Worthington v. WestNET

Opinion

/!.,Lk~"' eurr·· .... :_ 'JRT, STATE OF WASIINJttlll DATE JAN 2 2 2015 .J

rn;~~~ IN TilE SUPREME COURT OF THE STATE OF WASHINGTON

JOHN WORTHINGTON, ) ) No. 90037-0 Petitioner, ) ) v. ) ) WESTNET, ) ) Respondent. ) ) Filed JAN 2 2 2015

JOHNSON, J.-This case involves the application of the Public Records Act

(PRA), chapter 42.56 RCW, to task forces formed under the Interlocal Cooperation

Act (ICA), chapter 39.34 RCW. We accepted review to address whether the West

Sound Narcotics Enforcement Team (WestNET), a multijurisdictional drug task

force, is an entity subject to the PRA. Because the trial court granted the

defendant's CR 12(b)( 6) motion to dismiss, we reach only a narrower procedural

issue: can the parties to an interlocal agreement establish, as a matter of law, that

their own task forces do not exist for the purpose of the PRA?

We hold that the ICA does not provide the contributing agencies with such

an unqualified power. In concluding that the terms of the agreement alone

conclusively established WestNET's capacity for suit, the trial court deprived the Worthington v. WestNET, 90037-0

plaintiff of an opportunity to present evidence in support of his argument that

WestNET's actual operational structure subjects it to the PRA's purview. That

approach is inconsistent with our general approach to PRA issues and the ICA

itself. RCW 39.34.030(5). Accordingly, we reverse the Court of Appeals and

remand for further factual determination proceedings.

FACTS

WestNET is a multiagency, multijurisdictional drug task force formed by an

"Interlocal Drug Task Force Agreement" (Agreement) executed in June 2009

among several Washington State municipalities and the federal Naval Criminal

Investigation Service (NCIS). 1 Resp't's Suppl. Clerk's Papers (Resp't's Suppl. CP)

at 125. The Agreement was executed pursuant to chapter 39.34 RCW, a statute that

permits various agencies and municipalities to create multijurisdictional task forces

in order to coordinate activities and make the most efficient use of their resources.

Because the focus of chapter 39.34 RCW is to promote efficiency and

coordination, the statute allows the parties to enter into interlocal agreements

without necessarily forming a separate legal entity. RCW 39.34.030(4). The

Agreement at issue here explicitly provides that because WestNET "does and must

1 The Agreement includes the counties of Kitsap, Pierce, and Mason; the cities of Bainbridge Island, Bremerton, Port Orchard, Poulsbo, and Shelton; the Washington State Patrol; and the NCIS. Resp't's Suppl. CP at 125.

2 Worthington v. WestNET, 90037-0

operate confidentially and without public input," "[t]he parties do not intend to

create through, this Agreement, a separate legal entity subject to suit." Resp't's

Suppl. CP at 127.

In 2010, the petitioner, John Worthington, filed a public records request that

WestNET disclose records related to a raid of his residence four years earlier,

which he alleged was conducted by the WestNET drug task force. WestNET did

not respond, and instead, the Kitsap County Sheriffs Office made some initial

disclosures. The sheriffs office did not indicate why it responded instead of

WestNET-neither explaining that WestNET did not exist as a legal entity or that

WestNET was otherwise exempt from the PRA requirements. But Worthington

would have been aware that the response came from the sheriffs office, rather than

WestNET, because the sheriffs office sent the disclosures on its own letterhead.

Dissatisfied with the response, Worthington sued for relief under the PRA,

serving the complaint on the address shared by the Kitsap County Sheriffs Office

and the Kitsap County Prosecutor's Office. However, the complaint named

WestNET as the only defendant. Per the Agreement, a Kitsap County deputy

prosecutor appeared on behalf of W estNET and filed a CR 12(b)( 6) motion to

dismiss, arguing that Worthington failed to identify W estNET as a county or public

3 Worthington v. WestNET, 90037-0

corporation that may be sued under RCW 4.08.120. 2 The prosecutor later amended

that motion, asserting that WestNET was not a government agency subject to the

PRA. The trial court denied the CR 12(b)( 6) motion.

WestNET moved for reconsideration, arguing for the first time that

WestNET was not an independent legal entity under the terms of the Agreement.

Worthington's complaint contended that WestNET was a '"functional equivalent"'

of a government agency and therefore subject to suit under the PRA. Clerk's

Papers at 6. The trial court did not review any evidence and only considered the

pleadings and the Agreement. 3 Finding that the terms of the Agreement

conclusively established how WestNET operates, the trial court concluded that

WestNET was not a sufficient '"something"' to constitute an agency subject to the

PRA's requirements. Verbatim Record ofProceedings at 26. The trial court

granted WestNET's CR 12(b)(6) motion, dismissing the complaint for failure to

state a claim. The Court of Appeals affirmed, and we granted review. Worthington

2 RCW 4.08.120 involves actions maintained against public corporations; its provisions are immaterial to this case.

3 The trial court hesitated in proceeding on the CR 12(b)( 6) motion and, on at least two occasions, offered to transmute the motion into a motion for summary judgment, under CR 56, since the court was. considering evidence (the Agreement) outside the pleadings. However, both parties explicitly agreed to proceed as a CR 12(b)( 6) motion and attached the Agreement as part of the pleadings.

4 Worthington v. WestNET, 90037-0

v. WestNET, 179 Wn. App. 788,320 P.3d 721, review granted, 180 Wn.2d 1021,

328 P.3d 903 (2014).

ANALYSIS

A CR 12(b)(6) motion may be granted only where there is not only an

absence of facts set out in the complaint to support a claim of relief, but there is no

hypothetical set of facts that could conceivably be raised by the complaint to

support a legally sufficient claim. San Juan County v. No New Gas Tax, 160

Wn.2d 141, 164, 157 P.3d 831 (2007). Consideration of extraneous materials on a

CR 12(b)(6) motion is permissible so long as the court can say, "no matter what

facts are proven within the context of the claim, the plaintiffs would not be entitled

to relief." Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 121, 744

P.2d 1032, 750 P.2d 254 (1987). Otherwise, the complaint must be transmuted into

a motion for summary judgment. CR 56. For the foregoing reasons, CR 12(b)(6)

motions are granted only "'sparingly and with care."' Orwick v. City of Seattle,

103 Wn.2d 249,254, 692 P.2d 793 (1984) (quoting 27 Federal Procedure

Pleadings and Motions§ 62:465 (1984)).

In this case, the appropriateness of the trial court's CR 12(b )( 6) dismissal

depends on whether the Agreement can conclusively establish that WestNET is a

nonentity for PRA purposes, such that no conceivable set of facts could have been

5 Worthington v. WestNET, 90037-0

raised to support Worthington's claim. "Whether dismissal was appropriate under

CR 12(b)(6) is a question of law that we review de novo." San Juan County, 160

Wn.2d at 164 (citing State ex rei. Evergreen Freedom Found. v. Wash. Educ.

Ass 'n, 140 Wn.2d 615, 629, 999 P.2d 602 (2000)).

We start our analysis looking at the scope of the PRA. The PRA (previously

known as the public disclosure act (PDA), former chapter 42.17 RCW (2004)) 4 is a

"strongly worded mandate" aimed at giving interested members of the public wide

access to public documents to ensure governmental transparency. Hearst Corp. v.

Hoppe, 90 Wn.2d 123, 127, 580 P.2d 246 (1978). The PRA requires agencies to

make certain records available for inspection and copying, and it enables

individuals to sue to enforce those obligations. RCW 42.56.080, .550. The chapter

applies to state and local agencies, which are defined as follows:

"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.

RCW 42.56.010(1).

4 The PRA was originally enacted as part of the PDA. In 2005, the PRA portion of the PDA was renamed and recodified as a distinct chapter under the RCW. See former ch. 42.17 RCW, recodified as ch. 42.56 RCW (LAWS OF 2005, ch. 274, effective July 1, 2006). Most of the cases referenced in this opinion cite to the PDA, but because there is no substantive difference in law, for the sake of clarity, the act will be referred to only as the PRA.

6 Worthington v. WestNET, 90037-0

With respect to the scope of the act, the statute unambiguously provides for

a liberal application of its terms, explicitly subordinating other statutes to its

provisions and goals:

The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter 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. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.

RCW 42.56.030 (emphasis added).

The statute's language "reflects the belief that the sound governance of a

free society demands that the public have full access to information concerning the

workings ofthe government." Amren v. City ofKalama, 131 Wn.2d 25, 31,929

P.2d 389 (1997). Accordingly, courts must avoid interpreting the PRA in a way

that would tend to frustrate that purpose. Hearst Corp., 90 Wn.2d at 127.

In light of this liberal construction, reviewing courts have used a "functional

equivalency" analysis to determine whether the PRA applies to a particular

organization. See Clarke v. Tri-Cities Animal Care & Control Shelter, 144 Wn.

App. 185, 192, 181 P.3d 881 (2008); Telfordv. Thurston County Ed. ofComm'rs,

7 Worthington v. WestNET, 90037-0

95 Wn. App. 149, 161,974 P.2d 886 (1999), review denied, 138 Wn.2d 1015, 989

P.2d 1143 (1999). In Telford, the court considered four factors 5 and concluded that

two private nonprofit corporations that were formed to coordinate county officials

were subject to suit under the PRA because they operated as a functional

equivalent to a public agency. Telford, 95 Wn. App. at 165. The Court of Appeals

applied the four-factor Telford analysis again in Clarke, concluding that a privately

owned nonprofit animal shelter was required under the PRA to disclose its

euthanasia logbooks because the Tri-Cities municipality had contracted out the

county's animal control services to the shelter, rendering the shelter the "functional

equivalent" of a public agency. Clarke, 144 Wn. App. at 194-95.

We find that the specific "Telford factors" have limited applicability here 6

but that Telford and Clarke are instructive insofar as they support the position that

in determining whether a particular entity is subject to the PRA, courts engage in a

practical analysis. We hold that the trial court's reliance on the pleadings and the

5 Under the four-factor Telford analysis, courts consider (1) whether the entity performs a government function, (2) the level of government funding, (3) the extent of government involvement, and (4) whether the entity was created by the government. 6 Te(ford and Clarke involve private organizations that perform public functions, which subjects them to the PRA. The particular four factors from Telford are irrelevant in this case because if WestNET were an agency at all, it undisputedly would be considered public rather than private.

8 Worthington v. WestNET, 90037-0

Agreement alone is inconsistent with that approach. The court cannot rely solely

on the self-in~_posed terms of an interlocal agreement because the document does

not reveal whether the task force, in fact, behaves consistently with that nonentity

designation. For example, it is conceivable that despite its own terms, WestNET

operates independently, maintains its own records, and effectively exists as a

separate government agency such that it should be subject to the broad scope of the

PRA and its provisions. The trial court could have considered other relevant factors

that were not apparent from the terms in the Agreement: Does WestNET maintain

a separate physical office? Where are the task force records kept? Does W estNET

have a designated custodian of the records? IfWestNET is not subject to the PRA,

how would interested individuals request documents and to what extent would an

individual have to engage in a document search among the 10 different

municipalities and agencies? Essentially, the inquiry should focus on whether an

interested individual could still adequately exercise his or her rights under the PRA

if record requests and suits cannot be brought against W estNET directly. Without

discovery, none of these questions can be answered.

The respondent argues that the CR 12(b)( 6) dismissal is sustainable because

portions ofthe ICA, RCW 39.34.030-.040, effectively immunize WestNET from

suit as a matter of law. Subsection .030(4) does recognize the affiliate agencies'

9 Worthington v. WestNET, 90037-0

ability to form these agreements without necessarily forming a legal entity, and

section .040 then provides a remedy in the event the nonentity task force is sued:

one or more of the affiliate agencies are required to come forward as the real party

in interest. 7 Interpreting those subsections together, we agree with the dissent that

generally the ICA permits the formation of task forces that are unamenable to suit.

However, the ability to provide for task force immunity is qualified both by

the PRA and the ICA itself. 8 First, as we noted above, the PRA explicitly

subordinates all other statutes to its own provisions: "In the event of conflict

7 Therefore, even if the court engaged in a factual inquiry and determined that WestNET was not an entity amenable to suit, the remedy would not necessarily be dismissal. Under CR 17, in the event the complaint names the wrong party, the proper remedy is a revision of the complaint identifying the real party in interest.

8 Contrast the cases cited by the dissent, in which the enabling statute at issue is not qualified and instead conclusively provides for defendant's immunity. See dissent at 3-5 (citing Roth v. Drainage Improvement Dist. No.5, 64 Wn.2d 586, 589-90, 392 P.2d 1012 (1964) (affirming the trial court in granting the CR 12(b)(6) motion because the statutory language makes clear that a drainage district organized under Laws of 1913, ch. 85.08, is not a municipal corporation or a quasimunicipal corporation with the power to sue or be sued); Nolan v. Snohomish County, 59 Wn. App. 876, 883, 802 P.2d 792 (1990) ("RCW 36.32.120(6), read together with RCW 36.01.010 and .020, makes clear the legislative intent that in a legal action involving a county, the county itself is the only legal entity capable of suing and being sued."); Foothills Dev. Co. v. Clark County Bd. of County Comm 'rs, 46 Wn. App. 369, 376-77, 730 P.2d 1369 (1986) (action dismissed because RCW 36.32.120 requires that only the county shall sue and be sued on behalf of its subordinates); Vannausdle v. Pierce County Dep 't ofAssigned Counsel, noted at 149 Wn. App. 1054 (2009) (relying again on RCW 36.01.010, the Court of Appeals held that some of the named defendants were not entities capable of being sued because they were political subdivisions ofthe county); Leeson v. McKinney, noted at 92 Wn. App. 1052 (1998) (again relying on RCW 36.01.010 in affirming the trial court's dismissal of the suit on the ground that the Seattle Public Library lacked the capacity to be sued)).

10 Worthington v. WestNET, 90037-0

between the provisions of this chapter and any other act, the provisions of this

chapter shall govern." RCW 42.56.030. As such, the affiliates cannot designate a

task force as a nonentity if doing so would conflict with PRA obligations and

requirements (a consideration the trial court did not, and could not, make on the

CR 12(b)(6) motion or by merely reading the terms ofthe Agreement).

Second, the ICA further qualifies the contributing agencies' ability to

provide immunity for their own task forces:

No agreement made pursuant to this chapter relieves any public agency of any obligation or responsibility imposed upon it by law except that: (a) To the extent of actual and timely performance thereof by a joint board or other legal or administrative entity created by an agreement made pursuant to this chapter, the performance may be offered in satisfaction of the obligation or responsibility.

RCW 39.34.030(5).

Therefore, even though RCW 39.34.030(4) contemplates the formation of

unamenable task forces, subsection .030(5) prohibits the affiliates from using that

nonentity status to avoid other statutory obligations. 9 The interplay of these statutes

9 The dissent erroneously ends its analysis of the ICA with RCW 39.34.030(4), without considering the qualification set forth in subsection .030(5). By its language, .030(4) merely contemplates the possibility task forces may be formed without necessarily forming a legal entity. That possibility is qualified by subsection .030(5), which prohibits the contributing agencies from using these agreements to avoid other obligations. We cannot ascertain whether or not the arrangement violates other statutory obligations, particularly those arising under the PRA, just from reading the ICA or the Agreement.

11 Worthington v. WestNET, 90037-0

creates a question of both law and fact in which the reviewing court must

determine whether enforcement of the Agreement's terms would effectively

frustrate the purpose of the PRA. To the extent the terms of the Agreement

frustrate the PRA, they are unenforceable under the ICA's subsection .030(5)

unless another contributing agency can satisfy those obligations on WestNET's

behalf. RCW 39.34.030(5)(a).

We cannot conclusively tell from the terms of the Agreement alone whether

the arrangement frustrates the PRA. For example, without any designated keeper of

WestNET records, the coordination of documents among the 10 contributing

municipalities could potentially render disclosure requests so impractical or

cumbersome that it frustrates the PRA's goal in providing individuals with wide

reaching government access. It is also conceivable that the affiliate agencies could

use this arrangement to strategically move documents among the multiple agencies

or that WestNET could even keep documents with those affiliate agencies that are

. not subject to the PRA, such as the NCIS, in which case the affiliate agencies could

avoid their PRA obligations entirely. In that scenario, the terms of the Agreement

would be unenforceable under RCW 39.34.030(5).

On the other hand, it is possible that the arrangement satisfies the PRA

requirements. For instance, the fact that the Kitsap County Sheriffs Office did

12 Worthington v. WestNET, 90037-0

respond to Worthington's initial records request suggests that another

administrative entity was capable of fulfilling those PRA obligations, which would

be permissible under RCW 39.34.030(5)(a). However, the trial court dismissed the

suit before the necessary factual inquiry could be made. We hold that the suit

should have survived, at least until discovery was completed.

CONCLUSION

WestNET's amenability to suit under the PRA cannot be determined on a

CR 12(b)(6) motion. Although the ICA generally contemplates the formation of

nonentity interlocal task forces, it does not shield all task forces, as a matter of law,

from suit. Under the ICA, whether the Agreement's designation is enforceable

depends on whether or not the arrangement impacts the contributing agencies'

ability to fulfill their other statutory obligations. RCW 39.34.030(5). It is the

interplay between the ICA and the obligations set forth by the PRA that creates a

mixed question of fact and law. Thus, the trial court erred in concluding that the

terms of the Agreement rendered WestNET, as a matter of law, immune from

disclosure obligations under the PRA. We hold that the record is insufficiently

developed to determine whether WestNET is an agency subject to the PRA, and

accordingly, we reverse and remand the case for further proceedings.

13 Worthington v. WestNET, 90037-0

The Court of Appeals is reversed and remanded.

WE CONCUR:

14 Worthington v. WestNET

No. 90037-0

Yu, J. (dissenting)-This case is less about the operation of the Public

Records Act (PRA), chapter 42.56 RCW, than it is about the fundamentals of civil

procedure. The question before us, contrary to the majority's assertion, is not

whether public records related to WestNET are immune from disclosure. Clearly

they are not, since Worthington admits that Kitsap County and other agencies have

made WestNET records available to him. Rather, the question is only the proper

party against whom a dispute about those records can be brought in court. Here,

Worthington requested and received records from Kitsap County but challenged

Kitsap County's responses by suing WestNET, which is not a legal entity. Because

WestNET lacks the capacity to be sued, I would affirm the Court of Appeals.

Members of the public can obtain records relating to W estNET by requesting them Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

from its component agencies, and if a dispute anses, smng those component

agencies.

Though this case implicates the PRA, the majority reduces its discussion of

the underlying PRA requests to a single sentence. A more thorough review of

Worthington's complaint and attached exhibits is useful. Between 2010 and 2011,

Worthington submitted four requests for public records related to the operation of

"WestNET," the shorthand term for a group of 10 agencies jointly investigating drug

crimes. He sent each of these requests by e-mail to employees of Kitsap County-

only one of WestNET' s 10 members-who responded by letter to each request and

provided Worthington at least some responsive records. For example, Kitsap

County replied to one request by "present[ing] a stack of papers" for Worthington's

review. Clerk's Papers (CP) at 2. In response to another, the county "indicated [it]

[w]ould release 539 pages of documents," which constituted its "entire investigative

file." CP at 4, 35. As the majority acknowledges, "Worthington would have been

aware that the response[s] came from [Kitsap County], rather than WestNET,

because [Kitsap County] sent the disclosures on its own letterhead." Majority at 3.

Worthington's complaint alleges that Kitsap County's responses were

incomplete, in violation of the PRA. The merits of that claim are not before us

because instead of suing Kitsap County, Worthington named "WestNET" as the

defendant. This is why I depart from the majority opinion. This case is not about

2 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

whether "parties to an inter local agreement [can] establish ... that their own task

forces do not exist for the purpose of the PRA," majority at 1, or whether an

interlocal agreement can "provide for task force immunity" from records requests.

Id. at 10. Kitsap County's disclosures in response to Worthington's requests confirm

that records held by agencies related to interlocal cooperatives, like WestNET, are

disclosable under the PRA. Instead, this case is only about procedure: does

WestNET have legal capacity to be a defendant or should Worthington have sued

Kitsap County and/or other WestNET members instead.

Capacity is a fundamental principle of civil procedure. Since capacity relates

to the intrinsic right to be in court, "[i]f a person or entity lacks capacity to sue or be

sued, it cannot be a party in a court action." 14 KARL B. TEGLAND, WASHINGTON

PRACTICE: CIVIL PROCEDURE § 11:7, at 386 (2d ed. 2009). Thus the dispositive

question is whether WestNET is an entity capable of suit. Entities are creatures of

statute, and those statutes control the scope of the entities' existence. Counties,

municipal corporations, and state agencies, for example, each have the capacity to

be sued because they spring from enabling statutes that expressly create separate

legal entities. See RCW 36.01.010 (counties); 35.58.180 (municipal corporations).

But not all government bodies have legal capacity. In Roth v. Drainage

Improvement District No.5, 64 Wn.2d 586, 589-90,392 P.2d 1012 (1964), this court

dismissed an action against a drainage improvement district organized by Clark

3 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

County under chapter 85.08 RCW, holding the district "is not a municipal

corporation or a quasi-municipal corporation and does not have the capacity to sue

or to be sued' (Emphasis added.) We reached this conclusion by analyzing chapter

85.08 RCW to determine if the statute contemplated that the district would be a

separate legal entity. We cited several sections that vested ultimate control over the

district with the county and thus concluded that drainage districts under that statute

are subordinate to, and not separate entities from, the counties in which they operate.

Therefore, the county was the only viable defendant. !d. (citing Linn v. Walla Walla

County, 99 Wash. 224, 169 Pac. 323 (1917)).

Courts in this state have used Roth's enabling-statute analysis to determine if

a government body named as a defendant is a separate legal entity with capacity.

Those courts have concluded "no" with respect to boards of county commissioners,

the Snohomish County Council, the Pierce County Prosecuting Attorney's Office,

the Pierce County Department of Assigned Counsel, the Mason County Jail, and the

Seattle Public Library. See Foothills Dev. Co. v. Clark County Bd. of County

Comm 'rs, 46 Wn. App. 369, 376-77, 730 P.2d 1369 (1986); Nolan v. Snohomish

County, 59 Wn. App. 876, 883, 802 P.2d 792 (1990); Day v. Pierce County

Prosecuting Attorney's Office, noted at 167 Wn. App. 1052 (2012); Vannausdle v.

Pierce County Dep 't of Assigned Counsel, noted at 149 Wn. App. 1054 (2009);

Shackelford v. Mason County Jail, 2013 WL 5786094, at *3 (W.D. Wash. Oct. 28,

4 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

2013); Leeson v. McKinney, noted at 92 Wn. App. 1052 (1998). 1 None of the

enabling statutes for these bodies created separate legal entities, and in each case the

proper defendants were the counties or, as to the library, the city of Seattle.

Thus, the majority should have examined the statute enabling WestNET's

existence-the Interlocal Cooperation Act (ICA), chapter 39.34 RCW-to

determine if WestNET is a separate legal entity with the capacity to be sued. Both

the ICA and the majority clearly answer that question: "the statute allows [counties

and municipalities] to enter into inter local agreements without necessarily forming

a separate legal entity." Majority at 2 (emphasis added) (citing RCW 39.34.030(4)).

The terms of the inter local agreement dictate whether the cooperative is merely an

aggregation of its component entities or whether it creates a new entity in itself.

RCW 39.34.030(3)-(4). And the terms ofthe agreement creating WestNET and the

majority are equally clear that the agreement "'do[es] not intend to create ... a

separate legal entity.'" Majority at 3 (quoting Resp't's Suppl. CP at 127). As a result,

I would apply Roth and hold WestNET is not a separate legal entity and lacks the

capacity to be sued, and find that WestNET's component entities are the only viable

defendants in this case. Those component entities are the "agencies" subject to the

1 And, though not binding here, one court has found WestNET specifically is "not a legal entity and is therefore not a proper defendant." Wood v. Kitsap County, 2007 WL 1306548, at *1 n.3 (W.D. Wash. May 3, 2007).

5 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

PRA that allow the public to obtain records related to WestNET's operation. RCW

42.56.010, .070.

The majority rejects this result for two reasons, both unrelated to capacity.

First, it holds that a subsection in the ICA-RCW 39.34.030(5)-requires we look

to facts beyond the agreement's terms to determine if WestNET is an entity with

obligations under the PRA. But subsection .030(5) speaks only to the obligations of

WestNET' s members, not of WestNET itself: The subsection provides that

interlocal agreements cannot "relieve[] any public agency of any obligation or

responsibility" otherwise required by law. RCW 39.34.030(5); see also RCW

39.34.030(2) (distinguishing a "public agenc[y]," like WestNET's component

members, from its cooperative undertakings, like WestNET). The plain language of

subsection .030(5) merely reaffirms that counties and municipalities cooperating

under the ICA have existing legal obligations; it does not impose any obligations on

the interlocal cooperatives those entities join. Simply put, Kitsap County cannot

contract away its responsibilities under the PRA, but neither is WestNET required

to assume them, 2 and the agreement here is unequivocal that "[a]ll rights, duties and

obligations of the [contributing agency] shall remain with the contributing agency."

2 The ICA permits, but does not require, counties and municipalities to discharge their legal obligations through interlocal cooperatives. RCW 39.34.030(5)(a) (providing "a joint board ... may [offer performance] in satisfaction of the [public agency's] obligation or responsibility" (emphasis added)). WestNET did not purport to perform on behalf of Kitsap County, so this subsection is inapplicable.

6 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

Resp't's Suppl. CP at 128. Worthington's action likewise remains only against

WestNET's component members, and each member remains obligated to comply

with the PRA for records it holds related to WestNET operations.

Second, the majority suggests that the overriding purpose of the PRA trumps

the fundamental issue of whether WestNET has the capacity to be sued. While I

wholeheartedly agree with the PRA's purpose, I cannot endorse the majority's

result-oriented capacity analysis. "Questions relating to capacity are resolved by

looking to the characteristics of the party, rather than the circumstances of a

particular claim." TEGLAND, supra§ 11:7, at 386 (emphasis added). In other words,

a party's capacity to be sued should not depend on the statutory claim the plaintiff

asserts. Because the majority overlooks this principle and instead focuses on

vindicating the PRA, its opinion creates the odd result where WestNET is an "entity"

that can be sued under the PRA but not under other statutes. For example,

Worthington could not sue W estNET in federal court for alleged constitutional

violations under 42 U.S.C. § 1983. There, as should be the case here, he would need

to bring an action against WestNET's component entities. See Hervey v. Estes, 65

F.3d 784, 791-92 (9th Cir. 1995) (holding "TNET," a Tacoma-area drug task force

also organized under the ICA, is not a person subject to suit since its interlocal

agreement "d[id] not contemplate a separate legal entity").

7 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

The majority reaches its outcome with noble intentions. As the majority

opinion acknowledges, the ICA contemplates that some interlocal agreements will

not create an entity with powers separate from those of its individual components.

That possibility creates some administrative problems. The ICA seeks to address

those problems by requiring two additional provisions in interlocal agreements that

do not create separate legal entities: ( 1) the agreement must identify an administrator

or a joint board responsible for the interlocal cooperative and (2) it must specify how

the cooperative acquires, holds, and disposes of property. RCW 39.34.030(4).

Noticeably absent from this list of additional required provisions is one identifying

a records custodian charged with responding to PRA requests. Such omission results

in many of the policy concerns the majority cites to support its conclusion that

WestNET is a stand-alone entity. See majority at 12 (noting that "without any

designated keeper of WestNET records, the coordination of documents among the

10 contributing municipalities could potentially render disclosure requests . . .

impractical or cumbersome").

It might be good policy to require inter local agreements to designate a records_

custodian who can coordinate records requests among the cooperative's component

agencies. Doing so would relieve requestors from sending multiple requests, would

ensure all agencies with responsive records receive the request, and would

discourage perfunctory denials of requests. But the plain language of the ICA does

8 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting

not require interlocal agreements to address public records requests. It is not this

court's job to insert words into statutes or create judicial fixes, even if we think the

legislature would ultimately approve of the result. Statutes that frustrate the purpose

of others, though perhaps unintentional, are "purely a legislative problem." State ex

rel. Hagan v. Chinook Hotel, Inc., 65 Wn.2d 573, 578, 399 P.2d 8 (1965).

In sum, WestNET has no life independent of the separate entities that are

parties to the interlocal agreement. I would affirm the Court of Appeals because

WestNET is not a separate legal entity and has no capacity to be sued, and capacity

is a legal question that a trial court can resolve on a CR 12(b)(6) motion. The Court

of Appeals properly affirmed the trial court's dismissal.

I respectfully dissent.

9 Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting