[No. 25222-1-III. Division Three. April 24, 2008.]
[1] Statutes Construction Question of Law or Fact Review Standard of Review. Statutory interpretation is a question of law that an appellate court reviews de novo. [2] Open Government Public Disclosure Statutory Provisions Duty To Disclose In General. The public disclosure act (former RCW 42.17.250-.348 (2004)) requires state and local agencies to disclose public records upon request unless the record falls within a specific statutory exemption. [3] Open Government Public Disclosure Statutory Provisions Construction Liberal Construction Full Access. The public disclosure act (former RCW 42.17.250-.348 (2004)) is broadly interpreted to promote full and timely access to public records. [4] Open Government Public Disclosure Public Agency What Constitutes Functional Equivalence Test Factors. When it is not obvious whether an entity is a public "agency" within the meaning of former RCW 42.17.020(2) (2005), which would subject the agency to the requirements of the public disclosure act (former RCW 42.17.250-.348 (2004)), the courts employ a "functional equivalent" test that balances the following four factors: (1) whether the entity performs a governmental function, (2) the level of government funding received by the entity, (3) the extent of government involvement or regulation, and (4) whether the entity was created by government. Each of the criteria need not be equally satisfied to qualify an entity as a public agency, but the criteria on balance should suggest that the entity in question is the functional equivalent of a public agency. [5] Animals Municipal Corporations Animal Control Animal Care and Control Agency What Constitutes Statutory Provisions. Under former RCW 16.52.011(2)(b) (2004), 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 a city or county as a humane society to provide such services. [6] Open Government Public Disclosure Public Agency What Constitutes Functional Equivalence Test Function Performed. Where an entity performs a governmental service under a contract with a local municipality, the entity's employees take the same oath as government employees, and the entity's employees execute police power functions in carrying out their duties, such factors indicate that the entity performs a public function and weigh in favor of finding that the entity is the functional equivalent of a "public agency" for purposes of the public disclosure act (former RCW 42.17.250-.348 (2004)). [7] Open Government Public Disclosure Public Agency What Constitutes Functional Equivalence Test Government Funding. Where an entity has an operating budget that is nearly all public money, has building space that is government subsidized, and is forbidden by a contract with the government from engaging in any other business on the premises other than the functions its provides for the government, such factors weigh in favor of finding that the entity is the functional equivalent of a "public agency" for purposes of the public disclosure act (former RCW 42.17.250-.348 (2004)). [8] Open Government Public Disclosure Public Agency What Constitutes Functional Equivalence Test Government Control. Even though an entity's employees are not considered public employees and the entity is in control of its own day-to-day operations, where the entity operates under government restrictions and must keep records and submit reports to a governmental agency, such factors weigh in favor of finding that the entity is the functional equivalent of a "public agency" for purposes of the public disclosure act (former RCW 42.17.250-.348 (2004)). [9] Open Government Public Disclosure Public Agency What Constitutes Functional Equivalence Test Private Origin. Where an entity is formed as a private corporation, by private citizens, and is not an entity created by the government, such factor weighs against finding that the entity is the functional equivalent of a "public agency" for purposes of the public disclosure act (former RCW 42.17.250-.348 (2004)). [10] Open Government Public Disclosure Public Agency What Constitutes Functional Equivalence Test Specific Application. An entity is the functional equivalent of a "public agency" for purposes of the public disclosure act (former RCW 42.17.250-.348 (2004)) even though it has some nonpublic functions and characteristics if it performs a governmental function under contract to a government agency, depends upon its relationship with the government agency to perform the function, receives the bulk of its funding from taxpayer money to perform the function, and is subject to regular government oversight. [11] Open Government Public Disclosure Attorney Fees Prevailing Party Remanded Case. A party who succeeds only in having an appellate court determine that an entity is a "public agency" subject to the requirements of the public disclosure act (former RCW 42.17.250-.348 (2004)) and in having the case remanded for further proceedings is not entitled to an award of attorney fees under former RCW 42.17.340(4) (2004), which authorizes an award of attorney fees, costs, and sanctions to a party who prevails against an agency when enforcing the right to copy or inspect records. Nature of Action: Action to enforce a public disclosure request made to a privately run animal shelter that provided animal control services for local municipalities. Superior Court: The Superior Court for Franklin County, No. 05-2-50721-0, Cameron Mitchell, J., on April 20, 2006, entered a judgment denying the plaintiff's motion to show cause and dismissing the action. Court of Appeals: Holding that the animal shelter is the functional equivalent of a public agency and is subject to statutory public disclosure requirements, the court reverses the judgment and remands the case for further proceedings. Adam P. Karp- (of Animal Law Offices), for appellant. Ronald F. St. Hilaire- (of Liebler, Connor, Berry & St. Hilaire, P.S.), for respondent. Ά1 STEPHENS, J. Ά2 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 Ά3 In 1998, the cities of Pasco, Kennewick, and Richland formed the ACA through an interlocal, cooperative agreement. Ά4 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. Ά5 In 2000, the Youngs formed a for-profit corporation under the name 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. Ά6 In 2004, ACA executed a personal services agreement with TCAC for TCAC to provide animal control services to the tri-cities 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. Ά7 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. Ά8 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. Ά9 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. Ά10 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. Ά11 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 Board of Commissioners, 95 Wn. App. 149, 974 P.2d 886, review denied, 138 Wn.2d 1015 (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 Ά14 Former RCW 42.17.020(2) (2005) 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 Wn. App. at 158. Ά16 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 Wn. App. at 608. But here, TCAC is not so obviously beyond the reach of the PDA. Ά17 Function. TCAC's purpose is to perform animal control services for the tri-cities 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) (1994). Ά18 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) (2004). As part of the oath, the employees of TCAC agree to enforce the area's animal control regulations. As regulators, TCAC and its officers execute police powers in carrying out their duties, most notably impounding and destroying private citizens' pets. These types of acts implicate due process concerns. See, e.g., RCW 16.52.085 (discussing situations in which an animal control officer does or does not need a warrant to remove an animal from private property). The implication of police powers is clear from the language of RCW 16.52.015(2), which requires animal control officers to comply with "the same constitutional and statutory restrictions concerning the execution of police powers imposed on law enforcement officers who enforce this chapter." Because a local government grants TCAC the ability to execute police powers pursuant to state statute, TCAC is performing a governmental function. Cf. Champagne v. Spokane Humane Soc'y, 47 Wn. App. 887, 891, 737 P.2d 1279, review denied, 108 Wn.2d 1035 (1987) (humane society acting as a public entity for the purpose of the public duty doctrine when city of Spokane contracted with it and delegated it the authority to enforce the animal regulations); Brunette v. Humane Soc'y, 294 F.3d 1205, 1208 (9th Cir. 2002) (noting that a humane society created by statute and holding police powers was a state actor for the purposes of 42 U.S.C. § 1983 litigation), cert. denied, 537 U.S. 1112 (2003). Ά19 But while TCAC is performing a governmental function, Telford's analysis seems to hinge on whether the entity's duties can be delegated to the private sector. Telford, 95 Wn. App. at 165. Although the function here was assigned to the private sector, such delegation may only occur via a contractual relationship between the city and the animal control agency. RCW 16.52.015(1). Hence, the nature of the delegation merely allows TCAC to step into the shoes of the local government. Ά20 Government Funding. Nearly all of TCAC's operating budget comes from public money. TCAC occupies space in a building rent-free, subsidized by the local government with which it contracts, and it is forbidden by the terms of that contract from engaging in any business on that premises other than its animal control services. Thus, this factor clearly weighs in favor of application of the PDA. Ά21 Government Control. TCAC is in control of its day-to-day operations and maintains its own insurance. Its employees are not considered public employees and receive no benefits from the local government. However, as noted above, there are some government restrictions on how the government facilities can be used. In addition, TCAC is only permitted to provide euthanasia services in a manner approved by ACA. TCAC is also required to keep records and submit monthly reports to ACA. Thus, there is a notable degree of governmental control here and this factor weighs in favor of finding that TCAC is the functional equivalent of a public agency. Ά22 Origin. TCAC was formed as a private corporation, by private citizens, and is not an entity created by the government. Although it could not perform its function without its relationship to the local government, this factor weighs against PDA application. Ά23 Balancing. Construing the PDA liberally in favor of the fullest possible public records access, we balance these aforementioned factors. On balance, we conclude TCAC is the functional equivalent of a public agency. While TCAC has some nonpublic functions and characteristics, the fact that it performs a governmental function dependent upon its relationship with the local government, receives the bulk of its funding from taxpayer money to perform that function, and is subject to regular government oversight all tip the scale in favor of finding that TCAC is the functional equivalent of a public agency. Therefore, the trial court erred as a matter of law in denying the motion to show cause. Ά24 Because we conclude that TCAC is subject to the PDA, we need not address the procedural questions raised by the parties but instead remand to the trial court for further proceedings consistent with this opinion. CONCLUSION Ά26 Under the balancing test of Telford, TCAC is an agency subject to the PDA. We reverse the trial court's conclusion to the contrary, deny Ms. Clarke's attorney fees request as premature, and remand for further proceedings consistent with this opinion. KULIK, A.C.J., and BROWN, J., concur.