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MRSC FOCUS › Open Government Advisor November 2009
 
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MRSC has joined with Ramsey Ramerman, Assistant City Attorney, City of Everett, to bring you the "Open Government Advisor." The Open Government Advisor will feature periodic articles focusing on open government issues, including issues related to the Public Records Act, Open Public Meetings Act and Public Disclosure Act.*

Conducting an Adequate Search for Public Records – and Proving It

November 2009

By Ramsey Ramerman, Assistant City Attorney, City of Everett

In Neighborhood Alliance v. County of Spokane, the Division III of the Court of Appeals found that Spokane County had violated the Public Records Act because it limited its search for the requested record to an employee’s current computer and did not search her former computer for that record. Although there was no evidence that the County failed to find any responsive records, the Court recognized a new cause of action based on the failure to conduct an adequate search for records. This raises two questions:

  1. What qualifies as an adequate search for records in response to a Public Records Act request?
  2. How does your agency prove to a court that it has conducted an adequate search?

The Neighborhood Alliance Court looked to federal precedent to supplement the limited guidance in Washington State to answer these questions.

Existing guidance in Washington law on what qualifies as an adequate search

The PRA provides limited guidance on what constitutes a reasonable search for records. An agency must conduct an objectively reasonable search for responsive records. WAC 44-14-04003(9). An agency’s duty to search for records is rooted in what a requester can request: “identifiable public records.” RCW 42.56.080. The Attorney General’s Model Rules explains that an identifiable public record is a record an agency can “reasonably locate.” WAC 44-14-04002. What qualifies as a “reasonably locatable record” depends on how an agency organizes its records and, for electronic records, the search capabilities of the agency’s existing software. WAC 44-14-05002.

To determine the scope of the search, the Public Records Officer must assess (1) where the records are likely to be, (2) who is likely to know where they are (3) how wide the search will be. The agency may consult with the requester. The Attorney General suggests that “[i]t is better to be over inclusive rather than under inclusive when deciding which staff should be contacted, but not everyone in an agency needs to be asked if there is no reason to believe he or she has responsive records.” WAC 44-14-04003(9). Staff likely to have records may be contacted by email.

An agency does not need to conduct a record-by-record search or grant unlimited access to its records to allow a requester to conduct her own search. Finally, when someone asks for records “related to” a topic, the Attorney General advises that the agency should produce records that “directly and fairly address” that topic. WAC 44-14-04002.

Additional guidance from federal precedent on what qualifies as an adequate search

The Neighborhood Alliance case provides some additional guidance. There is no one-size-fits-all test to determine if a search was adequate – every case will be fact specific. But as a general rule, Neighborhood Alliance requires that you search all sources and locations that you would reasonably expect to find responsive records or might reasonably expect to uncover responsive records. You cannot limit your search to one location or one source if other sources or locations might likely have responsive records.

The assessment of where to search must be updated as the search progresses and reviewed at the end of the search. You must follow any obvious leads (and probably not so obvious leads) about additional sources or locations that you could reasonably expect to find responsive records.

How to prove you conducted an adequate search

It will be your agency’s burden to prove “beyond a material doubt” that you made a good-faith effort to search for records that was reasonably calculated to uncover any and all responsive records. If a requester does challenge your search efforts, your agency can meet its burden of showing “beyond a material doubt” that its efforts were sufficient by submitting a declaration that provides details – not conclusions – describing your search efforts. This should include details about:

  • all sources that were searched;
  • all locations that were searched;
  • all methods used to search for electronic records; and
  • all search terms used to search for electronic records.

As long as your efforts were reasonable and there are not any “positive indications” – unsupported supposition is not enough – that raise substantial doubt that reasonably locatable records were overlooked, the Court should be able to rule even on summary judgment that the search was adequate.

Limitations on discovery

The Neighborhood Alliance Court also looked to federal guidance on what discovery should be allowed in a Public Records Act lawsuit. Based on this federal precedent, the Court held that discovery should only be allowed sparingly and should be narrowly tailored to two topics: (1) whether the agency has conducted an adequate search; and (2) whether the agency has made a complete disclosure of responsive records. The Court ruled that the requester was not entitled to use discovery in a PRA suit as an excuse to try to learn about other perceived concerns that were only tangentially related to the issues in the PRA lawsuit.

Seven considerations for assessing where to search

Based on the Neighborhood Alliance decision and existing guidance, there are seven considerations you should take into account when assessing where you must search for records:

  1. Your search must include all locations that you would reasonably expect to find responsive records or might reasonably expect to uncover responsive records;
  2. Your search must include all sources that you would reasonably expect to have responsive records or might reasonably expect to lead to responsive records;
  3. Your search for e-records must employ the most effective search tools that are included in your agency’s existing software;
  4. Your search cannot be limited to one location or source if searching other locations or sources might likely have responsive records;
  5. You must update your assessment of where to search for records as the search progresses;
  6. You are required to follow any obvious leads uncovered during the search; and
  7. Your search will be judged on a “reasonableness” standard – whether you can prove “beyond a material doubt” that you made a good-faith effort to search for records that was reasonably calculated to uncover any and all responsive records.

Ramsey Ramerman, is an assistant city attorney with the City of Everett, where he assists the City with open government issues and appeals. In addition to his work at the City, Ramsey regularly provides open government training for local governments and presents at conferences on open government issues. Ramsey is also one of the founders of the recently formed Washington Association of Public Records Officers. Finally, Ramsey serves as the local government representative on the State Sunshine Committee, currently reviewing the over 300 exemptions to the Public Records Act. Prior to joining the City of Everett, Ramsey practiced at Foster Pepper PLLC as part of the firm's Municipal Group.

*The Articles appearing in the "Open Government" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.