On April 24, 2008, Division III of the Court of Appeals published Clarke v. Tri-Cities Animal Care & Control Shelter, 2008 WL 1821709, --- P.3d --- (2008), reversing Franklin County Superior Court Judge Cameron Mitchell in ruling that the privately-run Tri-City Animal Control (“TCAC”) entity was not subject to the Public Disclosure Act. At issue was a request for euthanasia records from TCAC. It rejected the request by saying that it was “not a public agency.” This is not the first time TCAC has refused to produce public records. On September 23, 2005, attorney Mary Mahoney requested all records relating to the seizure of the Correas’ dog. TCAC’s response of September 28, 2005 restated that it was “not a public agency” and had no obligation to produce any records concerning the warrantless search and seizure, impound, potentially dangerous dog designation, and threat of euthanasia concerning a dog picked up by TCAC employees acting as commissioned animal control officers within the city limits of Pasco. On April 1, 2005, Ms. Mahoney submitted another public disclosure request on behalf of Deborah Wegner whose dog was impounded by TCAC and euthanized. On May 11, 2005, TCAC refused to honor her request on the basis that, “We are not a public agency.” The practice of withholding public records from bereaving animal owners is of long duration. On September 13, 2003, Ms. Amara Pimentel’s dog Kilo was declared potentially dangerous by Bruce Young and impounded at TCAC, and later killed. See Pimentel v. Young, Franklin Cy. Sup. Ct. No. 04-2-50598-7. TCAC allegedly rudely and illegally refused an in-person (and later, attorney-drafted) public disclosure request by Ms. Pimentel for written proof that Kilo was killed.
Although several procedural issues were raised as to standards and burdens of proof and rights to trial following an unsuccessful show cause hearing, the court resolved the matter strictly on the narrow question of whether the Telford v. Thurston Cy. Bd. of Commrs, 95 Wash.App. 149 (1999) factors applied in favor of regarding TCAC as an “other local public agency.” Clarke held that TCAC, though a private corporation, was the “functional equivalent” to an “other local public agency” and bound by the PDA, largely because of their core governmental function, extent of government funding, and degree of government control over daily operations. Particularly, their ability to exercise powers of compulsion, thereby implicating constitutional rights with the seizing and killing people’s dogs and cats, was of some moment. The Clarke court added: “Thus, TCAC is performing a governmental function that can never be wholly delegated to the private sector. Said another way, were we to conclude that TCAC is not a functional equivalent of a public agency, we would be setting a precedent that would allow governmental agencies to contravene the intent of the PDA and the Public Records Act by contracting with private entities to perform core government functions.” Slip op. at 11. “In short, while the local government can delegate the performance authority for this public function to a private entity, it cannot delegate away its statutory responsibility to perform within PDA legal requirements.” Slip op. at 10-11.
This decision will impact all humane societies and privately-contracted animal control agencies in the State of Washington who take on substantial delegated tasks of animal control care and enforcement and receive the lion’s share of their funding from public monies. For instance, SpokAnimal in Spokane, the former Tacoma-Pierce County Humane Society, the former SSP in Bellingham, and the current Whatcom Humane Society would have likely fit within the ambit of this court’s decision.
The published decision is attached for viewing by the public. (pdf)