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Judge Rules: Woodland Park Zoo can keep secrets

IMAGE: Supporters of Supporters wear orange labels pinned to their shirts saying "transparency" during a King County Superior Court case asking the Woodland Park Zoo to release information about the elephants. (© KarenDucey.com)
July 25, 2014
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What happens at the Zoo, can stay at the Zoo.

In a packed courtroom on Friday, July 25,  King County Superior Court Judge Jean A. Rietschel ruled that the Woodland Park Zoo / Woodland Park Zoological Society does not have to release documents to citizens under the Washington State Public Records Act.  Elephant welfare advocates wearing orange labels saying “transparency” left disappointed, having hoped to acquire financial and animal welfare information regarding three elephants – Chai, Watoto and Bamboo – currently at the zoo.

At issue for Rietschel was whether the zoo is considered a “park” or an “agency” of the city.

“We believe the zoo is wrong,” said lawyer Rob Roy Smith from Kilpatrick, Townsend & Stockton LLP, representing Alyne Fortgang, co-founder of Friends for Woodland Park Zoo Elephants.  In his arguments, he asked for “transparency and accountability” when it comes to taxpayer dollars.

Woodland Park Zoo receives $10 million a year in taxpayer money, $108 million for the past 10 years since its operating agreement with the city began.

Since 1965 the Woodland Park Zoological Society has operated as a private, nonprofit corporation formed by Washington State citizens. “The city of Seattle owns the underlying grounds on which the zoo operates, while WPZS owns the animals at the zoo.” according to court documents.

Smith argued the zoo cannot function without parkland, buildings, and the animals which the city subsidizes. “We deserve the right, and have the right, as to how the zoo uses that money,” he argued.

Attorneys for the Woodland Park Zoo, Paul Lawrence (left) and Gregory Wong, from Pacifica Law Group LLP make their case that the zoo, a private non-profit, does not have to turn over operations and financial records to abide by the Public Disclosure Act. Alyne Fortgang (center) and her lawyer Rob Roy Smith listen in disagreement.

Attorneys for Woodland Park Zoo, Paul Lawrence (left) and Gregory Wong, from Pacifica Law Group LLP, make their case that the zoo, a private nonprofit, does not have to turn over operations and financial records to abide by the Public Records Act. Alyne Fortgang (center) and her lawyer, Rob Roy Smith, listen in disagreement.

Though Seattle does list Woodland Park Zoo as a city park  and is ready to get funding under Proposition 1, if it is passed by the voters, zoo attorney Paul Lawrence argued, “Just because you get funding doesn’t mean you are an agency of the department.”

According to Fortgang in court documents, Proposition 1 “would give the zoo an additional $2 million each year, up to $34 million dollars.” Contributions from the Woodland Park Zoological Society to Seattle Parks for All campaign are over $62,000.

“The public records act is not a follow-the-money statute,” he stated.  Looking directly at Rietschel he added, “Your Honor has no authority to rewrite the Public Records Act to include some sort of new test for ‘agency’…”

King County Superior Court Judge Jean Rietschel listens to arguments form both sides.

King County Superior Court Judge Jean A. Rietschel listens to arguments from both sides.

In giving her judgment, Rietschel explained she was obligated to follow the law as it has been interpreted by higher courts. “The most important principle, obviously,” she said, “is that the Public Disclosure Act is to be interpreted broadly in favor of disclosure.”

Her decision is as follows:

“The court recognizes that there’s an ongoing dispute where many members of the public are interested and concerned regarding treatment of elephants at the zoo, the whole issue of elephants at the zoo, there have been a number of lawsuits filed that heretofore have not been successful.”

She acknowledged that the Woodland Park Zoological Society released some of its information, but did not provide others including staffing at the elephant barn, the cost of the task force and some survey results.

“This Court does not find that it’s clear that the Woodland Park Zoological Society is not an agency. The court believes the issue is whether it’s a functional equivalent of a public agency. Looking at that I’m obliged to look at the four-part test that has been set forth by the Court of Appeals.

1.   “The first issue is, ‘Does the entity perform a governmental function?’  A zoo is clearly a function that could be public or private. I don’t think that matters set forth by the plaintiff are sufficient to have this court find that factor in favor of finding that it’s a government function. The other cases that found a government function find it in matters such as a actually enforcing the laws and issuing citations, animal control and that type of thing. Providing services are not generally thought of as the government function. So I cannot find that factor in favor of the plaintiffs. I find that factor in favor of the zoo.

2.   “The second issue is the level of government funding. By the parties’ briefing it appears that 26-30% of the funding for the zoo comes from the city. That they will be part of a pending proposition if that passes.  It is also true that the city owns the land and provides it, as well as the buildings and the animals. The court recognizes the Spokane case that the value of the land for the City of Seattle is quite different. There’s a magnitude property here that’s large. It would be worth a considerable amount of money. There’s not a proportion that’s set before the Court but looking at the value of that type of land in the city, plus building and animals the Court does find that there is significant amount of governmental funding for the zoo. So I find that factor in favor of the plaintiffs.

3.   “The extent of government involvement toward regulation. If you look at the agreement the part that the government is involved in is issues of naming, fees, reversionary interests in the animals, annual reports, audits, some appointments to the board and that there was legislation necessary to create the zoo being a managed by the nonprofit agency. And in the Sebek case (Sebek vs. City of Seattle, 2012) the Court upheld that the zoo was not an arm of the government. The Court of Appeals said that it controlled its own day-to-day operations and reports directly to its own board. Considering that case and the day-to-day control by the nonprofit, the Court has to find that factor in favor of the defendants.

4.   “The last factor is whether the entity was created by the government. The case law is clear that I have to look at the entity in question as being subject to the Public Records Act and that entity is the nonprofit here. That entity was not created by the government. It has operated since 2002 when the zoo was transferred to them, and though I recognize that the zoo was a city park previously owned and operated by the city for a long time, the way that test is looked at by all the Courts of Appeals and cases previously, it is the nonprofit agency that’s looked at. So that factor is in favor of the defendant.

“In looking at this unbalance, it is really a level of government funding that is most strongly in favor of the plaintiff and looking at the other factors are in favor of finding that the zoo is not subject to the Public Records Act.

“While this Court is in total sympathy with the idea that citizens should be able to follow the money and find out what has been done, under the cases that are before me and that I have to follow I can’t find that one factor overwhelms the three factors that don’t fall in its favor. So I must grant summary judgment in favor of the defendants under the test as been upheld by the Court of Appeals. So I would grant defense motion for summary judgment and deny plaintiffs motion for summary judgment.”

 

The courtroom is packed. King County Superior Court Judge Jean Rietschel heard summary arguments from Alyne Fortgang and her lawyer Rob Roy Smith accusing the Woodland Park Zoo /Woodland Park Zoo Society of violating the Public Records Act. The zoo's attorney's Paul Lawrence and Gregory Wong said the zoo, a private non-profit, did not have to turn over operations and personal records. The judge agreed despite the fact the zoo receives 26% of its funding from Seattle taxpayers.

The courtroom is packed. King County Superior Court Judge Jean A. Rietschel heard summary arguments from Alyne Fortgang and her lawyer, Rob Roy Smith, accusing Woodland Park Zoo and the Woodland Park Zoo Society of violating the Public Records Act. The zoo’s attorneys, Paul Lawrence and Gregory Wong (pictured), said the zoo, a private nonprofit, did not have to turn over operations and personal records. The judge agreed despite the fact the zoo receives up to 30 percent of its funding from Seattle taxpayers.

 

According to court documents, the Friends of Woodland Park Zoo Elephants requested the following documents from the Woodland Park Zoo which they did not receive.

•  Records used to determine the average time elephants at the zoo spend in the barn

•  Records used to determine the annual cost of keeping elephants at the zoo

•  Records reflecting the time that elephant keepers staff the barn

•  Records relating to the $480,000 spent by the zoo responding to criticism of it’s elephant program

•  Records reflecting costs of the zoo elephant Task Force to date.

•  Records reflecting the agreement between the zoo and a third party relating to services provided on the Task Force and Elephant Review Panel

•  Records relating to polling data referenced by the zoo in a recent news article


According to the Washington State Public Records Act the definition of an “agency” includes all state agencies and all local agencies. “State agency” includes every state office, department, division, bureau, board, commission, or other state agency. “Local agency” includes 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.


LINKS

The Woodland Park Zoo’s elephant program came under scrutiny last year after a Seattle Times’ investigation, “Glamour Beasts”, exposed failing elephant programs in the zoo industry around the country.

Last October 2013 a story also appeared in Crosscut regarding the Elephant Task Force. An Elephant Task Force had been set up by the zoo to review its elephant program.

The zoo is helping with elephant conservation efforts around the world. Currently they are working in the field with Partners for Wildlife, the Tarangire Conservation Project in Africa and the Hutan Asian Elephant Conservation Project in Asia.

 

 

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