# Russell Martin v. City of Lakewood

> Court of Appeals of Washington · April 28, 2022

URL: https://www.frixlaw.com/law-library/cases/11265645

## Case

- **Court:** Court of Appeals of Washington
- **Decided:** April 28, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
APRIL 28, 2022
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE

RUSSELL MARTIN, ) No. 38542-6-III
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
CITY OF LAKEWOOD, a Washington )
governmental entity, )
)
Respondent. )

JOHNSON, J.* — The Public Records Act (PRA), chapter 42.56 RCW, requires

governmental agencies to make an adequate investigation when responding to a request

for public records. An agency’s investigation is adequate when it is reasonably calculated

to uncover all relevant documents. Here, Lakewood Police Officer Russell Martin filed a

lawsuit under the PRA alleging the City of Lakewood failed to provide a document

relevant to one of his two requests for public records. The City responded by filing a

motion for summary judgment that was granted by the superior court. Martin appeals.

Because the superior court erred by summarily dismissing Martin’s case when the

*
Judge Brandon L. Johnson is serving as judge pro tempore of the Court of
Appeals pursuant to RCW 2.06.150.
No. 38542-6-III
Martin v. City of Lakewood

undisputed facts show the City failed to produce a document related to Martin’s request,

we reverse, hold that Martin is entitled to summary judgment for violation of the PRA,

and remand for further proceedings.

FACTS

Background

In 2019, the Lakewood Police Department conducted two separate, but related,

investigations into officers following allegations of dishonesty and misconduct. CP 98,

102, 162. The first, labeled 2019-PSS003 (PSS003),1 involved a single officer being

investigated for dishonesty. The second investigation, labeled 2019-PSS004 (PSS004),

involved Officer Jeremy Vahle and Officer Russell Martin (Martin). Vahle and Martin

were being investigated for failing to report the alleged dishonesty of the officer in the first

investigation.

In the second investigation, allegations against Vahle were sustained. Prior to his

Loudermill2 hearing, Vahle was provided with a thumb drive containing documents

related to the investigation into his conduct. Included on the thumb drive was an

1
PSS stands for “Professional Standards Section,” which is a division of the
Lakewood Police Department.
2
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed.
2d 494 (1985).

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No. 38542-6-III
Martin v. City of Lakewood

interview with Sergeant Charles Porche, the supervisor of the officer who was the subject

of the first investigation.

Martin’s PRA requests

After the conclusion of the investigations, Martin made two public records

requests to the City. First, Martin requested records related to the second investigation,

specifically, “[a]ll documents and recordings related to [PSS004].” Clerk’s Papers (CP)

at 58. Second, approximately a month later, Martin made the following request related to

the first investigation: “All documents and recordings related to [PSS003].” CP at 31.

The City responded to both of Martin’s requests, providing him with the

responsive documents and redacting information determined to be exempt from

disclosure. In response to his request for documents and recordings related to PSS004,

Martin received the following files:

● Jeremy-Vahle-2019PSS-004.mp4

● Russ-Martin-2019PSS-004.mp4

● Suver-2019PSS-003---004.mp4

● Suver-re-interview-2019PSS-004.mp4

● Vahle determination.pdf

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No. 38542-6-III
Martin v. City of Lakewood

● 2019PSS-004-redacted.pdf

CP at 14. The provided documents contained references to the PSS003 investigation,

including two employee statements that were labeled as being related to both PSS003

and PSS004. Upon providing Martin with the documents, the City informed him that it

considered his first request relating to PSS004 closed.

In response to Martin’s request for files related to PSS003, Martin received,

among other records, the video recording of the Porche interview labeled, “Porche-

witness-interview- 2019PSS003---004.mp4.” CP at 14. The employee statement signed

by Porche stated that he was being interviewed “as part of an internal investigation under

PSS Control # 003 & 004.” CP at 130. The interview, however, had not been included in

the City’s response to the PSS004 request. Otherwise, though, there was a certain amount

of overlap between records provided in response to the PSS003 and the PSS004 requests.3

There was no further communication between Martin and the City following the

City’s responses.

3
Certain documents provided were not labeled but provided in response to both
requests. Other documents were labeled as belonging to both investigations but only
provided in response to one of the requests. One document was labeled in its file name as
belonging to both investigations and was provided in response to both requests.

4
No. 38542-6-III
Martin v. City of Lakewood

Martin’s PRA lawsuit

Approximately seven months after the City responded, Martin filed a complaint for

disclosure of public records. In the complaint, Martin alleged that the City had withheld

documents in response to his public records request for documents related to PSS004.

The complaint did not specify which records Martin was claiming had been wrongfully

withheld.

When it learned of Martin’s lawsuit, the City reached out to Martin asking for

information about what records he believed had been withheld. Based on a conversation

with Martin’s attorney, the City opened a new public records request in an effort to

provide Martin with the documents he had claimed were withheld.

Summary judgment

Several months after Martin brought his lawsuit, the City filed a motion for

summary judgment. The City argued it had properly searched for and provided the

records requested and had made substantial efforts after the lawsuit was filed to ensure

that Martin had received the records requested.

In support of its motion, the City provided a declaration from Svea Pitts, the

individual who had responded to both of Martin’s requests. She said that when Martin

requested documents related to the PSS004 investigation, she “believed . . . he wanted that

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No. 38542-6-III
Martin v. City of Lakewood

particular file” and apparently provided only those documents. CP at 279. Pitts also

provided information regarding the record-keeping process of the police department:

The [PSS] conducts internal investigations and the files created are labeled
PSS with the date and a number, kept in chronological order. Because these
investigations are usually sensitive matters, no documents related to any
PSS investigation are kept outside of Professional Standards Section. The
hard copy records are kept [ ] in a locked closet down our secure hallway.
The electronic copies are kept in IAPRO which is our internal software
program for cases involving [Lakewood Police Department] employees.

CP at 41. Pitts stated that she had uploaded the records that had been sent to Martin to the

website used for responding to public records requests. After she learned of the lawsuit,

Pitts re-checked for responsive records in both the stored physical documents as well as

the electronic database. She noted that although the interview of Porche was referenced

in the PSS004 file, it was physically located in the PSS003 file. However, Pitts changed

this statement in a subsequent declaration, saying that the interview was neither

summarized nor referenced in the PSS004 file and that it was physically located only in

the PSS003 file because it was used only in that investigation.

The City also supported its motion for summary judgment by arguing it had

provided all records “related” to the investigation files, and after doing so, it received no

further communication from Martin. The City maintained that there had been no

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No. 38542-6-III
Martin v. City of Lakewood

violation of the PRA because, prior to filing the action, Martin had been provided all of

the records he had been entitled to receive.

On the day of the scheduled hearing on the motion for summary judgment, Martin

requested a continuance for medical reasons. Martin also filed a response the same day,

in which he argued the City had failed to provide all the responsive documents to the first

request, and that the search conducted by Pitts was inadequate. Over the City’s objection,

the superior court continued the hearing.

After 4:00 p.m. the day before the continued hearing on the motion for summary

judgment, Martin filed a declaration from Vahle in response to the City’s reply that had

been filed approximately a week prior. In his declaration, Vahle stated that prior to his

Loudermill hearing, he had received an e-mail from Pitts informing him that she was

retrieving the records “associated with [his PSS004] investigation” that included the

interview of Porche in a file named “IA 2019-PSS004.” CP at 282.

At the outset of the hearing, the City moved to strike Vahle’s declaration arguing

that it was untimely, did not comport with state and local rules, and was irrelevant. In

response, the superior court said that it was not aware of the existence of such a

declaration and that it had not read it. Martin argued that the declaration was relevant and

that he had not been able to file it earlier due to difficulties coordinating with Vahle.

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No. 38542-6-III
Martin v. City of Lakewood

The trial court never ruled on the City’s motion to strike, but did allow Martin to

describe the contents of the declaration and rely on it in his argument. The trial court

itself referenced the declaration in its oral ruling saying that it was “completely irrelevant

to the [summary judgment issue]” because the documents were provided in the context of

a Loudermill hearing and not a public records request. Report of Proceedings (RP) (Jul.

2, 2020) at 29.

The City never addressed the details of the actual contents of Vahle’s declaration,

instead maintaining throughout the hearing that the declaration should be either struck or

that its contents were irrelevant.

The superior court granted the City’s motion for summary judgment. Martin

appeals.4 A Division Three panel considered Mr. Martin’s appeal with oral argument

after receipt of an administrative transfer of the case from Division Two.

ANALYSIS

“The PRA is a strongly worded mandate for broad disclosure of public records.”

Dotson v. Pierce County, 13 Wn. App. 2d 455, 468, 464 P.3d 563 (2020). The PRA is

“liberally construed and its exemptions narrowly construed.” RCW 42.56.030.

4
By agreement of the chief judges, Division Two of this Court transferred this
appeal to Division Three pursuant to CAR 21(a) and RAP 4.4.

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No. 38542-6-III
Martin v. City of Lakewood

Under the PRA, governmental agencies must “make available for public inspection

and copying all public records, unless the record falls within specific exemptions.”

Rental Housing Assn of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 535, 199

P.3d 393 (2009) (quoting RCW 42.56.070(1)). The PRA creates a cause of action if an

agency wrongfully denies a requester an opportunity to inspect or copy a public record.

RCW 42.56.550(1). Where a party claims that it has been wrongfully denied access to a

public record by an agency in violation of the PRA, the burden of proof is on the agency

to establish that it has acted in accordance with the statute. RCW 42.56.550.

Where an agency violates the PRA by failing to provide a public record, subsequent

provisions of the record wrongfully withheld does not protect the agency from liability.

Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 726-27,

261 P.3d 119 (2011). The harm occurs at the time the record is withheld. Id. “[T]he

remedial provisions of the PRA are triggered when an agency fails to properly disclose and

produce records, and any intervening disclosure serves only to stop the clock on daily

penalties, rather than to eviscerate the remedial provisions altogether.” Id. at 727.

The fact that a requested record contains a reference to another record does not

mean that an agency is required, under the PRA, to include the additional record in the

response. Dotson, 13 Wn. App. 2d at 466. However, when responding to a request under

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No. 38542-6-III
Martin v. City of Lakewood

the PRA, an agency must conduct an adequate search. Neighborhood Alliance, 172

Wn.2d at 721. There is no bright line definition for what constitutes an adequate search,

but rather:

[T]he focus of the inquiry is not whether responsive documents do in fact
exist, but whether the search itself was adequate. The adequacy of a search
is judged by a standard of reasonableness, that is, the search must be
reasonably calculated to uncover all relevant documents. What will be
considered reasonable will depend on the facts of each case. . . .
Additionally, agencies are required to make more than a perfunctory
search and to follow obvious leads as they are uncovered. The search
should not be limited to one or more places if there are additional sources
for the information requested. Indeed, ‘the agency cannot limit its search to
only one record system if there are others that are likely to turn up the
information requested.’ This is not to say, of course, that an agency must
search every possible place a record may conceivably be stored, but only
those places where it is reasonably likely to be found.

Id. at 719-20 (some emphasis added) (citations omitted).

This court reviews questions of statutory interpretation and allegations of agency

violations of the PRA de novo. Id. at 715.

Summary judgment is also reviewed de novo. Id. Summary judgment is

appropriate where “there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” CR 56(c). If “the record on appeal

consists solely of declarations or other documentary evidence, [this court] stands in the

same position as the trial court” and does not make determinations as to credibility.

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No. 38542-6-III
Martin v. City of Lakewood

Service Emps. Int’l Union Local 925 v. University of Wash., 193 Wn.2d 860, 866, 447

P.3d 534 (2019).

Martin argues that the trial court erred in granting the City’s motion for summary

judgment. The City argues there was no genuine issue of material fact as to whether the

PRA had been violated. However, examination of the record reveals the undisputed facts

show the City violated the PRA as a matter of law by failing to conduct an adequate

search and by not providing the undeniably related interview of Porche in response to the

PSS004 request.

The City appears to take the position that its obligation to search for records

extended no further than the physical file for the PSS004 investigation. However, this

position fails when one appreciates the significant overlap between the PSS003 and

PSS004 investigations. The subject matters were intertwined, and both investigation files

contained several of the same documents. The actions of Pitts herself demonstrated this

overlap when she provided Vahle with Porche’s interview as a file “associated with” the

PSS004 investigation, although it was purportedly only contained in the PSS003 file, to

aid him in preparing for his Loudermill hearing. Additionally, multiple documents were

labeled, either by their file name or within the document itself, as belonging to both

investigations. This duplicative labeling of multiple documents between the two

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No. 38542-6-III
Martin v. City of Lakewood

investigations shows that a search reasonably calculated to uncover all responsive

documents should have been broadened to include both files. The “perfunctory search”

performed by the City failed to follow the “obvious lead[ ]” of the PSS003 file, and

therefore was not reasonable. Neighborhood Alliance, 172 Wn.2d at 720.

The labeling of the documents also indicated that some of the documents,

including Porche’s interview, were intended to have been actually located in the PSS004

file but were inadvertently left out or misfiled. It is evident from the provided records

that there was likely a standard convention for naming files that included putting the

investigation number the files belonged to at the end of the file name. The file containing

Porche’s interview provided in response to the second request was labeled in part

“2019PSS003---004,” indicating it was part of the PSS003 file as well as the PSS004 file.

CP at 14. Additionally, the file containing the same Porche interview provided to Vahle

was labeled in part “PSS004,” also showing it was part of, or at a minimum related to, the

PSS004 file. Moreover, the employee statement signed by Porche said he was being

interviewed “as part of an internal investigation under PSS Control # 003 & 004,”

indicating the interview was part of the PSS004 file. In fact, two other employee

statements were similarly designated as being related to both investigations and were

included in response to the PSS004 request.

12
No. 38542-6-III
Martin v. City of Lakewood

Although the City offered declarations stating that Porche’s interview was only

part of the PSS003 investigation, this ignores the fact that Martin’s request was for

documents “related to” the PSS004, not merely those included in the file. The City’s

reading of Martin’s request is simply too narrow. At a minimum, the joint labeling of

multiple documents demonstrates that the two investigations were so closely related that a

reasonable search for records related to PSS004 must have included the PSS003 file to

ensure that documents intended to be located in both files were actually compiled and

provided in response to a PRA request related to PSS0004.

The superior court relied on the Dotson case to support its ruling that the City need

not have searched outside of the PSS004 file simply because the PSS003 file was

referenced in some of the documents in the PSS004 file. The application of Dotson to the

facts of this case was overstated. It is true that, under Dotson, the mere fact that the

PSS003 investigation was referenced in the PSS004 investigation file did not, by itself,

require the City to include all the documents in the PSS003 file in response to the PSS004

request. 13 Wn. App. 2d at 466. However, the record in Dotson clearly established that

there was no substantive relationship between the two files. Here, as discussed above,

there was a substantial overlap between the two investigations.

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No. 38542-6-III
Martin v. City of Lakewood

The superior court essentially made factual findings by determining the Vahle

declaration was “totally irrelevant.” It was improper for the court to make such a factual

determination without the benefit of an evidentiary hearing with testimony, and was,

moreover, a violation of the applicable standard for evaluating motions for summary

judgment. Hume v. Am. Disposal Co., 124 Wn.2d 656, 677, 880 P.2d 988 (1994) (“When

reviewing a motion for summary judgment, the court considers all facts submitted and all

reasonable inferences from the facts in the light most favorable to the nonmoving party.”).

Whether or not the Porche interview was substantively used in the underlying

PSS004 investigation, for which the City asserts it was not, is not the appropriate test.

Whether it was ultimately used in the investigation does not determine whether it was

“related” to the investigation. Martin’s request cannot be read so narrowly as to only seek

documents that the City deems were substantially used in the investigation.5

5
Additionally, the City argues that prior to the commencement of this action,
Martin had received all the records he claims he was entitled to as part of his second
request, and because he was provided all relevant records, Martin cannot sustain an action
under the PRA. Br. of Resp’t at 14. However, any violation of the PRA occurs when a
record is wrongly withheld, and while subsequent provision of that record may be
relevant to potential penalties, it does not negate the City’s liability. Neighborhood
Alliance, 172 Wn.2d at 726-27.

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No. 38542-6-III
Martin v. City of Lakewood

CONCLUSION

The Porche interview was a document “related to” the PSS004 investigation as a

matter of law based on the undisputed evidence before the superior court. The City

violated the PRA when it failed to conduct an adequate search for responsive records and

then failed to produce the Porche interview. Accordingly, we reverse the superior court’s

granting of the City’s motion for summary judgment, hold that the City violated the PRA

by not producing the Porche interview, and remand to the superior court for calculation of

the appropriate penalty pursuant to the factors set forth in Yousoufian v. Office of Ron

Sims, 168 Wn.2d 444, 229 P.3d 735 (2010).

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

_________________________________
Johnson, J.P.T.
I CONCUR:

_________________________________
Pennell, J.

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No. 38542-6-III

FEARING, J. (concurring) — I join in the majority’s ruling that directs summary

judgment in favor of Russell Martin. I write separately to register my view that the

Public Records Act (PRA), chapter 42.56 RCW, imposes no free-standing duty on a

government agency to perform an adequate search for requested records. I will refer to

this ostensible duty as the reasonable search or adequate search rule. My view conflicts

with current Court of Appeals jurisprudence. Under my contrarian perspective, a court

may not grant a public records requester relief for any inadequate search by itself.

In a bygone era of legal ease, when practitioners could not cite unpublished

opinions as authority, I might not write this concurrence. Now that, under GR 14.1, legal

writers may cite unpublished opinions as holding persuasive value, I do not wish to be

branded as a supporter of the adequate search rule. The rule conflicts with the letter of

and policy behind the PRA.

I begin with standard and familiar language heralding the purposes behind

Washington’s PRA. The PRA promotes open government. Neighborhood Alliance of

Spokane County v. Spokane County, 172 Wn.2d 702, 719, 261 P.3d 119 (2011). The

PRA seeks to increase governmental transparency and accountability by making public

records accessible to Washington citizens. John Doe A v. Washington State Patrol, 185
No. 38542-6-III
Martin v. City of Lakewood (concurrence)

Wn.2d 363, 371, 374 P.3d 63 (2016). These objectives partially motivate my rejection of

the Washington reasonable search rule.

The operative provision of the PRA reads:

Each agency, in accordance with published rules, shall make
available for public inspection and copying all public records, unless the
record falls within the specific exemptions of subsection (8) of this section,
this chapter, or other statute which exempts or prohibits disclosure of
specific information or records.

RCW 42.56.070(1) (emphasis added). This section of the PRA seeks to render virtually

every document generated by an agency available to the public unless an exemption

applies. Ameriquest Mortgage Co. v. Office of the Attorney General, 177 Wn.2d 467,

485-86, 300 P.3d 799 (2013); Rental Housing Association of Puget Sound v. City of Des

Moines, 165 Wn.2d 525, 535, 199 P.3d 393 (2009); Hearst Corp. v. Hoppe, 90 Wn.2d

123, 128, 580 P.2d 246 (1978).

The PRA creates a private cause of action for a requester when the government

agency fails to produce, in accordance with RCW 42.56.070(1), a public record not

subject to an exemption. RCW 42.56.550 declares:

(1) Upon the motion of any person having been denied an
opportunity to inspect or copy a public record by an agency, the superior
court in the county in which a record is maintained may require the
responsible agency to show cause why it has refused to allow inspection or
copying of a specific public record or class of records. The burden of proof
shall be on the agency to establish that refusal to permit public inspection
and copying is in accordance with a statute that exempts or prohibits
disclosure in whole or in part of specific information or records.
....

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No. 38542-6-III
Martin v. City of Lakewood (concurrence)

(4) Any person who prevails against an agency in any action in the
courts seeking the right to inspect or copy any public record or the right to
receive a response to a public record request within a reasonable amount of
time shall be awarded all costs, including reasonable attorney fees, incurred
in connection with such legal action. In addition, it shall be within the
discretion of the court to award such person an amount not to exceed one
hundred dollars for each day that he or she was denied the right to inspect
or copy said public record.

(Emphasis added.)

RCW 42.56.070(1), RCW 42.56.550, and all other sections of the PRA levy no

burden on a government agency to reasonably search for records. Creating such an

obligation violates principles of statutory construction. Courts may not read into a statute

a meaning that is not there. Burton v. Lehman, 153 Wn.2d 416, 422-23, 103 P.3d 1230

(2005). When interpreting a statute, we must not add words when the legislature has

chosen not to include them. Lake v. Woodcreek Homeowners Association, 169 Wn.2d

516, 526, 243 P.3d 1283 (2010).

The majority correctly notes that Washington decisions, despite the absence of

statutory language demanding any form of a records search, promote the adequate search

rule. The Washington Supreme Court wrote in Neighborhood Alliance of Spokane

County v. Spokane County, 172 Wn.2d 702, 719 (2011), that the court focuses on the

adequacy of a search, not whether responsive documents exist but were not disclosed or

produced. Accordingly, a search need not be perfect, only adequate. Neighborhood

Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 720 (2011). The

3
No. 38542-6-III
Martin v. City of Lakewood (concurrence)

Supreme Court compared an inadequate search to the denial of production of a record.

Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 721

(2011).

Despite its discussion of a reasonable search, the Washington Supreme Court, in

Neighborhood Alliance, recognized that the PRA falls silent about what constitutes an

adequate search. Neighborhood Alliance of Spokane County v. Spokane County, 172

Wn.2d 702, 719 (2011). The high court should have added that the PRA also does not

read that an agency holds an obligation to conduct a reasonable search.

The Washington Court of Appeals has followed the language from Neighborhood

Alliance and adopted a rule that the PRA requires a government agency to conduct an

adequate search in response to a public records request. Rufin v. City of Seattle, 199 Wn.

App. 348, 356, 398 P.3d 1237 (2017); Block v. City of Gold Bar, 189 Wn. App. 262, 266,

355 P.3d 266 (2015); Hobbs v. State, 183 Wn. App. 925, 943, 335 P.3d 1004 (2014);

Forbes v. City of Gold Bar, 171 Wn. App. 857, 866, 288 P.3d 384 (2012). The Supreme

Court restated, but did not apply, the reasonable search rule in Nissen v. Pierce County,

183 Wn.2d 863, 885, 357 P.3d 45 (2015).

Contrary to analysis by the Washington Court of Appeals and the Supreme Court’s

passing remark in Nissen v. Pierce County, the Supreme Court, in Neighborhood

Alliance, did not hold that an inadequate search forms an independent cause of action.

The court instead reserved for another day the question of whether the PRA authorizes a

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No. 38542-6-III
Martin v. City of Lakewood (concurrence)

penalty if the requester would otherwise have no remedy for an unreasonable search.

Neighborhood Alliance of Spokane County v. Spokane County, 172 Wn.2d 702, 724

(2011). The court, in Neighborhood Alliance, limited its holding to characterizing an

inadequate search as an aggravating factor to be considered in setting the daily penalty

amount.

The Washington PRA closely parallels the federal Freedom of Information Act

(FOIA), and thus judicial interpretations of the federal act usually assist in construing our

own act. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 129 (1978). In Neighborhood Alliance,

the Washington Supreme Court followed federal decisions that impose an enforceable

duty, under FOIA, on federal agencies to conduct an adequate search. Some of those

decisions now include Rojas v. Federal Aviation Administration, 927 F.3d 1046, 1052-53

(9th Cir. 2019), superseded on reh’g, 989 F.3d 666; Ancient Coin Collectors Guild v.

U.S. Department of State, 641 F.3d 504, 514 (D.C. Cir. 2011); Trentadue v. Federal

Bureau of Investigation, 572 F.3d 794 (10th Cir. 2009); Rein v. U.S. Patent & Trademark

Office, 553 F.3d 353 (4th Cir. 2009); Miccosukee Tribe of Indians of Florida v. United

States, 516 F.3d 1235 (11th Cir. 2008); Abdelfattah v. U.S. Department of Homeland

Security, 488 F.3d 178 (3rd Cir. 2007); Grand Central Partnership, Inc. v. Cuomo, 166

F.3d 473 (2d. Cir. 1999); Patterson v. Internal Revenue Service, 56 F.3d 832 (7th Cir.

1995); Miller v. U.S. Department of State, 779 F.2d 1378 (8th Cir. 1985).

5
No. 38542-6-III
Martin v. City of Lakewood (concurrence)

The imposition of an enforceable duty to search makes sense under FOIA because

the federal act expressly imposes such an onus on the government agency. 5 U.S.C. §

552(a)(3) declares:

(A) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, and except as provided in
subparagraph (E), each agency, upon any request for records which (i)
reasonably describes such records and (ii) is made in accordance with
published rules stating the time, place, fees (if any), and procedures to be
followed, shall make the records promptly available to any person.
....
(C) In responding under this paragraph to a request for records, an
agency shall make reasonable efforts to search for the records in electronic
form or format, except when such efforts would significantly interfere with
the operation of the agency’s automated information system.
(D) For purposes of this paragraph, the term “search” means to
review, manually or by automated means, agency records for the purpose of
locating those records which are responsive to a request.

(Emphasis added.) To repeat my theme, the Washington PRA admits no such language

regarding a search. Thus, Washington should not adopt the federal view. Washington

courts do not adopt the construction placed on a similar federal statute if the language of

the statute in Washington substantially differs from the language in the United States

statute. Everett Concrete Products, Inc. v. Department of Labor & Industries, 109 Wn.2d

819, 826, 748 P.2d 1112 (1988).

Advocates of government transparency may welcome an adequate search rule as

effectuating the values behind the PRA. Unfortunately, however, the opposite result has

ensued. The Washington Court of Appeals has contorted and distorted the supposed duty

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No. 38542-6-III
Martin v. City of Lakewood (concurrence)

of an adequate search into a gift of immunity from liability when the agency conducts a

reasonable search but fails to produce an extant document. Thus, even if the public

records requester establishes that the government agency failed to produce a record

identified by him or her, the court grants the agency safe harbor if the court deems the

agency performed a reasonable search. Thrice, this court has affirmed summary

judgment dismissal of PRA claims because of an adequate search despite evidence that

the government agency failed to produce one or more requested record. Rufin v. City of

Seattle, 199 Wn. App. 348 (2017); Block v. City of Gold Bar, 189 Wn. App. 262 (2015);

Hobbs v. State, 183 Wn. App. 925 (2014). In the end, the reasonable search rule has

caused more harm than good to the public.

Contrary to Rufin v. City of Seattle, Block v. City of Gold Bar, and Hobbs v. State,

no Washington statute grants immunity when the government agency fails to disclose a

record or produce an unexempted document. Instead, RCW 42.56.550 affords the

requester a cause of action for any failure to produce unexempted records, and the statute

grants the superior court discretion to impose sanctions up to $100 per day for a violation.

The adequate search rule conflicts with other principles pronounced by the

Washington Supreme Court. Withholding a nonexempt document constitutes wrongful

withholding and violates the PRA. Sanders v. State, 169 Wn.2d 827, 836, 240 P.3d 120

(2010). Even according to the Supreme Court, in Neighborhood Alliance of Spokane

County v. Spokane County, agencies must disclose any public record on request unless

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No. 38542-6-III
Martin v. City of Lakewood (concurrence)

the record falls within a specific, enumerated exemption. Neighborhood Alliance of

Spokane County v. Spokane County, 172 Wn.2d 702, 714-15 (2011).

I recognize that a regulation adopted by the Washington Attorney General, WAC

44-14-04003(10), imposes on a government agency an obligation to “conduct an

objectively reasonable search for responsive records.” Nevertheless, regulations

inconsistent with or broader than a statute they implement are invalid. Washington State

Hospital Association v. Department of Health, 183 Wn.2d 590, 595, 353 P.3d 1285

(2015); Center for Biological Diversity v. Department of Fish & Wildlife, 14 Wn. App.

2d 945, 967, 474 P.3d 1107 (2020). When statutory language is plain and unambiguous,

a court will not construe the statute but will glean the legislative intent from the words of

the statute itself, regardless of a contrary interpretation by an administrative agency.

Burton v. Lehman, 153 Wn.2d 416, 422, 103 P.3d 1230 (2005); Bravo v. Dolsen

Companies, 125 Wn.2d 745, 752, 888 P.2d 147 (1995).

To fulfill the purpose behind the PRA, a government agency should be held liable

for failing to produce a requested record regardless of the extent of the search performed

by the agency. The PRA seeks to make all records available for review and reading by

the public, not just those records that the government agency finds with a reasonable

search. The public deserves access to public records no matter the difficulty behind a

search. We must interpret the PRA liberally and in light of the people’s insistence that

they have information about the workings of the government they created. Imposing

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No. 38542-6-III
Martin v. City of Lakewood (concurrence)

strict liability on the agency for failure to produce a record will encourage agencies to

exert proactive steps to catalogue records into a system that facilitates the ready

production of all records on hand.

I concede an anomaly could arise under my dismissal of the adequate search rule.

A government agency could fail to conduct an adequate search but fortuitously produce

all records requested. In such an instance, any reasonable search rule would serve no

purpose in penalizing the agency since it fulfilled the PRA by producing all demanded

documents.

I agree that a duty to reasonably search may facilitate the production of records

requested. Also, unless the government agency conducts a reasonable search, the

requester may never know whether the agency produced all requested documents. Going

further, the government agency may need to detail the actions taken pursuant to a public

records search in order to show the reasonableness of the search and to convince the court

that it produced all requested documents. For this reason, the imposition of an unattached

duty, outside the confines of a duty to produce the records sought, will usually lack any

consequence in discrete cases.

Instead of shielding the government agency from liability for failing to produce a

requested record, the adequacy of the search should influence the penalty to be imposed

by the superior court in the event the government agency fails to produce a record. In

Yousoufian v. Office of Ron Sims, 168 Wn.2d 444, 467-68, 239 P.3d 735 (2010), the

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No. 38542-6-III
Martin v. City of Lakewood (concurrence)

Supreme Court outlined seven mitigating and nine aggravating factors for a superior

court to consider when imposing a daily penalty. The aggravating factors generally form

a reverse image of the mitigating factors. None of the mitigating factors explicitly

mention the adequacy of the search as a factor, but the reasonableness of the search

would fall within the abating categories of an agency’s good faith, honest, timely and

strict compliance with PRA procedures; the helpfulness of the agency to the public

records requester; and the existence of agency systems to track and retrieve public

records. The Washington Supreme Court recognized this limited approach to the

relevance of an inadequate search in its seminal decision, Neighborhood Alliance of

Spokane County v. Spokane County, 172 Wn.2d 702, 724 (2011).

In Russell Martin’s appeal, the majority holds that Martin is entitled to summary

judgment because, under the undisputed evidence, the City of Lakewood failed to

conduct an adequate search for responsive records and then failed to produce the Porche

interview. The majority could and should rest this holding on the sole ground that

Lakewood failed to produce a document requested.

I CONCUR:

_________________________________
Fearing, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11265645. Public record. Not legal advice.