Horvath v. DBIA Serv.

551 P.3d 1053

Steve HORVATH, Appellant,

v.DBIA SERVICES dba Metropolitan Improvement District, Respondent.

No. 85636-7-1

Court of Appeals of Washington, Division 1.

Filed July 8, 2024

Honorable Averil Rothrock, Judge.

Anika Rubin Ades, Joseph Robert Shaeffer, MacDonald Hoague & Bayless, 705 2nd Ave. Ste 1500, Seattle, WA 98104-1745, for Appellant.

Andrea Lynn Bradford, Adrian Urquhart Winder, Foster Garvey PC, 1111 3rd Ave. Ste. 3000, Seattle, WA, 98101-3296, for Respondent.

Brent Jordan Low, Attorney at Law, P.O. Box 2728, Seattle, WA, 98111-2728, Jonathan Nomamiukor Jr., Tumwater Corporation Service Company MC-, 300 Deschutes Way Sw. Ste. 208, Tumwater, WA, 98501-7719, La Rond Baker, American Civil Liberties Union of Washin, P.O. Box 2728, Seattle, WA 98111-2728, for Amicus Curiae on behalf of American Civil Liberties Union of Washington Foundation.

PUBLISHED OPINION

Dwyer, J.

¶1 Steve Horvath appeals from the orders of the superior court denying his motion for summary judgment and granting DBIA Services’ motions for summary judgment and declaratory judgment. On appeal, Horvath asserts that the trial court erred in determining that DBIA Services was not the functional equivalent of a governmental entity under the Public Records Act¹ with regard to his records request. Because the trial court did not abuse its discretion in its balancing of the multi-factor "functional equivalent" test, Horvath’s assertion fails.

¶2 Accordingly, we affirm.

I

¶3 In 1958, several private individuals filed articles of incorporation in this state to create a nonprofit corporation named the Central Association of Seattle. The Association’s goal was to

further and promote the development, beautification and improvement of the City of Seattle, and particularly the central area thereof, so that said city can more adequately, effectively, efficiently and pleasantly serve the residents of King County, the state of Washington, and all other persons having occasion to come to the city of Seattle.

¶4 In 1971, our legislature enacted a bill authorizing a percentage of business owners located within a geographic area of a qualifying municipality to petition the municipality to provide specified parking and business improvement services in that area.² The bill authorized those municipalities to adopt a resolution designating that geographic area as a parking and business improvement area and to impose a special assessment levy against businesses and projects located within that area.³ The bill further provided that, after a public hearing on that resolution, the municipality could then adopt an ordinance setting forth, in conformance with the services specified in the business owners’ initiation petition, those services on which the revenues from that levy would be spent and imposing a special assessment levy to collect revenues to fund the provision of such services.⁴ The bill expressly required that municipalities spend those revenues on the specific services identified in the parking and business improvement area ordinance.⁵

¶5 As pertinent here, in April 1999, a group of business owners in an area of downtown Seattle submitted a petition to the City of Seattle (the City) requesting that it provide certain business improvement services within that downtown area.

¶6 Several months later, representatives of the Central Association of Seattle, now renamed the Downtown Seattle Association, filed articles of incorporation for a subsidiary nonprofit corporation, to be named DBIA Services. The articles of incorporation stated that the Association’s subsidiary was incorporated to provide certain services "to improve business conditions within business improvement areas in Seattle."

¶7 Thereafter, in early June 1999, the Seattle City Council passed a resolution indicating its intent to designate the petitioned area of downtown Seattle as subject to a special assessment levy for the purpose of funding the requested business improvement services therein.⁶ Two months later, the City adopted an ordinance identifying that area as the "Downtown Parking and Business Improvement Area," authorizing a five-year special assessment levy against applicable businesses and projects in that area, creating a separate fund for the revenues generated by that levy, and mandating that revenues deposited into the fund be spent only in furtherance of the specifically identified business improvement services set forth in the petition.⁷ The ordinance also authorized the "Director," a city employee, to administer the special assessment program, established an advisory board comprised of ratepayers from the downtown area subject to the special assessment (a board which would meet periodically and make certain recommendations to the City), and authorized the Director to sign a contract with a program manager— recommended by vote of the special assessment area ratepayers—which would oversee the day-to-day provision of the authorized services within the designated area.⁸

¶8 The ordinance also set forth that the Seattle City Council intended, for the initial year of the special assessment levy, that the Director contract with the Downtown Seattle Association to provide program management services within the designated area for a period of one year.⁹ After that, the ordinance provided, whether the Director would again contract with the Association would depend on the special assessment area ratepayers’ recommendation that the Director continue to do so.

¶9 Thereafter, between 2000 and 2003, the special assessment area ratepayers recommended each year that the Director contract with the Association to provide the relevant services. The Association agreed and, during that time, continued to seek reimbursement from the City for its provision of such services.

¶10 In 2004, the Seattle City Council adopted another ordinance, which disestablished the 1999 business improvement area, identified another area of downtown Seattle as the Metropolitan Improvement District (MID), and established a new 10-year special assessment therein.¹⁰ As applicable here, the 2004 ordinance operated similarly to the 1999 ordinance and stated that, "[i]t is the intent of the City Council that the Director renew the contract with the Downtown Seattle Association (DSA), and its management subsidiary, DBIA Services."¹¹ Thereafter, between 2004 and 2013, the special assessment area ratepayers again recommended each year that the Director contract with DBIA Services to provide the improvement services within that area, and DBIA Services did so, continuing to seek reimbursement from the City for such services.

¶11 In 2013, the Seattle City Council adopted the ordinance that created the business improvement area in question.¹² That ordinance, similar to the prior ordinance, disestablished the existing business improvement area, identified a specific area of downtown Seattle as the Metropolitan Improvement District, identified the services to be provided in that area, and established a 10-year special assessment therein. The services identified in the ordinance included supplemental cleaning services, safety outreach, hospitality, supplemental law enforcement, marketing and communications services, business development and market research services, and transit, bike, and parking services and management.

¶12 The 2013 ordinance again indicated the Seattle City Council’s intent that the Director renew DBIA Services’ contract to "manage the day-to-day operations of the MID and to administer the projects and activities."¹³ Thereafter, through the time in question, the special assessment area ratepayers continued to annually recommended that the City contract with DBIA Services, the Director so contracted, DBIA Services provided the authorized services, and DBIA Services sought reimbursement from the City for its provision of those services, which the City dutifully disbursed to DBIA Services.

¶13 Thereafter, more than eight years after the City adopted the business improvement area ordinance in question, Horvath submitted a public records request to the Seattle Office of Economic Development, seeking public records regarding the Metropolitan Improvement District. The City provided Horvath with certain responsive records and indicated that it did not have records that were responsive to the remainder of his request.

¶14 Horvath later sent an e-mail to the chief operating officer of the Downtown Seattle Association with the subject line "[Metropolitan Improvement District Business Improvement Area] Public Disclosure Request." Horvath’s e-mail indicated that he was redirecting his public records request from the City to the Association on the basis that the nonprofit was "a responsible party working on behalf of the [Metropolitan Improvement District Business Improvement Area] in your role as [Downtown Seattle Association’s Chief Operating Officer]." Attached to Horvath’s e-mail was a document setting forth requests for documents separated into two sections, "Items for City of Seattle"' and "Items for [Downtown Seattle Association]."

¶15 The Association’s chief operating officer responded to Horvath’s e-mail and stated that the Association was not a public agency subject to the Public Records Act. Nevertheless, over the next nine months, the Association voluntarily provided over 100 documents to Horvath in four installments. Thereafter, the Association notified Horvath that it would not be sending "any documents or information in response to the request for compensation information" regarding the Association’s employees.

¶16 Horvath then filed a complaint in King County Superior Court, with the defendant captioned as "DBIA SERVICES DBA METROPOLITAN IMPROVEMENT DISTRICT." Horvath alleged that the Metropolitan Improvement District, "a ‘business improvement area’ that covers much of downtown Seattle," had failed to comply with the Public Records Act. Horvath argued that the Metropolitan Improvement District was the...