Sause v. Hummel

                                869

         Argued and submitted March 7, affirmed April 6, 2022


                    H. Richard SAUSE,
                    Plaintiff-Appellant,
                              v.
                     John HUMMEL,
                  Defendant-Respondent.
              Deschutes County Circuit Court
                   19CV06346; A175238
                            

  Alison M. Emerson, Judge.
  George W. Kelly argued the cause and filed the briefs for
appellant.
   John E. Laherty argued the cause for respondent. On the
brief was Amy Heverly.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  PER CURIAM
  Affirmed.
870                                                     Sause v. Hummel

           PER CURIAM
         Plaintiff submitted a public records request to defendant, the Deschutes County District Attorney.1 Twentyseven days later, after hearing nothing, plaintiff filed suit
against defendant. As to the request relevant on appeal, the
complaint alleged that defendant “did not respond” to the
public records request and “his failure to do so constitutes
a denial.” Plaintiff sought both a declaration that defendant “must produce the improperly withheld records” and
an award of his attorney fees. Two weeks later, defendant
responded to the request, produced records, and waived the
fee associated with obtaining those records. Defendant later
moved for summary judgment, arguing that the case was
moot, and the trial court granted that motion after concluding that there was no dispute of material fact about whether
defendant had already complied with the request.
         “We review a trial court’s grant of summary judgment for legal error, and we will affirm if there are no genuine issues as to any material fact and the moving party is
entitled to judgment as a matter of law.” Smith v. Airbnb,
Inc., 

, 

 (2021) (quoting
Towner v. Bernardo/Silverton Health, 

,

, rev den, 

 (2020)). In plaintiff’s first
assignment of error, he argues that the trial court erred in
ruling that defendant had fully complied with the request
because defendant conducted an inadequate search for
those records. He urges us to adopt the standard applicable to the federal Freedom of Information Act, 

, and require a government defendant to affirmatively
demonstrate the details of the search conducted. See, e.g.,
Rubman v. U.S. Citizenship & Immigr. Servs., 

 (7th Cir 2015) (“To demonstrate that its search was adequate [in a case challenging the adequacy of the search],
the agency must show that it made a good faith effort to
conduct a search for the requested records, using methods
which can be reasonably expected to produce the information requested.” (Internal quotation marks omitted.)).
   1
     Plaintiff submitted two public records requests, one on January 10, 2019,
and one on January 11, 2019. The January 11, 2019, request is the subject of this
appeal.
Cite as 

 (2022)                                                 871

         Although Oregon courts have yet to address the
contours of the burden on a public body to delineate its
efforts to search for requested public records, this case does
not present such an opportunity. Plaintiff filed suit alleging
that defendant failed to respond to the records request altogether, not that the later search for records was improper.
He never amended his complaint to allege a new claim about
either the adequacy of the records provided or the search
conducted. See ORCP 18 A (providing that a claim for relief
shall contain “[a] plain and concise statement of the ultimate facts constituting a claim for relief”). Moreover, plaintiff did not present any evidence in his response to defendant’s motion for summary judgment that related to the
adequacy of defendant’s search nor did he seek leave to add
a new legal theory at that point. See Permapost Products Co.
v. Osmose, Inc., 

, 

 (2005)
(explaining that, although a party may add a legal theory at
summary judgment, under ORCP 23 “we cannot treat the
pleadings as amended to include plaintiff’s [new legal theory] unless plaintiff obtained the consent of the court or of
defendant”). Given the nature of plaintiff’s claim, defendant
would have had no reason to affirmatively demonstrate the
specifics of the search conducted, and so the trial court had
no basis to deny summary judgment on that ground.
         Plaintiff next assigns error to the trial court’s denial
of his request for attorney fees based on the theory that his
lawsuit was the catalyst for the government’s compliance.2
Plaintiff has provided no evidence to support this contention, therefore, the trial court did not err. Clapper v. Oregon
State Police, 

, 

 (2009)
(“Oregon courts have not adopted the catalyst theory, and,
even if they had, it would not apply here. That is so because
plaintiff has adduced no evidence to support the assertion
that defendant complied with his request as a result of the
action ….”).
           Affirmed.
     2
       Plaintiff also makes a textual argument that he has “prevailed in the suit”
for the purposes of ORS 192.431(3). Plaintiff offers no reason to apply a unique
definition of “prevail” to that provision and so we decline to address that argument. See Bazzaz v. Howe, 

, 

, rev den, 

(2014) (“[B]ecause plaintiffs’ argument is undeveloped, we decline to address it.”).