Court Clarifies How the PRA Can Apply to Contractor Records

Cedar Grove Composting testing facility, courtesy of the Institute for Local Self-Reliance.

It’s not uncommon for local governments to contract with private companies and outside consultants for various services, and for that work to require the creation and use of records. In a recent Washington State Court of Appeals decision, Cedar Grove Composting, Inc. v. City of Marysville (July 6, 2015), the court clarified the extent to which those records can be subject to the Public Records Act (PRA), chapter 42.56 RCW.

Although the court’s holding is arguably limited due to what the court recognized as the “exceptional facts of this case,” what I think merits particular attention is the court’s analysis of when a contractor, for the purposes of the PRA, acts as the “functional equivalent” of an agency employee, and when an agency “uses” records generated by an outside party that are never possessed by the agency.

In the situation at issue, the city contracted with a public relations (PR) firm to do work related to the impacts in the city from a nearby commercial composting facility operated by Cedar Grove. The city received a number of odor complaints about the operation, and the Puget Sound Clean Air Agency issued notices of violation and imposed fines against Cedar Grove. Cedar Grove suspected that a public relations campaign was “spreading disinformation.” After the company discovered that a PR firm was associated with a mailer sent to residents, Cedar Grove submitted PRA requests for records related to the work the PR firm was doing for the city. Based on the city’s responses to those requests, Cedar Grove sued the city for alleged violations of the PRA.

The court held, in part, that the city violated the PRA by improperly withholding records that were responsive to the PRA requests, including records that weren’t prepared by city staff and were never possessed by the city. The city argued that these records weren’t public records because the city didn’t prepare, own, use, or retain the records.  

In rejecting this argument, the court concluded, based on facts that were problematic for the city, that the records at issue were, in effect, prepared by the city because those records were prepared by the PR firm as part of the work that firm did for the city. The court determined that the PR firm acted as the “functional equivalent” of a city employee because the efforts of the city and the PR firm were closely intertwined, and that records created by the contractor while acting as this functional equivalent were public records.

As the court essentially characterized the situation, the city couldn’t have it both ways by claiming that the contractor was the functional equivalent of an employee for the purposes of asserting the attorney-client privilege regarding some of the records, while simultaneously claiming that records generated by the contractor weren’t public records for purposes of the PRA. As a point of clarification, the court emphasized that the contractor’s records that didn’t relate to its actions as the functional equivalent of a city employee were not subject to the PRA.  

In its defense, the city also argued that it never “used” the records at issue for the purposes of the PRA, in part, because it never possessed the records. In rejecting this argument, the court found a nexus between the records at issue and the city’s decision-making process. The court highlighted several facts, including that:

• The documents generated on behalf of the city were made instrumental to the city’s purposes in the campaign against Cedar Grove;
• Those records directly related to activities the contractor performed at the behest of the city to further the city’s interests;
• The city knew what the contractor was doing;
• The city paid the contractor for those activities;
• The city was generally aware that the contractor possessed documents created during those activities; and
• The city discussed the contents of some of those records with the contractor.

Under these facts, the court concluded that the city violated the PRA when it failed to disclose records responsive to the requests at issue. However, recognizing the unique facts of the case, the court clarified the narrow scope of its ruling:

We wish to be clear about what we are not doing in this opinion. We are not articulating a new standard that makes every record a government contractor creates during its engagement with an agency a public record subject to the PRA. Nor do we create a new duty on the part of a public agency to search the records of all its third-party contractors each time it receives a PRA request. Instead, we have applied established precedent about a private entity acting as the functional equivalent of a public agency to the analogous situation of a private entity acting as the functional equivalent of a public employee.

I think this decision is noteworthy because it offers lessons learned for local governments related to responding to PRA requests, and it provides updated guidance on how to evaluate the extent to which records of outside contractors may be subject to the PRA. Although the court’s holding is based on a unique set of facts, the guidance provided by the court on these issues is instructive for local governments.