In Neighborhood Alliance of Spokane County v. County of Spokane, the Washington Supreme Court clarified two topics previously unresolved in Washington: what constitutes an adequate search for records in response to a Public Records Act (“PRA”) request and the scope of permissible discovery in PRA lawsuits. The Court held that a public entity must undertake a search “reasonably calculated to uncover all relevant documents,” and that discovery is permitted into any matter, not privileged, that is relevant to the subject matter of the lawsuit. 

The records dispute arose after two records requests were submitted to Spokane County seeking to uncover suspected illegal hiring practices in the County’s Building and Planning Department. On February 19, 2005, a seating chart and an accompanying letter were anonymously transmitted to the Neighborhood Alliance of Spokane County. The letter alleged improper hiring practices at the County and stated that the positions assigned to “Ron” and “Steve” on the seating chart had not yet been posted. 

The Alliance became interested in the hiring issue the following month when Steve Harris, son of Commissioner Phil Harris, and Ron Hand, a former County employee, were hired. The Alliance first sent a PRA request to the County seeking all records created in January, February, or March 2005 displaying current or proposed office-space assignments for the Building and Planning Department. The County provided three iterations of the same seating chart, two of which were dated, and a third, matching the one the Alliance had received anonymously, which was not dated. This led to the next PRA request, which is the subject of this decision. 

Essentially, the Alliance wanted to know when the “Ron & Steve” seating chart was created. It sought to prove, using the Building and Planning Department’s records, that the undated chart was created prior to job postings for the positions later filled by Ron and Steve. The Alliance sent the following PRA request to the County:

1. The complete electronic file information logs for the undated county planning division seating chart provided by Pam Knutsen, manager, Spokane County Planning Division, to the Neighborhood Alliance on May 13th. This information should include, but not necessarily be limited to, the information in the “date created” data field for the document as it exists on the specific Microsoft Publisher electronic document file created for the referenced seating chart. The requested information should also include, but not be limited to, the computer operating system(s) data record indicating the date of creation and dates of modification for the referenced seating chart document.

    

2. The identities of “Ron & Steve” individuals who are situated near the center of the seating chart referenced in item # 1. Also, the identity of the individual listed as “Steve” in the cubicle with the number 7221 at the top of the chart.

The County provided one document in response to the first request, a log showing the dates each document was created and modified, but in the log the “date created” field was later than the “date modified” field for each of the charts. The County declined to respond to the second request. Not satisfied with the County’s response, the Alliance brought suit the following year.

The lawsuit was apparently contentious and discovery disputes erupted almost immediately, largely involving the scope of permissible discovery in PRA disputes. Eventually, the parties filed motions for summary judgment largely focused on whether the search undertaken by the County for relevant records was adequate. The Alliance had also argued, in response to an earlier discovery motion, that the normal discovery rules—which generally permit discovery of relevant evidence—should apply to PRA disputes. The trial court granted summary judgment to the County, finding no evidence that additional responsive documents existed. 

On appeal, the Alliance argued that the County failed to conduct an adequate search for responsive records, and that the trial court erred by limiting the scope of discovery. After the Court of Appeals issued a mixed decision on the two questions, the Washington Supreme Court took up the case.

In a lengthy opinion, the Washington Supreme Court clarified what constitutes an adequate search. In short, while a search need not be perfect, it “must be reasonably calculated to uncover all relevant documents.” In particular:

• Public entities are required to make more than a perfunctory search and to follow obvious leads as they are uncovered.

   

• A search should not be limited to one or more places if there are additional sources for the information requested.

   

• A public entity must search those places where a responsive record is reasonably likely to be found.

Most importantly, in lawsuits in which a requestor challenges the adequacy of a search, the agency bears the burden of showing, beyond material doubt, that its search was adequate by providing “reasonably detailed, nonconclusory affidavits” identifying “the search terms and the type of search performed,” and establishing “that all places likely to contain responsive materials were searched.”

The Court next took up the scope of permissible discovery, clarifying that “the civil rules control discovery in a PRA action” and that parties generally may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the lawsuit. Moreover, while a trial court may exercise its “discretion to narrow discovery, . . . it must not do so in a way that prevents discovery of information relevant to the issues that may arise in a PRA lawsuit.” The Court goes on to clarify the categories of evidence that might be discoverable in a PRA action: 

• Documents, communications and other material related to responsive documents; 

   

• The adequacy of an agency’s search, including search terms used and the type of search performed, and information sufficient to establish that all places likely to contain responsive materials were searched;

   

• An explanation as to why responsive documents may have been withheld, destroyed or lost; and

   

• An agency’s motivation in failing to disclose responsive documents.

Neighborhood Alliance continues the trend of Washington courts in expanding the obligations of public entities when records requests are received. Unless the Neighborhood Alliance decision is addressed by the Washington State Legislature, the best practice for public agencies will be to confirm that their search procedures comply fully with the new test defined by the Court, and to permit reasonable discovery into relevant matters in PRA cases. We also suggest that public entities confirm with requestors the search terms to be used and the scope of the search to be undertaken.

Read the Court’s opinion.

© 2011 Perkins Coie LLP