Woodland Park Zoo v. Fortgang, 72413–4–I.

CourtCourt of Appeals of Washington
Writing for the CourtLAU, J.
Citation192 Wash.App. 418,368 P.3d 211
Parties WOODLAND PARK ZOO a/k/a Woodland Park Zoological Society, Respondent, v. Alyne FORTGANG, Appellant.
Docket NumberNo. 72413–4–I.,72413–4–I.
Decision Date01 February 2016

192 Wash.App. 418
368 P.3d 211

WOODLAND PARK ZOO a/k/a Woodland Park Zoological Society, Respondent,
Alyne FORTGANG, Appellant.

No. 72413–4–I.

Court of Appeals of Washington, Division 1.

Feb. 1, 2016.
As Corrected Feb. 3, 2016.

368 P.3d 212

Rob Roy Smith, Christopher Theodore Varas, Kilpatrick Townsend & Stockton LLP, Seattle, WA, for Appellant.

Paul J. Lawrence, Gregory J. Wong, Tania Margaret Culbertson, Pacifica Law Group LLP, Seattle, WA, for Respondent.

Margaret Ji Yong Pak, Enslow Martin PLLC, Seattle, WA, for Amicus Curiae on behalf of Washington COAlition for Open Government.

Susannah Christiana Carr, Gordon Tilden Thomas & Cordell LLP, Seattle, WA, for Amicus Curiae on behalf of Animal Legal Defense Fund.


192 Wash.App. 420

¶ 1 Alyne Fortgang sued the Woodland Park Zoological Society (WPZS) under the Washington Public Records Act (PRA) seeking documents

192 Wash.App. 421

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 Telford1 factors,

368 P.3d 213

WPZS is the functional equivalent of a government agency subject to the PRA. Applying Telford 's four-factor analysis here, we conclude these factors weigh against concluding that WPZS is the functional equivalent of a government agency subject to the PRA. We affirm the order granting summary judgment in favor of WPZS.


¶ 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.

The Operations and Management Agreement2

¶ 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

192 Wash.App. 422

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:

• Authority to set prices for admission, memberships, merchandise, and other Zoo-related sales.

• Authority to "make such capital improvements and alterations to the Premises and the Zoo facilities as WPZS shall determine in its reasonable discretion are necessary." CP at 48.

• Authority regarding care of the animals, including the authority "to acquire or sell or otherwise dispose of Zoo animals in the course of WPZS's operation of the Zoo." CP at 49.

• Authority to "manage, supervise ... direct ... hire, fire, and otherwise discipline" Zoo employees. CP at 50.

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

192 Wash.App. 423

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.).

368 P.3d 214

¶ 5 The City retains some oversight authority via contract over certain aspects of Zoo management. For example, although WPZS has almost complete control over Zoo operations, including the authority to acquire or dispose of an animal, the agreement requires that any animal acquisition or disposition "shall be made in strict accordance with ... existing and any adopted acquisition and disposition policies approved by the City." CP at 49. The City retains ownership of the Zoo premises and facilities in addition to "all appurtenances, fixtures, improvements, equipment, additions and other property attached or installed in the Premises during the Term" of the agreement. CP at 48. It also retains the naming rights for the Zoo and Zoo facilities. Further, the mayor, the Parks Department superintendent, and the City Council Park Committee, are each authorized to appoint one person to WPZS' Board of Directors, for a total of three City-appointed board members. As of 2014, 38 members served on WPZS' Board of Directors.

¶ 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

192 Wash.App. 424

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.

The Records Request and Ensuing Litigation

¶ 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

192 Wash.App. 425

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...

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2 cases
  • Fortgang v. Woodland Park Zoo, 92846-1
    • United States
    • United States State Supreme Court of Washington
    • January 12, 2017
    ...that WPZS was not an agency subject to PRA disclosure requirements. The Court of Appeals affirmed. Woodland Park Zoo v. Fortgang , 192 Wash.App. 418, 421, 368 P.3d 211 (2016). We granted Fortgang's petition for review. Fortgang v. Woodland Park Zoo , 185 Wash.2d 1033, 377 P.3d 747 (2016).AN......
  • Fortgang v. Woodland Park Zoo, 92846-1
    • United States
    • United States State Supreme Court of Washington
    • January 12, 2017
    ...not an agency subject to PRA disclosure requirements. The Court of Appeals affirmed. Fortgang v. Woodland Park Zoo, 192 Wn. App. 418, 421, 368 P.3d 211 (2016), We granted Fortgang's petition for review. Fortgang v. Woodland Park Zoo, 185 Wn.2d 1033, 377 P.3d 747 (2016).ANALYSIS Washington's......

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