(dissenting) — I disagree that the civil discovery rule should be applied to this case. Furthermore, even if the civil discovery rule is the correct standard, Ladenburg failed to meet his burden of proof supporting his nondisclosure of the requested documents. The Court of Appeals should be affirmed.
The strong language in the public disclosure act (RCW 42.17) favoring disclosure must be kept in mind when analyzing the scope and determining the applicability of the listed exemptions to disclosure. The intent behind the discovery exemption in RCW 42.17.310(1)(j) is simply this: If a litigation opponent to a government agency cannot obtain access to the agency’s litigation materials through discovery, then neither should a citizen have access to those same materials through the public disclosure act.
Since the materials sought by Limstrom come from criminal case files, I would apply the criminal discovery rule, CrR 4.7, to determine whether those materials would have been discoverable by parties to the cases. If the defendants *618in those criminal cases had access to the materials through the criminal discovery rule, then those same materials should be accessible via a public disclosure request. The Court of Appeals adequately analyzed the issue and found Ladenburg failed to meet his burden of proof under CrR 4.7.
Even if the civil discovery rule applies, Ladenburg has failed to meet his burden of proof. When an agency refuses a public disclosure request, its refusal “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.17.310(4). This requirement prevents an agency from “silently” denying access to documents—the agency must justify its refusal and the records withheld must be identified with particularity. Progressive Animal Welfare Soc’y v. University of Wash., 125 Wn.2d 243, 270-71, 884 P.2d 592 (1994) (PAWS). “[A]n agency’s response to a requester must include specific means of identifying any individual records which are being withheld in their entirety.” PAWS, 125 Wn.2d at 271 (footnote omitted). The agency denying disclosure has the burden of proving the records can be withheld under one of the Act’s exemptions. Amren v. City of Kalama, 131 Wn.2d 25, 32, 929 P.2d 389 (1997); RCW 42.17.340(1).
In refusing to disclose the files requested by Limstrom, the prosecutor’s office did not even provide an index to the contents of the requested files. Ladenburg’s arguments merely rested upon conclusory and blanket statements that the files were completely exempt from disclosure under RCW 42.17.310(1)(j). None of Ladenburg’s briefings before any of the courts have ever detailed the contents of the requested files.
The majority claims the record is incomplete on the issue of what documents should be disclosed. Majority at 612. The majority’s response to this lack of a sufficient record is to remand to the trial court. This unprecedented action ignores the fact that Ladenburg failed to meet his burden of *619proof when he first had the chance. It was Ladenburg’s duty to establish, on the record, that his claimed ground for exemption was justified. The majority’s remanding the case for further fact-finding is a debacle of judicial reasoning, and it rewards a party’s deficient legal performance by giving him an undeserved second chance to “get it right.” Ladenburg should not get a second chance to meet his burden of justifying nondisclosure; rather, the Court of Appeals’ order compelling disclosure and awarding attorney fees must be affirmed.
Durham, C.J., and Smith and Sanders, JJ., concur with Dolliver, J.
Reconsideration denied November 16, 1998.