Clarke v. Tcac

• Decision Date: 24 April 2008
• Docket Number: No. 25222-1-III.,25222-1-III.
• Court: Washington Court of Appeals
• Parties: Leonora Claire CLARKE, Appellant, v. TRI-CITIES ANIMAL CARE & CONTROL SHELTER, (UBI 601-992-382), a Washington nonprofit corporation d/b/a Tri-City Animal Control, Respondent, Tri-City Animal Control & Sheltering Services (UBI 602-019-162), a Washington for-profit corporation d/b/a Tri-City Animal Control; Tri-City Animal Control Authority, a Washington interlocal cooperative comprised of the Cities of Pasco, Richland, and Kennewick, Defendants.

181 P.3d 881

144 Wn. App. 185

Leonora Claire CLARKE, Appellant, v. TRI-CITIES ANIMAL CARE & CONTROL SHELTER, (UBI 601-992-382), a Washington nonprofit corporation d/b/a Tri-City Animal Control, Respondent Tri-City Animal Control & Sheltering Services (UBI 602-019-162), a Washington for-profit corporation d/b/a Tri-City Animal Control; Tri-City Animal Control Authority, a Washington interlocal cooperative comprised of the Cities of Pasco, Richland, and Kennewick, Defendants.

No. 25222-1-III.

Court of Appeals of Washington, Division 3.

April 24, 2008.

Adam Phillip Karp, Animal Law Offices, Bellingham, WA, for Appellant.

Ronald Francis St. Hilaire, Liebler Connor Berry & St. Hilaire P.S., Kennewick, WA, for Respondent.

STEPHENS, J.^*

¶ 1 Tri-Cities Animal Care & Control Shelter (TCAC) is a privately-run corporation that contracts with the Animal Control Authority (ACA) of Richland, Pasco and Kennewick (tri-cities) to provide animal control services for the tri-cities area. In 2005, Leonora Clarke made a request for euthanasia logs from TCAC under former chapter 42.17 RCW, the Public Disclosure Act (2004)(PDA).¹ TCAC refused to give Ms. Clarke the records, claiming it was not a public agency subject to the PDA. Ms. Clarke requested the records from ACA, but ACA claimed it did not have the records she sought. Ms. Clarke then filed a lawsuit against TCAC and ACA.² Her motion to show cause was denied because the court concluded TCAC was not a public agency. Ms. Clarke appeals.

¶ 2 We reverse and hold the TCAC is an agency subject to the PDA. We deny Ms. Clarke's request for attorney fees as premature and remand for further proceedings consistent with this opinion.

FACTS

¶ 3 In 1998, the Cities of Pasco, Kennewick, and Richland formed the ACA through an interlocal cooperative agreement.

¶ 4 In 1999, Bruce and Sandy Young formed a Washington nonprofit corporation under the name "Tri-Cities Animal Shelter." The purpose of this entity was in part to shelter animals in need for the public good. It also sought to promote spay and neutering programs and to educate the public in hopes of ending the need for euthanasia. It planned to actively participate in the prevention of cruelty toward animals.

¶ 5 In 2000, the Youngs formed a for-profit corporation under the name "Tri-City Animal Control & Sheltering Services, Inc." (TCAC). TCAC's purpose as stated in its articles of incorporation was to engage in the business of providing animal control and sheltering services for animals in Benton and Franklin counties.

¶ 6 In 2004, ACA executed a Personal Services Agreement with TCAC for TCAC to provide animal control services to the tricities area. The separate nonprofit corporation formed by the Youngs was not a party to this agreement. TCAC has numerous duties under the personal services agreement, including: Apprehension and impound of stray dogs and cats, impound of distressed animals, removal of dead animals from roads, disposal of dead animals, elimination of wild or vicious animals, animal regulation enforcement including citation authority for violation of animal regulatory ordinances, animal sheltering, acceptance and care of animals, reunification, adoption, disposal of unclaimed animals, and euthanasia. Under the terms of the agreement, TCAC and its employees are not permitted to issue citations for misdemeanor or gross misdemeanor violations. With respect to euthanasia, the agreement states TCAC is required to "[a]rrange and/or provide for the humane euthanasia and disposal of unwanted animals." Clerk's Papers at 553.

¶ 7 Mr. Young and others employed by TCAC took oaths of office as animal control officers for Pasco, Kennewick, and Richland. The agreement further specifies that TCAC will provide at least one enforcement officer with three years of experience in animal control enforcement. The officer must be trained in the issuance of criminal complaints and citations.

¶ 8 The agreement also sets out a line item compensation schedule. The annual amounts are to be paid monthly to TCAC. TCAC operates in a city leased building and pays no rent. TCAC is not permitted to conduct private business at this facility. Under the agreement, TCAC is also required to keep records and provide monthly reports to ACA. TCAC is not subject to annual audits by the State.

¶ 9 Ms. Clarke believed TCAC was violating euthanasia protocol. On August 3, 2005, she made a records request under the PDA asking for all euthanasia logbooks maintained by TCAC. On August 4, TCAC responded it was not a public agency, rejected Ms. Clarke's request and directed her to ACA.

¶ 10 On August 11, counsel for Ms. Clarke forwarded her records request to the Kennewick City Attorney. The city responded that it did not possess the records she sought, so would provide only summary statistics in its possession.³

¶ 11 Ms. Clarke then filed this lawsuit against TCAC and ACA. Ms. Clarke filed a motion for two show cause hearings, one concerning TCAC and one concerning ACA. The court held TCAC was not a public agency as defined by the PDA. It further found it did not engage in the type of public activity present in Telford v. Thurston County Bd. of Comm'rs, 95 Wash.App. 149, 974 P.2d 886, review denied, 138 Wash.2d 1015, 989 P.2d 1143 (1999). It found the log books requested were not prepared or retained by ACA. The court denied Ms. Clarke's motions to show cause and dismissed her PDA action against TCAC and ACA. The court also denied her motion for reconsideration.

ANALYSIS

¶ 12 We first address the question of whether TCAC is a public agency as defined by the PDA, chapter 42.17 RCW, and thus obligated to follow the requirements of the PDA. The trial court found that TCAC is not a public agency under the PDA. Because statutory interpretation is a question of law, we review the trial court's legal conclusion de novo. Am. Legion Post No. 32 v. City of Walla Walla, 116 Wash.2d 1, 5, 802 P.2d 784 (1991).

¶ 13 The PDA requires a state or local "agency" to make available for public inspection and copying all public records, unless the record falls within a statutory exception. Spokane Research & Def. Fund v. W. Cent. Cmty. Dev. Ass'n, 133 Wash.App. 602, 606, 137 P.3d 120 (2006), (citing RCW 42.17.260(1)), review denied, 160 Wash.2d 1006, 158 P.3d 614 (2007). "The PDA is interpreted broadly, requiring agencies to give `the fullest assistance to inquirers and the most timely possible action on requests for information.'" Id. (quoting RCW 42.17.290).

¶ 14 RCW 42.17.020(1) defines agency as follows:

"Agency" includes all state agencies and all local agencies. "State agency" includes every state office, department, division, bureau, board, commission, or other state agency. "Local agency" includes every county, city, town, municipal corporation, quasi-municipal corporation, or special purpose district, or any office, department, division, bureau, board commission, or agency thereof, or other local public agency.

To be considered an "agency," TCAC must qualify as an "other local public agency." This term is not defined in the PDA. Telford, 95 Wash.App. at 158, 974 P.2d 886.

¶ 15 In Telford, Division Two of this court was asked to determine if two organizations—the "Washington State Association of Counties" and the "Washington State Association of County Officials"—were public entities. Id. at 152-56, 974 P.2d 886. The court in Telford adopted a four-factor "functional equivalent" balancing test to determine if an entity is to be regarded as a public agency for purposes of the PDA: (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 the government. Id. at 162, 974 P.2d 886. Under Telford, each of these criteria need not be equally satisfied, but rather the criteria on balance should suggest that the entity in question is the functional equivalent of a state or local agency. Id.

¶ 16 In Spokane Research, this Division saw no need to apply Telford's four-factor test because there was "no ambiguity as to the Association's nongovernmental status," and thus it was not subject to the PDA. Spokane Research, 133 Wash.App. at 608, 137 P.3d 120. But here, TCAC is not so obviously beyond the reach of the PDA.⁴ Thus, we engage in a Telford analysis to determine whether TCAC is an "other local agency" subject to the PDA. Under Telford, we conclude that TCAC is the functional equivalent of a public agency.

¶ 17 Function. TCAC's purpose is to perform animal control services for the tricities area. Chapter 16.52 RCW governs animal control services. It recognizes the authority of cities and counties to pass local ordinances regulating the care and control of animals. Former RCW 16.52.011(2)(b) (2004).⁵ In turn, the statute acknowledges that cities and counties may contract with animal care and control agencies to perform these duties. Former RCW 16.52.015(1). An entity becomes an animal care and control agency when it is "authorized to enforce city or county municipal ordinances regulating the care, control, licensing, or treatment of animals within the city or county," or when it contracts with the city or county as a humane society to provide those services. Former RCW 16.52.011(2)(b). In any event, an animal care and control agency "may enforce the provisions of [chapter 16.52 RCW] only if the county or city legislative authority has entered into a contract with the agency to enforce [those provisions]." Former RCW 16.52.015(1) (emphasis added).

¶ 18 TCAC is authorized by the local government to provide animal control services. Under former RCW 16.52.011(2)(b), it is therefore an animal care and control agency. Individuals associated with TCAC take oaths as animal control officers; animal control officers can only be employed by an animal care and control agency. See former RCW 16.52.011(2)(c). As part of the oath, the employees...