The Public Records Act (PRA)
Public records are a cornerstone of our democracy, when an entity is funded by our tax dollars it is important to know what they are doing with those funds and how.
The Public Records Act (PRA) is a mandate for an open government and “must be ‘liberally construed.’” Yakima v. Yakima Herald-Republic, 170 Wn.2d 775, 791, 246 P.3d 768, 775 (2011) (citing RCW 42.45.030). The PRA states, “Each agency ... shall make available for public inspection and copying all public records” subject to certain exceptions. Shavlik v. Dawson Place, 11 Wn. App.2d 250, 254–55, 452 P.3d 1241, 1245 (2019). “An ‘agency’ includes all ‘local agencies,’ which are defined broadly as ‘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.’ A private organization becomes subject to the PRA if it acts as the ‘functional equivalent’ of a statutory ‘public agency.’” Id.
In Fortgang, the Washington Supreme Court adopted the Telford test to determine whether private entities are considered public entities for purposes of the PRA and extend coverage to the private entity. Fortgang v. Woodland Park Zoo, 187 Wn.2d 509, 519, 387 P.3d 690, 693 (2017) (citing Telford v. Thurston Cnty. Bd. of Comm'rs, 95 Wn. App. 149, 152, 974 P.2d 886, 888 (1999)). The Telford is a four-part cumulative balancing test which analysis: core function, governmental funding, governmental control, and origin. Fortgang, 187 Wn.2d at 519.
Firstly, a private entity performs a core governmental function when the entity is performing a duty which “could not be delegated to the private sector” and/or when the enabling legislation obligates the private entity to perform the function. Fortgang, 187 Wn.2d at 524-26. Additionally, an entity performs a core governmental function when the entity is endowed with police or governmental administrative powers. Id. at 524-25. Simply contracting with the government is inadequate. Id. at 525. In Shavlik, the division 1 court of appeals held that while Dawson Place’s (private entity) function of multidisciplinary hearings was statutorily required by RCW 26.44.180, the child advocacy center was not necessary to comply with the law, and therefore weighed against extending PRA coverage. Shavlik, 11 Wn. App. 2d at 262. Conversely, “in Clarke, the animal shelter performed a nondelegable governmental function because it took over some of the municipality's law enforcement functions for animal regulation, including the authority to unilaterally issue citations and seize private property.” Shavlik, 11 Wn. App. 2d at 264 (citing Clarke v. Tri Cities Animal Care & Control Shelter, 144 Wn. App 185).
Secondly, government funding analyzes both whether the governmental funding comes in exchange for fee-for-services model and the percentage of funding attributable to public sources. Fortgang, 187 Wn.2d at 528. Even when private entities receive a majority of funding from the public, if it is under an “ordinary fee-for-services model,” then the court will weigh this factor against a finding of PRA coverage. Id. at 529. Conversely, when the government provides a fixed funding allocation, this factor weighs in favor of extending PRA coverage. McKee v. Paratransit Servs., 13 Wn. App. 2d 483, 493, 466 P.3d 1135, 1141 (2020). Additionally, when the private entity receives less than a majority of its funding from public sources, Washington courts have never found that an entity’s funding weighs in favor of PRA coverage. Fortgang, 187 Wn.2d at 529.
Thirdly, governmental control only weighs in favor of PRA coverage, when the government exercises “actual day-to-day management,” and not mere regulation. Fortgang, 187 Wn.2d at 530. Contractual provisions specifying that the private entity is an independent contractor may weigh against a finding of extending PRA coverage. McKee, 13 Wn. App. 2nd at 494. The board of an entity is not a source of governmental control when entity’s bylaws require the majority of the board be private representatives. Shavlik, 11 Wn. App. 2d at 268.
Fourthly, origin focuses on whether the entity was created originally as a public entity, via special legislation, or as a private entity, not whether the entity has been taken over by public or private entities. Fortgang, 187 Wn.2d at 532. Additionally, the inquiry does not focus on whether the private entity was formed with the intent of interacting with the government and relying on public funds. Id. However, if the entity was created or used by the government to get around the PRA, this weighs in favor of finding PRA coverage. Id.
Contracts may extend PRA coverage, however, even if the contract requires compliance with RCW 42.52, that does not alone extend coverage unless the contract specifies compliance with the PRA. McKee, 13 Wn. App. 2nd at 490.
Whether or not a private entity is considered a governmental agency and therefore covered under the PRA is a fact intensive analysis focusing on core function (i.e. what and how the entity exercises its authority), governmental funding (whether the majority of funds come from the government and whether that funding is for fee-for-service or lump sum funding), governmental control (i.e. whether the government has direct day to day control through oversight or regulation), and origin (whether the entity was created by the government or by a private entity for the government to circumvent the PRA).