Fortgang v. Woodland Park Zoo

This opinion was filed for record

at 8: oDo.m 0o.n f?., yn
on

Cb~c:X~.
SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

AL YNE FORTGANG, NO. 92846-1

Petitioner, ENBANC

v.
Filed JAM f 2 ?1117
WOODLAND PARK ZOO a/k/a
WOODLAND PARK ZOOLOGICAL
SOCIETY,

Respondent.

GORDON McCLOUD, J.-Petitioner 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.
Fortgang v. Woodland Park Zoo, No. 92846-1

We disagree. The PRA is "a strongly-worded mandate for open government,"

Rental Hous. Ass'n ofPuget Sound v. City ofDes Moines, 165 Wn.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 Wn.2d 775,791,246 P.3d 768 (2011) (quoting RCW 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 Wn. 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. 1 The other two divisions later adopted that "Telford test."2

1
Te(ford applies the Public Disclosure Act (PDA), former chapter 42.17 RCW
(2004), the statute into which the PRA was originally incorporated. 95 Wn. App. 149. In
2005, the PRA portion of the PDA was renamed and recodified as a distinct chapter under
the RCW, but it was not otherwise changed. See former ch. 42.17 RCW, recodified as ch.
42.56 RCW (LAWS OF 2005, ch. 274, effective July 1, 2006). Thus, in Worthington v.
WestNET, 182 Wn.2d 500, 506 n.4, 341 P .3d 995 (20 15), we explained that "there is no
substantive difference" between the PRA and the PDA, and cases interpreting one act are
generally relevant to the interpretation of the other. Accordingly, we treat the terms PRA
and PDA as interchangeable.
2
Cedar Grove Composting, Inc. v. City ofMarysville, 188 Wn. App. 695, 716-20,
354 P.3d 249 (2015) (Division One); Clarke v. Tri-Cities Animal Care & Control Shelter,
144 Wn. App. 185, 192, 181 P.3d 881 (2008) (Division Three).

2
Fortgang v. Woodland Park Zoo, No. 92846-1

The Telford test-which derives from case law interpreting the federal

Freedom oflnformation Act (FOIA) 3--furthers the PRA's purposes by preventing

governments from evading public oversight through creative contracting. 5 U.S.C.

§ 552; see Cedar Grove Composting, Inc. v. City of Marysville, 188 Wn. App. 695,

720, 354 P.3d 249 (20 15). 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.

Under the Telford analysis, WPZS is not the functional equivalent of a

government agency. We therefore affirm the Court of Appeals.

FACTS

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 modern 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,

3
Our Court of Appeals adopted the Telford test from the Connecticut Supreme
Court, which in tum derived it from federal case law interpreting the FOIA. Telford, 95
Wn. App. at 161-63 (citing Ed. of Trs. of Woodstock A cad. v. Freedom of Irifo. Comm 'n,
181 Conn. 544, 553-55, 436 A.2d 266 (1980)).

3
Fortgang v. Woodland Park Zoo, No. 92846-1

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.

Since its formation, WPZS has been governed by a volunteer Board of

Directors (Board). There are currently 38 board members.

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

ENGROSSED S.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. CP at 34.

4
Fortgang v. Woodland Park Zoo, No. 92846-1

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." CP at 210-12.

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." CP at 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." CP at 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. CP at 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.

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Fortgang v. Woodland Park Zoo, No. 92846-1

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.

CP at 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." Jd.

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. CP at 219-20. It also entitles WPZS

6
Fortgang v. Woodland Park Zoo, No. 92846-1

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. CP at 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." CP at 232. In 2013,

just over half ofWPZS 's revenue came from private"[ e]arned [r]evenue," i.e., ticket

sales, membership dues, investments, etc. CP at 207. Another 23 percent came from

private donations. Twenty-six percent came from public sources, 16 percent from

the City specifically. The parties agree that the Zoo itself-as distinct from WPZS's

broader programming-receives at most about 30 percent of its funding from public

sources.

PROCEDURAL HISTORY

On November 6, 2013, Fortgang sent a letter to the Zoo, requesting several

categories of records, all pertaining to the Zoo's elephants. Her request consisted of

eight specific questions. On December 20, 2013, the Zoo's director of

Communications and Public Affairs responded to Fortgang's request. The response

began by asserting that "WPZ[S] 1s a private company and based on our

7
Fortgang v. Woodland Park Zoo, No. 92846-1

Management Agreement with the City ... only required to disclose animal records."

CP at 27. It then went on to state that the Zoo would nevertheless disclose some of

the records F ortgang requested because "we like to be as transparent as appropriate

... despite any legal obligation." Id. Attached to the response were "[k]eeper notes

and medical records" for three elephants and a budget detailing the Zoo's estimated

annual cost of keeping elephants. !d. But in response to most of Fortgang's eight

questions, the Zoo's letter asserted that the information requested was "not subject

to a public disclosure request." Id.

Fortgang filed a lawsuit against WPZS in March 2012, alleging it violated the

PRA by refusing to disclose the records she requested. The trial court granted

WPZS's motion for summary judgment and dismissed the action on the ground that

WPZS was 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. Fortgangv. Woodland

Park Zoo, 185 Wn.2d 1033,377 P.3d 747 (2016).

ANALYSIS

Washington's PRA requires "[e]ach agency, in accordance with public rules,

[to] make available for public inspection and copying all public records .... " RCW

42.56.070(1). And it provides the following definition of"agency":

8
Fortgang v. Woodland Park Zoo, No. 92846-1

"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.

RCW 42.56.010(1).

As discussed above, our Court of Appeals has interpreted this definition

expansively to include certain private entities. Under the Telford test, the factors

relevant to deciding when a private entity is treated as the functional equivalent of

an agency are (1) whether the entity performs a government function, (2) the extent

to which the government funds the entity's activities, (3) the extent of government

involvement in the entity's activities, and (4) whether the entity was created by the

government. Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn. App.

185, 192, 181 P.3d 881 (2008) (citing Telford, 95 Wn. App. at 162). Courts applying

the test consider whether "the criteria on balance . . . suggest that the entity in

question is the functional equivalent of a state or local agency." !d.

In this case, the Court of Appeals applied the Telford test and concluded that

WPZS is not subject to PRA disclosure requirements. Fortgang challenges that

conclusion, arguing that WPZS is the functional equivalent of a local public agency

under Telford. WPZS responds with two alternative arguments for affirmance.

9
Fortgang v. Woodland Park Zoo, No. 92846-1

First, it argues that we should repudiate the Telford test altogether and hold that the

PRA applies only to actual government agencies; in the alternative-if we do not

abandon the Telford test-WPZS argues that the Court of Appeals applied it

correctly here.

Because this case presents both a question of statutory interpretation and a

challenge to a summary judgment ruling, our review is de novo. Keck v. Collins,

184 Wn.2d 358,370,357 P.3d 1080 (2015) ("We review summary judgment orders

de novo, considering the evidence and all reasonable inferences from the evidence

in the light most favorable to the nonmoving party." (citing Folsom v. Burger King,

135 Wn.2d 658, 663,958 P.2d 301 (1998))); Estate ofBunch v. McGraw Residential

Ctr., 174 Wn.2d 425, 430, 275 P.3d 1119 (2012) (questions of statutory

interpretation reviewed de novo).

I. We adopt the Telford test and decline to limit its applicability to entities
with "material government attributes"

WPZS contends that we should disavow the Telford analysis because the PRA

can never apply to a private entity. WPZS makes three arguments supporting this

theory.

First, it argues that the PRA's plain language makes it applicable only to

government "agencies," which do not include private nonprofits. Second, WPZS

10
Fortgang v. Woodland Park Zoo, No. 92846-1

argues that Telford is unnecessary as a policy matter because to the extent that a

government partners with a private organization, the records pertaining to the

government's conduct vis-a-vis that organization will remain accessible through a

PRA request filed with the partnering government agency itself. Finally, WPZS

cites legislative history. It points out that in 2015, a bill was introduced and

ultimately rejected that would have made the PRA applicable to private nonprofits

that perform government functions and receive substantial government support.

This bill also specifically proposed to make the PRA applicable to "[a] nonprofit

corporation or other public organization managing and operating a zoo or aquarium

pursuant to a contract or agreement authorized by chapter 35.64 RCW." H.B. 1425

§ 4(2), 64th Leg., Reg. Sess. (Wash. 2015). WPZS argues that by rejecting this bill,

the legislature impliedly rejected the Telford test and/or the PRA's applicability to

nonprofit entities like the Zoo. None of these arguments are persuasive.

As noted above, courts construe the PRA liberally to further the public interest

in broad disclosure. Rental Hous. Ass 'n, 165 Wn.2d at 527; Yakima Herald-

Republic, 170 Wn.2d at 791. Numerous states with transparency laws similar to our

PRA use an identical test to determine whether an entity is the functional equivalent

11
Fortgang v. Woodland Park Zoo, No. 92846-1

of a government agency. 4 WPZS does not explain why, in spite of our liberal

construction mandate, we should interpret the PRA so strictly-especially when

states with equivalent statutes have employed a more liberal construction.

Nor are we persuaded by WPZS's policy or legislative history arguments.

WPZS's assertion that a private entity's operations can be adequately scrutinized

through a PRA request with the contracting government is not necessarily true.

While a government agency may keep adequate records of a contracting entity's

4
E.g., Frederickv. City ofFalls City, 289 Neb. 864, 873-75, 857 N.W.2d 569 (2015)
(employing identical test to determine whether an entity "is the functional equivalent of a
city agency, branch, or department" for purposes of state transparency law); Moore v.
Abbott, 2008 ME 100, ~ 10, 952 A.2d 980 (employing identical test to determine whether
an entity "qualifies as 'an agency or public official"' for purposes of state transparency
law); Oriana House, Inc. v. Montgomery, 110 Ohio St. 3d 456, 2006-0hio-4854, 854
N.E.2d 193, at~ 24 (employing identical test to determine whether an entity "is a 'public
institution"' for purposes of state transparency law); Memphis Publ'g Co. v. Cherokee
Children & Family Servs., Inc., 87 S.W.3d 67, 77, 79 (Tenn. 2002) (employing identical
test to determine whether an entity was "the functional equivalent of a government agency"
for purpose of state transparency law); Conn. Humane Soc y v. Freedom ofInfo. Comm 'n,
218 Conn. 757, 759-60, 591 A.2d 395 (1991) (employing identical test to determine
whether an entity is a "public agency" for purposes of state transparency law). Other states
employ a test that is substantially similar. Toomey v. City ofTruth or Consequences, 2012-
NMCA-104, ~~ 16-26, 287 P.3d 364 (applying nine-factor "totality of the circumstances"
test); Marks v. McKenzie High Sch. Fact-Finding Team, 319 Or. 451, 463-64, 878 P.2d
417 (1994) (applying six-factor functional equivalency test); Canso!. Edison Co. of N.Y.,
Inc. v. Ins. Dep't of N.Y., 140 Misc. 2d 969,974-75, 532 N.Y.S.2d 186 (1988) (applying
four-factor test that considers the status of the entity's employees instead of the entity's
origin); A.S. Abell Publ'g Co. v. Mezzanote, 297 Md. 26, 38-39, 464 A.2d 1068 (1983)
(entity was "an agency or instrumentality of the State" because it served a public purpose,
its management was selected by state's insurance commissioner, it did not independently
manage its affairs or enforce its regulations, and it had special tax and liability status).

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Fortgang v. Woodland Park Zoo, No. 92846-1

activities, it is also possible for a government to contract with a private entity so as

to evade PRA accountability-precisely what the Telford test is designed to prevent.

See, e.g., Cedar Grove Composting, 188 Wn. App. at 720 (consulting firm was

functional equivalent of city agency in part because city "direct[ed] and delegate[ ed]

[firm's] activities ... with the express object of avoiding the reach of the PRA").

And the legislative history WPZS cites is ambiguous: the legislature's failure to

codify the Telford analysis could indicate either disapproval of the analysis or

satisfaction with the way courts are already applying it. Indeed, the fact that our

legislature has never amended the PRAto address the Telford test, even though our

courts have been applying it for over 15 years, suggests approval rather than

disapproval. 5

Additionally, while this court has never actually adopted the Telford test, we

implicitly endorsed it in Worthington v. WestNET, 182 Wn.2d 500, 507-08, 341 P.3d

995 (2015). Worthington held that WestNET-"a multiagency, multijurisdictional

drug task force" formed under the Interlocal Cooperation Act (ch. 39.34 RCW) and

involving several Washington municipalities-could not determine in its own

5
Soproni v. Polygon Apt. Partners, 137 Wn.2d 319, 327 n.3, 971 P.2d 500 (1999)
(legislature's "failure to amend a statute following a judicial decision interpreting it
indicates legislative acquiescence in that decision").
13
Fortgang v. Woodland Park Zoo, No. 92846-1

founding agreement that it was exempt from PRA requirements. I d. at 503. Instead,

we held that courts must apply a Telford-like "practical analysis" to determine

whether W estNET was an "agency" for purposes of the PRA. I d. at 508. In reaching

that conclusion, we acknowledged Telford's "'functional equivalency' analysis" and

called it consistent with the PRA's liberal construction mandate. Id. at 507 (quoting

Clarke, 144 Wn. App. at 192; Telford, 95 Wn. App. at 161). Although we held that

the specific Telford factors were irrelevant where an entity was, like WestNET,

"undisputedly ... public rather than private," we directed the trial court on remand

to consider several different factors, all of which were, like the Telford factors, aimed

at determining whether exempting the defendant entity would frustrate the PRA's

purposes. ld. at 508-09 & n.6. WPZS's argument in this case-that we should

repudiate the Telford factors because the PRA applies only to government

"agencies" and therefore expressly excludes private nonprofits-conflicts in

principle with Worthington's interpretation of the PRA.

Finally, we also reject the argument, advanced by two groups of amici, 6 that

we should limit Telford rather than repudiate it altogether. These amici acknowledge

6
SEIU Healthcare Northwest Training Partnership, Association of Washington
Public Hospital Districts, Community Health Plan of Washington, Coordinated Care of
Washington Inc., Planned Parenthood of the Great Northwest and the Hawaiian Islands,
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Fortgang v. Woodland Park Zoo, No. 92846-1

that the PRA can sometimes apply to a nominally private entity (and thus their

position is less extreme than WPZS' s), but they contend that courts should apply the

Telford factors only where an entity's public status is truly ambiguous. Essentially,

these amici argue the inverse of this court's position in WestNET. Whereas the

WestNET court observed that the entity at issue was "undisputedly ... public rather

than private," 182 Wn.2d at 508 n.6, amici in this case argue that an entity may be

so clearly private in nature that no Telford analysis is required.

Amici may be correct that some entities are unambiguously private, but

neither explains how we could determine that without applying the Telford factors

or some substantially similar analysis. Amici cite Spokane Research & Defense

Fund v. West Central Community Development Ass 'n, 133 Wn. App. 602, 608, 137

P.3d 120 (2006), where the court purportedly held that the entity at issue was

unambiguously private and therefore not subject to the PRA, and then applied the

Telford factors only in dicta. But when the Spokane Research court held that it "need

not apply Telford's functional equivalent analysis," it did so on the basis of several

Telford-like considerations:

Unlike the Telford entities, the Association was not created to fulfill a
legislative mandate. The Association does not make policy or legislate.

and Washington State Hospital Association (collectively Service Providers) and
Washington State Association of Municipal Attorneys.
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Fortgang v. Woodland Park Zoo, No. 92846-1

The Association does not execute law or regulate law. The Association
does not adjudicate disputes. The Association is not controlled by
elected or appointed county officials, and is not government audited,
and its employees are not paid by a government or enjoy government
health or retirement benefits. In short, the Association possesses no
material governmental attributes or characteristics.

133 Wn. App. at 608. This reasoning substantially mirrors the Telford analysis: it

considers the entity's function (not executing law or making policy), the amount of

government control (none), the entity's origin (not created to fulfill a legislative

mandate), and to some extent funding (no employees compensated by government).

Thus, it does not conserve any analytical effort.

For the foregoing reasons, we hold that the Court of Appeals was correct to

apply the Telford test in this case.

II. Under the Telford test, WPZS is not the functional equivalent of a
government agency for purposes ofPRA disclosure requirements

In addition to the current case, there are four published Court of Appeals

decisions applying the Telford factors. In three of those cases, the court concluded

that the entity at issue was the functional equivalent of an "agency" subject to the

PRA, at least with respect to certain documents and activities. Telford, which

addressed two nonprofits formed for the purpose of administering county programs,

held that all four factors weighed in favor of government agency status. 95 Wn.

App. at 152-57. Clarke applied the factors to a privately run corporation that

16
Fortgang v. Woodland Park Zoo, No. 92846-1

contracted with the Tri-Cities area animal control authority to provide euthanasia

services. 144 Wn. App. at 188. It held that three of the four factors-all but the

entity's "origin"-weighed in favor of applying the PRA. Id. at 192-95. Cedar

Grove Composting reached the same conclusion about a private company that

provided consulting services to the city of Marysville. 188 Wn. App. at 716-20.

Finally, Spokane Research held that all four factors weighed against applying the

PRA to a private, neighborhood-based nonprofit (the association) that managed a

community center. 133 Wn. App. at 604-05.

In this case, the Court of Appeals concluded that all four Telford factors

weighed against applying the PRA. Fortgang, 192 Wn. App. at 421. WPZS agrees.

It contends that the first factor weighs against applying the PRA because, in contrast

to the entities at issue in Telford and Clarke, the Zoo does not perform any function

unique or essential to government. Resp't WPZS's Suppl. Br. at 15-16. It contends

that the second factor weighs against applying the PRA because "[n]o case has ever

applied the PRAto an entity where public funding comprises less than a significant

percentage [i.e., the majority] of the entity's total revenue." Id. at 16-17. It argues

that the third factor weighs against PRA coverage because no government controls

the day-to-day operations at the Zoo and that the fourth factor weighs against

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Fortgang v. Woodland Park Zoo, No. 92846-1

coverage because WPZS was formed entirely by private citizens as a private

organization. Id. at 17-18.

Fortgang disagrees with all of these assertions. Bearing in mind that the

purpose of the Telford test is to determine whether, with respect to the particular

defendant entity at hand, immunity from PRA requirements would frustrate the goal

of government transparency, we address each factor and each of Fortgang's

arguments in turn.

A. WPZS does not perform a government function under the first Telford
factor

Our Court of Appeals decisions describe the first Telford factor as looking for

"core" government functions, Clarke, 144 Wn. App. at 194, or functions that could

not be delegated to the private sector, Telford, 95 Wn. App. at 165. Fortgang

acknowledges this, but she argues that this approach is too narrow; she focuses

instead on whether the function at issue was delegated to the private entity via

enabling legislation. She argues that legislation permitting the City to delegate

management of the Zoo to WPZS limits the extent of the delegation and therefore

resembles the legislation at issue in Clarke and Telford, where the private entity was

found to have performed a public function.

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Fortgang v. Woodland Park Zoo, No. 92846-1

We disagree with Fortgang's reading of Clarke and Telford. To the extent

that those cases discuss enabling legislation, it is to point out that this legislation

endowed the disputed entities with police or government administrative powers.

Clarke, 144 Wn. App. at 193-94 (concluding that private nonprofit was statutorily

defined as an "animal control agency," could enforce provisions of state's animal

control services statute only through its contract with a county or city, and performed

police powers function that implicated due process); Telford, 95 Wn. App. at 163-

64 (numerous statutes imposed '"public' duties" on the entities at issue, and these

duties "could not be delegated to the private sector"). Neither case holds that an

entity performs a government function any time it contracts with the government

pursuant to enabling legislation. Nor does case law from other jurisdictions support

Fortgang's argument regarding enabling legislation. Like Telford and Clarke, out-

of-state cases addressing enabling legislation tend to ask whether that legislation

defines the "function" at issue as an inherently public one, which cannot be delegated

to the private sector, and/or whether the enabling legislation actually obligates the

entity at issue to perform that function. 7 And, like Telford and Clarke, most out-of-

7 E.g., Frederick, 289 Neb. at 866-67 (nonprofit, which was formed exclusive for
the purpose of promoting economic development in municipality, performed a
"government function" that was permissive rather than mandatory; therefore, first factor
weighed against finding that nonprofit was the functional equivalent of a government
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Fortgang v. Woodland Park Zoo, No. 92846-1

state cases look to the nature of the disputed entity's activities when determining

whether it is performing an inherently "governmental function." 8 This makes sense,

agency); Town of Burlington v. Hasp. Admin. Dist. No. 1, 2001 ME 59,~ 3, 769 A.2d 857
(hospital district, consisting of "the inhabitants of fourteen towns" and incorporated by
enabling legislation for the purpose of providing health care to those inhabitants, performed
a "government function"); Envirotest Sys. Corp. v. Freedom of Info. Comm 'n, 59 Conn.
App. 753, 758-59, 757 A.2d 1202 (2000) (because state statutes obligated state to regulate
vehicle emissions, for-profit corporation providing vehicle emissions inspections for the
public was performing "governmental function"; however, because corporation had no
statutory obligation to check emissions, and did so only pursuant to a contract, this factor
did not weigh in favor of functional equivalency); Domestic Violence Servs. of Greater
New Haven, Inc. v. Freedom ofInfo. Comm'n, 47 Conn. App. 466,472,474-75,704 A.2d
827 (1998) (because state statutes obligated judicial branch to maintain domestic violence
services, the provision of these services had "evolved into a governmental function";
however, private nonprofit that provided such services, pursuant to a subcontract, did not
perform a "government function" because it was not required by statute to perform that
function and it "had no decision-making role in the state's ... programs, nor [could] it
govern or regulate such programs").
8 E.g., Oriana House, 2006-0hio-4854, at~~ 2, 28 (nonprofit that contracted with
county to run its "community-based correctional facility and program" performed a
"uniquely governmental function," the administration of jails and prisons, which
"historically has been an exclusive state function" (internal quotation marks omitted)
(quoting Mossman v. Donahey, 46 Ohio St. 2d 1, 19-20, 346 N.E.2d 305 (1976) (Brown,
J., concurring)); Cherokee Children & Family Servs., Inc., 87 S.W.3d at 70-71, 79 (private
nonprofit, which provided child care services and placements exclusively through contracts
with state department of human services, performed services that were "undeniably public
in nature"); Conn. Humane Soc 'y, 218 Conn. at 761 (nonprofit Humane Society performed
"governmental function" to the extent that it engages in law enforcement activities, e.g.,
imposing fines or terms of imprisonment for interference with animal cruelty prevention,
and arguably to the extent that it conducts police power activities, e.g., euthanizing
animals); State ex rel. Repository v. Nova Behavioral Health, Inc., 112 Ohio St. 3d 338,
2006-0hio-6713, 859 N.E.2d 936, at ~ 26-31 (private nonprofit corporation, which
provided mental health services pursuant to contract with the State, was performing a
'"government function"' even though (1) providing mental health services was not
traditionally reserved exclusively to the State, (2) there was no transfer of duties from
20
Fortgang v. Woodland Park Zoo, No. 92846-1

given that the purpose of the Telford test is to identify private entities that have

effectively assumed the role of government-not to erode the privacy of any entity

that contracts with government to further the public interest.

RCW 35.64.010, the statute authorizing cities to contract with nonprofits for

the "overall management and operation of a zoo," is largely permissive. It does not

obligate any city to enter into such a contract, nor does it obligate any city to operate

a zoo. Thus, it is unlike the statutes at issue in Telford, Clarke, and out-of-state cases

finding that an entity performed a government function for purposes ofthe functional

equivalency test. RCW 35.64.010 does not transform zoo management into an

inherently governmental function.

We hold that WPZS does not perform a government function for purposes of

the first Telford factor.

B. The second Telford factor-government funding-is inconclusive

The parties agree that only about 30 percent of the Zoo's direct funding is ever

attributable to public sources. No party provided the trial court with a valuation of

government agency to private entity, and (3) there was no enabling legislation obligating
it to provide mental health services; this is because providing mental health care for
uninsured-covering gaps in the commercial health care market-is traditionally a public
sector function).

21
Fortgang v. Woodland Park Zoo, No. 92846-1

the city property occupied by the Zoo, but the trial court nevertheless found that the

"magnitude of [real] property here ... would be worth a considerable amount of

money" and ruled that this factor weighed in favor of PRA coverage. Tr. of

Proceedings (July 25, 2014) at 34. The Court of Appeals reached the opposite

conclusion by focusing on a different statistic: the fact that WPZS receives a majority

of its funding from private sources. Fortgang, 192 Wn. App. at 433.

Fortgang contends that the trial court was correct. She argues that a bright-

line '"majority of total funding' rule" is inappropriate and that we should instead

consider (1) the type of government funding provided (here, a taxpayer levy as

opposed to something like a government grant), 9 (2) the total amount of government

funding, as opposed to the percentage of an entity's total funding that is attributable

9
In this first argument, she is supported by Amicus Washington Coalition of Open
Govermnent (Coalition). The Coalition agrees that funding through a voter-approved levy
is a significant factor in a proper Telford analysis. It points to "Proposition No. 1,"
approved in King County's August 2013 special election, which authorized an additional
property tax to fund "maintenance and operations of the King County parks system; trails
and open space for recreation, habitat and water quality; city parks; and zoo programs, all
subject to citizen oversight." Br. of Amicus Curiae of the Wash. Coal. of Open Gov't in
Support of Pet. for Review at 3 (quoting Proposition No. 1 Parks Levy, KING COUNTY
ELECTIONS, MEASURE INFO (Aug. 2013), http://aqua.kingcounty.gov/elections2/contests/
measureinfo.aspx?cid=46026&eid= 1256 [https://perma.cc/6F6J-67MM]). The Coalition
argues that voters would not have approved this new tax had they not believed that all of
the entities receiving the funds would be "'subject to [a level of] citizen oversight."' Id. at
4. It contends that tmder Telford, 95 Wn. App. at 164, the Zoo's discretionary use of public
funds weighs in favor of applying the PRA. !d. at 7.

22
Fortgang v. Woodland Park Zoo, No. 92846-1

to government sources, and (3) the provision of nonmonetary government benefits

such as, in this case, city property. Suppl. Br. ofPet'r Alyne Fortgang at 6-8. Amici

Service Providers (see supra note 6) argue that courts should not be concerned with

the amount of public funding, but with the "nature of the government's financial

involvement with the entity." Br. of Amici Service Providers at 13. They reason

that this distinction is necessary to avoid sweeping up "'any private organization that

received grant money."' ld. at 12 (quoting Dow v. Caribou Chamber of Commerce

& Indus., 2005 ME 113, 884 A.2d 667).

The case law generally supports the Court of Appeals' and WPZS' s approach.

Out-of-state cases focus primarily on the percentage of funding attributable to public

sources, rather than on the total amount of government funding allocated to a

defendant entity. 10 To the extent courts look beyond percentage and consider the

10
E.g., Oriana House, 2006-0hio-4854, at~ 32 (under functional equivalency test,
government funding factor weighed in favor of covered agency status because (1) entity
received 100 percent of county correctional agency's profits and (2) 88 percent of entity's
funding came from public sources); Nova Behavioral Health, 2006-0hio-6713, at ~ 32
(funding factor weighed in favor of functional equivalency when private nonprofit
government contractor received 87 to 92 percent of its total revenues from the government;
fundamentally, nonprofit was dependent on government contract for its existence);
Cherokee Children & Family Servs., Inc., 87 S.W.3d at 79-80 (funding factor weighed in
favor of functional equivalency because over 99 percent of nonprofit contractor's revenue
came from government sources); Frederick, 289 Neb. at 878 (fact that entity received 63
percent of its funding from public sources was insufficient; no consideration of the nature
of government's financial involvement).

23
Fortgang v. Woodland Park Zoo, No. 92846-1

nature of a public funding scheme, they hold (consistent with amici Service

Providers' policy argument) that a fee-for-services model weighs against functional

equivalency even where an entity receives all or most of its funding from public

sources. 11 It would logically follow that a funding scheme weighs in favor of

functional equivalency when it is a fixed allocation, i.e., designated levy funds,

instead of fees for service. One Court of Appeals case so heldY We agree that this

general rule-that the type of funding matters and, specifically, that an ordinary fee-

for-services model typically weighs against functional equivalency-accurately

reflects the PRA's goals of transparency in government affairs. This weighs in favor

ofWPZS's functional equivalency to a government agency on this factor.

But Washington cases also suggest that the percentage of funds attributable

to public sources is the foremost consideration when applying the second Telford

factor. Cedar Grove, 188 Wn. App. at 720 (government funding factor supported

PRA coverage where city paid private consulting firm "for at least a majority of the

11
Domestic Violence Servs., 47 Conn. App. at 475-76 (even though entity received
"substantial funds" from local, state, and federal government, the funds were fees for
services, in the form of grants, and therefore did not weigh in favor of functional
equivalency); Envirotest, 59 Conn. App. at 758-59 (amount of government funding
irrelevant where payment is fee-for-services pursuant to contract; in that case, the funding
factor weighs against a finding of functional equivalency).
12 Telford, 95 Wn. App. at 164 (block grant funding, as opposed to fees-for-
identified-services model, weighed in favor ofPRA coverage).
24
Fortgang v. Woodland Park Zoo, No. 92846-1

work at issue"); Clarke, 144 Wn. App. at 194-95 (government funding factor

weighed in favor of functional equivalency where nearly all of entity's operating

budget comes from public sources); Telford, 95 Wn. App. at 164 (government

funding factor weighed in favor of PRA coverage where "[ m ]ost" of entities' funds

come from "current county expense funds"). And no Washington case concludes

that an entity's funding supports PRA coverage in the absence of majority public

funding. With respect to WPZS's direct monetary funding, this weighs against a

finding offunctional equivalency on this factorY

The nature of the government funding here weighs in favor of functional

equivalence; the percentage of the government funding here weighs against it.

Keeping in mind that the purpose of each of these factors is to help us decide whether

treating a private entity as a government agency furthers the PRA's mandate of

transparency in government affairs, we find the funding evidence here inconclusive.

C. The third Telford factor, "government control," weighs against PRA
coverage

13 Our case law does support Fortgang's argument that we should consider in-kind
support, as well as direct monetary funding. Clarke, 144 Wn. App. at 194-95 (noting that
entity received free rent). But neither of the courts below nor our court was ever told the
value of the in-kind support WPZS received. Thus, we cannot calculate that value into our
analysis.
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Fortgang v. Woodland Park Zoo, No. 92846-1

The Court of Appeals held that the third Telford factor weighed against PRA

coverage because "[t]he City lacks authority over day to day zoo operations"

involving pricing, personnel, vendor contracting, animal exhibits, and other

facilities. Fortgang, 192 Wn. App. at 436. Fortgang contends this was error. She

argues that courts should instead focus on how an entity is regulated, making at least

four inquiries: (1) whether the entity's records are subject to government audit, (2)

whether any government officials are involved in the entity's operations or

management, (3) whether there are any government restrictions on how the entity's

facilities are run, and (4) whether the government has imposed any reporting

requirements on the entity.

Amici Service Providers argue that the "government control" factor should be

used to distinguish between mere regulation-which does not weigh in favor ofPRA

accountability-and actual day-to-day management by a government agency-

which does. They argue that the Connecticut test adopted in Telford has been

interpreted that way. Br. of Amici Service Providers at 15.

Out-of-state case law largely supports Service Providers' argument. It

distinguishes between day-to-day control (supporting functional equivalency) and

26
Fortgang v. Woodland Park Zoo, No. 92846-1

mere regulation (supporting private entity status). 14 We agree. There is no good

reason to value government transparency more in a heavily regulated area than in a

less regulated area. Nor is there any good reason for an entity to be subject to PRA

transparency requirements because other laws (or contracts) already mandate a

certain amount of transparency. Thus, we decline to adopt the four-part test that

Fortgang proposes for determining whether an entity is subject to government

control under Telford. The "day-to-day operations" analysis followed in other

jurisdictions better furthers the purposes of the PRA: preventing governments from

operating (as governments) in secrecy.

14 E.g., Frederick, 289 Neb. at 876-78 (where city has "representation on
[nonprofit's] board of directors, but not control" of its decisions or operations, this factor
weighs against a finding of functional equivalency); Nova Behavioral Health, 2006-0hio-
6713, at "If 32-36 (government control factor weighed against functional equivalency
finding because although state regulated nonprofit government contractor, it did not have
any control over nonprofit's "day-to-day operations"); Oriana House, 2006-0hio-4854, at
"If 27 ("government involvement or regulation" factor did not weigh in favor of functional
equivalency finding because government did not control "day-to-day operations" of
nonprofit contractor); Envirotest, 59 Conn. App. at 760-62 ("[b ]ecause the government
does not control the day-to-day activity of the plaintiffs business, the third prong of the
functional equivalent test is not met"); Domestic Violence Servs., 47 Conn. App. at 477
(regulation, as opposed to "day-to-day control," does not weigh in favor of functional
equivalency finding). But see Cherokee Children & Family Servs., Inc., 87 S.W.3d at 79-
80 ("although [the state] did not exercise complete control or supervision over [nonprofit
government contractor], a significant level of governmental control and oversight is
evidenced by the provisions in the . . . contracts requiring advance State approval of
'allowable costs' under the contracts and the provisions in all three contracts authorizing
State audits of [the nonprofit's] activities").
27
Fortgang v. Woodland Park Zoo, No. 92846-1

Because no government is involved in WPZS's day-to-day operations at the

Zoo, the third Telford factor weighs against PRA coverage in this case.

D. The fourth Telfordfactor-the entity's "origin"-weighs against PRA
coverage here

The final Telford factor is entity creation. Fortgang argues that courts should

not limit their inquiry to whether a government actually incorporated the entity at

issue. She contends that courts should instead ask whether the government was

involved in the entity's creation. She also argues for a more limited concept of the

"entity" at issue in this case: she asserts that we should consider whether WPZS

"may be performing a government function in some respects" and the origins of its

ability to do so. Suppl. Br. ofPet'r Alyne Fortgang at 19-20 (emphasis added). But

the relevant case law does not support her position.

At least two out-of-state cases consider whether a disputed entity was created

pursuant to "special legislation," indicating that this characteristic weighs in favor

of functional equivalency. State ex rel. Repository v. Nova Behavioral Health, Inc.,

112 Ohio St. 3d 338, 2006-0hio-6713, 859 N.E.2d 936, at~ 37 (final factor weighed

against functional equivalency finding where entity was "not established by a

governmental entity or pursuant to any special legislation"); Oriana House, Inc. v.

28
Fortgang v. Woodland Park Zoo, No. 92846-1

Montgomery, 110 Ohio St. 3d 456, 2006-0hio-4854, 854 N.E.2d 193, at~ 34 (final

factor weighed against finding of functional equivalency where nonprofit was not

created by a governmental entity or pursuant to any special legislation and where

there was no evidence in the record that nonprofit was "created [or used by the

government] to avoid the requirements of the Public Records Act"; it was irrelevant

that the private incorporators "may well have envisioned and even depended on

procuring a government contract"). But WPZS was incorporated solely by private

individuals, so we cannot attribute its "origin" to special legislation or other

government action.

To be sure, WPZS ultimately assumed control of the Zoo pursuant to RCW

35.64.010. But our cases distinguish that sort of statutory authorization from an

entity's "origin" under Telford. See Clarke, 144 Wn. App. at 193-94 (local

government granted defendant the authority to exercise police powers pursuant to

state statute, but "origin" factor still weighed against PRA coverage because

defendant was originally formed as a private corporation). Again, this makes sense

in light of the PRA's purposes. The Telford test is designed to prevent the

government from operating in secrecy via a private surrogate. It is not designed to

sweep within PRA coverage every private organization that contracts with

29
Fortgang v. Woodland Park Zoo, No. 92846-1

government. This remains true even if the contracts in question are governed or

authorized by statute.

We hold that the fourth Telford factor weighs against PRA coverage here.

E. On balance, the Telford factors weigh against PRA coverage

Although the second Telford factor is inconclusive here, all the other factors

weigh against PRA coverage: WPZS does not perform an inherently governmental

function when it operates the Zoo; the City does not exercise sufficient control over

the Zoo's daily operations to implicate PRA concerns; and WPZS was created solely

by private individuals-its origin is not traceable to any government action.

Most importantly, the relationship between the City and WPZS does not

implicate the problem that the Telford test was designed to protect against:

governments operating in secret through private entity surrogates. See Clarke, 144

Wn. App. at 194 ("were we to conclude that TCAC is not a functional equivalent of

a public agency, we would be setting a precedent that would allow governmental

agencies to contravene the intent of the ... [PRA] by contracting with private entities

to perform core government functions"). The City does not maintain such control

over the Zoo's decision-making or day-to-day operations that it can reasonably be

said to be acting through WPZS. And because operating a zoo is not a nondelegable,

30
Fortgang v. Woodland Park Zoo, No. 92846-1

"core" government function, this case does not involve the privatization of

fundamentally public services.

Instead, this case involves a decision by the City to ( 1) cede much of its control

over and responsibility for the Zoo's operations, (2) continue to provide some

financial and material support for the Zoo, and (3) maintain the amount of public

oversight necessary to ensure that WPZS uses that support responsibly. This

arrangement does not implicate the concerns underlying the PRA.

CONCLUSION

We affirm the Court of Appeals' decision to apply the Telford factors in this

case. The Telford test is the proper analytical framework for evaluating a private or

quasi-private entity's disclosure requirements under the PRA. We also affirm the

Court of Appeals' decision that WPZS is not an "agency" subject to PRA

requirements.

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Fortgang v. Woodland Park Zoo, No. 92846-1

()
WE CONCUR:

7

~~·

32