When Must a Private Entity Comply with the PRA?

Many public agencies in the State of Washington enter into contracts with private entities to provide public services. When private entities begin performing public services by contract, they inevitably begin to create records. The question this blog post will explore is: When are such records “public records” subject to production under the Public Records Act (PRA)?

The answer is that sometimes those private entities are subject to the PRA even though they are not public agencies. So, when responding to PRA requests it is crucial that a public agency keep in mind that relevant, responsive records may be held by a private entity with whom the agency has a contract.

Contracts with Private Entities

Over the past two decades an increasing number of public agencies in Washington have creatively contracted with private entities, sometimes private nonprofit entities, to provide services to their communities. For instance, public agencies contract with groups such as the YMCA to run sports or fitness programs, with private business development groups or chambers of commerce for economic development, and with civic organizations such as Kiwanis and Rotary for a variety of civic and social programs. Also, public agencies frequently reach out to private firms for specialized services, sometimes to avoid the need to hire extra staff.

The Telford Test

Earlier this month the Washington Supreme Court decided a PRA case involving the Woodland Park Zoo in Seattle—Fortgang v. Woodland Park Zoo. Though the court held that the Woodland Park Zoo was not covered by the PRA, the court did take the opportunity to adopt the Telford test as the proper standard for reviewing when a private entity will be considered the functional equivalent of a public agency in regard to PRA requirements.

The Telford test is a fact-based analysis to help determine whether the way the entity is structured, funded, and controlled by a public agency makes the private entity’s records open to public scrutiny. The test was first adopted by the Washington Court of Appeals in 1999, and the test can briefly be described as an analysis based on four factors:

1. Whether the entity performs a governmental function;
2. The extent to which government funds the entity’s activities;
3. The extent of government involvement in the entity’s activities; and
4. Whether the entity was created by the government.

Courts applying the Telford test have found certain private entities that entered into a contract with a public agency to be subject to the PRA. For example, in Cedar Grove Composting, Inc. v. City of Marysville, the Washington Court of Appeals applied the Telford test and found that the records prepared and held by a private third-party contractor who provided professional services to a city were public records subject to production under the PRA. For more information on this case, see our Court Clarifies How the PRA Can Apply to Contractor Records blog post.

Note, that in some situations it may be hard to decide whether the PRA applies to the private entity. If so, the conservative advice is to regard the relevant records as covered by the PRA.

Final Thoughts

So, when you enter into contracts with private entities consider whether the PRA might apply to all or some of the documents created by the private entity. It might be wise to discuss the records issue with the entity, and consider including appropriate clauses in the contract so that you have the entity’s cooperation regarding records should the need arise. Your responsibility as a public agency is to make sure that all public records are properly maintained and made available if there is a public records act request.

Have a question or comment about this information? Let me know below or contact me directly at jdoherty@mrsc.org.