### NOTICE: SLIP OPINION (not the court’s final written decision) The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinionsthat are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changesto a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation,format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions:the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports
. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there.

# /!.,Lk~"' eurr·· ....:_'JRT, STATEOFWASIINJttlll 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 ofthe Public Records Act (PRA), chapter 42.56 RCW, to task forces formed underthe Interlocal Cooperation Act (ICA), chapter 39.34 RCW. We acceptedreview to address whetherthe West Sound Narcotics EnforcementTeam (WestNET), a multijurisdictional drug task force, is an entity subjectto the PRA. Because the trial court granted the defendant's CR 12(b)(6) motion to dismiss, we reach only a narrowerprocedural issue: canthe parties to an interlocal agreement establish, as a matter oflaw, that their own task forces do not exist for the purpose ofthe PRA? We hold thatthe ICA does notprovide the contributing agencies with such

an unqualified power. In concluding that the terms ofthe agreement alone conclusively established WestNET's capacity for suit, the trial court deprived theWorthington v. WestNET, 90037-0 plaintiffofan opportunity to present evidence in support ofhis argumentthat WestNET's actual operational structure subjects it to the PRA'spurview. 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 ofAppeals 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). 1Resp't's Suppl. Clerk's Papers (Resp't's Suppl. CP) at 125. The Agreementwas executed pursuantto 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 efficientuse oftheir resources. Becausethe focus ofchapter 39.34 RCW is to promote efficiency and coordination, the statute allows the parties to enter into interlocal agreements withoutnecessarily forming a separate legal entity. RCW 39.34.030(4). The Agreement at issue here explicitly provides thatbecause WestNET "does and must

1The Agreement includes the counties ofKitsap, 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. 2Worthington v. WestNET, 90037-0 operate confidentially and withoutpublic input," "[t]he parties do not intendto create through, this Agreement, a separate legal entity subjectto 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 ofhis 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-neitherexplainingthat WestNET did not exist as a legal entity or that WestNET was otherwise exempt from the PRArequirements. ButWorthington would have been aware thatthe response came from the sheriffs office, rather than WestNET, because the sheriffs office sentthe disclosures on its own letterhead. Dissatisfied with the response, Worthington sued for reliefunder the PRA, serving the complaint onthe address sharedby the Kitsap County Sheriffs Office and the Kitsap County Prosecutor's Office. However, the complaintnamed WestNET as the only defendant. Per the Agreement, a Kitsap County deputy prosecutor appeared on behalfofWestNET and filed a CR 12(b)(6) motionto dismiss, arguing that Worthington failed to identify WestNET as a county or public

3Worthington 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 subjectto 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 ofthe Agreement. Worthington's complaint contendedthat WestNET was a '"functional equivalent"' ofa government agency and therefore subjectto suitunder the PRA. Clerk's Papers at 6. The trial court did notreview any evidence and only consideredthe pleadings and the Agreement. 3Finding thatthe terms ofthe Agreement conclusively established how WestNET operates, the trial court concludedthat WestNET was not a sufficient '"something"' to constitute an agency subjectto 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 ofAppeals 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 courthesitated in proceeding on the CR 12(b)(6) motion and, on at least two occasions, offered to transmute the motion into a motion for summaryjudgment, under CR 56, since the court was.considering evidence (the Agreement) outsidethepleadings. However, both parties explicitly agreed to proceed as a CR 12(b)(6) motion and attached the Agreement as part ofthe pleadings. 4Worthington 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 offacts set outinthe complaintto support a claim ofrelief, butthere is no hypothetical set offacts that could conceivably beraised by the complaintto support a legally sufficient claim. 

### San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831 (2007). Consideration ofextraneous materials on a CR 12(b)(6) motion is permissible so long as the court can say, "no matter what facts are proven withinthe context ofthe claim, the plaintiffs would not be entitled to relief." 

### Haberman v. Wash. Pub. PowerSupply Sys., 109 Wn.2d 107, 121, 744 P.2d 1032, 750 P.2d 254 (1987). Otherwise, the complaintmustbetransmuted into

a motion for summaryjudgment. CR 56. Forthe foregoing reasons, CR 12(b)(6) motions are granted only "'sparingly and with care."' 

### Orwickv. City of Seattle, 103 Wn.2d 249,254, 692 P.2d 793 (1984) (quoting 27 Federal Procedure 

### Pleadings andMotions§ 62:465 (1984)). In this case, the appropriateness ofthe trial court's CR 12(b)(6) dismissal depends on whetherthe Agreement can conclusively establishthat WestNET is a nonentity for PRApurposes, such that no conceivable set offacts could have been
5Worthington v. WestNET, 90037-0 raised to support Worthington's claim. "Whether dismissal was appropriate under CR 12(b)(6) is a question oflawthat we review de novo." San Juan County, 160 Wn.2d at 164 (citingState 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 atthe scope ofthe 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 ofthe 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 PRArequires 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, quasimunicipal corporation, or special purpose district, or any office, department, division, bureau, board, commission, or agencythereof, or other local public agency. RCW 42.56.010(1).

4 The PRA was originally enacted as part ofthe PDA. In 2005, the PRAportion ofthe PDAwas renamed and recodified as a distinct chapterunder the RCW. See former ch. 42.17 RCW, recodified as ch. 42.56 RCW (LAWS OF 2005, ch. 274, effective July 1, 2006). Most ofthe casesreferenced in this opinion cite to the PDA, butbecause there is no substantive difference in law, for the sake ofclarity, the act will be referred to only as the PRA. 6Worthington v. WestNET, 90037-0

With respectto the scope ofthe act, the statute unambiguously provides for

a liberal application ofits terms, explicitly subordinating other statutes to its provisions and goals: The people ofthis state do not yield their sovereigntyto 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 overthe instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construedto promote this public policy and to assure that the public interest will be fully protected. In the event ofconflictbetweenthe provisions ofthis chapter and any other act, theprovisions of this chaptershallgovern. RCW 42.56.030 (emphasis added). The statute's language "reflects the beliefthatthe sound governance ofa free society demands thatthe public have full access to information concerning the workings ofthe government."Amren v. City of Kalama, 131 Wn.2d 25, 31,929 P.2d 389 (1997). Accordingly, courts must avoid interpretingthe PRA in a way that would tend to frustrate thatpurpose. Hearst Corp., 90 Wn.2d at 127. In light ofthis liberal construction, reviewing courts have used a "functional equivalency" analysis to determine whetherthe PRA applies to aparticular 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,

7Worthington v. WestNET, 90037-0 95 Wn. App. 149, 161,974P.2d 886 (1999), 

### review denied, 138 Wn.2d 1015, 989 P.2d 1143 (1999). In 

### Telford, the court considered four factors5 and concluded that two private nonprofit corporations that were formed to coordinate county officials

were subjectto suit under the PRAbecause they operated as a functional equivalent to a public agency. 

### Telford, 95 Wn. App. at 165. The Court ofAppeals applied the four-factor 

### Telford analysis again in 

### Clarke, concludingthat a privately owned nonprofit animal shelter was required underthe PRAto disclose its euthanasia logbooks because the Tri-Cities municipality had contracted outthe county's animal control services to the shelter, rendering the shelterthe "functional equivalent" ofa public agency. 

### Clarke, 144 Wn. App. at 194-95. We find that the specific 

### "Telfordfactors" have limited applicability here 6 but that 

### Telford and 

### Clarke are instructive insofar as they supportthe position that in determining whether a particular entity is subjectto the PRA, courts engage in a practical analysis. We holdthatthe trial court's reliance onthe pleadings and the

5Under the four-factor Telford analysis, courts consider (1) whetherthe entity performs a government function, (2) the level ofgovernment funding, (3) the extent ofgovernment involvement, and (4) whether the entity was created by the government. 6 Te(ford and Clarke involve private organizations thatperformpublic functions, which subjects them to the PRA. The particular four factors from Telford are irrelevant in this case because ifWestNET were an agency at all, itundisputedly wouldbe consideredpublicrather thanprivate. 8Worthington v. WestNET, 90037-0 Agreement alone is inconsistentwiththat approach. The court cannotrely solely

onthe**self-in~_posed** terms ofan interlocal agreementbecause the document does not reveal whetherthe task force, in fact, behaves consistently withthatnonentity designation. For example, it is conceivable that despite its ownterms, WestNET operates independently, maintains its own records, and effectively exists as a separate government agency suchthat it should be subjectto the broad scope ofthe 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 WestNET have a designated custodian ofthe records? IfWestNETis not subjectto 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 orher rights underthe PRA ifrecord requests and suits cannot be brought against WestNET directly. Without discovery, none ofthese questions can be answered. The respondent argues thatthe CR 12(b)(6) dismissal is sustainable because portions ofthe ICA, RCW 39.34.030-.040, effectively immunize WestNET from suit as a matter oflaw. Subsection .030(4) does recognize the affiliate agencies'
9Worthington v. WestNET, 90037-0 ability to form these agreements without necessarily forming a legal entity, and section .040 then provides a remedy in the eventthe nonentity task force is sued:

one or more ofthe affiliate agencies are requiredto come forward as the real party in interest. 7 Interpreting those subsections together, we agree with the dissent that generally the ICApermits the formation oftask 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.8First, as we noted above, the PRA explicitly subordinates all other statutes to its ownprovisions: "Inthe event ofconflict

7Therefore, even ifthe 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 eventthe complaint names the wrong party, the proper remedy is a revision ofthe complaint identifying the real party in interest. 8 Contrastthe cases cited by the dissent, in whichthe enabling statute at issue is not qualified and instead conclusively provides for defendant's immunity. See dissent at 3-5 (citing Roth v. Drainage ImprovementDist. 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 powerto 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 clearthe legislative intentthat in a legal action involving a county, the county itselfis the only legal entity capable ofsuing 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 onlythe county shall sue and be sued on behalfofits subordinates); Vannausdle v. Pierce County Dep 't of Assigned Counsel, noted at 149 Wn. App. 1054 (2009) (relying again onRCW 36.01.010, the Court of Appeals held that some ofthe named defendants were not entities capable ofbeing 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 ofthe suit on the ground that the Seattle Public Library lacked the capacityto be sued)). 10Worthington v. WestNET, 90037-0 betweenthe provisions ofthis chapter and any other act, theprovisions ofthis chapter shall govern." RCW 42.56.030. As such, the affiliates cannot designate a task force as a nonentity ifdoing so would conflict with PRA obligations and requirements (a consideration the trial court did not, and could not, make onthe CR 12(b)(6) motion or by merely reading the terms oftheAgreement). Second, the ICA further qualifies the contributing agencies' ability to provide immunity for their owntask forces: No agreement made pursuantto this chapter relieves any public agency ofany obligation or responsibility imposed upon it by law exceptthat: (a) To the extent ofactual and timelyperformance thereofby a jointboard or other legal or administrative entity createdby an agreement made pursuantto this chapter, the performance may be offered in satisfaction ofthe obligation orresponsibility. 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 ofthese statutes

9 The dissent erroneously ends its analysis ofthe ICA with RCW 39.34.030(4), without considering the qualification set forth in subsection .030(5). By its language, .030(4) merely contemplates thepossibilitytask forces may be formed without necessarily forming a legal entity. Thatpossibility is qualifiedby subsection .030(5), whichprohibits the contributing agencies from using these agreements to avoid other obligations. We cannot ascertain whether or notthe arrangement violates other statutory obligations, particularlythose arising under the PRA, justfrom reading the ICA or the Agreement. 11Worthington v. WestNET, 90037-0
creates a question ofboth law and fact inwhich the reviewing court must determine whether enforcement ofthe Agreement's terms would effectively frustrate the purpose ofthe PRA. To the extent the terms ofthe 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 ofthe Agreement alone whether the arrangement frustrates the PRA. Forexample, without any designatedkeeper of WestNETrecords, the coordination ofdocuments among the 10 contributing municipalities could potentiallyrender disclosure requests so impractical or cumbersome that it frustrates the PRA's goal in providing individuals with wide reaching government access. Itis also conceivable thatthe affiliate agencies could

use this arrangementto strategically move documents among the multiple agencies

or that WestNET could even keep documents withthose affiliate agencies that are

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

avoid their PRA obligations entirely. In that scenario, the terms ofthe Agreement would be unenforceable under RCW 39.34.030(5). On the otherhand, it is possible thatthe arrangement satisfies the PRA requirements. For instance, the fact that the Kitsap County Sheriffs Office did
12Worthington v. WestNET, 90037-0 respond to Worthington's initial records request suggests that another administrative entity was capable offulfilling those PRA obligations, which would be permissible under RCW 39.34.030(5)(a). However, the trial court dismissed the suitbefore 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 cannotbe 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 oflaw, from suit. Underthe ICA, whether the Agreement's designation is enforceable depends on whether or notthe arrangement impacts the contributing agencies' ability to fulfill their other statutory obligations. RCW 39.34.030(5). Itis the interplay between the ICA and the obligations set forth bythe PRAthat creates a mixed question offact and law. Thus, the trial court erred in concluding thatthe terms ofthe Agreement rendered WestNET, as a matter oflaw, immune from disclosure obligations under the PRA. We hold that the record is insufficiently developed to determine whether WestNET is an agency subjectto the PRA, and accordingly, we reverse and remand the case for further proceedings.

13Worthington v. WestNET, 90037-0 The Court ofAppeals is reversed and remanded.

WE CONCUR:

14Worthington 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 ofcivil 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 ofthe public can obtain records relating to WestNET by requesting themWorthington 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 shorthandterm for a group of 10 agenciesjointlyinvestigating drug crimes. He sent each ofthese requests by e-mail to employees ofKitsap Countyonly one ofWestNET'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 ofpapers" for Worthington's review. Clerk's Papers (CP) at 2. In response to another, the county "indicated [it] [ w]ouldrelease 539 pages ofdocuments," 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 ofthe PRA. The merits ofthat 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

2Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting whether "parties to an interlocal 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. 

### I

d. at 10. Kitsap County's disclosures inresponseto Worthington'srequests 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 ofcivil procedure. Since capacityrelates to the intrinsic rightto be in court, "[i]faperson or entity lacks capacityto sue orbe 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 ofsuit. Entities are creatures of statute, and those statutes control the scope ofthe 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 ImprovementDistrictNo.5, 64 Wn.2d 586, 589-90,392P.2d 1012 (1964), this court dismissed an action against a drainage improvement district organized by Clark

3Worthington 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 nothave the capacity to sue
or to be sued' (Emphasis added.) We reached this conclusionby analyzing chapter 85.08 RCW to determine ifthe statute contemplated that the district would be a separate legal entity. We cited several sections thatvested ultimate control over the district with the county and thus concluded that drainage districts underthat statute
are subordinateto, and not separate entities from, the counties inwhichtheyoperate. Therefore, the county was the only viable defendant. !d. (citingLinn v. Walla Walla County, 99 Wash. 224, 169 Pac. 323 (1917)). Courts in this state have usedRoth'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 ofcounty commissioners, the Snohomish County Council, the Pierce County Prosecuting Attorney's Office, the Pierce CountyDepartment ofAssigned Counsel, the MasonCountyJail, andthe Seattle Public Library. See Foothills Dev. Co. v. Clark County Bd. ofCounty 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 ProsecutingAttorney'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,

4Worthington 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 eachcase the proper defendants were the counties or, as to the library, the city ofSeattle. Thus, the majority should have examined the statute enabling WestNET's existence-the Interlocal Cooperation Act (ICA), chapter 39.34 RCW-to determine ifWestNET 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 interlocal agreements without necessarilyforming

a separate legal entity." Majority at 2 (emphasis added) (citingRCW 39.34.030(4)). The terms ofthe interlocal 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). Andthe terms ofthe agreement creating WestNET andthe majority are equally clear that the agreement "'do[es] not intend to create ... a separate legal entity.'"Majorityat 3 (quotingResp't's Suppl. CP at 127). As aresult, 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 onlyviable defendants in this case. Those component entities are the "agencies" subjectto 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). 5Worthington 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, 

### itholds that a subsection in the ICA-RCW 39.34.030(5)-requires we look to facts beyond the agreement's terms to determine ifWestNET is an entity with obligations underthe PRA. But subsection .030(5) speaks onlyto 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 underthe ICAhave 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 agreementhere is unequivocal that "[a]ll rights, duties and obligations ofthe [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 "ajoint 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. 6Worthington 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 ofthe PRA trumps the fundamental issue ofwhether 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 vindicatingthePRA, its opinioncreatesthe oddresultwhereWestNETis an "entity" that can be sued under the PRA but not under other statutes. For example, Worthington could not sue WestNET in federal court for alleged constitutional violations under 42 U.S.C. § 1983. There, as shouldbethe casehere, he wouldneed 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").

7Worthington 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 ofits 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 agreementmustidentify an administrator
or ajointboardresponsible forthe interlocal cooperative and (2) itmust specifyhow the cooperative acquires, holds, and disposes of property. RCW 39.34.030(4). Noticeably absent from this list ofadditional required provisions is one identifying

arecords custodian chargedwithrespondingto PRArequests. Such omissionresults 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 ofWestNET records, the coordination ofdocuments among the 10 contributing municipalities could potentially render disclosure requests . . . impractical or cumbersome"). Itmightbe goodpolicy to require interlocal agreements to designate arecords_ 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 ofrequests. Butthe plain language ofthe ICA does

8Worthington v. WestNET, No. 90037-0 Yu, J., Dissenting not require interlocal agreements to address public records requests. It is not this court'sjob to insert words into statutes or createjudicial fixes, even ifwe think the legislature wouldultimately approve oftheresult. Statutesthatfrustrate the purpose ofothers, though perhaps unintentional, are "purely a legislative problem." State ex rel. Hagan v. ChinookHotel, Inc., 65 Wn.2d 573, 578, 399 P.2d 8 (1965). In sum, WestNET has no life independent ofthe separate entities that are parties to the interlocal agreement. I would affirm the Court ofAppeals because WestNET is not a separate legal entity and has no capacity to be sued, and capacity is a legal question that atrial court canresolve on a CR 12(b)(6) motion. The Court ofAppeals properly affirmed the trial court's dismissal. I respectfully dissent.

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

10