Upham v. Forster
| Decision Date | 15 December 2021 |
| Docket Number | A172547 (Control), A171784 |
| Citation | 316 Or.App. 357,504 P.3d 654 |
| Parties | Donald Scott UPHAM, Plaintiff-Appellant, v. Sharon FORSTER, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
George W. Kelly, Eugene, argued the cause and filed the briefs for appellant.
Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
This is a consolidated appeal of two cases arising from two requests made by plaintiff for certain records from defendant, the Lake County District Attorney, pursuant to the Oregon Public Records Law, ORS 192.311 to 192.431.
In the first case, as relevant to this appeal, the records at issue were materials originally in possession of the Deschutes County Sheriff's Office, a copy of which the Deschutes County Sheriff's Office had sent to defendant, while retaining possession of the originals. Defendant, prior to receiving the first public records request, had destroyed the copy of the materials that she had received from the Deschutes County Sheriff's Office. The trial court determined that, because defendant had destroyed—and thus no longer possessed—the materials responsive to plaintiff's request, plaintiff's action against defendant was moot, and it dismissed the case on that basis. On appeal, in his first assignment of error, plaintiff contends, among other points, that this case was not rendered moot by virtue of defendant's destruction of the records, because the trial court should have required defendant to "go get the records" from Deschutes County Sheriff's Office.1
The second case concerns a different public records request. In the second case, during the pendency of the litigation in the trial court, but prior to defendant filing her answer, defendant produced the records that plaintiff had requested. The trial court also dismissed the second case as moot, reasoning that plaintiff had received all the records responsive to his second records request. Plaintiff then sought attorney fees, and the trial court denied plaintiff's request for attorney fees, determining that plaintiff did not "prevail" in the suit, as that term is used in ORS 192.431(3).2 On appeal, in his second assignment of error, plaintiff contends that he prevailed in the suit, and therefore the trial court should have awarded him attorney fees.
For the reasons that follow, we conclude that the trial court did not err. We therefore affirm.
In early 2018, Lieutenant Davis of the Deschutes County Sheriff's Office was conducting an investigation into certain allegedly criminal conduct in Lake County. After completing his investigation, he contacted defendant, who, at the time, was the Lake County District Attorney, and asked her if she would review his "case file," which consisted of documents and CDs.
On February 27, 2018, Davis mailed a copy of his case file to defendant. Less than a month after receiving the case file, defendant reviewed the documentary materials in the case file, and she destroyed (via shredding) the materials that had been sent to her.3 Around that same time, Davis and defendant spoke, and defendant informed Davis that she was declining prosecution. On March 19, 2018, at Davis's request, defendant mailed a letter to Davis stating the same.
On April 26, 2018, plaintiff emailed defendant the following:
Defendant responded to plaintiff via email that "this is an ongoing matter and remains under investigation" and that the requested "documents are not available for release at this time."
On July 29, 2018, plaintiff brought suit against defendant alleging that she was "in possession of public records regarding the criminal case submitted to her by Davis," and "[b]ecause defendant has withheld numerous records, plaintiff is entitled to a declaration that the defendant must produce the improperly withheld records for inspection and/or copying."
It appears that, at some point thereafter, defendant informed plaintiff that she was no longer in possession of the records that had been sent to her by Davis.
On September 8, 2018, plaintiff sent a second public records request to defendant via email. That request read:
Plaintiff did not receive a response to that request, and on September 19, 2018—11 days later—plaintiff filed a second complaint alleging that "[d]efendant is in possession of non-exempt public records" and "[b]ecause defendant has withheld numerous non-exempt records, plaintiff is entitled to a declaration that the defendant must produce the improperly withheld records for inspection and copying."4
On September 25, 2018, plaintiff wrote to defendant's counsel, stating that "there hasn't been any response to my public records request."
On October 12, 2018, defendant's counsel produced seven pages of documents responsive to plaintiff's records requests.5 The documents produced on October 12, 2018, consist of (1) a September 24, 2018, cover letter from defendant responding to a public records request made by a nonparty to this litigation, which enclosed defendant's March 19, 2018, letter to Davis; (2) an email chain between defendant and that same nonparty concerning that nonparty's request; and (3) an email chain between defendant and plaintiff regarding plaintiff's first public records request.
In her answer and affirmative defenses in both actions—filed October 19, 2018, in the first case and November 8, 2018, in the second case—defendant asserted that "[t]he only documents Defendant retained regarding the crime report from Lt. Chad Davis and the criminal investigation have been produced," that she "has no other documents," and that she had "produced all responsive documents."
Plaintiff's two suits were consolidated, and after the trial court denied defendant's motion for summary judgment, the case went to trial. During a bench trial defendant testified that she had destroyed the documents and CDs sent to her by Lieutenant Davis within a month of receiving them; Lieutenant Davis testified that he retained the originals of the materials he had sent to defendant; and plaintiff testified as to his belief that it was his filing of the second lawsuit that was the reason for defendant's production of records on October 12, 2018.
Following the bench trial, defendant argued the cases were moot. As defendant saw it, "[t]his is a public records lawsuit, and so what this [court] has authority to do is only order the release of documents that have been improperly withheld" and that "none of the documents had been improperly withheld." Defendant posited that "once the documents are received, the lawsuit is moot."
Plaintiff, for his part, argued that the records requested were "clearly improperly withheld from me" insofar as "they were destroyed." He also argued that "[i]f the public agency knows that they can get [destroyed records] from the source with no problem whatsoever, they're required by the FOIA and its case law to go get the records and put them back in their file."
Finally, plaintiff argued that he prevailed in the suit because he "received what [he] asked for as a consequence of filing the suit." (Plaintiff appears to have been referring to the seven pages of documents that were produced on October 12, 2018.)
The trial court ruled from the bench concerning both cases. With regard to the records defendant had destroyed, the trial court stated, "[W]hat I can do in this public records action is to order [defendant] to produce what they haven't produced that they have withheld, and I find there's nothing they withheld because it was destroyed."6 With regard to the records plaintiff had produced, the trial court ruled that "the public records request is not well-taken because those records have been produced in this action, and now it is moot."
The court also noted that the Deschutes County Sheriff's Office and the Lake County District Attorney's Office are "separate bodies," and stated, "I do not find that the complaint was the reason for the" production of records on October 12, 2018.
Subsequently, the court entered a judgment dismissing plaintiff's claims in both cases. The judgment contained "findings of fact and conclusions of law," among them: "The Court believed Defendant's testimony that she shredded the copy of the documents Plaintiff requested shortly after receiving the documents and prior to receiving the public records requests"; that the "Court accepts Defendant's representation that all responsive, non-exempt records have been produced"; that documents "that were produced in October 2018 were produced in response to the September 2018 public records request, not as a result of the Public Records lawsuit filed eleven days after the request"; that "[b]ecause this Court finds that the requested documents were not improperly withheld, any ruling on Plaintiff's claims for declaratory and injunctive relief would have no...
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