Washington Public Records Quasi-Government Agency Test

There appears to be at times a chasm between how the Washington Legislature and the Washington courts interpret the scope of the Public Records Act (“PRA”).

In my previous post, I reviewed a recent Washington State Court of Appeals decision regarding how the courts evaluate whether an organization is a functional equivalent of a government agency for purposes of the PRA.  In that case a private group of citizens wanted to obtain records about the health and well-being of the elephants at the Woodland Park Zoo in Seattle.  The management of the zoo and the property of the zoo was contracted to a private group called the Woodland Park Zoo Society for a period of 20 years.  Since the government funded the Zoo still and had minimal control over the operations, the Washington Court of Appeals addressed the question of whether the Zoo under private direction is the functional equivalent to a government agency.

The functional equivalent test is used to determine if the PRA applies or not “[b]ecause the Legislature did not clearly intend to include or exclude hybrid agencies from the [PRA] and no Washington case law speaks to the issue.”1


The problem, as I see it, is the rigid factors of the functional equivalent test do not seem to coincide with the broad intent of the PRA to promote government accountability.2  Let me explain what I mean by that.

Judicial application of the Telford factors is more narrow and rigid, rather than broad and liberally construed.  On the surface, this does not seem to stem from the four Telford factors themselves, but how the courts have chosen to narrowly apply them.

I think the Telford factors are a reasonable way of judging whether the PRA should apply to a quasi-governmental organization, as long as the analysis of the factors is based upon the Washington Legislature’s intent that the PRA should be broadly construed.  The current analysis does not seem to be centered on the intent the PRA should be broadly construed.

PRA’s Broad Construction

The PRA proclaims that it “shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected.”  And even if there are any conflicts with the PRA and another state or local law, the PRA should take precedence.3

This is not lost on the courts.  The intent of the PRA is often cited in opinions.4 Even in Teleford the court recognizes the PRA is to be liberally construed.5 But when it comes to the functional equivalent test, it does not seem like the court stick to the liberal construction of the PRA.

Narrow Application of Telford’s Factors

As I mentioned earlier in this article, I do not think the Telford factors themselves are the problem, it is the application of the factors.  After all, there needs to be some sort of distinguishing factors to determine if organizations with government involvement should be subjected to the PRA.

The Telford factors are:

  1. Whether the agency performs a government function
  2. The level of government funding
  3. Extent of government involvement or regulation
  4. Whether the entity was created by the government

No one factor is dispositive as the courts weigh all the factors together.  But that really does not matter as each factor is narrowly applied.

Performs a Government Function

An organization which performs functions that cannot be delegated to the private sector is under the purview of the PRA and the records should be distributed to the public.6 To think about it from a different angle, if the functions can be delegated, then public record disclosure is not necessary.

It seems there are very few core government functions that cannot be wholly delegated to the private sector, for instance: police, fire, courts and law-making.  But most, if not virtually all, government functions could be performed privately.  Communications such as telephones and internet and mail delivery are provided by private companies.  Medicine is a field largely dominated by private companies, and it is difficult to think of government function in medicine that could not truly be done by only the private sector.  Transportation can and is performed by the private sector.  Education is also a field that is performed largely by the private sector.

Whether or not it is a good idea for the private sector to perform these functions is besides the point.  The point is there are only handful of government functions that cannot truly be delegated to the private sector.

This is an over-restrictive application of a government function.  The way the Court of Appeals applies this factor rules out maybe 95% of government functions.  If the intent of the PRA is to have a broad construction, there needs to be a different analysis of this factor.  Because quasi-governmental organizations it is just a matter of to what level are the functions delegated, and not if functions are delegated.

Level of Government Funding

If an organization receives the majority of its funding from the government then the PRA should apply and the public records should be accessible under this factor.7  If the quasi-governmental organization receives less than half of its funding from the government, then it is not subject to disclosure under the PRA.

This does not seem to be faithful to the intent of the PRA.  The PRA entitles the public to “know of the sources and magnitude of financial and persuasional influences upon government.”8 When the threshold for government funding is set at more than half, then it frustrates the purpose of the PRA when funding is less than half.  Because this factor does not lean toward disclosure when funding is less than half of the quasi-governmental organization’s revenue.

This seems like an awful lot of cases where government funding is given to quasi-governmental organizations, but individual’s may not have a statutory right to seek information about the funding.

To be consistent with the intent of the PRA the level of funding should be lessened from a majority to something like a substantial amount that creates government entanglement.

Extent of government involvement or regulation

Courts look to see if a governmental agency has substantial control over the quasi-governmental agency for purpose of the PRA.9  If the government does not retain substantial control over the organization then the records do not have to be publicly distributed under the PRA.

In Fortgang the Washington State Court of Appeals justified the substantial threshold for this factor by stating it is based upon the approach taken by Connecticut and Federal courts in public records requests.  I think this approach may be under-inclusive too because I think there is a strong argument that Washington State’s public record law is more broad than either the Connecticut or federal counterparts.

Washington State’s PRA states: “In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.”10 Neither Connecticut nor the United States’ public records law appears to have similar wording, which increases the reach of Washington’s statute.

If Washington State’s public records statute is in fact more broad than the other two laws relied upon by the Court of Appeals in its analysis, then it could be quite possible that substantial government control may be too high of a standard here.

Whether the entity was created by the government

This factor seems like it should be straight forward.  But in this case it is not and there are two reasonable conclusions because two organizations were merged.

The first conclusion, which is adopted by the Washington Court of Appeals is since the organizations merged that the private organization is left standing, it should be analyzed under this factor.  However, since only quasi-government organizations are analyzed with these four factors, then it would seem like most agencies would be private and fail this factor.  By definition a quasi-governmental organization is separate from the government, but the government delegates some responsibilities to the organization to perform (see factor one above).  This does not seem to follow the Washington Legislature’s intent of a liberal construction of the PRA.

On the other hand, the second conclusion could be that the entity was created by the government.  The public records request was about the elephants at the zoo and their welfare.  The elephants and the zoo were created by the City of Seattle. This seems to be an application of the factor much more in line with the intent of the PRA.  However, this application was not even considered by the Washington State Court of Appeals.


The factors are a reasonable approach to determining if quasi-governmental organizations should be subject to the PRA.  However, when analyzing the factors courts need to keep in mind the PRA is meant to be broadly construed.  When adopting the Telford test, it appears the Washington Court of Appeals forgot to use the four factors in conjunction with the Legislature’s liberal construction of public records in the state.

  1. Telford v. Thurston County Bd. of Com’rs, 974 P. 2d 886, 893 (Wash. Ct. App. 1999).
  2. See generally Wash. Rev. Code § 42.56.030; c.f. Fortgang v. Woodland Park Zoological Society, No. 72413-4-1 (Wash. Ct. App. Feb. 01, 2016).
  3. Wash. Rev. Code § 42.56.030.
  4. Hearst Corp. v. Hoppe, 90 Wn.2d 123, 128 (1978); PAWS v. UW, 125 Wn.2d 243, 260 (1994) (stating “[t]he Legislature leaves no room for doubt about its intent”); Newman v. King County, 947 P. 2d 712, 714 (Wash. 1997); City of Federal Way v. Koenig, 217 P. 3d 1172, 1173 (Wash. 2009); Bainbridge Island Police Guild v. City of Puyallup, 259 P. 3d 190, 194 (Wash. 2011).
  5. Telford v. Thurston County Bd. of Com’rs, 974 P. 2d 886, 892 (Wash. Ct. App. 1999).
  6. Fortgang v. Woodland Park Zoological Society, No. 72413-4-1 (Wash. Ct. App. Feb. 01, 2016) (slip op. at 11).
  7. Fortgang v. Woodland Park Zoological Society, No. 72413-4-1 (Wash. Ct. App. Feb. 01, 2016) (slip op. at 14).
  8. Seeber v. Public Disclosure Comm’n, 96 Wn.2d 135, 142 (1981) (quoting Fritz v. Gorton, 83 Wn.2d 275, 309 (1974)) (internal quotation marks omitted).
  9. Fortgang v. Woodland Park Zoological Society, No. 72413-4-1 (Wash. Ct. App. Feb. 01, 2016) (slip op. at 14).
  10. Wash. Rev. Code § 42.56.030.

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