### FILED JAN. 28, 2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE CHRISTOPHERJACK REID, ) ) No. 31039-6-111 Appellant, ) ) v. ) ) PULLMANPOLICE DEPARTMENT, ) UNPUBLISHED OPINION ) Respondent. ) FEARING, J.

- Christopher JackReid seeks to compel, under the Public Records Act (PRA), chapter 42.56 RCW, the PullmanPolice Department (PPD) toproduce, among other records, records thepolice department might have maintained in its investigatory file but claims it didnot possess at the time ofReid's records request. The trial court denied Reid relief, and we affIrm. FACTS Ajury convicted ChristopherReid ofsecond degree rape and burglary. After losing an appeal, Reid requested all records related to his criminal case thatthe PPD, the investigating agency, possessed. The PPD responded, providing Reidwith what it claims to be the entire copy ofhis criminal case fIle. The PPD produced over 1,000 pages and

### No. 31039-6-III 

### Reidv. 

### Pullman Police Dep 'f


### the response included two four-inch, loose-leafnotebooks and one three-inch notebook. After reviewing the voluminous records givento him by PPD, Christopher Reid concluded that records were missing. For example, he demands that PPDproduce a copy ofthe audio recording ofthe 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 thathe contact Whitcom. 

### Ina 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 thatthe PPD failed to provide himwith an audio recording ofan 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) at46. 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 thathe 

### 2No. 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, averredthat she transcribed the report Kirk dictated and that she did not transcribe an audio recording ofa 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 ofa recording ofthe victim. CP at 46. Separately from the request to Pullman, ChristopherReid requested records from the Washington State Patrol Identification and Criminal History Section (WSP). Reid comparedthe WSP records with the case file PPD produced. The WSP records showed that, during Pullman's rape investigation, PPD Officers William Orsborn and Michael Crowrequested and received criminal histories offour other individuals. The results from those requests were not in the file PPD produced. Christopher Reid believes these missing records will substantiate his claim ofinnocence. He does not explain, butit is notrelevantto the appeal, whythese purported eXCUlpatory records have not or cannotbe 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 overthe radio. In such circumstances, an officer generally does not request printouts oftheresults for insertion in the case file. Even ifan officerrequests printouts and those printouts enter the case file, the officer may laterremovethem "in light ofnew informationthat tended to show the WSP record 3No. 31039-6-III Reid

### v. Pullman Police DepJt

was irrelevant." CP at 134. One investigating officer, Michael Crow, submitted an affidavit statinghe did not printthe histories he obtained from the WSP when investigating therape. Pullman, however, did not submit an affidavit from OfficerWilliam 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" ofthe criminal histories, among the otherrecords. CP at 9. The City ofPullmanrespondedthat it did notpossess or control therecords. 

### In support ofits 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 respondedtothe show cause order, Christopher Reid filed a motion for leave to insert an additional claim seeking declaratory relieffor alleged violations of the Preservation and Destruction ofPublic Records Act (PDPRA) chapter40.14 RCW. After reviewing the affidavits submitted by theparties, the trial court denied Reid any 

# 1 

# I relief. Thetrial 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.

4

# I No. 31039-6-III 

### Reid

### v. Pullman Police Dep't

ANALYSIS PUBLIC RECORDS ACT On appeal, ChristopherReid continues to argue that Pullman violated the PRA because ithas notproducedrecords it possesses orpossessed. The superior court reviews

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

### Zink v. 

### City of Mesa, 140 Wn. App. 328, 335-37, 166 P.3d 738 (2007). 

### Inturn, we also undertake de novo review, when the trial court rendered, as it did here, a decision based upon pleadings ratherthan oral testimony. 

### Gronquist v. 

### Dep'tof Corrections, 159 Wn. App. 576, 590, 247 P.3d436 (2011). Under such circumstances, the appellate court stands in the same position as the trial court and is notbound bythe 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 tothe absence ofrecords are credible. 

### An officer 

# 1 1 may contact WSP for information that the officerreviews on a computer and neverprints. The names ofthe officers performing lineups may often be important, but could have been oflittle consequence inthe rape investigation because ofa lack ofcertainty in the lineups, suchthatthe names were never documented. Contrary to Reid's contention, the police departmentprovided pages ofraw dataprepared as part ofthe lineups. Pullman amply explains why ithas produced no recording ofan interview ofthe victim orthe 911 call ofthe victim. 5No. 31039-6-II1 

### Reidv. 

### Pullman PoliceDep '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 thatthe city lacked desire to exclude any documents in its production. In short, Reid hasprovided 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/GoldBar, 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 PRArequest is pending. 

### See RCW42.56.100. 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. ChristopherReid also impliedly argues the PPD violatedthe PRAwhen it did not create records to identify officers who assisted inphoto lineups. Yet, '" an agency has no duty to create orproduce 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)).



### 6No. 31039-6-III 

### Reidv. Pullman Police Dep't ChristopherReid 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 notrequired. InPRA 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." 

### NeighborhoodAlliance of Spokane 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 itproduced Christopher Reid's entire criminal case file. PRESERVATION ANDDESTRUCTION OF PUBLIC RECORDS ACT ChristopherReid faults the trial court for refusing to require the PPD to offerproof 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 GovernmentAgencies of Washington State (Guidelines). Reid asserts Washington courts have relied onthe Guidelines when analyzing whether agencies violated the Public Records Act citing 

### 0 'Neill v. 

### City of Shoreline, 170 Wn.2d 138, 148-49,240P.3d 1149 (2010); 

### Bldg. Indus. Ass'n ofWashington (BIAW), 7No. 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 inparton other grounds byNeighborhood 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 PDPRAtoprove it complied withthe PRA. 

### West v. 

### Dep'to/NaturalResources, 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 standingto sue underthe PDPRA. 

### BIA W, 152 Wn. App. at 

### 742; Daines, 111 Wn. App. at 350. MOTION FORADDITIONAL BRIEFING In its brief, Pullmanwrote thatthe trial court reasonably concluded it did not violatethe PRAbased on affidavits along with "the context ofcertainrecords." Christopher Reid claims he has no knowledge ofthe "context" or "certainrecords" to which Pullman refers. Inhis reply brief, Reid asks this court, pursuant to RAP 1 0.4(d), to order Pullmanto elaborate onthe 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'to/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. 

### 8No. 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