In a recent split decision, the Commonwealth Court ruled that a public agency can deny the duplication of certain copyrighted materials requested under the Right to Know Law (RTKL). However, the agency must make those materials available for public inspection, absent some other exemption, because they still constitute public records under the RTKL.
Ali submitted a RTKL request for public records from the Commission. He sought all records relating to the revitalization and redevelopment of the 60th Street commercial corridor in Philadelphia. The Commission’s response redacted certain documents, including copies of plans, architectural drawings, renderings, and photos. The Commission claimed these materials were subject to copyright protection under the federal Copyright Act and thus were prohibited from being disclosed pursuant to Federal law.
Ali appealed the denial to the Office of Open Records (OOR), which concluded that the redacted materials were not public records because they were copyright protected, that the copyright holder had not consented to their release, and that it could not order the release of records that would be exempt under any federal law. OOR refused to conduct a “fair use” analysis, as requested by Ali, because such an analysis would be outside the RTKL context. Ali appealed the OOR’s Final Determination to the Court of Common Pleas of Philadelphia County, which affirmed the decision. Ali further appealed to the Commonwealth Court.
The Commonwealth Court reversed in part and affirmed in part on alternative grounds. It found that the materials at issue were public records because the Copyright Act did not prohibit every disclosure of such materials without the copyright holder’s consent. The court also found that the Copyright Act only limited “duplication” of the material and not “inspection” of it. It acknowledged the jurisdictional problems arising from the situation, specifically noting the court’s inability to resolve whether duplication would constitute an infringement of the Copyright Act. Therefore it limited its review to whether the Commission met its burden of showing the RTKL request implicated the Copyright Act. The court concluded that the Commission had appropriately invoked the Copyright Act, but rejected the conclusion that the redacted information was exempt or nonpublic under the RTKL. It ordered the records be made available to Ali for inspection but not duplication. Finally, the court concluded this result did not justify attorneys’ fees for Ali because the Commission’s legal position was reasonable, it acted appropriately, and there was no evidence of bad faith.
Two Commonwealth Court judges dissented from the majority’s opinion. One argued that where a party gives documents specifically prepared as part of a proposal or application to a public agency there should be a presumption that any copyright protection has been waived. The other argued that the requested records, as proposals for award of construction/redevelopment contracts, were “public records” under the RTKL and were subject to full disclosure.
Click here to read: Ali v. Phila. City Planning Commission, 1335 CD 2014 (Pa. Cmmw. Ct. Oct. 1, 2015).