Sause v. Hummel, A175238

CourtCourt of Appeals of Oregon
Writing for the CourtPER CURIAM.
Citation318 Or.App. 869,507 P.3d 1292
Parties H. Richard SAUSE, Plaintiff-Appellant, v. John HUMMEL, Defendant-Respondent.
Docket NumberA175238
Decision Date06 April 2022

318 Or.App. 869
507 P.3d 1292

H. Richard SAUSE, Plaintiff-Appellant,
John HUMMEL, Defendant-Respondent.


Court of Appeals of Oregon.

Argued and submitted March 7, 2022.
April 6, 2022

George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.

John E. Laherty, Bend, argued the cause for respondent. On the brief was Amy Heverly.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.


507 P.3d 1293
318 Or.App. 870

Plaintiff submitted a public records request to defendant, the Deschutes County District Attorney.1 Twenty-seven days later, after hearing nothing, plaintiff filed suit against defendant. As to the request relevant on appeal, the complaint alleged that defendant "did not respond" to the public records request and "his failure to do so constitutes a denial." Plaintiff sought both a declaration that defendant "must produce the improperly withheld records" and an award of his attorney fees. Two weeks later, defendant responded to the request, produced records, and waived the fee associated with obtaining those records. Defendant later moved for summary judgment, arguing that the case was moot, and the trial court granted that motion after concluding that there was no dispute of material fact about whether defendant had already complied with the request.

"We review a trial court's grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law." Smith v. Airbnb, Inc. , 316 Or. App. 378, 380, 504 P.3d 646 (2021) (quoting Towner v. Bernardo/Silverton Health , 304 Or. App. 397, 400, 467 P.3d 17, rev. den. , 367 Or 115 (2020) ). In plaintiff's first assignment of error, he argues that the trial court erred in ruling that defendant had fully complied with the request because defendant conducted an inadequate search for those records. He urges us to adopt the standard applicable to the federal Freedom of Information Act, 5 USC § 552, and require a government defendant to affirmatively demonstrate the details of the search conducted. See, e.g. , Rubman v. U.S. Citizenship & Immigr. Servs ., 800 F.3d 381, 387 (7th Cir. 2015) ("To demonstrate that its search was adequate [in a case...

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