841080MAJ
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84108-0 - Neighborhood Alliance of Spokane County v. County of Spokane File Date 09/29/2011
Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 84108-0
Title of Case: Neighborhood Alliance of Spokane County v. County of Spokane
File Date: 09/29/2011
Oral Argument Date: 01/27/2011

SOURCE OF APPEAL
----------------
Appeal from Lincoln County Superior Court
 06-2-00107-0
 Honorable Philip W Borst

JUSTICES
--------
Barbara A. MadsenConcurrence Author
Charles W. JohnsonMajority Author
Gerry L. AlexanderSigned Majority
Tom ChambersSigned Majority
Susan OwensSigned Majority
Mary E. FairhurstSigned Concurrence
James M. JohnsonSigned Majority
Debra L. StephensSigned Majority
Charles K. WigginsSigned Majority

COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
 Breean Lawrence Beggs  
 Paukert & Troppmann, PLLC
 522 W Riverside Ave Ste 560
 Spokane, WA, 99201-0519

 Bonne W Beavers  
 Center for Justice
 35 W Main Ave Ste 300
 Spokane, WA, 99201-0119

Counsel for Respondent(s)
 Patrick Mark Risken  
 Evans, Craven & Lackie, P.S.
 818 W Riverside Ave Ste 250
 Spokane, WA, 99201-0994

Amicus Curiae on behalf of Allied Daily Newspapers of Washi
 Michele Lynn Earl-Hubbard  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

 Christopher Roslaniec  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

Amicus Curiae on behalf of Washington Newspapers Publishers
 Michele Lynn Earl-Hubbard  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

 Christopher Roslaniec  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

Amicus Curiae on behalf of the Seattle Times
 Michele Lynn Earl-Hubbard  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

 Christopher Roslaniec  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

Amicus Curiae on behalf of Tacoma News Tribune
 Michele Lynn Earl-Hubbard  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

 Christopher Roslaniec  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

Amicus Curiae on behalf of Tri-city Herald
 Michele Lynn Earl-Hubbard  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855

 Christopher Roslaniec  
 Allied Law Group LLC
 2200 6th Ave Ste 770
 Seattle, WA, 98121-1855
			

      IN THE SUPREME COURT OF THE STATE OF WASHINGTON

                                                   )
NEIGHBORHOOD ALLIANCE OF                            )
SPOKANE COUNTY, a non-profit                        )      No. 84108-0
corporation,                                        )
                                                    )
                      Petitioner,                   )
                                                    )      En Banc
       v.                                           )
                                                    )
COUNTY OF SPOKANE, a political                      )
subdivision of the state of Washington,             )
                                                    )
                      Respondent.                   )      Filed September 29, 2011
___________________________________                 )

       C. JOHNSON, J.?This Public Records Act (PRA) case asks us to define the 

scope of discovery allowed in PRA-provoked lawsuits, what constitutes an adequate 

search for requested records, and whether a party may be prevailing when it 

possesses some responsive documents at the time suit is filed. We hold discovery in 

a PRA case is the same as in any other civil action and is therefore governed only by 

relevancy considerations, reversing the Court of Appeals? decision. We hereby 

adopt Freedom of Information Act (FOIA) standards of reasonableness regarding an 

adequate search, consistent with the Court of Appeals? decision. Neighborhood 

Alliance of Spokane County v. County of Spokane, 153 Wn. App. 241, 224 P.3d 

775 (2009) (NASC). Finally, since the harm is done at the time the request is made 

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

and refused, we hold that a party may be entitled to recover costs and fees if the 

agency wrongfully fails to disclose documents in response to a request, reversing the 

Court of Appeals on this issue.

                       FACTS AND PROCEDURAL HISTORY

       At its core, this case involves PRA requests that sought to uncover suspected 

illegal hiring practices in Spokane County?s Building and Planning Department (the 
BPD).1 On February 16, 2005, a copy machine at the BPD printed copies of an 

undated office seating chart. Clerk?s Papers (CP) at 283-84. The print request came 

from the BPD employee Pam Knutsen?s computer. This chart showed cubicle 

arrangements of employees at the BPD, but it also included (central to this case) 

two names within a cubicle, who had not yet been hired, designated ?Ron & Steve.?

CP at 283-84. This caused quite a stir among the BPD employees, many of whom 

already suspected the BPD of illegal hiring practices. CP at 130, 283, 289. Mark 

Holman, an Assistant Director of the BPD, saw the chart, cancelled the print job 

from Knutsen?s office, and unplugged the copy machine. CP at 284.

       On February 19, 2005, the seating chart and an accompanying letter were 

anonymously transmitted to the Neighborhood Alliance of Spokane County (the 

Alliance). CP at 127-28. The Alliance is a nonprofit, community-based organization 

1 When the requests were made, the PRA was called the Public Disclosure Act. Former ch. 42.17 RCW (2003). 
Effective July 1, 2006, the act was renamed and recodified. Laws of 2005, ch. 274,  103. Although the former act 
applies to these requests, the relevant provisions are identical and therefore we cite only to the current version.

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

that emphasizes government accountability. The letter stated the positions assigned 

to Ron and Steve had not been posted yet, and alleged other ?appointment?

positions in violation of county policy and employment law. CP at 130.

       The Alliance took interest in this matter when Steve Harris, son of 

Commissioner Phil Harris, and Ron Hand, a former employee, were hired in March. 

CP at 91, 257-75. Steve is evidently the third son of Commissioner Harris to be 

hired by Spokane County (the County), and it was reported in a local newspaper in 

April 2005. CP at 91, 286. The Alliance first sent a PRA request to the County 

seeking all records created in January, February, and March 2005 displaying current 

or proposed office-space assignments for the BPD?s planning officials. CP at 277-

80. The County provided three iterations of the same seating chart, two of which 

were dated, and a third, matching the one the Alliance had anonymously received, 

which was not dated. CP at 277-80. This led to the next PRA request, which is the 

subject of this case.

       Essentially, the Alliance wanted to know when the ?Ron & Steve? seating 

chart was created. It sought to prove, using the BPD?s own records, that the undated 

chart was created prior to job postings for the positions later filled by Ron and 

Steve. To that end, it 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 Ms. Knutsen to the Neighborhood 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

       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.

By the term public records, I am invoking a broad definition, consistent with 
[former] RCW 42.17.020(36) [ (2002) ] and specifically mean to include records 
that exist in any electronic form as well as those that exist on paper. This should be 
read to include, but not be limited to, records preserved in paper correspondence, 
electronic mail, facsimiles, videotape, and computer files.

Pursuant to [former] RCW 42.17.310 [ (2003) ], please identify any record covered 
by the above requests that is being withheld as exempt, and provide a summary of 
the record's content and the specific reason for the exemption.
CP at 51-52. 

       The County provided one document in response to Item #1, a log showing the 

requested fields, but problematically, the ?date created? field was later than the 

?date modified? field for each of the documents. CP at 56. No explanation was 

offered for this discrepancy. Regarding Item #2, however, the County replied that 

the PRA ?does not require agencies to explain public records. As such, no response 

is required.? CP at 54. 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

       It was eventually revealed that Knutsen?s computer, which had evidently 
generated the seating charts, was replaced in April 2005.2 When the files were 

copied from the old hard drive to a new hard drive, the date of copying became the 

date of creation, rather than retaining the original date of creation. CP at 61-62. 

When the PRA request was submitted in May, Knutsen only accessed and copied 

the records from her current, new computer. She did not contact the Information 

Systems Department to determine whether the hard drive of her old computer had 

been erased, and she had not backed up the file in any other place. While it is 

unclear exactly when the computer was wiped of all data, the hard drive had been

certainly erased by August 8, 2005, when it was given to another employee. CP at 

609-12. Other BPD employees stated that such a file, which would be used 

administratively, would normally have been copied to a shared server. CP at 287-88, 

332. Regarding Item #2, Knutsen did indeed conduct a search, but found ?no 

documents which reference the seating chart and identify the full names of ?Ron and 

Steve? or ?Steve? therein.? CP at 62.

       Following extensive correspondence seeking to resolve the issue, the Alliance 

filed suit against the County on May 1, 2006. Discovery issues immediately erupted. 

The County objected to every request for admission, though it did respond to a 

2 Worth noting, Knutsen?s computer was replaced quickly following the newspaper article questioning the hiring of 
Commissioner Harris?s son, and no work request or problem report was ever produced (following another PRA 
request) to explain why it was replaced. 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

handful. But it did not respond to interrogatories or requests for production at all. 

The Alliance next sought to depose Pam Knutsen, and it was finally agreed this 

would happen in December 2006. CP at 104-05. Before the deposition occurred, the 

County moved for summary judgment in November 2006. The Alliance sought a 

continuance and to compel discovery, and in response, the County sought a 

protective order. 

       At the hearing, the Alliance argued a PRA case is no different than any other 

civil action and the normal court rules applied, so its discovery requests were 

proper. Verbatim Report of Proceedings (VRP) (Dec. 5, 2006) at 11. But the 

Alliance agreed to narrow discovery to whether responsive documents existed and 

the process used to find them, and to delay other potential penalty-related discovery.  

VRP (Dec. 5, 2006) at 6-7. The hearing on the motion for summary judgment was 

continued. The trial court ordered the written deposition of Knutsen, narrowed in 

scope as the Alliance had agreed. 

       The deposition occurred in October 2007, but the County still refused to 

allow Knutsen to answer most questions. It claimed many questions to be outside 

the scope of discovery in a PRA case. The County used its own conclusions to 

determine what questions were appropriate, and it did not seek a protective order 

from the trial court to support its refusal to answer.

       When the hearing resumed, the parties agreed to present their respective 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

motions for summary judgment first, delaying the discovery issues. The Alliance 

argued that the search regarding Item #1 was inadequate because it only included 

the one place the complete log would not be found, Knutsen?s new computer, and 

the Alliance attached documents that it alleged would have been responsive to the 
request in Item #2 to demonstrate the inadequacy of the County?s response.3 CP at 

232, 239. The trial court granted summary judgment to the County, finding no 

evidence that responsive documents did in fact exist. 

       On appeal, the Alliance argued that the County failed to conduct adequate 

searches for records responsive to both items, and that the trial court erred by 

limiting the scope of discovery. The Court of Appeals agreed with the Alliance 

regarding Item #1, that the search for the electronic log was inadequate, because the 

agency had reason to know the record would be stored somewhere other than the 

place searched. In regard to Item #2, the appellate court did not discuss the 

adequacy of the search but held that since the Alliance already possessed items 

responsive to the request before filing suit, the suit was not reasonably necessary to 

obtain the documents and therefore the Alliance was not a prevailing party under the 

PRA. Analogizing to FOIA, where discovery is typically not allowed, the Court of 

3 The documents responsive to Item #2 are e-mails the Alliance received on November 14, 2005, from the County 
in response to a new request sent October 31, 2005. One e-mail references changes in phone lines due to new 
employees and references a phone list, which could have been responsive. CP at 517. Two others explicitly name 
Ron Hand and Steve Harris in relation to setting up phones and computers, which the Alliance argues directly 
relate to cubicle assignments and therefore would have been responsive. CP at 529-30.

                                               7

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

Appeals found the Alliance?s discovery requests overreaching, and held the trial 

court did not abuse its discretion by denying the motion to compel. The case was 

remanded for a determination of attorney fees, costs, and penalties against the 

County for its inadequate search for Item #1. NASC, 153 Wn. App. 241.

       The Alliance petitioned this court for review, arguing that the Court of 

Appeals? decision regarding discovery was contrary to case law and that this court 

has rejected FOIA?s ?prevailing party? doctrine. The County cross-petitioned. It 

argues the Court of Appeals? decision creates a new cause of action under the PRA 

because it significantly heightened the requirements of an adequate search, and such 

penalties will continue to accrue until the date of final judgment, including all 
appeals, thereby punishing an agency for exercising its right to appeal.4

                                           ISSUES

1. Whether the plaintiff in a PRA action is entitled to the same scope of discovery 

   allowed other civil plaintiffs under Washington?s civil discovery rules? 

2. What is an adequate search under PRA? 

3. Whether a plaintiff is a prevailing party under the PRA if the defendant agency 

   wrongfully holds documents at the time of request but releases them prior to suit 

   in response to a different PRA request? 

4 Amici curiae, newspaper associations Allied Daily Newspapers of Washington and Washington Newspaper 
Publishers and daily newspapers The Seattle Times, The Tacoma News Tribune and Tri-City Herald support the 
Alliance in its arguments.  They also agree with the County that the decision below creates an independent cause of 
action for the failure to perform an adequate search and embrace this result.

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

                                        ANALYSIS

       The PRA is a strongly worded mandate for broad disclosure of public 

records. Burt v. Dep?t of Corr., 168 Wn.2d 828, 832, 231 P.3d 191 (2010) (quoting 

Soter v. Cowles Publ?g Co., 162 Wn.2d 716, 731, 174 P.3d 60 (2007)). Passed by 

popular initiative, it stands for the proposition that ?full access to information 

concerning the conduct of government on every level must be assured as a 

fundamental and necessary precondition to the sound governance of a free society.?

Progressive Animal Welfare Soc?y v. Univ. of Wash., 125 Wn.2d 243, 251, 884 

P.2d 592, 607 (1994) (PAWS); RCW 42.17A.001(11). Agencies are required to 

disclose any public record on request unless it falls within a specific, enumerated 
exemption. RCW 42.56.070(1).5 The burden is on the agency to show a withheld 

record falls within an exemption, and the agency is required to identify the 

document itself and explain how the specific exemption applies in its response to the 

request. RCW 42.56.550(1); Sanders v. State, 169 Wn.2d 827, 845-46, 240 P.3d 

120 (2010).

       Agency actions under the PRA are subject to de novo review. RCW 

42.56.550(3). On review, we take into account the policy of the PRA that free and 

open examination of public records is in the public interest, even if examination may 

5 The request at issue here was made in May 2005, before the PRA was recodified at chapter 42.56 RCW, but no 
substantive change was made by the recodification. Laws of 2005, ch. 274,  103. Citations are therefore made to 
the current chapter, unless the current code is substantially different from the former. 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

cause inconvenience or embarrassment. RCW 42.56.550(3). Interpretations of law 

are similarly reviewed de novo. State v. Kintz, 169 Wn.2d 537, 545, 238 P.3d 470 

(2010) (quoting State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009)). Grants 

of summary judgment are reviewed de novo, and we engage in the same inquiry as 

the trial court. Lallas v. Skagit County, 167 Wn.2d 861, 864, 225 P.3d 910 (2009)

(citing Campbell v. Ticor Title Ins. Co., 166 Wn.2d 466, 470, 209 P.3d 859 

(2009)).

       1. The scope of discovery in a PRA case

       As mentioned above, the trial court limited discovery and, in view of limited 

responses to discovery requests, granted summary judgment to the County. On 

review, the Court of Appeals affirmed the trial court?s ruling and analogized the 

scope of discovery in a PRA lawsuit to that allowable in a FOIA case. This 

approach is inconsistent with the civil rules and our cases analyzing this issue.

       We have previously held that, unless express procedural rules have been 

adopted by statute or otherwise, the general civil rules control. In Spokane Research 

& Def. Fund v. City of Spokane, 155 Wn.2d 89, 105, 117 P.3d 1117 (2005), we 

considered whether intervention was allowed in a PRA action. We relied on CR 81 

to answer this question, which provides that the civil rules govern except where 
these rules are inconsistent with rules or statutes applicable to special proceedings.6

6 CR 81(a) provides: ?Except where inconsistent with rules or statutes applicable to special proceedings, these rules 
shall govern all civil proceedings. Where statutes relating to special proceedings provide for procedure under 

                                              10

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

What constitutes a ?special proceeding? is mostly governed by statute, and the PRA 

statutes do not create a special proceeding subject to special rules, such as those 

that apply in proceedings involving garnishment, unlawful detainer, and sexually 

violent predators. Since the statutes are silent, we held the normal civil rules are 

appropriate for prosecuting a PRA claim. More specifically, since the PRA statute is 

silent concerning intervention, we concluded that intervention is therefore allowed in 

a PRA case. Spokane Research, 155 Wn.2d at 104-05. Similarly here, because the 

PRA is silent about discovery, no reason exists to treat discovery any differently 

than intervention, especially given the PRA?s policy of broad disclosure. We hold, 
therefore, that the civil rules control discovery in a PRA action.7

       Under the court rules, what constitutes relevant discovery is broad. ?Parties 

may obtain discovery regarding any matter, not privileged, which is relevant to the 

subject matter involved in the pending action.? CR 26(b)(1). We have previously 

said that the decision not to disclose records and the reasons behind that decision 

?are precisely the subject matter of a suit brought under the Public Records Act.?

PAWS, 125 Wn.2d at 270 n.17. And we expanded this in our most recent 

former statutes applicable generally to civil actions, the procedure shall be governed by these rules.?
7 The concurrence would instead foreclose discovery until the requester has shown, by more than mere speculation, 
that the agency?s search was inadequate, but the concurrence neglects to provide guidance to a requester seeking to 
do so without discovery. The legislature is well aware of how to impose limits on litigation, as evidenced by its 
allowance for hearings solely based on affidavits, RCW 42.56.550(3), and the examples cited in Spokane Research, 
could just have expressly provided limitations upon discovery, but it did not. We should not assume such 
limitations were intended, by either the legislature or the voters who enacted the PRA, as the concurrence would, 
in the complete absence of any mention of discovery.

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

Yousoufian opinion, which made agency culpability the focus in determining daily 

penalties, thus making discovery regarding motivation relevant. Yousoufian v. Office 

of Ron Sims, 168 Wn.2d 444, 460, 229 P.3d 735 (2010). Of course, it may be 

within the trial court?s discretion to narrow discovery, but it must not do so in a way 

that prevents discovery of information relevant to the issues that may arise in a PRA 

lawsuit.

       As mentioned, the Court of Appeals held that ?[d]iscovery which seeks 

information concerning ?the policies, procedures, and operational guidelines? for an 

agency?s operations ?far exceeds the limited scope of discovery usually allowed in a 

FOIA case concerning factual disputes surrounding the adequacy of the search for 

documents,?? so the Alliance?s motion to compel discovery was properly denied. 

NASC, 153 Wn. App. at 264-65 (quoting Schiller v. Immigration & Naturalization 

Serv., 205 F. Supp. 2d 648, 653 (W.D. Tex. 2002)). But the PRA and FOIA are not 

analogous regarding discovery, because the PRA includes a statutory penalty 
provision, while FOIA does not. 8 The rules of discovery provide that all relevant 

information likely to lead to admissible evidence is discoverable. What is relevant in 

a PRA action will differ from that in a FOIA action, because a PRA action will often 

involve issues not implicated by FOIA actions.

       For example, the agency?s motivation for failing to disclose or for 

8 The concurrence seems to take this as the basis for our holding regarding discovery. As discussed above, 
discovery is not limited in a PRA case by statutes or case law, and it is therefore governed by the civil rules. 

                                              12

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

withholding documents is relevant in a PRA action. Whether an agency withheld 

records in bad faith is the principal factor in determining the amount of a penalty. 

Yousoufian, 168 Wn.2d at 460 (quoting Amren v. City of Kalama, 131 Wn.2d 25, 

37-38, 929 P.2d 389 (1997)). In addition to good or bad faith, the agency?s overall 

culpability is the focus of the penalty determination. Yousoufian, 168 Wn.2d at 460, 

467-68 (listing factors to aid in culpability determination). An agency that sought 

clarification of a confusing request and in all respects timely complied but 

mistakenly overlooked a responsive document should be sanctioned less severely 

than an agency that intentionally withheld known records and then lied in its 

response to avoid embarrassment. Discovery is required to differentiate between 

these situations. Here, the Alliance attempted to determine why Knutsen?s computer 

was replaced when it was, through both discovery and subsequent PRA requests. It 

was, after all, the replacement of Knutsen?s computer that foiled the agency in 

obtaining the record it sought, that is, the ?complete electronic file information logs 

for the undated? seating chart. CP at 51. The County?s culpability level would be 

heightened, therefore, if the computer was replaced and its contents destroyed to 

prevent disclosure. See RCW 42.56.100. Relevancy in a PRA action, then, includes 

why documents were withheld, destroyed, or even lost.

       In this case, the County, in response to most requests, refused discovery 

completely, as it did not respond to the interrogatories or requests for production at 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

all. This was improper. Under our rules, answers to interrogatories are to be served 

within 30 days of service, CR 33(a), and the same is true for requests for 

production, CR 34(b), or else the party must seek a protective order. The County 

was required to respond to the Alliance?s requests. The County additionally 

objected to and refused to answer deposition questions as being outside the scope of 

a PRA action, relying on its own interpretations of the PRA statutes and case law. A 

party must answer deposition questions unless instructed not to because of privilege 

or discovery abuse. CR 30(d), (h). As in any other civil suit, the County should have 

responded to the interrogatories and allowed Knutsen to answer the deposition 

questions or else sought a protective order.

       Since discovery was not allowed to proceed, the record is incomplete, and we 

remand to the trial court for appropriate discovery.  More expansive discovery will

likely lead to information or records relevant to the PRA requests made in this case. 

Although the arguments have focused on the seating chart with the names of Ron 

and Steve, discovery should predictably reveal who inserted those names into the 

chart, and whether any documents, communications, or other written materials exist 

that prompted the inclusion. Discovery that was not so limited would also have 

revealed what the County did in order to find those documents. The discovery the 

Alliance was able to obtain shows that the County?s search for the requested 

documents was inadequate, bringing us to the next issue.

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Neighborhood Alliance of Spokane County v. Spokane County
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       2. An adequate search under the PRA

       The PRA is silent about what constitutes an adequate search, and this court 

has not had reason to address it. The Court of Appeals relied on judicial 

interpretations of FOIA to answer this question. NASC, 153 Wn. App. at 256 (citing 

Hearst Corp. v. Hoppe, 90 Wn.2d 123, 128, 580 P.2d 246 (1978) (?The state act 

closely parallels the federal Freedom of Information Act . . . and thus judicial 

interpretations of that act are particularly helpful in construing our own.?)). Both 

acts promote open government and FOIA is construed broadly, with its exceptions 

narrowly tailored, similar to the PRA. Hearst Corp., 90 Wn.2d at 129. Both make 

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

exemption applies. Hearst Corp., 90 Wn.2d at 128 (quoting N.L.R.B. v. Sears, 

Roebuck & Co., 421 U.S. 132, 95 S. Ct. 1504, 1509-10, 44 L. Ed. 2d 29 (1975). It 

follows that standards governing the adequacy of a search will also mirror each 

other. We agree with the Court of Appeals? approach and hold that the adequacy of 

a search for records under the PRA is the same as exists under FOIA.

       Under this approach, the focus of the inquiry is not whether responsive 

documents do in fact exist, but whether the search itself was adequate. Citizens 
Comm?n on Human Rights v. Food & Drug Admin., 45 F.3d 1325, 1328 (9th Cir. 

1995); Weisberg v. U.S. Dep?t of Justice, 240 U.S. App. D.C. 339, 745 F.2d 1476, 

1485 (1984) (quoting Weisberg v. U.S. Dep?t of Justice, 227 U.S. App. D.C. 253, 

                                              15

Neighborhood Alliance of Spokane County v. Spokane County
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705 F.2d 1344, 1350-51 (1983)). 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. Weisberg, 705 F.2d at 1351. What will be considered 

reasonable will depend on the facts of each case. Weisberg, 705 F.2d at 1351. 

When examining the circumstances of a case, then, the issue of whether the search 

was reasonably calculated and therefore adequate is separate from whether 

additional responsive documents exist but are not found. Truitt v. Dep?t of State, 

283 U.S. App. D.C. 86, 897 F.2d 540, 542 (1990); Meeropol v. Meese, 252 U.S.

App. D.C. 381, 395, 790 F.2d 942, 956 (1986) (?a search need not be perfect, only 

adequate?). 

       Additionally, agencies are required to make more than a perfunctory search 

and to follow obvious leads as they are uncovered. Valencia-Lucena v. U.S. Coast 

Guard, 336 U.S. App. D.C. 386, 180 F.3d 321, 326 (1999). The search should not 

be limited to one or more places if there are additional sources for the information 

requested. Valencia-Lucena, 180 F.3d at 326. 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.? Oglesby v. U.S. Dep?t of Army, 287 U.S. App. D.C. 126, 

920 F.2d 57, 68 (1990).  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. 

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Neighborhood Alliance of Spokane County v. Spokane County
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       As the concurrence discusses, many FOIA cases are resolved on motions for 
summary judgment concerned with the adequacy of the search.9 In such situations, 

the agency bears the burden, beyond material doubt, of showing its search was 

adequate. Valencia-Lucena, 180 F.3d at 325. To do so, the agency may rely on 

reasonably detailed, nonconclusory affidavits submitted in good faith. These should 

include the search terms and the type of search performed, and they should establish 

that all places likely to contain responsive materials were searched. An agency may 

wish to include such information in its initial response to the requester, since doing 

so may avoid litigation. 

       Moreover, records are never exempt from disclosure, only production, so an 

adequate search is required in order to properly disclose responsive documents. See

Sanders, 169 Wn.2d at 836. The failure to perform an adequate search precludes an 

adequate response and production. The PRA ?treats a failure to properly respond as 

a denial.? Soter v. Cowles Publ?g. Co., 162 Wn.2d 716, 750, 174 P.3d 60 (2007)

(citing RCW 42.56.550(2), (4) (formerly RCW 42.17.340)). Thus, an inadequate 

search is comparable to a denial because the result is the same, and should be 

treated similarly in penalty determinations, at least insofar as the requester may be 

9 The concurrence would delay all discovery until a hearing regarding the adequacy of the search is held. It is 
unclear how a requester, without the aid of discovery, will be able to rebut the agency?s assertion of a reasonable 
search. A trial court may, of course, limit initial discovery to the adequacy of the search should the parties wish to 
follow the federal approach, but may not delay all discovery entirely. Not every requester will have the benefit of 
agency employees aiding in its search for the truth, as the Alliance did here, and so such discovery will be 
necessary.

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

entitled to costs and reasonable attorney fees under RCW 42.56.550(4).

       Applying this standard, the County?s search for both items was inadequate, 
though here we are only concerned with the first search.10 For Item #1, the County?s 

search consisted of the only place a complete electronic record could not be found: 

Knutsen?s new computer, and Knutsen herself noticed the discrepancy of the ?date 

created? field being later in time than the ?date modified? field. CP at 61. 

Additionally, Knutsen knew her computer had been replaced only a few weeks 

before the request was made, and had some idea that searching only the new 

computer would prove unfruitful. But she did not search further, despite the

indication that her response would be incomplete, since the request asked for the 

complete electronic record. This illustrates why an agency ?cannot limit its search to 

only one record system if there are others that are likely to turn up the information 

requested.? Oglesby, 920 F.2d at 68; see also Valencia-Lucena, 180 F.3d at 325

(agency must follow through on obvious leads).

       Rather than following up, the agency?s reply was that there were no other 

10 Despite its assertion that no response was necessary for Item #2, identifying Ron and Steve, the County did in 
fact conduct a search for the information, but this search was also inadequate. Knutsen stated ?there are no 
documents which reference the seating chart and identify the full names of ?Ron and Steve? or ?Steve? therein.? CP
at 62. But the BPD does not refer to such things as ?seating charts,? instead, they are called ?floor plans,?
?reconfiguration charts,? or ?cubicle layouts.? The adequacy of this second search is not before us, but it is worth 
noting that some courts have found searches inadequate when the searcher limits the search to the terms provided 
by the requester, even though the searcher uses synonyms to refer to those items, and if the synonyms had been 
used, the search would have proved fruitful. See Summers v. U.S. Dep?t of Justice, 934 F. Supp. 458, 461 (D.D.C. 
1996) (search using ?commitment? but not ?appointment? or ?diary,? as those terms used frequently by agency, 
was evidence of inadequate search).

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

documents that would be responsive to this request. But this is conclusory because it 

does not explain why this is; nor does she aver that all places likely to contain 
responsive documents (such as her old computer, a network drive,11 or the printer

record) were searched or were unavailable to be searched. An adequate response to 

the initial PRA request where records are not disclosed should explain, at least in 

general terms, the places searched. In a typical case, this rule presents few problems 

for the agency as the records responsive to the PRA requests will be readily 

available. Where, as occurred here, the computer containing the record has been 
destroyed, the agency must look to other locations.12 This also translates into a 

further requirement to explain the adequacy of the search in the response to the 

request.

       The County argues it should not be required to search Knutsen?s old 

computer for requested documents, comparing the old computer to a trash can or 

recycle bin. But the analogy fails, because the County maintained control over the 

computer following its transfer to its Information Services Department, unlike trash 
or recycling that is hauled away.13 If the agency, after establishing the primary 

11 Other employees informed the Alliance that such a file would normally have been copied to a shared server, thus 
alerting the Alliance that the County?s search was likely inadequate. This again demonstrates why discovery 
regarding the adequacy of the search will often be necessary.
12 An agency is forbidden from destroying responsive documents while a PRA request is pending. RCW 42.56.100. 
Because of this prohibition, an agency must show that any recently destroyed documents were not wrongfully 
destroyed, and this naturally will require more discovery regarding the destruction, not less, as the County seems to 
be advocating here.
13 At oral argument, the County agreed that if a mistake had been made in the file transfer from the old to the new 
computer and the County had needed a document from the old computer, there was no question that the County 

                                              19

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

source of requested information, finds that the information is not there, it may not 

assert the information has been moved so as to avoid its duty to search. The agency

must determine where the information has been moved and conduct a search there, 

where reasonable. Because the County produced nothing to show the old computer 

was wiped of all data before August 8, 2005, it should reasonably have searched 

that computer when the Alliance?s PRA request was received in May. The Court of 

Appeals ruled that the County wrongfully withheld documents in violation of the 

PRA as a result of this inadequate search. We agree and affirm the Court of Appeals 

reversal of summary judgment in favor of the Alliance as to Item #1.

       The County argues, as does amicus, that finding liability for an inadequate 

search creates a new cause of action under the PRA. Amicus insists that the failure 

to adequately search for a record is especially egregious because the requester may 

not know responsive documents exist, and therefore would have no basis to 

challenge an otherwise seemingly adequate response. Amicus relies on PAWS, 

where we said, ?The Public Records Act clearly and emphatically prohibits silent 

withholding by agencies of records relevant to a public records request.? PAWS, 125 

Wn.2d at 270. But we did not explicitly allow the potential silent withholding in 

PAWS to support a freestanding daily-penalty award, as is now requested.

could obtain the record from the computer while it awaited its fate at the Information Services Department, because 
the computer remained within the County?s control. There is little difference between a document needed by the 
County for its operations and a document needed by the County to fulfill a public-records request.

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

       Amicus additionally relies on Sanders to argue an inadequate search should 

be considered an independent cause of action. Sanders, 169 Wn.2d at 859-61. In 

Sanders, the responding agency listed exemptions to production in its response, but 

did not explain how the exemptions applied to the documents. We did not allow a 

freestanding penalty based on the failure to fully explain exemptions, as this went to 

the adequacy of the response and not the denial of the right to inspect or copy 

records. In Sanders, some documents were wrongfully withheld, necessitating a 

daily penalty, so the failure to explain exemptions was considered an aggravating 

factor in setting the penalty determination. We saved for another day the question of

whether the PRA impliedly authorizes a penalty if the requester would otherwise 

have no remedy. Because the Alliance is similarly already entitled to a remedy, as 

will be discussed in the next section, we now hold that the failure to perform an 

adequate search is at least an aggravating factor, to be considered in setting the daily-

penalty amount.

       An adequate search is a prerequisite to an adequate response, so an 

inadequate search is a violation of the PRA because it precludes an adequate 

response. But we again put off for another day the question whether the PRA 

supports a freestanding daily penalty when an agency conducts an inadequate search 

but no responsive documents are subsequently produced. A prevailing party in such 

an instance is at least entitled to costs and reasonable attorney fees. Soter, 162 

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

Wn.2d at 756; RCW 42.56.550(4).14

       Finally, the County also argues that the Court of Appeals? imposition of daily 

penalties punishes an agency for asserting its appeal rights. The County is 

concerned about a daily-penalty award stretching to the final judgment date of this 

court. This argument ignores the statute, which makes daily penalties applicable 

only for the time the requester was ?denied the right to inspect or copy said public 

record.? RCW 42.56.550(4). Penalties will not continue to accrue after a document 

is produced, and daily penalties will not accrue at all if the agency carries its burden 

of showing an adequate search. Further, the amount of the daily-penalty award is 

within the trial court?s discretion and it may consider several factors when making 

this determination. Yousoufian, 168 Wn.2d at 466-68.

       3. Prevailing party under the PRA

       The Court of Appeals held that because the Alliance had the allegedly 

responsive documents to Item #2 at the time the suit was filed, it could not be a 

prevailing party regarding that item since the suit was not reasonably necessary to 

14 This section of RCW 42.56.550 was recently amended in 2011. Laws of 2011, ch. 273,  1. When this case 
arose, however, RCW 42.17.340(4) applied, which was identical to the preamendment version of RCW 
42.56.550(4), both of which provide: ?Any person who prevails against an agency in anyaction in the courts 
seeking the right to inspect or copy anypublic 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 less than five dollars and not to exceed one hundred dollars for each day that he or she was denied the 
right to inspect or copy said public record.? The amendment deletes ?not less than five dollars and? from the final 
sentence, so that ?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.?

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

cause the disclosure. As discussed above, a party prevailing against an agency in a 

PRA action may be awarded costs and attorney fees, and may be awarded daily 

penalties at the discretion of the trial court. RCW 42.56.550(4). But contrary to the 

Court of Appeals? holding, no causation requirement exists to be a prevailing party 

in a PRA action. Spokane Research, 155 Wn.2d at 103. In Spokane Research, we 

explained, 

       Rather, the ?prevailing? relates to the legal question of whether the 
       records should have been disclosed on request. Subsequent events do 
       not affect the wrongfulness of the agency's initial action to withhold the 
       records if the records were wrongfully withheld at that time. Penalties 
       may be properly assessed for the time between the request and the 
       disclosure, even if the disclosure occurs for reasons unrelated to the 
       lawsuit.

Spokane Research, 155 Wn.2d at 103-04 (emphasis added). We have additionally 

held that once a trial court finds an agency violated the PRA, daily penalties are 

mandatory, but the amount is subject to the trial court?s discretion. Yousoufian v. 

Office of King County Exec., 152 Wn.2d 421, 433, 98 P.3d 463 (2004). A violation 

therefore results in a remedy, with no discussion of what causes the final disclosure, 

such as when suit was filed.

       The Court of Appeals reached the opposite result by relying on its previous 

                                              23

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

decision in Daines v. Spokane County, 111 Wn. App. 342, 44 P.3d 909 (2002).15

The Daines court held that a party could not be ?prevailing? and entitled to a 

remedy under the PRA when it had the record in its possession and knew of that 

fact at the time of filing, because the action was not necessary to compel disclosure. 

The Daines court, in turn, relied on Coalition on Government Spying v. King 

County Department of Public Safety, 59 Wn. App. 856, 864, 801 P.2d 1009 (1990). 

However, we expressly rejected this approach in Spokane Research, reasoning that

the harm occurs when the record is wrongfully withheld, which

15 In Daines, the requesting party was summarily denied his requests for e-mail records. The agency told him none 
of the e-mails requested had been saved, when in fact the agency had hard copies of those e-mails. The requester 
discovered some of these in his own files, which had been disclosed via discovery in an earlier action. Knowing the 
agency had thus violated the PRA by failing to disclose the records in its response, the requester filed suit, at which 
time the agency sought to comply with his requests.

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

usually occurs at the time of response or disclosure. Spokane Research, 155 Wn.2d 

at 103 n.10. Contrary to the Daines court?s holding, the 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. To the extent that 

Daines held otherwise, it is overruled. 

       As will generally be true in many cases, a party does not know with certainty 

that a document in its possession is the public record it seeks until the agency 

responds. As we have previously recognized, the PRA requires a response to a 
request and disclosure of all responsive public records held by the agency.16 The 

fact that the requesting party possesses the documents does not relieve an agency of 

its statutory duties, nor diminish the statutory remedies allowed if the agency fails to 

fulfill those duties. To the extent the Court of Appeals decision here, as in Daines, 

suggests otherwise, we reject that approach and reverse the Court of Appeals on this 

issue.

16 A record is either ?disclosed? or ?not disclosed.? If the record?s existence is revealed to the requester, it is 
?disclosed? regardless of whether it is produced. Sanders, 169 Wn.2d at 836. An undisclosed record results in the 
prohibited silent withholding discussed in PAWS, 125 Wn.2d at 270.

                                              25

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

       In this instance, the agency refused to produce anything at all for Item #2, 

saying instead that the PRA ?does not require agencies to explain public records. As 

such, no response is required.? CP at 54. This violates the PRA. The request sought 

public records, not explanations, and if the agency was unclear about what was 

requested, it was required to seek clarification. The Alliance eventually obtained 

two e-mails that explicitly named Ron Hand and Steve Harris in relation to setting 

up phones and computers, which directly relates to cubicle assignments and 

therefore would have been responsive to Item #2. The Alliance was wrongfully 

denied these public records between the time of the refusal until they were 

eventually disclosed pursuant to the separate request. We therefore reverse the grant 

of summary judgment for Alliance regarding Item #2 and remand for a penalty 

determination.

                                       CONCLUSION

       We hold that discovery in a PRA case is governed by the civil rules, reversing 

the Court of Appeals on this issue. We affirm the Court of Appeals? use of FOIA 

guidelines in determining what constitutes an adequate search, which is governed by 

a standard of reasonableness. We hold that an inadequate search may be considered 

                                              26

Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

an aggravating factor in calculating daily penalties, but cannot, given the record 

before us, create a freestanding daily-penalty award for an inadequate search. We 

reiterate our prior holding in Spokane Research, that litigation need not be the cause 

of disclosure and a party is entitled to the PRA?s remedial provisions when an 

agency wrongfully refuses to disclose or produce requested records.

       In this case, the County performed an inadequate search regarding Item #1 

and wrongfully refused to respond to Item #2. We remand to the trial court for a

determination of costs, attorney fees, and daily penalties, following any necessary 

discovery.

AUTHOR:
       Justice Charles W. Johnson

WE CONCUR:

                                                        Justice James M. Johnson

       Justice Gerry L. Alexander                       Justice Debra L. Stephens

       Justice Tom Chambers                             Justice Charles K. Wiggins

       Justice Susan Owens

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Neighborhood Alliance of Spokane County v. Spokane County
Cause No.  84108-0

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