Neighborhood Alliance of Spokane Cnty. v. Cnty. of Spokane

• Court: Washington Supreme Court
• Writing for the Court: Mary E. Fairhurst
• Decision Date: 09 February 2011
• Docket Number: No. 84108-0
• Citation: Neighborhood Alliance of Spokane Cnty. v. Cnty. of Spokane, No. 84108-0 (Wash. Feb 09, 2011)
• Parties: Neighborhood Alliance of Spokane County v. County of Spokane

Neighborhood Alliance of Spokane County

v.County of Spokane

No. 84108-0

Supreme Court of Washington, en Banc

Sep. 29, 2011

MADSEN, C.J. (concurring)—

I agree with the majority that to determine what constitutes an adequate search for records under the Public Records Act (PRA), chapter 42.56 RCW, we should adopt the federal approach under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2002). However, the majority does not correctly describe the entire federal process nor does the majority follow it.

Under federal case law, if an agency shows that it has satisfied the reasonableness standard for an adequate search and the requester does not adequately rebut that showing, then summary judgment may be granted. If summary judgment is granted to the agency on the issue of an adequate search, then discovery is unnecessary. For this reason, federal courts often delay discovery if a party seeks summary judgment on the ground that the agency engaged (or did not engage) in an adequate search. If summary judgment is not granted in favor of the agency on the issue, discovery should be available as usual.

By implementing the federal approach on the adequacy of search issue, including its relationship to discovery, we would achieve several advantages. If the agencyestablishes that it has adequately searched and has disclosed responsive documents it has found, if any, then discovery may be avoided, along with the costs, time, effort, and possible discovery disputes it entails.

This approach not only conforms to federal case law respecting the adequacy of a search, it also follows both the letter and the spirit of the PRA and our cases under the act. In the PRA, the legislature expressly provided a speedy and expedient procedure for resolving disputes, which can be accomplished on affidavits alone. Our case law has added that PRA disputes may be resolved on summary judgment as well. As explained in the analysis below, the federal approach to deciding adequacy of an agency's search for requested records is in keeping with both the purpose and the language of the PRA and its preference for a quick resolution.

However, the majority declines to allow an agency a prediscovery opportunity to submit detailed affidavits under strict standards requiring factually detailed descriptions of how it conducted the search for responsive public records. I disagree on three grounds. First, in declining to permit the opportunity to make an adequacy showing on such affidavits alone, the majority is actually rejecting this part of the federal standard for establishing the adequacy of a search, notwithstanding its adoption of federal case law under FOIA.

Second, the majority also implicitly rejects the federal law because it fails to accord the agency's showing a presumption of good faith.

Third, the majority treats an action claiming an inadequate search for recordsrequested under the PRA as if it is the same as any dispute between civil litigants. This turns what is supposed to be an expeditious way of obtaining records from our government agencies into full blown civil litigation at the summary judgment stage where the entire matter could be quickly resolved rather than through a lengthy and expensive drawn out process. Full blown civil litigation, however, is not consistent with the narrow, but important, purposes of the PRA to assure that individuals may obtain public records from their government agencies quickly and expeditiously and that individuals may enjoy the same kind of quick and expeditious process to resolve claims like inadequacy of an agency's search. The consequences are increased costs, time, and effort on the part of the requesters and the agencies, which will have to devote taxpayer-funded time and resources to litigation rather than doing the public work of the agency.

This does not mean that discovery should never be allowed or that it has no place in a summary judgment proceeding. But we should not encourage discovery prior to the agency having the opportunity to make its showing on affidavits accorded a presumption of good faith. If the agency does not take the opportunity, or cannot make the detailed showing required, or its showing is rebutted, then obviously it should not prevail on summary judgment and further proceedings will be required. Put another way, the agency's showing has to be detailed and complete to meet all the requirements under federal law, and if it makes that showing, it will establish a prima facie case of adequacy.

Following the federal approach means that this case should be remanded for the trial court to consider adequacy of the agency's search under the analysis used for publicrecords searches under FOIA. It is likely, as the majority concludes, that summary judgment should not be granted, on the ground that the search was inadequate. However, I would leave it for the trial court to apply the correct legal standard in the first instance.

Discussion

As we have noted on many occasions, our state act "closely parallels" FOIA and therefore judicial interpretations of FOIA are "particularly helpful in construing" the PRA. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 128, 580 P.2d 246 (1978); see O'Connor v. Dep't of Soc. & Health Servs., 143 Wn.2d 895, 907, 25 P.3d 426 (2001) (cases interpreting FOIA are often considered when interpreting the state act); Limstrom v. Ladenburg, 136 Wn.2d 595, 608, 963 P.2d 869 (1998) (same); Dawson v. Daly, 120 Wn.2d 782, 791-92, 845 P.2d 995 (1993) (same), overruled on other grounds by Progressive Animal Welfare Soc'y v. Univ. of Wash., 125 Wn.2d 243, 884 P.2d 592 (1994) (PAWS). Just as under the PRA, under FOIA there is a doctrine of full disclosure unless information falls under a clearly delineated exemption, the availability of identified records to a member of the public on demand, and a mandate to construe FOIA broadly and its exemptions narrowly. Hearst, 143 Wn.2d at 128-29.¹

Adequacy of an agency's search for records; federal approach

As mentioned, I agree with the majority's conclusion that we should adopt for purposes of the PRA the standard of reasonableness that federal courts apply to assess the adequacy of an agency's search for public records. Unfortunately, the majority's summary of federal law does not provide an entirely accurate picture and, in particular, the majority does not explain or follow federal law describing the actual procedure through which an agency can make a showing of an adequate search and when and how discovery is part of the process.

As noted, in many cases, resolution of the adequacy issue at the summary judgment stage makes it unnecessary to consider discovery issues. To explain why, I provide a more extensive discussion of federal law respecting adequacy of a search for responsive public records and how this issue affects discovery. I then explain how the federal approach is entirely consistent with the PRA.

As federal cases show, the issue of whether an agency has adequately searched for public records under FOIA arises quite frequently. An agency responding to a request under FOIA has a duty to conduct a search for responsive records. Williams v. U.S. Dep't of Justice, 177 F. App'x 231, 233 (3d Cir. 2006) (unpublished). "An improper withholding may arise from an agency's failure to conduct an adequate search, which 'is "dependent upon the circumstances of the case."'" Maydak v. U.S. Dep't of Justice, 254 F. Supp. 2d 23, 44 (D.D.C. 2003) (quoting Weisberg v. U.S. Dep't of Justice, 705 F.2d1344, 1351 (D.C. Cir. 1983) (quoting Founding Church of Scientology of Wash. D.C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 834 (D.C. Cir. 1979))); see Budik v. Dep't of Army, 742 F. Supp. 2d 20, 29 (D.D.C. 2010). The agency must make a good faith effort to conduct a search for the records requested. Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27 (D.C. Cir. 1998).

"The adequacy of an agency's search is measured by a 'standard of reasonableness.'" Weisberg, 705 F.2d at 1351 (quoting McGehee v. C.I.A., 697 F.2d 1095, 1100-01 (D.C. Cir. 1983) (internal citation and quotation marks omitted); accord Campbell, 164 F.3d at 27-28; Maynard v. C.I.A., 986 F.2d 547, 560 (1st Cir. 1993); Gillin v. I.R.S., 980 F.2d 819, 822 (1st Cir. 1992). "FOIA does not require a perfect search, only a reasonable one." Rein v. U.S. Patent & Trademark Office, 553 F.3d 353, 362 (4th Cir. 2009); Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986).

When a requester brings suit under FOIA and claims that an agency has failed to adequately respond to a public records request, the agency has the burden of establishing that its search for the requested records was adequate. Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 547 (6th Cir. 2001). The agency must show that it has made the required "good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990); accord Batton v. Evers, 598 F.3d 169, 177 (5th Cir. 2010); Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964, 986 (9th Cir. 2009); Campbell, 164 F.3d at 27; Zemansky v. E.P.A., 767 F.2d 569 (9th Cir. 1985); Weisberg v.Dep't of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984); Wolf v. C.I.A., 569 F. Supp. 2d 1, 8 (D.D.C. 2008).

This issue is often decided by federal courts on summary judgment. Rugiero, 257 F.3d at 544. On a motion for summary judgment, "[a]ffidavits or declarations supplying facts indicating that the agency has conducted a thorough search and giving reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden." Carney v. U.S. Dep't of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (footnote omitted). The affidavits or declarations must be submitted in good faith and provide a reasonably detailed, nonconclusory account of the scope of the search, providing search terms (for electronic searches),...