LAU, J.
¶ 1 Alyne Fortgang sued the Woodland Park Zoological Society (WPZS) under the Washington Public Records Act (PRA) seeking documents related to WPZS' operation of the Woodland Park Zoo. She appeals the trial court's order granting WPZS' motion for summary judgment and dismissing her claims, arguing that under the Telford
¶ 2 For 100 years, the City of Seattle (the City) owned and managed the Woodland Park Zoo (the Zoo) directly through the Department of Parks and Recreation. In 2000, the Washington State Legislature enacted Senate Bill 6858, codified at RCW 35.64.010, which governs city contracts "with one or more nonprofit corporations or other public organizations for the overall management and operation of a zoo...." RCW 35.64.010(1). In 2002, the City entered into a 20-year operations and management agreement granting the Woodland Park Zoological Society exclusive authority to manage and operate the Zoo. WPZS is a nonprofit corporation formed in 1965 "for charitable, scientific and educational purposes for the study and promotion of zoology and wildlife conservation and for the education and recreation of the public." Clerk's Papers (CP) at 33.
¶ 3 Under the management agreement, the City transferred control of the Zoo to WPZS: "by virtue of its purposes, interests and past successes, [the Zoo Society] is both experienced and well suited to administer, plan, manage, and operate the Zoo through an agreement with the City...." CP at 34. WPZS exercises authority over nearly every aspect of operating the Zoo, including:
The agreement also transferred all personal property necessary to operate the Zoo to WPZS, including the animals. The agreement also assigned all Zoo-related contracts to WPZS: "[t]he City shall assign all such existing leases, agreements, and arrangements affecting the Zoo ... to [WPZS] and [the Zoo Society] shall have the exclusive option ... of renewing such agreements." CP at 42.
¶ 4 WPZS receives funding from the City. The City distributes $2,500,000 to WPZS under a City sponsored "Neighborhood Parks, Green Spaces, Trails and Zoo" levy. CP at 37, 44. The agreement grants WPZS the right of termination if the City chooses not to renew the levy. WPZS also receives an annual payment from the City's general fund, which started at $5,000,000 in the first year of the agreement and increases each year by 70% of the increase in the "Consumer Price Index for Urban Wage Earners and Clerical Workers for the Seattle-Tacoma-Bremerton area." CP at 42. The City also provides annual maintenance payments of $500,000. WPZS can apply for grants for which it might otherwise be ineligible if it obtains approval from the superintendent of the Parks Department or the City Council. Despite this city funding, taxpayer money accounts for a minority of WPZS' revenue. For example, in 2013, only 16 percent of its revenue came from public funds. WPZS earns most of its revenue from private donations, investments, and selling Zoo-related goods and services (admission revenue, memberships, souvenirs, concessions, private events, etc.).
¶ 6 The agreement requires WPZS to comply with several reporting measures. For example, WPZS must provide the Parks Department Superintendent (1) an annual report, (2) an annual plan, and (3) monthly finance reports. The annual report must "provide a general summary of the Zoo's operations and will include a complete financial accounting for all funds, including use of Levy proceeds, use of major maintenance funding, and a listing of all capital investments made at the Zoo." CP at 53. WPZS must also submit monthly reports to the superintendent detailing the Zoo's finances. The annual plan must "present the one-year capital improvement plan for the Zoo, a description of major programmatic changes planned at that time for the ensuing year and any proposed changes in fees at the Zoo." CP at 53. WPZS must provide quarterly reports to the Parks Board "setting forth a summary of the operations of the Zoo." CP at 54. Separate quarterly reports must be provided to the Oversight Committee "monitoring expenditure of Levy funds." CP at 54. WPZS must perform an independent audit every year and provide a copy of the audit to the superintendent. The agreement requires WPZS to submit to an audit by the City, if the City requests.
¶ 7 No provision of the agreement requires WPZS to comply with the Public Records Act (PRA). It does require WPZS to provide some information to the public. The only Zoo-related records that the agreement explicitly states must be disclosed are "records pertaining to the veterinary management and treatment of Zoo animals in its care." CP at 54. WPZS must make these records available to the superintendent or a member of the public if requested. WPZS must also provide the public with an opportunity to review and comment on its annual reports and annual plans. Similarly, for major capital projects, WPZS must "develop ... a process for public involvement that is consistent with the Parks Department's Public Involvement Policy." CP at 55. The agreement requires notice and opportunity for public participation for regularly scheduled WPZS Board meetings.
¶ 8 In November 2013, Alyne Fortgang, concerned taxpayer and co-founder of Friends of Woodland Park Zoo Elephants (FWPZE), sent a letter to WPZS requesting certain records pursuant to the Washington Public Records Act. Some of the requests sought records relating to medical care and general treatment of the Zoo's elephants. Other requests sought internal documents about a public relations campaign WPZS undertook to counteract criticism of its elephant program. The request sought copies of contracts or agreements between WPZS and public affairs consulting firm Cocker Fennessey, invoices or calculations of the total cost of the public relations campaign, and documents related to any public polling or survey results collected. WPZS provided documents related to its treatment of the elephants, acknowledging that it is required to disclose animal records under the agreement. It declined to respond to the other requests, asserting it is not a government entity and therefore not subject to the PRA.
¶ 10 We review a trial court's order granting summary judgment de novo. Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Here, the parties agree there are no disputed material issues of fact. The key issue presented here is whether WPZS is the functional equivalent of a government agency for purposes of the PRA. We apply Telford's four-factor test to resolve this issue.
¶ 11 The PRA "is a strongly worded mandate for broad disclosure of public records." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). It advances a broad public policy for transparency at all levels of government, stating:
RCW 42.17A.001. Courts must liberally construe the PRA "to promote this public policy and to assure that the public interest will be fully protected." RCW 42.56.030. "While these declarations of policy do not have any independent operative effect, they `serve as an important guide in determining the intended effect of the operative sections' of the PRA." Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn.App. 695, 709, 354 P.3d 249 (2015) (quoting Hearst Corp., 90 Wash.2d at 128, 580 P.2d 246).
¶ 12 Under the PRA, any government agency "shall make available for public inspection and copying all public records" upon request unless those records fall into certain specific exemptions. RCW 42.56.070(1). The PRA defines "agency" as any state or local government agency. RCW 42.56.010(1).
¶ 13 Even a nongovernment entity may be subject to the PRA if it is "the functional equivalent of a public agency for a given purpose." Telford, 95 Wash.App. at 161, 974 P.2d 886. In Telford, the court adopted a four-factor balancing test for determining whether a nongovernment entity is the functional equivalent of a public agency for purposes of the PRA: "(1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by government." Telford, 95 Wash.App. at 162, 974 P.2d 886.
¶ 14 Thus, our analysis under Telford must be grounded in the unique factual circumstances present in each case. Due to the various ways in which a government may partner with a private entity, the Telford test requires a functional, case-by-case approach. Telford, 95 Wash.App. at 162, 974 P.2d 886 (No single factor under the Telford test is dispositive. Rather, "[a] balancing of factors... is more suitable to the functional, case-by-case approach of Washington law."). Indeed, "any general definition [of government agency] can be of only limited utility to a court confronted with one of the myriad organizational arrangements for getting the business of government done. The unavoidable fact is that each new arrangement must be examined anew and in its own context." Wash. Research Project, Inc. v. Dept. of Health, Educ. & Welfare, 164 U.S.App.D.C. 169, 504 F.2d 238, 245-46 (1974).
¶ 15 Under the circumstances here, the Telford four factors weigh against concluding that WPZS is a functional equivalent of a government agency subject to the PRA.
¶ 16 This factor considers whether the entity performs a government function. Pursuant to contract, WPZS exclusively manages and operates the Zoo. These services undoubtedly provide a public benefit. But serving public interests is not the exclusive domain of the government.
¶ 17 In Spokane Research & Defense Fund v. West Central Development Assoc., 133 Wn.App. 602, 137 P.3d 120 (2006),
¶ 18 The court reasoned, that despite the center's commitment to public interests, it provided services that could be delegated to the private sector and therefore, performed no governmental function:
Spokane Research, 133 Wash.App. at 609, 137 P.3d 120 (quoting Telford, 95 Wash.App. at 164, 974 P.2d 886). Fortgang claims that operating a zoo, like any park or recreational facility, is a quintessential governmental function. We disagree. Operating a zoo does not necessarily implicate any function unique to government. Indeed, private zoos have existed alongside publicly owned zoos for decades, including in Washington.
¶ 19 Fortgang relies on nonPRA cases to make her point — City of Seattle v. State, 59 Wn.2d 150, 367 P.2d 123 (1961) and Okeson
¶ 20 In Clarke, the court held that the Tri-Cities Animal Care & Control Shelter (TCAC) — "a privately-run corporation that contracts with the [Tri-Cities] to provide animal control services," Clarke, 144 Wash.App. at 188, 181 P.3d 881 — was subject to the PRA. Clarke, 144 Wash.App. at 196, 181 P.3d 881. Applying the Telford factors, the court concluded the TCAC performed "core government functions." Clarke, 144 Wash. App. at 194, 181 P.3d 881. The court analogized the duties of animal control officers to law enforcement officers. It noted TCAC's duties involved the exercise of police power, implicating due process concerns:
Clarke, 144 Wash.App. at 193, 181 P.3d 881 (emphasis added).
¶ 21 Telford involved The Washington State Association of Counties (WSAC) and the Washington State Association of County Officials (WACO), entities founded and organized by elected and appointed county officials empowered statewide to administer government programs. Telford, 95 Wash.App. at 163-65, 974 P.2d 886. State statutes imposed explicitly nondelegable public duties on these entities. The court noted that these duties "could not be delegated to the private sector." Telford, 95 Wash.App. at 163-64, 974 P.2d 886.
¶ 22 The court held that under these circumstances WSAC and WACO were public entities for purposes of the PRA. These entities retained characteristics of private entities, but "their essential functions and attributes are those of a public agency." Telford, 95 Wash.App. at 165, 974 P.2d 886.
¶ 23 As to the government function factor, Clarke and Telford are distinguishable. Unlike the present case, Clarke involved the local government's grant of police powers (implicating due process concerns) to the private entity and contracting out this essential government function — animal control services. Telford also involved essential government functions.
¶ 25 WPZS shares some nominal similarities to a government agency given its commitment to the public interest. But this is not sufficient to conclude it performs a government function. Fortgang fails to point to any Zoo operation that resembles a "core government function" that could not be wholly delegated to the private sector as in Telford and Clarke. WPZS is not performing a governmental function. This factor weighs against concluding that WPZS is subject to the PRA.
¶ 26 Fortgang contends the amount of money WPZS received from the City alone weighs in favor of finding government funding. We disagree.
¶ 27 Public funding comprises a minority of WPZS' revenue. Washington courts have consistently concluded that the government funding factor weighs in favor of applying the PRA only when a majority of the entity's funding comes from the government. In Telford, the court reasoned that this factor weighed in favor of applying the PRA because "[m]ost of WSAC's and WACO's funds come from current county expense funds.... Both associations are therefore mostly supported by public funds." Telford, 95 Wash. App. at 164-65, 974 P.2d 886. Similarly, in Clarke, the court concluded that "[n]early all of TCAC's operating budget comes from public money.... Thus, this factor clearly weighs in favor of application of the [PRA]." Clarke, 144 Wash.App. at 194-95, 181 P.3d 881. We applied a similar rule in Cedar Grove: "Marysville paid Strategies for at least the majority of the work at issue ... Its activities ... were paid in large part with public funds." Cedar Grove, 188 Wash.App. at 720, 354 P.3d 249. In Spokane Research, the court stated the neighborhood association was not the equivalent of a government agency when a quarter of its funding came from private sources, "[t]he Association receives funding from various public and private sources. About 25 percent is private funding.... In sum, the Association's funding does not weigh for application of the [PRA]." Spokane Research, 133 Wash.App. at 609, 137 P.3d 120. The facts here present an even stronger case for concluding that the funding factor weighs against application of the PRA because the majority of WPZS' funding comes from private sources. In 2013, only 16 percent of WPZS' funding came from the City.
¶ 28 Fortgang relies heavily on the amount of money WPZS receives from the City, claiming that "the most significant Telford factor in this case is government funding." Br. of Appellant at 15. According to Fortgang, the total amount of money alone is sufficient for the court to conclude that the government funding factor weighs in favor of applying the PRA. Fortgang cites a case discussed in Telford: "when a block of public funds is diverted en masse, the public must have access to records of the spending organization to determine how the funds were spent." Telford, 95 Wash.App. at 164, 974 P.2d 886 (citing Weston v. Carolina Research and Dev. Found., 303 S.C. 398, 401 S.E.2d 161, 165 (1991)). Fortgang's reliance on this single quote is misplaced. The statute at issue in Weston is broader than Washington's PRA. South Carolina's Freedom of Information Act applies to "`any organization, corporation, or agency supported in whole or in
¶ 29 Washington's PRA contains no similar provision, Fortgang's reliance on Telford's reference to Weston ignores the rule consistently applied by Washington courts following Telford, — the government funding factor weighs in favor of applying the PRA when the entity at issue receives the majority of its revenue from public funds. See, e.g., Clarke, 144 Wash.App. at 194-95, 181 P.3d 881. This factor weighs against applying the PRA.
¶ 30 This factor focuses on "the extent of government involvement or regulation." Telford, 95 Wash.App. at 162, 974 P.2d 886. Fortgang contends several provisions indicate the City "exercises more than enough control over the Zoo's operations...." Br. of Appellant at 17.
¶ 31 Fortgang's control argument focuses almost exclusively on the agreement's provisions to demonstrate the City's alleged substantial control over zoo operations. For example, she argues that the City "prohibits the Zoo from using the City parkland ... for any purpose ..." other than the uses spelled out in the contract and the Long Range Plan. CP at 41.
CP at 41.
As the contract's preamble explains, the Zoo is located on real property owned by the City. In accordance with the City charter, the City retained ownership of the "zoo properties and facilities."
¶ 32 She also argues Zoo animal acquisition and disposal policies must comply with City policies as required under the contract. She further claims contract provisions impose numerous reporting requirements on the Zoo; the City controls the membership of three positions on the Zoo's Board, the Zoo's naming rights, and certain admission fee increases. Fortgang argues these provisions show governmental control. We disagree.
¶ 33 The City retains some oversight over WPZS via contract to ensure public accountability and contract compliance.
¶ 34 To achieve this goal, the City contracted with WPZS, recognizing that it was uniquely qualified to manage and operate the Zoo.
CP at 33, 35 (emphasis added).
¶ 35 The parties also intended WPZS to exercise its exclusive authority over the Zoo's management and operation by further defining the legal relationship of the parties as owner and contractor.
CP at 341.
As this and other contract provisions demonstrate, these sophisticated contracting parties allocated various duties and responsibilities with the issue of control firmly in mind. For example, the City granted WPZS exclusive authority to manage and operate the Zoo. WPZS owns and cares for the Zoo animals. The City lacks authority over day to day Zoo operations. WPZS exercises complete control over its employees, setting price for admission, collecting and spending admission proceeds, and contracting vendors for visitor services. WPZS retains ultimate authority over whether to acquire or dispose of zoo animals. The agreement also grants WPZS broad discretion to implement alterations and improvement, such as new exhibits and support for visitor facilities.
¶ 36 The agreement requires WPZS to comply with all federal, state, and local laws. This requirement is also true for any entity operating within the City. The agreement requires WPZS to operate the Zoo in accordance with American Zoo Association's policies (AZA).
¶ 37 Nor do various reporting requirements imposed by the agreement amount to governmental control.
¶ 38 We addressed a similar government control question in Sebek v. City of Seattle, 172 Wn.App. 273, 290 P.3d 159 (2012).
¶ 39 We affirmed the trial court's dismissal of the plaintiff's lawsuit. Responding to the plaintiff's claim that "The City `retains ownership and control' over the Zoo property," we rejected the claim explaining, the agreement makes it clear WPZS "shall exclusively manage and operate the Zoo" ... animals "shall be the sole property of [WPZS]" and [WPZS] "shall assume all obligations ... with respect to animals exhibited, housed ... kept or cared for...." We also rejected the plaintiff's claim that "the `control provisions built into the agreement' show the City has control over the acts of the Zoo and its employees." Citing Dolan v. King County, 172 Wn.2d 299, 258 P.3d 20 (2011), we explained that the provisions cited by the plaintiff "do not give the City control over [Zoo] operations and ... [t]he question of whether an entity operates as an `arm' of a governmental agency or a `de facto' part of the government agency turns on whether the agency exerts a `right of control' over the entity." Sebek, 172 Wash.App. at 279-80, 290 P.3d 159 (quoting Dolan, 172 Wash.2d at 312-13, 258 P.3d 20). We reasoned that unlike in Dolan, where the Supreme Court determined "stringent control over the defender organization" rendered it a de facto county agency, we concluded WPZS controlled what "exhibits are to be displayed, how they are to be displayed, what animals... to purchase" and their care. Sebek, 172 Wash.App. at 280, 290 P.3d 159.
¶ 40 Fortgang also argues City control over WPZS based on its right to appoint 3 of 38 WPZS Board members. The City lacks any veto power over the Board's actions or override authority relating to WPZS' countless discretionary zoo operation decisions. Unlike the present case, in Telford, the court summarily concluded that WSAC and WACO were "completely controlled by elected and appointed county officials. There is no private sector involvement or membership." Telford, 95 Wash.App. at 165, 974 P.2d 886.
¶ 41 In Clarke, the agreement permitted euthanasia services only in a manner approved by a government agency. Unlike the facts presented here, the government controlled euthanasia services, a core service, provided by the private animal control service provider. See Interlocal Cooperative
¶ 42 As discussed above, numerous provisions in the agreement weigh against government control over WPZS. Nothing Fortgang points to demonstrate sufficient City control over WPZS' exclusive authority to manage and operate the Zoo. The government control factor weighs against applying the PRA to the unique facts presented here.
¶ 43 The final factor analyzes "whether the entity was created by government." Telford, 95 Wash.App. at 162, 974 P.2d 886. The parties disagree on whether this factor applies to the Zoo or WPZS. Fortgang claims we must analyze the Zoo's origin, pointing to "the PRA's liberal construction requirement," the City's previous operation of the Zoo, and the Zoo's public-facility attributes. We disagree. Fortgang cites no persuasive authority that these considerations are relevant to the entity's origin.
¶ 44 It is undisputed that the government played no role in WPZS' creation. In 1965, a group of private citizens formed WPZS to support the zoo by, "promo[ting] public interest in and ... encourag[ing] greater understanding of international wildlife ... conservation and propagation," "stimilat[ing] interest in all aspects of [the Zoo]" and "motivat[ing] programs in keeping with educational scientific and aesthetic interests." CP at 177. WPZS has always remained a private nonprofit organization incorporated under Washington laws and registered with the Secretary of State as a charity. It reports to the Internal Revenue Service as a tax-exempt 501(c)(3) charitable organization. WPZS has been governed by an independent, volunteer board of directors throughout its 50 years of operation.
¶ 45 In Clarke, Division Three of this court held that TCAC, formed as a "private corporation, by private citizens," was not an entity created by the government thus, "this factor weighs against the P[R]A application." Clarke, 144 Wash.App. at 195, 181 P.3d 881. As in Clarke, we resolve this factor against application of the PRA to WPZS.
¶ 46 On balance, the Telford factors weigh against concluding that WPZS is the functional equivalent of a government agency for purposes of applying the PRA. We affirm the trial court order granting WPZS' summary judgment motion.
WE CONCUR: SCHINDLER and BECKER, JJ.
Envirotest Sys. Corp. v. Freedom of Info. Comm'n, 59 Conn.App. 753, 757 A.2d 1202, 1206 (2000) (quoting Hallas v. Freedom of Info. Comm'n, 18 Conn.App. 291, 296, 557 A.2d 568 (1989)).
In Forsham v. Harris, 445 U.S. 169, 100 S.Ct. 977, 63 L.Ed.2d 293 (1980), the United States Supreme Court addressed whether the acts of a private entity that received federal grants of federal funds became governmental acts subjecting that entity to the federal Freedom of Information Act. The court held that "absent extensive, detailed, and virtually day-to-day supervision," the entity was not a "federal instrumentality of a FOIA agency." Forsham, 445 U.S. at 180, 100 S.Ct. 977.
In Clarke, the court concluded that prohibiting private use of a rent-free municipally leased building indicates governmental control. We disagree however that limitations on the use of Zoo premises means government control. We are not persuaded that the City's contractual limitations in WPZS' use of city-owned land and facilities necessarily indicate government control. Under Telford's practical analysis, contract clauses like the ones here routinely impose limits on the use of land or buildings rented or leased to another for valuable consideration. The mutual termination clauses here allow either party to terminate the agreement in the event of default by the other party.
"Moreover, a tenant located in a publicly owned structure on public land does not automatically become a public agency. Tenants located on municipally owned industrial parks, even when occupying publicly owned structures do not become public agencies."
Spokane Research & Defense Fund v. West Central Development Assoc., 133 Wn.App. 602, 606, 137, P.3d 120 (2006).