FILED 


JAN. 28, 2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DMSION THREE 


CHRISTOPHER JACK REID, ) 

) No. 31039-6-111 

Appellant, ) 

) 

v. ) 

) 

PULLMAN POLICE DEPARTMENT, ) UNPUBLISHED OPINION 

) 

Respondent. ) 

FEARING, J. - Christopher Jack Reid seeks to compel, under the Public Records 

Act (PRA), chapter 42.56 RCW, the Pullman Police Department (PPD) to produce, 

among other records, records the police department might have maintained in its 

investigatory file but claims it did not possess at the time ofReid's records request. The 

trial court denied Reid relief, and we affIrm. 

FACTS 

A jury convicted Christopher Reid ofsecond degree rape and burglary. After 

losing an appeal, Reid requested all records related to his criminal case that the PPD, the 

investigating agency, possessed. The PPD responded, providing Reid with what it claims 

to be the entire copy ofhis criminal case fIle. The PPD produced over 1,000 pages and 
No. 31039-6-III 

Reid v. Pullman Police Dep 'f 

the response included two four-inch, loose-leaf notebooks and one three-inch notebook. 

After reviewing the voluminous records given to him by PPD, Christopher Reid 

concluded that records were missing. For example, he demands that PPD produce a copy 

ofthe audio recording of the rape victim's 911 call. An independent agency, Whitcom, 

however, took and recorded the calL Whitcom is a consolidated 911 dispatch center for 

Pullman, Asotin County, Washington State University, and Moscow, Idaho. The PPD 

informed Reid that the city did not have the 911 recording and suggested to Reid that he 

contact Whitcom. 

In a narrative report by Pullman Police Officer William Orsborn, Orsborn wrote 

that he gave photo lineup sheets to other officers who conducted interviews ofthose who 

saw Reid and Reid's accomplice. The records produced by PPD included statements of 

the witnesses who underwent the photo lineups. Christopher Reid supposes the PPD 

failed to produce documents because the records he received do not identify the names of 

the officers who performed the photo lineups. 

Christopher Reid believes that the PPD failed to provide him with an audio 

recording of an interview ofthe rape victim, K.N.E., conducted on September 13,2007 

by Pullman Police Officer Scott Kirk. A narrative report ofOfficer Kirk contains, near 

the end, the words "End oftape" and the initials "JSK/es." Clerk's Papers (CP) at 46. 

Officer Kirk signed an affidavit declaring: "I never took an audio recorded statement of 

the victim in this case. This record does not exist." CP at 127. He also stated that he 

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No. 31039-6-III 

Reid v. Pullman Police Dep't 

dictated his narrative, and the narrative report was typed by a transcriptionist. The 

transcriptionist, Elysia Spencer, averred that she transcribed the report Kirk dictated and 

that she did not transcribe an audio recording of a statement from the victim. In other 

words, reference to the "End oftape" in the report refers to the dictated tape from Kirk, 

not a tape of a recording ofthe victim. CP at 46. 

Separately from the request to Pullman, Christopher Reid requested records from 

the Washington State Patrol Identification and Criminal History Section (WSP). Reid 

compared the WSP records with the case file PPD produced. The WSP records showed 

that, during Pullman's rape investigation, PPD Officers William Orsborn and Michael 

Crow requested and received criminal histories of four other individuals. The results 

from those requests were not in the file PPD produced. Christopher Reid believes these 

missing records will substantiate his claim of innocence. He does not explain, but it is 

not relevant to the appeal, why these purported eXCUlpatory records have not or cannot be 

received from the WSP. 

According to PPD's Property and Evidence Specialist, police officers in the field 

obtain information from WSP databases by radioing requests to Whitcom, a regional 

dispatch center, and then receiving results over the radio. In such circumstances, an 

officer generally does not request printouts ofthe results for insertion in the case file. 

Even ifan officer requests printouts and those printouts enter the case file, the officer 

may later remove them "in light ofnew information that tended to show the WSP record 

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No. 31039-6-III 


Reid v. Pullman Police Dep Jt 


was irrelevant." CP at 134. 

One investigating officer, Michael Crow, submitted an affidavit stating he did not 

print the histories he obtained from the WSP when investigating the rape. Pullman, 

however, did not submit an affidavit from Officer William Orsborn, who also requested 

the histories from the WSP. Orsborn is retired. 

Reid filed a motion with the trial court to "order [PPD] to show cause on why it 

has refused to allow copying" of the criminal histories, among the other records. CP at 9. 

The City ofPullman responded that it did not possess or control the records. In support 

of its position, Pullman submitted seven sworn statements from Pullman employees 

I explaining why the records Christopher Reid requested did not exist. PPD's Records 

Specialist averred that, upon receipt ofReid's records request, she provided him a copy 

ofthe department's entire investigation file concerning the rape. 

After Pullman responded to the show cause order, Christopher Reid filed a motion 

for leave to insert an additional claim seeking declaratory relief for alleged violations of 

the Preservation and Destruction ofPublic Records Act (PDPRA) chapter 40.14 RCW. 

After reviewing the affidavits submitted by the parties, the trial court denied Reid any 1 

I 	 relief. The trial court found that Pullman's explanation for the absence ofthe criminal 

histories was "credible and logical" and that Pullman produced every record in its 

possession and control at the time the records request was made. CP at 126. 

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I No. 31039-6-III 


Reid v. Pullman Police Dep't 


ANALYSIS 

PUBLIC RECORDS ACT 

On appeal, Christopher Reid continues to argue that Pullman violated the PRA 

because it has not produced records it possesses or possessed. The superior court reviews 

an agency's response to a public records request de novo. RCW 42.56.550(3); Zink v. 

City ofMesa, 140 Wn. App. 328, 335-37, 166 P.3d 738 (2007). In turn, we also 

undertake de novo review, when the trial court rendered, as it did here, a decision based 

upon pleadings rather than oral testimony. Gronquist v. Dep't ofCorrections, 159 Wn. 

App. 576, 590, 247 P.3d 436 (2011). Under such circumstances, the appellate court 

stands in the same position as the trial court and is not bound by the trial court's findings 

on disputed factual issues. Id. 

I We have reviewed the entire record and conclude, as did the trial court, that 

Pullman's explanations with respect to the absence ofrecords are credible. An officer 

1 

1 	 may contact WSP for information that the officer reviews on a computer and never prints. 

The names ofthe officers performing lineups may often be important, but could have 

been oflittle consequence in the rape investigation because of a lack of certainty in the 

lineups, such that the names were never documented. Contrary to Reid's contention, the 

police department provided pages ofraw data prepared as part ofthe lineups. Pullman 

amply explains why it has produced no recording of an interview ofthe victim or the 911 

call ofthe victim. 

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No. 31039-6-II1 

Reid v. Pullman Police Dep 't 

Reid believes the police are seeking to shield exculpatory infonnation, but the 

background and history ofthe case does not confinn this contention. The volume of 

records provided by Pullman suggests that the city lacked desire to exclude any 

documents in its production. In short, Reid has provided no finn evidence that Pullman 

withheld records. '"Purely speculative claims about the existence and discoverability of 

other documents will not overcome an agency affidavit which is accorded a presumption 

ofgood faith.'" Forbes v. City o/Gold Bar, 171 Wn. App. 857, 867,288 P.3d 384, 389 

(2012) (quoting Trentadue v. F.B.I., 572 F.3d 794, 808 (lOth Cir. 2009)), review denied, 

177 Wn.2d 1002 (2013). 

Christopher Reid correctly notes that an agency is forbidden from destroying 

responsive documents while a PRA request is pending. See RCW 42.56.100. 

Nevertheless, the argument does not control since the evidence does not support a fmding 

ofspoliation ofrecords. Assuming officers discarded the WSP criminal histories, the 

disposal occurred years before the records request. Christopher Reid also impliedly 

argues the PPD violated the PRA when it did not create records to identify officers who 

assisted in photo lineups. Yet, '" an agency has no duty to create or produce a record that 

is nonexistent.' " Bldg. Indus. Ass'n o/Wash. v. McCarthy (BIAW), 152 Wn. App. 720, 

734,218 P.3d 196 (2009) (quoting Sperr v. City o/Spokane, 123 Wn. App. 132, 136-37, 

969 P. 3d 1012 (2004)). 

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No. 31039-6-III 

Reid v. Pullman Police Dep't 

Christopher Reid argues that the trial court erred when it found the PPD complied 

with the PRA without an affidavit from Officer William Orsborn. In violation ofRAP 

10.3(a)(6), Reid fails to cite legal authority for this contention. Regardless, Orsborn's 

testimony is not required. In PRA cases, the agency's burden is to establish "beyond 

material doubt" the reasonableness ofits search for documents, and "[t]o do so, the 

agency may rely on reasonably detailed, nonconc1usory affidavits submitted in good 

faith." Neighborhood Alliance ofSpokane County v. Spokane County, 172 Wn.2d 702, 

720-21,261 P.3d 119 (2011). Pullman submitted seven detailed, sworn statements 

explaining the reasonableness ofits search and attached over 1,000 pages ofrecords 

demonstrating that it produced Christopher Reid's entire criminal case file. 

PRESERVATION AND DESTRUCTION OF PUBLIC RECORDS ACT 

Christopher Reid faults the trial court for refusing to require the PPD to offer proof 

that it complied with the State Records Management Guidelines and Retention Schedules. 

The PDPRA permits the State Archivist to create guidelines to assist government 

agencies to comply with the Act. RCW 40.14.070(2)(a)(iii). The State Archivist created 

and distributed the Records Management Guidelines for Local Government Agencies of 

Washington State (Guidelines). 

Reid asserts Washington courts have relied on the Guidelines when analyzing 

whether agencies violated the Public Records Act citing 0 'Neill v. City ofShoreline, 170 

Wn.2d 138, 148-49,240 P.3d 1149 (2010); Bldg. Indus. Ass'n ofWashington (BIAW), 

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No. 31039-6-111 

Reid v. Pullman Police Dep't 

152 Wn. App. 720; Daines v. Spokane County, 111 Wn. App. 342, 350,44 P.3d 909 

(2002), overruled in part on other grounds by Neighborhood Alliance o/Spokane County 

v. County o/Spokane, 172 Wn.2d 702, 261 P.3d 119 (2011). To the contrary, however, 

courts have held that an agency need not show it complied with the PDPRA to prove it 

complied with the PRA. West v. Dep't o/Natural Resources, 163 Wn. App. 235, 245, 

258 P.2d 78 (2011), review denied 173 Wn.2d 1020 (2012); BIAW, 152 Wn. App at 741. 

Anyway, Reid identifies no guideline violated by Pullman and courts have questioned 

whether a private party has standing to sue under the PDPRA. BIA W, 152 Wn. App. at 

742; Daines, 111 Wn. App. at 350. 

MOTION FOR ADDITIONAL BRIEFING 

In its brief, Pullman wrote that the trial court reasonably concluded it did not 

violate the PRA based on affidavits along with "the context of certain records." 

Christopher Reid claims he has no knowledge ofthe "context" or "certain records" to 

which Pullman refers. In his reply brief, Reid asks this court, pursuant to RAP 1 0.4( d), to 

order Pullman to elaborate on the meaning ofthe phrase. This court denies Reid's 

motion because RAP 1 0.4( d) does not permit a party to file a non-dispositive motion in 

his brief. Ash v. Dep't o/Labor & Indus., 173 Wn. App. 559, 561,294 P.3d 834 (2013). 

CONCLUSION 

After conducting our de novo review ofthe record, we hold that Pullman did not 

violate either the PRA or the PDPRA. We affirm the trial court. 

8 
No. 31039·6·II1 

Reid v. Pullman Police Dep't 

A majority ofthe panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

Fearmg, J. 

WE CONCUR: 


Co: orsmo, C.~. Kulik, J. 

9