SEATTLE UNIVERSITY LAW REVIEWVolume 33, No. 3SPRING 2010
Clarke v. Tri-Cities Animal Care and Control Shelter: How Did Private Businesses Become Government "Agencies" Under the Washington Public Records Act?
Jeffrey A. Ware(fn*)
I. Introduction
In April of 2008, thirty-six years after the Washington Public Records Act became law,(fn1) Washington courts made an interesting discovery: some private businesses are government "agencies" subject to the Washington Public Records Act (PRA).(fn2) The case, Clarke v. Tri-Cities Animal Care and Control Shelter, concerned a privately run animal control and sheltering service with which the Animal Control Authority of the Cities of Richland, Pasco, and Kennewick, Washington, contracted to perform animal control services.(fn3) A citizen sued under the PRA after being denied her request to review Tri-Cities Animal Care and Control Shelter's (TCAC) euthanasia logbooks, and the Washington Court of Appeals, Division III, held that TCAC, a private, for-profit corporation, was an "other local public agency" under the Act.(fn4) Thus, for the first time, a privately owned and run business was subject to the government agency requirements of the Washington Public Records Act.
The Clarke court did not issue its holding entirely out of the blue, but instead added to thirty years of evolving Washington PRA jurisprudence. Early decisions considered not whether private entities were covered under the Act, but whether "quasi-governmental agencies" could be exempt from disclosing records.(fn5) In the early 1990s, questions arose as to whether "private" entities created by government agencies and led by government officials were subject to the PRA, and the state attorney general introduced a "functional equivalency" analytical framework.(fn6) Soon afterward, Washington courts accepted the functional-equivalency concept but expanded the attorney general's interpretation to include private corporations created and managed by public agencies and officials.(fn7) This analysis became known as the Telford test.(fn8) Within the past few years, parties have challenged the limits of Telford to determine whether private corporations providing public services under government contract may also be "agencies" subject to the PRA. In Spokane Research and Defense Fund v. West Central Community Development Association,(fn9) the court of appeals held that a contracting non-profit provider of government-funded services was not an agency subject to the PDA.(fn10) One year later, however, that same court held in Clarke that a for-profit corporation can be the functional equivalent of an agency and thus subject to the PRA.(fn11) Thus, the PRA's definition of agency has been turned on its head through incremental actions.
Those who support "open government" may celebrate Clarke's holding because if other Washington courts follow this precedent, government agencies may no longer hide the details of their activities behind the smokescreen of "contracting out" government services. Even those alarmed by Clarke may see the result as an aberration whose effects will be felt only in rare instances where government agencies delegate their responsibilities on a wholesale level to avoid their statutory responsibilities. However, I argue that the Clarke court arrived at a deeply flawed decision by misreading both the PRA's statutory text and the applicable case law while defying common sense: by definition, private businesses cannot be government agencies. Clarke's precedent is dangerous because it opens the door for citizens to invade the privacy of organizations with which the government does business, increases the potential costs and difficulties of government contracting, and ultimately, harms the democratic process by limiting how our elected representatives can decide whether and how best to provide government services. Finally, even if Clarke's specific result-making euthanasia records publicly available-is laudable, the Washington Legislature should carefully amend the PRA to cover such records without fully subjecting private businesses to the extensive and burdensome requirements of the Act.
This Note analyzes the facts and reasoning behind Clarke's agency holding, explains how the court was wrong to use and then misapply the Telford functional-equivalency test, discusses the consequences of subjecting government contractors to the PRA, and offers solutions to remedy the mistakes in Clarke. To begin, Part II reviews the facts of Clarke and the requirements of Washington's Public Records Act. Part III then examines the evolution of Washington's Telford functional-equivalency test as applied up to, and through, Clarke. Part IV explains the several reasons why Clarke was wrongly decided and how the result produced a dangerous precedent. Finally, Part V recommends solutions that prevent future holdings similar to Clarke while remaining faithful to the PRA's purpose.
II. Background
A. Clarke v. Tri-Cities Animal Care and Control Shelter
In 1999, Bruce and Sandy Young formed the Tri-Cities Animal Shelter, a Washington non-profit corporation, whose purpose was fourfold: (1) to shelter animals in need for the public good; (2) to promote spay and neutering programs; (3) to educate the public in the hope of ending the need for euthanasia; and (4) to actively prevent cruelty toward animals.(fn12) One year later, the Youngs formed a for-profit corporation, Tri-City Animal Control and Sheltering Services, Inc., (TCAC), with the stated purpose in its articles of incorporation of engaging in the business of providing animal control and sheltering services for animals in Benton and Franklin counties.(fn13)
In 2004, TCAC executed a Personal Services Agreement with the Animal Control Authority (ACA) of Richland, Pasco, and Kennewick(fn14) (the Tri-Cities) for TCAC to provide animal control services for the Tri-Cities area.(fn15) This contract included numerous animal control duties(fn16) and required TCAC employees to take oaths of office as animal control officers,(fn17) but it limited TCAC's police powers.(fn18) The agreement also required TCAC to "[a]rrange and/or provide for the humane euthanasia and disposal of unwanted animals."(fn19) TCAC operated in a municipally leased building and paid no rent to the municipality, but it was not permitted to conduct private business at the facility.(fn20) TCAC was also required to keep records and provide monthly reports to the ACA, but it was not subject to annual audits by the State.(fn21)
Leonora Clarke, a private citizen, thought that TCAC was violating the euthanasia protocol set out in TCAC's contract, and on August 3, 2005, Ms. Clarke made a public records request for all of TCAC's euthanasia logbooks.(fn22) TCAC responded that it was not a public agency subject to the PDA, rejected Ms. Clarke's request, and directed her to the Animal Control Authority.(fn23) Ms. Clarke's attorney then forwarded her records request to the Kennewick City Attorney. The City responded that it did not possess, and thus could not produce, the logbooks she sought.(fn24)
Ms. Clarke then filed suit against both TCAC and the ACA with motions for show-cause hearings.(fn25) Ms. Clarke first alleged that TCAC was subject to the PDA, but the trial court held that TCAC was not a public agency, either as defined by the PDA or as a functional equivalent under Telford.(fn26) Next, Ms. Clarke alleged that the ACA should release the log books, but the trial court found that the log books were not prepared or retained by the ACA, and thus were not covered under the PRA.(fn27) Consequently, the trial court denied Ms. Clarke's motions to show cause and dismissed her PDA action against both TCAC and the ACA.(fn28)
Ms. Clarke appealed the trial court's holding that TCAC was not a public agency to the Washington Court of Appeals, Division III, removing the ACA from the case.(fn29) The court of appeals first held that to be considered an agency, TCAC must qualify as an "other local public agency."(fn30) The court then chose to apply the Telford functional-equivalency test because it found "other local public agency" to be ambiguous with respect to TCAC.(fn31) After balancing the Telford factors, the court held that TCAC was subject to the PDA as the functional equivalent of an "other agency."(fn32) Accordingly, the court of appeals held that the trial court erred as a matter of law in denying the motion to show cause, and it remanded the case.(fn33)
B. Washington Public Records Act
1. Purpose of the PRA
For a generation, Washington citizens have been accustomed to the right of free and open access to state and local government records. The Public Records Act (PRA) was originally approved and enacted by Washington voters in 1972 as part of Initiative 276, the Public Disclosure Act (PDA),(fn34) and the PRA was renamed and re-codified by the Legislature as a distinct chapter under RCW 42.56 in 2005.(fn35) The PRA clearly directs state and local agencies to make their records freely available for citizens to review because this accessibility serves an essential function in the democratic process: The people of this state do not yield their sovereignty to the agencies that serve them. . . . The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to...
