MAINE SUPREME JUDICIAL COURT                                    Reporter of Decisions
Decision:   2014 ME 123
Docket:     Ken-14-52
Submitted
 On Briefs: September 23, 2014
Decided:    November 4, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, JABAR, and
                HJELM, JJ.


                                 GINA TURCOTTE

                                         v.

                      HUMANE SOCIETY WATERVILLE AREA

SILVER, J.

         [¶1]     Gina Turcotte appeals from an order of the Superior Court

(Kennebec County, Murphy, J.) dismissing her complaint against the Humane

Society Waterville Area (HSWA) for failure to state a claim upon which relief can

be granted. Turcotte’s complaint sought, pursuant to Maine’s Freedom of Access

Act, 1 M.R.S. § 400 et seq. (2013), to compel HSWA to permit inspection of its

records. Because we conclude that HSWA is not a public agency for purposes of

FOAA, we affirm the dismissal of Turcotte’s complaint.
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                                         I. BACKGROUND

        [¶2]     On September 18, 2013, Turcotte filed a pro se complaint for

injunctive relief seeking the release of HSWA records relating to a certain cat.1

The complaint alleged, in relevant part, that Turcotte “is a private woman who has

a right to review and receive public documents in the custody of public benefit,

non-profit agencies” and that HSWA “is a public benefit, non-profit agency

supported by 95% public donations for the purpose of reuniting, sheltering and

re-homing lost and abandoned animals.”                      The complaint further alleged that

Turcotte had submitted a request for documents to HSWA pursuant to FOAA and

that HSWA “wrongfully withheld public records requested by Claimant by failing

to comply with the statutory time limit for the processing of FOAA requests.”

        [¶3] On December 16, 2013, HSWA filed a motion to dismiss pursuant to

M.R. Civ. P. 12(b)(6) for failure to state a claim upon which relief could be

granted, asserting that “HSWA⎯being a private corporation⎯is not subject to the

disclosure provisions of [FOAA].” In her opposition to HSWA’s motion, Turcotte

argued that “HSWA is the functional equivalent of a public agency” and included

    1
      Turcotte asserts that she lost her cat in September 2012, and that she repeatedly contacted HSWA to
report the cat missing and to inquire whether anyone had surrendered the cat to the shelter. She further
asserts that a Waterville resident found the cat and turned it over to HSWA in November 2012, but
HSWA never contacted Turcotte. Turcotte only learned that the cat had been found when she saw a
photo of it posted on HSWA’s Facebook page on January 4, 2013, with a caption announcing the cat’s
adoption. HSWA has evidently already successfully defended a civil action in which Turcotte sought to
have the cat returned to her. The factual details of this underlying dispute are not relevant to this appeal,
which concerns only Turcotte’s FOAA request.
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several exhibits pertaining to HSWA’s contracts with twenty-three cities and towns

and HSWA’s tax status as an “organization that normally receives a substantial

part of its support from a governmental unit or from the general public.” HSWA’s

contract with the City of Waterville, which Turcotte attached as an exhibit to her

opposition to the motion to dismiss, provides, in part:

      By statute, ALL towns are either required to maintain an animal
      shelter or otherwise provide such services with regard to stray
      domestic animals.

      The SHELTER is hereby employed and authorized to act as an animal
      shelter and is equipped to provide such services in compliance with
      statutory requirements. The SHELTER will provide food, water,
      shelter, medical care, and/or any other humane treatment for such
      domestic animals while they are in possession of the SHELTER.

      [¶4] On January 20, 2014, the court issued an order dismissing Turcotte’s

complaint with prejudice, concluding that HSWA “is not subject to 1 M.R.S.

[§] 400 et seq.” Turcotte appealed.

                                 II. DISCUSSION

      [¶5] “We review de novo the legal sufficiency of a complaint when it has

been challenged by a motion to dismiss.”             Ramsey v. Baxter Title Co.,

2012 ME 113, ¶ 6, 54 A.3d 710 (quotation marks omitted). In doing so, we view

the complaint “in the light most favorable to the plaintiff to determine whether it

sets forth elements of a cause of action or alleges facts that would entitle the

plaintiff to relief pursuant to some legal theory,” id. (quotation marks omitted), and
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“we take the material allegations of [the] complaint as though they were

admitted.”2 In re Austin T., 2006 ME 28, ¶ 6, 898 A.2d 946.

        [¶6] Pursuant to FOAA, “a person has the right to inspect and copy any

public record . . . within a reasonable time of making the request to inspect or copy

the public record.” 1 M.R.S. § 408-A. “Public records” means

        any written, printed or graphic matter or any mechanical or electronic
        data compilation . . . that is in the possession or custody of an agency
        or public official of this State or any of its political subdivisions . . .
        and has been received or prepared for use in connection with the
        transaction of public or governmental business or contains
        information relating to the transaction of public or governmental
        business.

1 M.R.S. § 402(3). When evaluating whether an entity qualifies as a public agency

or political subdivision for purposes of FOAA, we look to the function that the

entity performs.          Dow v. Caribou Chamber of Commerce and Indus.,

2005 ME 113, ¶ 12, 884 A.2d 667. We consider four factors in conducting this

analysis: “(1) whether the entity is performing a governmental function;

(2) whether the funding of the entity is governmental; (3) the extent of

governmental involvement or control; and (4) whether the entity was created by



    2
       As part of her opposition to HSWA’s motion to dismiss, Turcotte filed a number of extrinsic
documents, which we consider here. We need not reach the question of whether these materials may
properly be considered in the context of a motion to dismiss a complaint for failure to state a claim,
see, e.g., Moody v. State Liquor & Lottery Comm’n, 2004 ME 20, ¶ 11, 843 A.2d 43, because even if they
are properly considered, the complaint as supplemented by the attachments is insufficient to support
Turcotte’s claim.
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private or legislative action.” Id. (quoting Town of Burlington v. Hosp. Admin.

Dist. No. 1, 2001 ME 59, ¶ 16, 769 A.2d 857). We address each factor in turn.

      [¶7] First, we consider whether HSWA performs a governmental function.

HSWA is contractually obligated to provide food, shelter, and medical services to

stray animals, which benefits each of the municipalities HSWA serves. Other

jurisdictions have concluded that humane societies serve governmental functions;

they have done so, however, primarily where the societies and their employees are

authorized by statute to take actions such as enforcing animal welfare laws and

confiscating   abused   or   neglected   animals.      See,   e.g.,   Daskalea   v.

Washington Humane Soc’y, 480 F.Supp.2d 16, 26 (D.D.C. 2007) (humane society

is a government actor for purposes of a section 1983 claim because it has statutory

authority to prosecute violations of animal cruelty laws, obtain warrants to search

private homes, collect fines, and seize any animal to protect it from abuse or

neglect); Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 1208

(9th Cir. 2002) (humane society and its officers are state actors for purposes of

section 1983 because humane society was created by statute and has the authority

to investigate animal cruelty, impound animals, place liens on property, and file

criminal charges); Champagne v. Spokane Humane Soc’y, 737 P.2d 1279, 1282

(Wash. Ct. App. 1987) (privately incorporated humane society essentially acts as
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public entity where city has contractually delegated to it the authority to enforce

animal control ordinance).

        [¶8] Here, the City is required by statute to select a shelter to fulfill the

function of sheltering stray animals. 7 M.R.S. § 3949 (2013). Unlike those in

other jurisdictions, however, shelter employees in Maine have no statutory

authority to enforce animal welfare regulations; only animal control officers may

do so.3 Id.; 7 M.R.S. § 3947 (2013). That an entity provides services under a

contract with a public agency is insufficient, on its own, to establish that it

performs a governmental function. See Town of Burlington, 2001 ME 59, ¶ 23,

769 A.2d 857 (Alexander, J., concurring). Thus, HSWA does not perform a

traditional governmental function.

        [¶9]    Second, we consider whether HSWA is governmentally funded.

Although HSWA is funded in part by its contracts with area cities and towns, it

receives the bulk of its funding from private donations. This factor counsels

against the conclusion that HSWA is a public agency subject to FOAA.

        [¶10] Third, we examine the extent of any governmental involvement and

control. HSWA is subject to certain licensing requirements and is bound to abide




    3
       A shelter employee may serve as an animal control officer, but only if that person independently
fulfills the requirements to do so. 7 M.R.S. § 3947 (2013).
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by the terms of its contract with the city. Such limited interaction does not amount

to significant governmental involvement in or control over HSWA.

        [¶11] Fourth, HSWA was not created by statute. This final factor weighs in

favor of concluding that HSWA is not a public agency.

        [¶12] Our review of the four factors leads us to conclude that, although

HSWA performs a function that both benefits the public and assists municipalities

in fulfilling their statutory obligation to arrange for shelter services to be provided

for the area, it is not a public agency subject to the requirements of FOAA. Even

accepting all of the factual allegations in the complaint as true, Turcotte has not

stated a claim that entitles her to relief on her claim to compel HSWA to provide

her access to its records.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Gina Turcotte, appellant pro se

        The Humane Society Waterville Area did not file a brief



Kennebec County Superior Court docket number CV-2013-226
FOR CLERK REFERENCE ONLY
