Upham v. Forster

                                       357

          Argued and submitted June 3, affirmed December 15, 2021


                        Donald Scott UPHAM,
                         Plaintiff-Appellant,
                                   v.
                         Sharon FORSTER,
                        Defendant-Respondent.
                      Lake County Circuit Court
                       18CV41790, 18CV32657;
                      A172547 (Control), A171784
                                   

    This is a consolidated appeal of two cases arising from two requests made
by plaintiff for certain records under the Public Records Law. In the first case,
plaintiff appeals a judgment dismissing his claims as moot in light of defendant’s
destruction of the requested records. He contends that the case was not rendered
moot by virtue of defendant’s destruction of the records because the trial court
could have required defendant to obtain the records from a third party. In the
second case, plaintiff appeals an order denying his request for attorney fees.
Plaintiff contends that he “prevailed” in the suit, and therefore the trial court
was required to award him attorney fees under ORS 192.431(3). Held: The trial
court did not err. In the first case, because the records had been destroyed, there
were no records that were improperly withheld by defendant, and the trial court
was without authority to order defendant to obtain the records from a third party.
In the second case, defendant did not “prevail” in the suit so as to be entitled to
attorney fees under ORS 192.431(3).
    Affirmed.




    Benjamin M. Bloom, Judge. (Order of Dismissal)
  David M. Vandenberg, Judge. (Order Denying Attorney
Fees and Costs)
  George W. Kelly argued the cause and filed the briefs for
appellant.
   Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
358            Upham v. Forster

  TOOKEY, J.
  Affirmed.
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           TOOKEY, J.
        This is a consolidated appeal of two cases arising
from two requests made by plaintiff for certain records from
defendant, the Lake County District Attorney, pursuant to
the Oregon Public Records Law, ORS 192.311 to 192.431.
         In the first case, as relevant to this appeal, the
records at issue were materials originally in possession of
the Deschutes County Sheriff’s Office, a copy of which the
Deschutes County Sheriff’s Office had sent to defendant,
while retaining possession of the originals. Defendant, prior
to receiving the first public records request, had destroyed
the copy of the materials that she had received from the
Deschutes County Sheriff’s Office. The trial court determined that, because defendant had destroyed—and thus
no longer possessed—the materials responsive to plaintiff’s
request, plaintiff’s action against defendant was moot, and
it dismissed the case on that basis. On appeal, in his first
assignment of error, plaintiff contends, among other points,
that this case was not rendered moot by virtue of defendant’s destruction of the records, because the trial court
should have required defendant to “go get the records” from
Deschutes County Sheriff’s Office.1
         The second case concerns a different public records
request. In the second case, during the pendency of the
litigation in the trial court, but prior to defendant filing
her answer, defendant produced the records that plaintiff
had requested. The trial court also dismissed the second
case as moot, reasoning that plaintiff had received all the
records responsive to his second records request. Plaintiff
then sought attorney fees, and the trial court denied plaintiff’s request for attorney fees, determining that plaintiff did not “prevail” in the suit, as that term is used in

     1
        We note that plaintiff frames his first assignment of error as that the trial
court “erred in granting defendant’s motion for a directed verdict and thus denying plaintiff’s records request.” We do not, however, understand the trial court to
have granted defendant’s motion for directed verdict. Instead, we understand the
trial court to have dismissed the case as moot after trial, in which it had received
evidence that was pertinent to both the issue of mootness and the merits of plaintiff’s case. In any event, as relevant to our analysis, given plaintiff’s arguments
on appeal, we understand him to assign error to the trial court dismissing plaintiff’s claim as moot.
360                                                       Upham v. Forster

ORS 192.431(3).2 On appeal, in his second assignment of
error, plaintiff contends that he prevailed in the suit, and
therefore the trial court should have awarded him attorney
fees.
         For the reasons that follow, we conclude that the
trial court did not err. We therefore affirm.
                                 I.    FACTS
A. Plaintiff’s First Public Records Request and First Complaint
        In early 2018, Lieutenant Davis of the Deschutes
County Sheriff’s Office was conducting an investigation into
certain allegedly criminal conduct in Lake County. After
completing his investigation, he contacted defendant, who,
at the time, was the Lake County District Attorney, and
asked her if she would review his “case file,” which consisted
of documents and CDs.
          On February 27, 2018, Davis mailed a copy of his
case file to defendant. Less than a month after receiving the
case file, defendant reviewed the documentary materials in
the case file, and she destroyed (via shredding) the materials that had been sent to her.3 Around that same time,
Davis and defendant spoke, and defendant informed Davis
that she was declining prosecution. On March 19, 2018, at
Davis’s request, defendant mailed a letter to Davis stating
the same.
        On April 26, 2018, plaintiff emailed defendant the
following:
       “Pursuant to the public records law please provide me
    a copy of your records regarding case number 17-338788.

    2
       ORS 192.431(3) provides, in relevant part:
         “If a person seeking the right to inspect or to receive a copy of a public
     record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal.”
     3
       Defendant testified that it was her practice to shred “copies” of documents
that she received—“for instance,” materials that she took home but did not need
for trial.
     She also noted that “this is a very small town,” the records sent to her by
Davis related to a “personnel matter,” which was “potentially criminal,” and that
the records could have damaged someone’s “credibility” and “integrity.”
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     This case was submitted to you by Lt. Chad Davis in March
     2018 and you declined to take action on it.”
         Defendant responded to plaintiff via email that
“this is an ongoing matter and remains under investigation” and that the requested “documents are not available
for release at this time.”
         On July 29, 2018, plaintiff brought suit against
defendant alleging that she was “in possession of public
records regarding the criminal case submitted to her by
Davis,” and “[b]ecause defendant has withheld numerous
records, plaintiff is entitled to a declaration that the defendant must produce the improperly withheld records for
inspection and/or copying.”
        It appears that, at some point thereafter, defendant
informed plaintiff that she was no longer in possession of
the records that had been sent to her by Davis.
B.    The Second Public Records Request and Second Complaint
        On September 8, 2018, plaintiff sent a second public
records request to defendant via email. That request read:
         “This email serves as a public records request. Please
     provide me a copy of all public records you received or sent
     to any person or any other source regarding the subject
     matter of the reports sent to you by Lt. Chad Davis that is
     the subject of the pending public records lawsuit against
     you. You have already asserted that you do not possess any
     of the public records Lt. Davis sent to you for your evaluation. However, I believe you received and created other
     public records related to that matter and I request that you
     provide me copies of all such public records.”
         Plaintiff did not receive a response to that request,
and on September 19, 2018—11 days later—plaintiff filed a
second complaint alleging that “[d]efendant is in possession
of non-exempt public records” and “[b]ecause defendant has
withheld numerous non-exempt records, plaintiff is entitled to a declaration that the defendant must produce the
improperly withheld records for inspection and copying.” 4
    4
      Given defendant’s failure to respond to plaintiff’s second public records
request within seven days, plaintiff had the statutory right to file suit against
defendant at that time. See ORS 192.418(2) (“The failure of an elected official to
362                                                        Upham v. Forster

C. Defendant’s Production of Documents, Further Litigation,
   and Trial
         On September 25, 2018, plaintiff wrote to defendant’s counsel, stating that “there hasn’t been any response
to my public records request.”
         On October 12, 2018, defendant’s counsel produced
seven pages of documents responsive to plaintiff’s records
requests.5 The documents produced on October 12, 2018,
consist of (1) a September 24, 2018, cover letter from defendant responding to a public records request made by a nonparty to this litigation, which enclosed defendant’s March 19,
2018, letter to Davis; (2) an email chain between defendant
and that same nonparty concerning that nonparty’s request;
and (3) an email chain between defendant and plaintiff
regarding plaintiff’s first public records request.
         In her answer and affirmative defenses in both
actions—filed October 19, 2018, in the first case and
November 8, 2018, in the second case—defendant asserted
that “[t]he only documents Defendant retained regarding
the crime report from Lt. Chad Davis and the criminal
investigation have been produced,” that she “has no other
documents,” and that she had “produced all responsive
documents.”
         Plaintiff’s two suits were consolidated, and after
the trial court denied defendant’s motion for summary judgment, the case went to trial. During a bench trial defendant
testified that she had destroyed the documents and CDs
sent to her by Lieutenant Davis within a month of receiving them; Lieutenant Davis testified that he retained the
deny, grant, or deny in part and grant in part a request to inspect or receive a
copy of a public record within seven days from the day of receipt of the request
shall be treated as a denial of the request for the purpose of determining whether
a person may institute proceedings for injunctive or declaratory relief under ORS
192.401, 192.411 or 192.415.”); ORS 192.427 (providing that, “[i]n any case in
which a person is denied the right to inspect or to receive a copy of a public record
in the custody of an elected official” the person “may institute proceedings for
injunctive or declaratory relief in the appropriate circuit court, as specified in
ORS 192.401, 192.411 or 192.415”).
    5
      The cover letter accompanying defendant’s October 12, 2018, document production states: “Enclosed are documents produced as a supplemental response to
your public record requests.” Plaintiff characterizes those documents as responsive to his second public records request.
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originals of the materials he had sent to defendant; and
plaintiff testified as to his belief that it was his filing of the
second lawsuit that was the reason for defendant’s production of records on October 12, 2018.
         Following the bench trial, defendant argued the
cases were moot. As defendant saw it, “[t]his is a public
records lawsuit, and so what this [court] has authority to
do is only order the release of documents that have been
improperly withheld” and that “none of the documents had
been improperly withheld.” Defendant posited that “once the
documents are received, the lawsuit is moot.”
         Plaintiff, for his part, argued that the records
requested were “clearly improperly withheld from me” insofar as “they were destroyed.” He also argued that “[i]f the
public agency knows that they can get [destroyed records]
from the source with no problem whatsoever, they’re
required by the FOIA and its case law to go get the records
and put them back in their file.”
         Finally, plaintiff argued that he prevailed in the
suit because he “received what [he] asked for as a consequence of filing the suit.” (Plaintiff appears to have been
referring to the seven pages of documents that were produced on October 12, 2018.)
         The trial court ruled from the bench concerning both
cases. With regard to the records defendant had destroyed,
the trial court stated, “[W]hat I can do in this public records
action is to order [defendant] to produce what they haven’t
produced that they have withheld, and I find there’s nothing they withheld because it was destroyed.” 6 With regard
to the records plaintiff had produced, the trial court ruled
that “the public records request is not well-taken because
those records have been produced in this action, and now it
is moot.”
         The court also noted that the Deschutes County
Sheriff’s Office and the Lake County District Attorney’s

    6
      In the alternative, the trial court determined that the destroyed records
were “part of ongoing investigations, and, as such, would be entitled to one or
more exemptions from the Public Records Law.” On appeal, defendant also challenges that determination, however, given our resolution of defendant’s argument
concerning mootness, we do not reach that challenge.
364                                                       Upham v. Forster

Office are “separate bodies,” and stated, “I do not find that
the complaint was the reason for the” production of records
on October 12, 2018.
         Subsequently, the court entered a judgment dismissing plaintiff’s claims in both cases. The judgment contained “findings of fact and conclusions of law,” among them:
“The Court believed Defendant’s testimony that she shredded the copy of the documents Plaintiff requested shortly
after receiving the documents and prior to receiving the
public records requests”; that the “Court accepts Defendant’s
representation that all responsive, non-exempt records have
been produced”; that documents “that were produced in
October 2018 were produced in response to the September
2018 public records request, not as a result of the Public
Records lawsuit filed eleven days after the request”; that
“[b]ecause this Court finds that the requested documents
were not improperly withheld, any ruling on Plaintiff’s
claims for declaratory and injunctive relief would have no
effect on the rights of the parties”; and “Plaintiff’s claims
are moot for the reasons set forth in Clapper v. Oregon State
Police, 

[, 

,] (2009), which this
Court concludes is controlling.”
        In relation to the trial court’s findings of fact and
conclusions of law, at a hearing, plaintiff argued that there
was no evidence to support the finding that the “documents
were not turned over in response to the lawsuit.” Plaintiff
noted there was “no testimony offered by anybody about
[the reason for] the delay” in producing records. The court
explained its reason for finding that the documents “produced in October 2018 were produced in response to the
September 2018 public records request,” viz.:
        “I found that at the time [the second records request]
    was going on, the [defendant] was dealing with the litigation in your case, and these other records were produced
    shortly thereafter and it wasn’t a consequence of filing suit,
    it was the fact that the DOJ was now involved, and it took
    time to get those records produced.” 7

    7
      We note that defendant was represented by the Oregon Department of
Justice in both lawsuits brought by plaintiff, although it is unclear precisely what
the trial court was referring to when it referred to the involvement of the “DOJ.”
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D. Plaintiff’s Request for Attorney Fees and Costs in the
   Second Case
          Following entry of the judgment dismissing plaintiff’s claims in both cases, plaintiff filed a request for attorney fees and costs as to the second case, arguing that he was
entitled to such fees and costs because he “prevailed” under
ORS 192.431(3). In support of that view, plaintiff made two
arguments.
         First, he argued that he prevailed under ORS
192.431(3) because he “triumphed, won, was victorious
because the lawsuit was successful—he obtained all records
he sought in his suit.” That is, he argued that if records are
produced after a lawsuit is filed seeking to compel production of such records, then the party seeking production has
prevailed within the meaning of ORS 192.431(3).
         Second, plaintiff argued that he was entitled to
attorney fees and costs because it was the second lawsuit
that “forced [defendant] to change course and furnish all
the requested records.” That is, plaintiff argued that he was
entitled to attorney fees and costs because his second lawsuit was the “catalyst” for the production of the requested
records.
         The trial court denied plaintiff’s request for attorney fees, rejecting plaintiff’s arguments. In doing so, the
trial court noted that the second lawsuit was filed 11 days
after the second records request was submitted and that
that records request did not contain a deadline for production. The court explained:
      “[B]y the time I decided [the case] the records were produced, it was done, and I did not find that the filing of the
   suit was the catalyst for the [defendant] to act.
      “So I find you’re not entitled to fees.”
(Emphasis added.)
                         II. ANALYSIS
A. Plaintiff’s Appeal of the First Case and First Assignment
   of Error
       Regarding the first case, on appeal, in his first
assignment of error, plaintiff contends, among other points,
366                                                       Upham v. Forster

that the fact that “defendant’s copy of the records was
destroyed does not moot plaintiff’s records request.” Plaintiff
notes that, under ORS 192.431(1), “ ‘the court has jurisdiction to enjoin the public body from withholding records and
to order the production of any records improperly withheld from the person seeking disclosure.’ ” (Quoting ORS
192.431(1).). In plaintiff’s view, the first case was not moot,
because the trial court “should have ordered defendant to
go to Lt. Davis, ask for a copy of the destroyed records, and
then release them to plaintiff.”8
         Defendant responds, among other points, that
“because defendant no longer possessed the materials in
question when the records request arrived, she could not
have violated statutory requirements by not giving them to
plaintiff in response to his request.” Defendant argues that,
pursuant to ORS 192.431(1):
    “The authority to order a public body to ‘produce’ records
    that it has ‘improperly withheld,’ … presumes that the
    public body possessed those records when the records
    request was made and that the public body continues to do
    so. If the public body in question does not actually have the
    records being requested, nothing in ORS 192.431 authorizes a trial court to somehow require the public body to
    obtain new copies of those records from some other public
    body, one that has not been accused of improperly withholding records.”
         Thus, in defendant’s view, as we understand defendant’s argument, the trial court did not err in concluding
plaintiff’s claim in the first case was moot.
         “In reviewing a trial court’s determinations following a bench trial, we review the trial court’s explicit and
implicit findings of fact for any evidence in the record to
support them, and the legal consequences of those facts for
    8
      It is unclear from plaintiff’s briefing precisely which statute he believes to
be the source of the court’s authority to order defendant to obtain records from
the Deschutes County Sheriff’s Office. At oral argument, when asked, he noted
that there was a “series of statutes” and appealed to “common sense.”
    In light of the statutory scheme encompassing the Public Records Law,
ORS 192.311 to 192.431, however, and a reference in plaintiff’s briefing to ORS
192.431(1) as providing the court’s “authority” as “to cases that end up in circuit
court,” we understand plaintiff to rely on ORS 192.431(1).
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legal error.” Block v. DEA Properties-2 LLC, 

, 

 (2021). “Whether a proceeding is moot is
a question of law” that we “review for legal error.” Birchall
v. Miller, 

, 

 (2021). “A case
becomes moot when a court’s decision will no longer have a
practical effect on the rights of the parties.” Bowers v. Board
of Parole, 

, 

, rev den, 

 (2021) (internal quotation marks omitted).
         Here, as framed by the parties’ arguments on appeal
and the trial court’s ruling, this case requires us to examine
whether ORS 192.431(1) authorized the trial court to order
defendant to obtain the requested records from Deschutes
County Sheriff’s Office.9 If not, the case was moot, as the
court’s decision no longer would have a practical effect on
the rights of the parties, because there would be no records
for defendant to produce; those records had been destroyed.10
            ORS 192.431(1) provides, in relevant part:
       “In any suit filed under [various statutory provisions
    related to inspection of public records], the court has jurisdiction to enjoin the public body from withholding records
    and to order the production of any records improperly withheld from the person seeking disclosure.”
         The meaning of ORS 192.431(1) presents a question of statutory construction, making our review for “for
legal error, employing the methodology described in PGE v.
Bureau of Labor and Industries, 

, 

 (1993), and State v. Gaines, 

, 

 (2009).” Central Oregon LandWatch v. Deschutes County,

, 

 (2017). Our objective
is to “determine the meaning of the statute that the legislature that enacted it most likely intended,” by “examining

     9
        We understand the trial court’s statement that “what I can do in this public records action is to order [defendant] to produce what they haven’t produced
that they have withheld” to be a reference to its authority under ORS 192.431(1).
     10
        We note that plaintiff’s argument as to mootness turns on his argument
that the trial court could have ordered defendant to obtain the requested records
from the Deschutes County Sheriff’s Office.
     That is, plaintiff does not argue that, if the trial court had not erred in determining that it lacked the authority to order defendant to obtain the requested
records from the Deschutes County Sheriff’s Office, then the case would still be
justiciable.
368                                            Upham v. Forster

the statutory text, in context, and, where appropriate, legislative history and relevant canons of construction.” State v.
Robinson, 

, 199, 

 (2017) (internal quotation marks omitted). “One of our guiding rules for
construing statutes is that ‘the office of the judge is simply
to ascertain and declare what is, in terms or in substance,
contained therein, not to insert what has been omitted, or to
omit what has been inserted.’ ” State v. Phillips, 

, 

 (2021) (quoting ORS 174.010).
         In this case, the text of ORS 192.431(1) is dispositive. As noted, that statute provides, in relevant part:
      “In any suit filed under [various statutory provisions
   related to inspection of public records], the court has jurisdiction to enjoin the public body from withholding records
   and to order the production of any records improperly withheld from the person seeking disclosure.”
ORS 192.431(1) (emphases added).
          ORS 192.431(1) thus authorizes the trial court to
enjoin a public body from “withholding” records and authority to order the production of records that have been “improperly withheld” by a public body.
          The legislature did not define “withholding” or
“withheld” in ORS 192.431(1), and therefore, we look to the
dictionary for guidance. Pride Disposal Co. v. Valet Waste,
LLC, 

, 759, 

, rev den, 

(2019). The ordinary meaning of “withhold” or “withheld,”
as relevant here, is “to hold back” and “to desist or refrain
from granting, giving, or allowing : keep in one’s possession
or control : keep back.” Webster’s Third New Int’l Dictionary
2627 (unabridged ed 2002). In light of those definitions,
we understand the relief specified in ORS 192.431(1) when
a record is “improperly withheld” to presuppose that the
record was in a public body’s “possession or control” at the
time a public records request was received, and that the public body “desist[ed] or refrain[ed]” from “granting” or “giving”
such record to the person requesting its disclosure. That is, a
party can “withhold” only that which it possesses or controls.
          That understanding of what it means for a public
body to have “improperly withheld” a record under Oregon’s
Public Records Law is consistent with how federal cases
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interpreting the federal Freedom of Information Act (FOIA)
have interpreted the phrase “improperly withheld” under the
FOIA, and we have looked to such cases for guidance when
interpreting Oregon’s Public Records law. See Oregonian
Publishing v. Portland School Dist. No. 1J, 

, 

 (1998), aff’d, 

, 

 (1999)
(“It is appropriate to look to the FOIA for guidance on the
issue, because Oregon’s public records inspection law is modeled after it and comparable state laws.”). The FOIA, like
ORS 192.431(1), provides a claimant with a remedy against
an agency that has “improperly withheld” a record. 

(a)(4)(B). Under the FOIA “ ‘[i]f the agency is no longer
in possession of the document, for a reason that is not itself
suspect, then the agency is not improperly withholding that
document and the court will not order the agency to take
further action in order to produce it.’ ” DeBrew v. Atwood, 

 (DC Cir 2015) (quoting SafeCard Servs., Inc. v.
S. E. C., 926 F2d 1197, 1201 (DC Cir 1991); see 

 (“[Bureau
of Prisons] did not violate the disclosure requirements of the
FOIA by failing to produce recordings of [plaintiff’s] telephone conversations because the agency is not obligated, nor
is it able, to disclose a record it does not have.”); see also, e.g.,
Lechliter v. Rumsfeld, 182 F App’x 113, 116 (3d Cir 2006)
(“Because the [Department of Defense] is not required to
produce documents ‘if [it] is no longer in possession of the
documents for a reason that is not itself suspect,’ there has
been no improper withholding.” (Quoting SafeCard Servs.,
Inc., 926 F2d at 1201 (brackets in Lechliter)); Houser v. U.S.
Dept. of Health & Human Servs., 486 F Supp 3d 104, 114-
15 (D DC 2020) (“Furthermore, ‘[i]f the agency is no longer
in possession of the document, for a reason that is not itself
suspect, then the agency is not improperly withholding that
document and the court will not order the agency to take
further action in order to produce it.’ ” (Quoting SafeCard
Servs., Inc., 926 F2d at 1201 (brackets and emphasis in
Houser)).11

    11
       In pressing his argument on appeal, plaintiff points to Judicial Watch, Inc.
v. U.S. Dep’t of Commerce, 

 (DDC 1998), a case decided under
the FOIA, where the court ordered a magistrate judge to “explore the extent to
which” the Department of Commerce (DOC) “has illegally destroyed and discarded responsive information, and possible methods for recovering whatever
responsive information still exists outside of the DOC’s possession.”
370                                                     Upham v. Forster

         Here, as found by the trial court, with respect to
the records at issue in the first case, the records had been
destroyed by defendant prior to her receiving plaintiff’s public records request. The records were not in her “possession”
when she received the request. Likewise, the records were
not in her “control” when she received the request; although
the Deschutes County Sheriff’s Office had copies of the
records, as the trial court observed, the Deschutes County
Sheriff’s Office and the Lake County District Attorney’s
Office are “separate bodies.” In such circumstance, there
were no records that were “improperly withheld” by defendant under ORS 192.431(1) for the trial court to order defendant to disclose.12
         We have previously observed that “improper withholding of a public record could occur in any number of ways
short of some formal ‘denial’ of a records request, such as by
stonewalling or other obstructive conduct on the part of the
public body.” ILWU v. Port of Portland, 

,

, rev dismissed, 

 (2017). That is undoubtedly true. But that does not mean a public body can be understood to improperly “withhold” a record when the public body
does not possess or control the record at issue at the time that
the public body received the public records request.
         Consequently, in the absence of authority to order
defendant to “go get the records” from Deschutes County
Sheriff’s Office, we conclude that the trial court did not err
in determining that the first case was moot.

    Judicial Watch, Inc. does not help plaintiff. “Judicial Watch involved four
years of extensive and egregious misconduct by the [DOC]—including the shredding and unexplained removals of requested documents—in response to various
FOIA requests.” Flowers v. I.R.S., 

 (DDC 2004); Judicial
Watch, Inc., 

 (noting that the “record of [DOC’s] misconduct in
this case is so egregious and so extensive that merely granting the DOC’s motion
and ordering a new search would fail to hold the agency fully accountable for the
serious violations that it appears to have deliberately committed”).
    Plaintiff’s attempt to liken this case to Judicial Watch, Inc.—where “egregious” and “extensive” misconduct occurred after a public records request was
received, and involved “violations” that appeared to have been “deliberately committed”—is, to say the least, inapposite.
    12
       Plaintiff does not argue that defendant would have had reason to have
anticipated a public records request for the materials that she destroyed.
Consequently, we express no opinion on how ORS 192.431(1) would, or would not,
apply in such a circumstance.
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B.    Plaintiff’s Appeal of the Second Case and Second
      Assignment of Error
       Regarding the second case, on appeal, in his second
assignment of error, plaintiff contends that the trial court
erred when it denied his request for attorney fees and costs
under ORS 192.431(3), which provides:
     “If a person seeking the right to inspect or to receive a copy
     of a public record prevails in the suit, the person shall be
     awarded costs and disbursements and reasonable attorney
     fees at trial and on appeal.”
         In plaintiff’s view, he “prevailed” because defendant complied with his public records request “prior to trial
but after plaintiff’s request had been wrongfully denied.”
Plaintiff contends that that sequence of events means he
“necessarily prevailed, and he should be allowed his attorney
fees.” Further, plaintiff asserts that we should adopt what
has been termed the “ ‘catalyst’ theory,” whereby a plaintiff
is “entitled to attorney fees in cases where the defendant
voluntarily complies with a plaintiff’s requested relief …
if his suit is a catalyst for the defendant’s voluntary compliance.” (Internal quotation marks omitted.) In making
that argument, plaintiff asserts that there “was no evidence
to support the [trial court’s] finding that the records were
released ‘not as a result of the Public Records lawsuit.’ ”
Plaintiff argues that, “given that the records were released
after the suit was filed, it can be inferred that the suit was
the catalyst for the release.” (Emphases in plaintiff’s brief.)
          Plaintiff asks that “we reverse the denial of plaintiff’s fee request (with or without a formal adoption of the
‘catalyst theory’) and remand so that the amount of the fee
award can be determined.”
         Defendant responds that plaintiff did not “prevail,”
because plaintiff did not “obtain a favorable judgment” in the
case, and that the trial court “correctly rejected plaintiff’s
catalyst theory.” Defendant argues, among other points, that
plaintiff “presented no evidence that required the trial court
to find that defendant made efforts to produce the requested
records because of the lawsuit.” (Emphasis in defendant’s
brief.)
372                                              Upham v. Forster

         As context for our analysis, we begin with a discussion of our decision in Clapper, 

, as juxtaposed against our more recent decision Merrick v. City of
Portland, 

, 

 (2021), which was
decided during the pendency of this appeal. We agree with
the trial court that Clapper is controlling. Further, although
plaintiff’s second assignment of error addresses attorney
fees, not mootness, we include a discussion of both Clapper’s
and Merrick’s rulings on mootness, as they are relevant to
our analysis of plaintiff’s second assignment of error.
          In Clapper, the plaintiff brought a lawsuit under the
Public Records Law. 

. During the pendency
of the litigation, the records that the plaintiff had requested
were produced to the plaintiff, apparently to comply with a
separate order from the Attorney General. 

. The
trial court entered judgment in favor of the defendant on
the ground that the plaintiff had received all of the records
that he had requested, thereby rendering the action moot.

. On appeal, the plaintiff argued that the trial court
erred in entering judgment in favor of the defendant based
on mootness, and that the court should have awarded him
attorney fees because, “even if the case had become moot,
that was so only because plaintiff’s action had compelled the
agency to disclose the records.” 

         We rejected plaintiff’s arguments explaining that,
“by the time of trial, plaintiff had received all of the records
that he had requested” and therefore “[a] ruling by the court
would have had no effect on the rights of either party.” 

. We determined that the “case was therefore moot” and
that “dismissal [was] the appropriate disposition,” noting
that “typically, when a judgment dismisses the complaint,
the defending party is considered the prevailing party.” 

(internal quotation marks and brackets omitted).
         With regard to the plaintiff’s request for attorney
fees, we explained that plaintiff contended that
   “despite the fact that defendant was the prevailing party,
   plaintiff is entitled to attorney fees under the so-called ‘catalyst’ theory, that is, that, where a defendant voluntarily
   complies with a plaintiff’s requested relief, thereby rendering the plaintiff’s lawsuit moot, the plaintiff is a ‘prevailing
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   party’ … if his suit is a catalyst for the defendant’s voluntary compliance.”
Id. at 178-79 (internal quotation marks and brackets omitted). We rejected that argument, explaining that “Oregon
courts have not adopted the catalyst theory, and, even if
they had, it would not apply here,” because “plaintiff has
adduced no evidence to support the assertion that defendant
complied with his request as a result of the action and not
because it was ordered to do so by the Attorney General.”
Id. at 179.
         In Merrick, the plaintiff brought a lawsuit under the
Public Records Law. 

. Plaintiff moved for
summary judgment, but instead of ruling on that motion, the
trial court entered an order that “abated further proceedings
in the court pending remand to the district attorney.” 

. The order further specified that the defendant “could
not appeal an adverse ruling [of the district attorney] to the
circuit court.” 

 (emphasis in original). The district attorney issued an order that “directed the [defendant]
to release all of the requested records,” and the defendant
complied. 

.
         The defendant then filed a motion to dismiss the
plaintiff’s lawsuit, arguing that the case was moot because
any further decision by the court would have no practical
effect on plaintiff’s rights. 

 The plaintiff responded that
his complaint was not moot and that the trial court should
enter a judgment in his favor and award him attorney fees
as having prevailed. 

 The trial court granted the defendant’s motion to dismiss, concluding that, because plaintiff ultimately received the requested records as a result of
the district attorney’s order, plaintiff received the relief he
sought, the case had become moot, and there was nothing
further for the court to do. 

 The court also concluded that,
because plaintiff had not been awarded a favorable judgment from the court itself, plaintiff had not prevailed so as
to become entitled to attorney fees. 

        On appeal, we concluded “that the trial court erred
in dismissing plaintiff’s claims as moot, in light of the novel
remand procedure it had ordered, and that the trial court
erred in denying plaintiff’s petition for attorney fees, based
374                                             Upham v. Forster

on its conclusion that plaintiff had not prevailed in the proceeding.” 

.
          In discussing mootness, we explained that “the
effect of the court’s choice to enter an abate-and-remand
order without the agreement of both parties” meant that
“plaintiff’s claim in circuit court was not rendered moot,
as if it had somehow been decided in the meantime by circumstances outside the court’s own proceedings.” 

.
That is, the “release of the requested records did not render plaintiff’s case moot because the records were disclosed
pursuant to an order of the district attorney that was made
binding by the abate-and-remand order of the trial court.”

. Thus, “plaintiff’s success was, in fact, determined, at least in critical part, through the court’s action.”

. We also observed that the “nature of the court’s
remand order was analogous to the procedure for a court’s
order to compel contractual arbitration or the procedure to
engage an outside party to serve as a referee adjunct to the
court’s proceeding.” 

.
          Regarding plaintiff’s petition for attorney fees, we
noted that the Public Records Law does not
   “define the term ‘prevails’ as used in ORS 192.431(3), but
   the legislature used similar language when defining ‘prevailing party’ for the purposes of attorney fees in civil cases
   generally, explaining that
      ‘[f]or the purposes of making an award of attorney fees
   on a claim, the prevailing party is the party who receives a
   favorable judgment or arbitration award on the claim.’ ”

 at 662 (quoting ORS 20.077(2) (brackets in Merrick)). We
noted that, “[i]n essence, plaintiff received a favorable ruling
in the equivalent of an arbitration award,” and “any judgment to be entered as a result of our conclusion” regarding
mootness “should make the point clearer.” 

 In so ruling
regarding attorney fees, we distinguished Clapper, by noting that the “plaintiff’s case [in Merrick] was not rendered
moot by a voluntary action of the [defendant in Merrick]
independent of any order arising from plaintiff’s public
records claim.” 

         We also explained in Merrick that “there can be little
doubt that plaintiff prevailed,” noting that the plaintiff had
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overcome a number of challenges to the release of records
mounted by the defendant:
      “[H]e challenged a … denial of his request based on
   two specified exemptions [asserted by the defendant]; he
   persevered after the [defendant] shifted its position during
   his challenge, after the [defendant] recognized that the
   records were public but reserved its option to redact and
   reassert several exemptions; he made a pure-law challenge
   to overcome the city’s demand for a [monetary] deposit
   before it would identify the exemptions to be at issue; and,
   as a matter of law, plaintiff overcame the city’s renewed
   exemptions in a ruling of the district attorney—a ruling
   that was predetermined to be binding by reason of the
   court’s order.”

.
          This case is like Clapper, and not like Merrick. We
initially observe that, as was the lawsuit in Clapper, plaintiff’s second lawsuit was rendered moot by defendant’s
compliance with plaintiff’s second records request. That
is because, like the defendant in Clapper—and unlike the
defendant in Merrick—defendant’s compliance with the
public records request occurred independent of any court
order arising out of plaintiff’s public records claim. That
is, here, no court order resulted in defendant producing the
requested records. Thus, as in Clapper, the “appropriate
disposition,” as the trial court determined, was to dismiss
the case as moot. 

. And, as in Clapper,
that meant the defendant was the “prevailing party.”

       Nevertheless, like the plaintiff in Clapper, plaintiff
contends that he is entitled to recover attorney fees.
         Plaintiff argues that the sequence of events in this
case—i.e., that defendant produced the requested records
after plaintiff filed suit—means he “necessarily prevailed,”
and therefore, he is entitled to recover attorney fees. In our
view, that argument is foreclosed by Clapper. In sum and
substance, Clapper demonstrates that merely receiving
the requested records after a lawsuit has been filed is not
enough to “prevail[ ]” in a public records action, as that term
is used in ORS 192.431(3).
376                                         Upham v. Forster

         In that regard, we note that this is not a case where,
“[i]n essence, plaintiff received a favorable ruling in the
equivalent of an arbitration award,” like in Merrick. 

. Nor did plaintiff receive something that was,
in essence, the equivalent of a “favorable judgment.” ORS
20.077(2). Although Merrick suggests that, given the similar language used in ORS 20.077(2) and ORS 192.431(3), a
party “prevails” under ORS 192.431(3) if they “in essence”
receive the “equivalent of” a “favorable judgment” or “arbitration award,” plaintiff did not do so in this case. Merrick,

.
         As for plaintiff’s argument regarding the “catalyst theory,” as noted above, in Clapper we observed that
“Oregon courts have not adopted the catalyst theory,” but
determined that, “even if they had, it would not apply here,”
because “plaintiff has adduced no evidence to support the
assertion that defendant complied with his request as a
result of the action and not because it was ordered to do so
by the Attorney General.” 

; see also Conifer
Ridge Homeowners Assn. v. Hayworth, 

,

 (2001) (observing that “we can find no Oregon
decision that adopts the ‘catalyst theory’ for determining a party’s entitlement to attorney fees,” but ultimately
determining that “[w]e need not decide here whether” catalyst theory “is viable,” because there was no evidence
that defendant’s compliance was a result of plaintiff’s
lawsuit).
         Here, as in Clapper, we need not decide whether
to adopt the “catalyst theory.” In this case, when presented
with the catalyst theory, the trial court expressly “did
not find that the filing of the suit was the catalyst for the
[defendant] to act.” Although plaintiff argues that, “given
that the records were released after the suit was filed,
it can be inferred that the suit was the catalyst for the
release,” the trial court was not required to make such an
inference, particularly in light of the other facts it identified. That is, as indicated above, plaintiff’s suit was filed
11 days after the second public records request was sent,
and the second public records request contained no production deadline; in short, no evidence required the trial
court to accept plaintiff’s position that the second lawsuit
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was the catalyst for defendant’s production of the requested
records.13
           In light of the foregoing, we affirm.
           Affirmed.




    13
       On appeal, in his reply brief, plaintiff argues that, “given that plaintiff,
and all similarly situated records requesters, will never be able to reach into the
minds of state officials and demonstrate their motivation for a post-suit release of
records, the burden of [proving] that the suit was not the catalyst for the records’
release should be placed on the state.” Plaintiff cites no precedent in making that
argument.
    Plaintiff’s position regarding the burden of proof is inconsistent with our
analysis in Clapper, in which we suggested that a party seeking to recover fees
under the “catalyst theory” bears the burden of proof. See Clapper, 

 (“[P]laintiff has adduced no evidence to support the assertion that defendant
complied with his request as a result of the action and not because it was ordered
to do so by the Attorney General.”). Plaintiff’s position is also inconsistent with
the law in many jurisdictions that have adopted the “catalyst theory.” See, e.g.,
Coal. for a Sustainable Future in Yucaipa v. City of Yucaipa, 238 Cal App 4th
513, 522, 189 Cal Rptr 3d 306, 313 (2015) (“To satisfy the causation prong of the
catalyst theory, the plaintiff need not show that litigation was the only cause of
the defendant’s acquiescence, only that it was a substantial factor contributing
to defendant’s action.” (Emphasis in Coal. for a Sustainable Future in Yucaipa));
Frankel v. D.C. Office for Planning & Econ. Development, 110 A3d 553, 558 (DC
2015), as amended, (Mar 5, 2015) (“[T]he catalyst theory continues to operate
in D.C. FOIA cases, and a party prevails in whole or in part under § 2-537(c)
when he demonstrates a causal nexus between the action brought in court and
the agency’s surrender of the information.” (Internal quotation marks and brackets omitted.)); Bonanno v. Verizon Bus. Network Sys., 196 Vt 62, 72, 93 A3d 146,
154 (2014) (“To prevail for purposes of the catalyst theory, a party must demonstrate: … that the filing of the lawsuit was a necessary and important factor
in achieving the other party’s change in conduct ….” (Internal quotation marks
omitted.)).