Washington Supreme Court Holds Nonprofit Zoo Operator Not a Public Agency for Public Records Act Compliance
The City of Seattle owns, and for many years operated, the Woodland Park Zoo. Acting under statutory authorization, the City contracted with the Woodland Park Zoo Society, a privately formed not-for-profit corporation to manage and operate the Zoo. Following the lead of earlier decisions of the Washington Court of Appeals and those of other states’ courts, the Washington Supreme Court confirmed the application of a four-part balancing test to determine whether an entity is the "functional equivalent" of an agency and therefore subject to the state’s Sunshine Laws. Fortgang v. Woodland Park Zoo, No. 92846-1 (Jan. 12, 2017). The four factors (known in Washington as the "Telford test") are:
- whether the entity performs a government function;
- the extent to which the government funds the entity’s activities;
- the extent of government involvement in the entity’s activities; and
- whether the entity was created by the government.
The Zoo Society operates the Woodland Park Zoo under an operations and management contract with the City of Seattle. The case arose from the Zoo Society’s refusal to provide documents to a requester seeking information about the Zoo’s former elephant exhibit. The Zoo Society denied that it was an agency subject to the state’s Public Records Act (PRA), and the requester brought suit. Of the four Telford factors, the Court found only the second to be inconclusive. Under the Telford analysis, the Court held that the Zoo Society is not the functional equivalent of a government agency.
Applying the first factor, the Court held that operation of a zoo is not an inherently governmental function. On the second factor, the Court observed that "the type of funding matters and, specifically, that an ordinary fee-for-services model typically weighs against functional equivalency....But Washington cases also suggest that the percentage of funds attributable to public sources is the foremost consideration." The City provides approximately 30 percent of the Zoo Society’s annual funding. The Court found the second factor to be inconclusive.
On the third factor, the Court applied a "day-to-day" operations analysis to find that the City did not exercise operational control over the Zoo Society. The Zoo Society’s board acted in total independence from the City. In prior cases, a local government’s retention of substantial control through public official seats on the respective boards resulted in findings of significant government involvement under the third Telford factor.
With respect to the fourth factor, the Zoo Society was incorporated solely by private individuals, so the Court would not attribute its "origin" to special legislation or other government action. The Court explained: "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 government. This remains true even if the contracts in question are governed or authorized by statute." Therefore, neither the City nor any other public agency subject to the PRA "created" the Zoo Society under the fourth factor.
Applying all four factors "on balance," and with only one factor inconclusive, the Court held that the Zoo Society is not the functional equivalent of a government agency under the Telford test. Accordingly, it is not an "agency" subject to PRA requirements.