WORTHINGTON v. WASHINGTON STATE PATROL

No. 38697-6-II

JOHN WORTHINGTON, Appellant, v. WASHINGTON STATE PATROL, Respondent.

Court of Appeals of Washington, Division Two.

Filed: October 20, 2009.


Attorney(s) appearing for the Case

Counsel for Appellant(s), John Worthington (Appearing Pro Se), 4500 S.e. 2nd Place, Renton, WA, 98059.

Counsel for Respondent(s), Shannon Elizabeth Inglis, Attorney General's Ofc/Criminal Justice, 800 5th Ave Ste 2000, Seattle, WA, 98104-3188.

Shelley Anne Williams, Attorney General Office, 800 Fifth Ave, Ste 2000 Tb-14, Seattle, WA, 98104-3188.


UNPUBLISHED OPINION

PENOYAR, A.C.J.

John Worthington appeals the trial court's order granting summary judgment in favor of Washington State Patrol (WSP). Worthington sued WSP under the Public Records Act (PRA), chapter 42.56 RCW, alleging that WSP failed to provide him with public records after a narcotics task force searched his residence. WSP argues that it has no records that are responsive to Worthington's request. We affirm.

FACTS

On January 12, 2007, Detective Roy Alloway, a Bremerton police officer and Kitsap County deputy sheriff assigned to the West Sound Narcotics Enforcement Team (WestNET), obtained a warrant to search Worthington's home for marijuana, drug paraphernalia, and other specified items. Alloway has never worked for WSP.

According to Worthington, WSP Officer Fred Bjornberg participated in the search, identified himself as a United States Drug Enforcement Administration (DEA) agent, confiscated Worthington's medical marijuana plants, and referred the case to federal court.

On January 22, 2008, Worthington submitted a PRA request to WSP. Worthington's request states:

1. I am requesting the written records of WSP Officer Fred Bjornberg regarding a knock and talk procedure, and follow up search warrant that was executed at my address at 4500 se 2nd Pl Renton Wa.98059 [sic] on January 12[,] 2007. 2. I am asking for all materials given to [WestNET] Detective Roy Alloway that was used [sic] to get a search warrant by telephone, from Kitsap County Judge Theodore Spearman for my residence on January 12[,] 2007. 3. I am also requesting any copies of Medical records that were seized at my house on January 12[,] 2007. Clerk's Papers (CP) at 31.

On February 15, 2008, WSP's Public Records Manager Gretchen Dolan informed Worthington that WSP had no responsive records. Dolan advised Worthington to contact the United States Department of Justice (DOJ), the agency that oversees the DEA, to obtain records related to the search. On June 11, 2008, Worthington filed suit against WSP for withholding responsive records.

On November 6, 2008, WSP moved for summary judgment. WSP submitted supporting declarations by (1) Bjornberg, a retired detective sergeant in the narcotics section of WSP's Investigative Assistance Division (IAD); (2) Timothy P. Braniff, an IAD captain; (3) Marc Lamoreaux, a captain in WSP's Human Resources Division; (4) Dolan; and (5) Richard Wiley, an IAD lieutenant. IAD provides detectives, technical support, and training to WSP and other law enforcement agencies.

Bjornberg stated in his declaration that he was assigned to, and co-supervised, a DEA task force in January 2007. The record refers to the DEA task force as both the Tacoma Regional Task Force and the Tahoma Narcotics Enforcement Team (TNET).

Bjornberg stated:

All reports and other records that are generated as part of the task force are created and stored on the DEA's computer system. Task force records are never created or stored on an officer's home agency computer system, and are not provided to the officer's home agency.

CP at 15. Bjornberg did not recall generating any records related to the investigation of Worthington but stated that the DEA would have any records that he created.

In his declaration, Braniff described WSP's participation in the Tacoma Regional Task Force and WestNET. DEA is the lead agency for the Tacoma Regional Task Force and maintains the task force's records. Kitsap County Sheriff's Office is the lead agency for WestNET and maintains WestNET's records. According to Wiley, task forces share general intelligence information about narcotics enforcement, drug trends, trafficking, and methods. However, task forces generally do not share police reports from specific cases with other agencies and do not share information or police reports from every case in which they participate.

In response to WSP's summary judgment motion, Worthington submitted a personal declaration and 23 exhibits. The trial court granted WSP's motion for summary judgment on December 5, 2008.

On or about December 11, 2008, Worthington filed a motion for reconsideration. Worthington submitted several new exhibits, including redacted Tacoma Regional Task Force Executive Board meeting minutes and other records that he obtained from state agencies, including WSP, through PRA requests. The minutes demonstrate that WSP employees, including Bjornberg, Wiley, and Braniff, were present at the Executive Board's meetings. The trial court denied Worthington's motion after a hearing on December 30, 2008. The trial court stated:

I am not persuaded that there is, in the language of the rule, newly discovered evidence material for the party making the application which he could not with reasonable diligence have discovered if produced at the trial. I am not persuaded that there is any of that that would permit the Court to reconsider its decision, and I am still not persuaded, despite participation in this task force, that the State Patrol has the records that he is requesting.

Report of Proceedings (RP) (Dec. 30, 2008) at 9-10.

Worthington now appeals the trial court's ruling granting WSP's summary judgment motion and denying his motion for reconsideration.

ANALYSIS

The PRA requires state agencies to make all public records available for public inspection and copying upon request unless the record falls within a specific exemption. RCW 42.56.070(1). We liberally construe the PRA's disclosure provisions and narrowly construe the PRA's exemptions. See Lindeman v. Kelso Sch. Dist. No. 458, 162 Wn.2d 196, 201, 172 P.3d 329 (2007). An agency does not have a duty to create or produce a record that does not exist. Sperr v. City of Spokane, 123 Wn.App. 132, 136-37, 96 P.3d 1012 (2004) (citing Smith v. Okanogan County., 100 Wn.App. 7, 13-14, 994 P.2d 857 (2000)).

I. Summary Judgment

A. Standard of Review

We review summary judgment orders de novo. Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236, 243, 178 P.3d 981 (2008). Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We consider facts and reasonable inferences in the light most favorable to the nonmoving party. McNabb v. Dep't of Corrs., 163 Wn.2d 393, 397, 180 P.3d 1257 (2008).

Affidavits submitted in support of summary judgment motions "shall set forth such facts as would be admissible in evidence." CR 56(e). Affidavits must be based on the affiant's personal knowledge. CR 56(e); Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). Mere allegations, argumentative assertions, conclusory statements and speculation do not raise issues of material fact that preclude a grant of summary judgment. See Grimwood, 110 Wn.2d at 360; Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).

Once the moving party meets its burden to show that there is no genuine issue as to any material fact, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing that a genuine issue as to a material fact exists. Strong v. Terrell, 147 Wn.App. 376, 384, 195 P.3d 977 (2008) (citing Seven Gables Corp., 106 Wn.2d at 13) review denied 165 Wn.2d 1051 (2009).

B. WSP Officer Fred Bjornberg's Records

Worthington requested "the written records of WSP Officer Fred Bjornberg" regarding the "knock and talk procedure" and subsequent search of Worthington's house on January 12, 2007. CP at 31. At the time of the search, Bjornberg co-supervised the Tacoma Regional Task Force, a DEA task force. Bjornberg did not recall creating any records, but conceded that he might have done so. He indicated that the DEA would have any records responsive to Worthington's request since DEA task force records are "never created or stored on an officer's home agency computer system, and are not provided to the officer's home agency." CP at 15.

Bjornberg's sworn statements clearly show that WSP does not possess the requested records. The burden shifted to Worthington to set forth specific facts that Bjornberg generated written records that are in WSP's possession. In this summary judgment context, we assume that Bjornberg created written records related to the search of Worthington's home since he conceded in his affidavit that he may have created such records. See McNabb, 163 Wn.2d at 397. However, a thorough review of Worthington's declaration and exhibits reveals that he has presented no specific facts that rebut WSP's assertion that it does not possess Bjornberg's records.1 Four pages in Worthington's 23 exhibits mention Bjornberg, but these records merely demonstrate that Bjornberg worked as a WSP employee in 2007, a fact that Bjornberg also revealed in his affidavit.

In arguing the summary judgment issue, Worthington also relies on exhibits submitted in support of his motion for reconsideration — especially the Executive Board Meeting Minutes of the Tacoma Regional Task Force and two WSP policy and procedure manuals — to assert that WSP has Bjornberg's records. These exhibits were not before the trial court on the summary judgment motion and are therefore irrelevant to our summary judgment analysis.

C. WestNET Detective Roy Alloway's Records

Worthington also asked WSP to provide "all materials given to [WestNET] Detective Roy Alloway" in order to obtain a search warrant for his residence. CP at 31. As of January 12, 2007, Alloway was a Bremerton police officer and Kitsap County deputy sheriff assigned to WestNET, a narcotics task force in which WSP also participated. WSP offered evidence that it lacked responsive records because Alloway had never been a WSP employee and the Kitsap County Sheriff's Office maintains WestNET records. This evidence was sufficient to meet WSP's initial burden of production on its summary judgment motion.

Worthington again provides no specific facts to rebut WSP's evidence. He does not dispute the fact that Alloway works for the city of Bremerton and Kitsap County. Nor does he dispute the fact that the Kitsap County Sheriff's Office maintains all WestNET records. Alloway's complaint for search warrant, which Worthington submitted as an exhibit in opposition to WSP's summary judgment motion, does not reference any materials that WSP provided to Alloway. Worthington never articulates why WSP would possess these records other than the fact that WSP participated in the same task force in which Alloway served as a detective. This is insufficient to create a genuine issue of material fact.

D. Worthington's Medical Records

Worthington also asked WSP for "any copies of Medical records that were seized at my house on January 12[,] 2007." CP at 31. As noted above, the declarations that WSP submitted indicate that all records from individual investigations by the Tacoma Regional Task Force and WestNET are maintained by other agencies. Worthington cites no specific facts to contradict WSP's evidence, and there is no contradictory evidence in the record.

E. Worthington's Other Contentions

Worthington makes numerous additional arguments to support his contention that WSP withheld the specified records. He argues that WSP must have these records because he was able to obtain TNET administrative records, board meeting minutes, and a list of TNET arrests from WSP in subsequent PRA requests. He notes that a DEA agent must give a monthly report to TNET's Executive Board — of which WSP is a member — about TNET's functions, accomplishments and problems. He recounts WSP's reporting and records retention policies in thorough detail.

None of Worthington's arguments create a genuine issue of material fact that WSP possesses the records that he requests. Worthington's observation that WSP has some TNET information — namely, administrative records, meeting minutes and arrest lists — is consistent with Wiley's testimony that task forces share general intelligence information about narcotics enforcement, drug trends, trafficking, and methods. The DEA agent's monthly briefing of TNET's Executive Board is also consistent with Wiley's testimony. Evidence of general information sharing between WSP and TNET does not, without more, suggest that WSP possesses the disputed records.

The trial court's ruling granting summary judgment was proper. WSP submitted declarations that clearly established that it does not possess the records that Worthington requested. Worthington fails to rebut WSP's evidence with specific facts and instead relies on argumentative and speculative assertions, which are insufficient to preclude summary judgment. See Seven Gables Corp., 106 Wn.2d at 13.

II. Motion For Reconsideration

A. Standard of Review

We review a trial court's denial of a motion for reconsideration for abuse of discretion. Lilly v. Lynch, 88 Wn.App. 306, 321, 945 P.2d 727 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Weyerhauser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P.3d 15 (2000).

B. Trial Court's Ruling

A party may move for reconsideration on several grounds, including irregularity, misconduct, accident, newly discovered evidence, and errors of law. CR 59(a). The basis for Worthington's motion is not entirely clear, but the trial court considered it a motion based on newly discovered evidence. To succeed on the motion, Worthington had to submit material evidence that he could not have discovered with reasonable diligence prior to the summary judgment hearing. See CR 59(a)(4).

Even assuming that Worthington could not have discovered the evidence he submitted with reasonable diligence prior to the summary judgment hearing, the trial court did not abuse its discretion by denying his motion. The exhibits that Worthington submitted with his motion for reconsideration included Tacoma Regional Task Force Executive Board meeting minutes and other records that he obtained from state agencies, including WSP, through PRA requests. The board meeting minutes included the names of WSP officers in attendance, prompting the trial court to note that "[i]t appeared from the minutes that material was going from the task force to at least one member of the State Patrol . . . ." RP (Dec. 30, 2008) at 9. Ultimately, however, the trial court reasonably determined that WSP's participation in the task force did not demonstrate that WSP had the specific records that Worthington requested.

Worthington also argues that two WSP policy and procedure manuals prove that WSP IAD officers like Bjornberg keep their own records "no matter which participating agency instigates the case." Appellant's Br. at 10. In particular, he cites the WSP's Assistance Division Manual, which applies to commissioned IAD employees like Bjornberg. These WSP manuals contain general reporting and records retention provisions, but they do not provide specific facts that suggest that investigating officers who are assigned to multi-jurisdictional task forces keep the records that they generate with the task force.

Worthington's other exhibits are either cumulative of the evidence that he presented to oppose summary judgment or irrelevant. The trial court's decision to deny the motion for reconsideration was not an abuse of discretion.

We affirm the trial court's order granting WSP's motion for summary judgment and its order denying Worthington's motion for reconsideration.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HUNT, J. and QUINN-BRINTNALL, J., concur.

FootNotes


1. Despite the fact that Worthington frequently fails to provide clear references to relevant parts of the record in his brief as RAP 10.3(a)(6) requires, we have thoroughly reviewed his exhibits.

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