Fortgang v. Woodland Park Zoo

• Decision Date: 12 January 2017
• Docket Number: NO. 92846-1,92846-1
• Citation: 387 P.3d 690,187 Wash.2d 509
• Parties: Alyne FORTGANG, Petitioner, v. WOODLAND PARK ZOO a/k/a Woodland Park Zoological Society, Respondent.
• Court: Washington Supreme Court

187 Wash.2d 509

387 P.3d 690

Alyne FORTGANG, Petitioner,

v.WOODLAND PARK ZOO a/k/a Woodland Park Zoological Society, Respondent.

NO. 92846-1

Supreme Court of Washington.

Argued Oct. 27, 2016

Filed Jan. 12, 2017

Rob Roy Smith, Christopher Theodore Varas, Kilpatrick Townsend & Stockton, LLP, 1420 5th Ave., Ste. 3700, Seattle, WA, 98101-4089, for Petitioner.

Paul J. Lawrence, Gregory J. Wong, Pacifica Law Group LLP, 1191 2nd Ave., Ste. 2000, Seattle, WA, 98101-3404, for Respondent.

Margaret Ji Yong Pak, Enslow Martin PLLC, 701 5th Ave., Ste. 4200, Seattle, WA, 98104-7047, as Amicus Curiae on behalf of Washington Coalition for Open Government (WCOG).

Eleanor Hamburger, Ann E. Merryfield, Sirianni Youtz Spoonemore Hamburger, 701 5th Ave., Ste. 2560, Seattle, WA, 98104-7054, as Amicus Curiae on behalf of SEIU Healthcare Northwest Training Partnership.

Eleanor Hamburger, Ann E. Merryfield, Sirianni Youtz Spoonemore Hamburger, 701 5th Ave., Ste. 2560, Seattle, WA, 98104-7054, as Amicus Curiae on behalf of Association of Wash. Public Hospital Districts.

Eleanor Hamburger, Ann E. Merryfield, Sirianni Youtz Spoonemore Hamburger, 701 5th Ave., Ste. 2560, Seattle, WA, 98104-7054, as Amicus Curiae on behalf of Community Health Plan of Washington.

Eleanor Hamburger, Ann E. Merryfield, Sirianni Youtz Spoonemore Hamburger, 701 5th Ave., Ste. 2560, Seattle, WA, 98104-7054, as Amicus Curiae on behalf of Coordinated Care of Washington, Inc.

Eleanor Hamburger, Ann E. Merryfield, Sirianni Youtz Spoonemore Hamburger, 701 5th Ave., Ste. 2560, Seattle, WA, 98104-7054, as Amicus Curiae on behalf of Planned Parenthood of the Great Northwest & the Hawaiian Islands.

Eleanor Hamburger, Ann E. Merryfield, Sirianni Youtz Spoonemore Hamburger, 701 5th Ave., Ste. 2560, Seattle, WA, 98104-7054, as Amicus Curiae on behalf of Washington State Hospital Association.

Daniel G. Lloyd, Vancouver City Attorney's Office, P.O. Box 1995, Vancouver, WA, 98668-1995, Daniel Brian Heid, City of Auburn, 25 W. Main St., Auburn, WA, 98001-4998, as Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Dianne Kathleen Conway, Attorney at Law, P.O. Box 1157, Tacoma, WA, 98401-1157, as Amicus Curiae on behalf of Washington Nonprofits.

Dianne Kathleen Conway, Attorney at Law, P.O. Box 1157, Tacoma, WA, 98401-1157, as Amicus Curiae on behalf of National Council of Nonprofits.

Daniel Joseph Gunter, Riddell Williams PS, 1001 4th Ave., Ste. 4500, Seattle, WA, 98154-1065, as Amicus Curiae on behalf of Seattle Aquarium Society.

GORDON McCLOUD, J.

¶1Petitioner Alyne Fortgang filed a request for documents concerning the elephants at the Woodland Park Zoo (Zoo).She filed that request under the Public Records Act (PRA), chapter 42.56 RCW, which requires every government "agency" to make records "available for [public] inspection and copying."RCW 42.56.010, .040. But she filed it with the Woodland Park Zoo Society (WPZS), the private nonprofit that runs the Zoo.WPZS argues that the PRA can never reach the records of such a private entity.

¶2We disagree.The PRA is "a strongly-worded mandate for open government,"Rental Hous. Ass'n of Puget Sound v .City of Des Moines , 165 Wash.2d 525, 527, 199 P.3d 393(2009), that "must be ‘liberally construed ...’ to ensure that the public's interest [in broad disclosure] is protected,"Yakima County v . Yakima Herald–Republic , 170 Wash.2d 775, 791, 246 P.3d 768(2011)(quotingRCW 42.45.030).Our Court of Appeals has therefore interpreted the statutory word " ‘agency’ " to include private entities when they act as the functional equivalent of government agencies.In Telford v .Thurston County Board of Commissioners , 95 Wash.App. 149, 162–63, 974 P.2d 886(1999), Division Two of the Court of Appeals adopted a four-factor test to determine whether a private or quasi-private entity is an " ‘agency’ " for purposes of the PRA.¹The other two divisions later adopted that " Telford test."²

¶3The Telford test—which derives from case law interpreting the federal Freedom of Information Act (FOIA)³ —furthers the PRA's purposes by preventing governments from evading public oversight through creative contracting.5 U.S.C. § 552;seeCedar Grove Composting , Inc. v. City of Marysville , 188 Wash.App. 695, 720, 354 P.3d 249(2015).It is consistent with related precedent from this court and with the approach taken by numerous other jurisdictions interpreting similar transparency laws.We now hold that the Telford test is an appropriate way to decide whether a private entity must comply with PRA disclosure requirements.

¶4 Under the Telford analysis, WPZS is not the functional equivalent of a government agency.We therefore affirm the Court of Appeals.

FACTS

¶5 WPZS was formed in 1965 as a private nonprofit organization.Its articles of incorporation state that its "object and purposes"

shall be to promote public interest in and to encourage greater understanding of international wildlife and to promote its conservation and propagation in the modem world; to support and stimulate interest in all aspects of the Woodland Park Zoological Gardens at Seattle, Washington, and to motivate programs in keeping with educational, scientific and aesthetic interests; [and to manage money and other property toward those ends].

Clerk's Papers(CP)at 177.At the time WPZS was incorporated, the city of Seattle(City) was operating the Zoo and all zoo employees were city employees.

¶6 Since its formation, WPZS has been governed by a volunteer Board of Directors(Board).There are currently 38 board members.

¶7 In 2000, the legislature passed RCW 35.64.010 and .020, which authorized certain cities (specifically Seattle and Spokane) to contract with nonprofits "for the overall management and operation of a zoo, an aquarium, or both" and imposed certain restrictions on those contracts.LAWS OF 2000, ch. 206;FINAL B. REP. ON ENGROSSEDS.B. 6858, 56th Leg., Reg. Sess.(Wash.2000).One provision in the law gives a contracting nonprofit the authority to manage, hire, and fire any city employees "employed in connection with the zoo or aquarium[,] ... [n]othwithstanding any provision in the [contracting city's] charter."RCW 35.64.010(4).Another requires that any covered contract be adopted or amended only after a public hearing.RCW 35.64.010(2).In November 2000, the City approved a "Neighborhood Parks, Green Spaces, Trails and Zoo levy lid lift," which increased funding for the Zoo.CPat 34.

¶8 Partly in response to these developments, but also to address the Zoo's growing size and complexity, in March 2002 WPZS entered into an "Operations and Management Agreement"(Agreement) with the City, allowing WPZS to "provide for the management ... of the entire Zoo operation."CPat 210-12.

¶9 Pursuant to the Agreement, WPZS must "manage and operate the Zoo as a state-of-the-art zoo, consistent with the Long-Range Plan, with emphasis on the Zoo's scientific and educational purposes and programs."CPat 219.But WPZS maintains significant autonomy and discretion in doing so.It has authority to set admission charges, subject to the general requirement that the Zoo "remain accessible to individuals from all economic circumstances."CPat 224.WPZS may make such improvements and alterations to the Zoo as it deems necessary "in its reasonable discretion," although permanent fixtures become city property once installed.CPat 225.The Agreement gives WPZS exclusive rights and responsibilities regarding the care, sale, and purchase of the Zoo's animals, consistent with the Long-Range Plan and applicable federal, state, and local laws.And the Agreement gives WPZS authority to contract with other entities for the provision of services at the Zoo, as well as the authority to manage, hire, and fire all zoo employees.

¶10 The Agreement also contains several provisions addressing public oversight of the Zoo, The City may appoint three of the WPZS Board's 38 members.A city employee, the superintendent of the City's Department of Parks and Recreation(Superintendent), maintains a nonvoting seat on the Board.WPZS must submit an "Annual Report" summarizing the Zoo's operations and providing a financial accounting and an "Annual Plan" presenting the Zoo's one-year capital improvement plan and explaining any other proposed changes to the Superintendent.CPat 232.WPZS must maintain financial records and make these available to the City upon request, and it must maintain records relating to the management and veterinary care of the Zoo's animals and make these available to the public upon request.And for any major capital project at the Zoo, WPZS must establish "a process for public involvement that is consistent with the Parks Department's Public Involvement Policy."Id.

¶11 With respect to funding, the Agreement establishes a mix of public and private support.It provides that WPZS may apply for grants in the City's name, but also empowers the city council to reject the funds awarded if it wishes.The Agreement obligates the City to pay WPZS an "Operations Support" payment of five million dollars per year to start, increasing each year according to inflation, and a "Routine Maintenance Payment" of $500,000 per year.CPat 219-20.It also entitles WPZS to $2.5 million annually, "or as much of that total as is actually received," as long as the 2000 levy lid lift remains in effect.CPat 221.It obligates WPZS to obtain independent audits every year to submit to the Superintendent.And it subjects WPZS to state audits, at the City's request, "of the use and application of all revenues, grants and fees, [and] all City funds, except for private fundraising activities and private donor information, received by WPZS during the current and preceding year, including Zoo operations and management."CPat 232.In 2013, just over half of WPZS's revenue came from private "[e]arned [r]evenue," i.e., ticket sales, membership dues, investments, etc. CPat 207.Another 23 percent came from...