea.

APPROVED

JUL 12, 1941 /e/ Grover Sellers FIRSTASSISTANT ATpORN!ZYGFXVERAL Yours very truly ATPOPJQXYGENERALOFTEXAS

By /E/ Urn.J. R. King

Wm.J. R. King Aaeietant WJRK:RS:IM

APPROVED OPINION COMMITTEE BY/8/ BWB CBA=