Significant amendments to the Pennsylvania Right to Know Law (RTKL) several years ago have resulted in a large volume of litigation. One such case is very relevant to developers, engineers, architects, municipalities and persons having an interest in local government matters, particularly matters of land use and development. In the case of Jihad ALI v. Philadelphia City Planning Commission, 125 A.3d 92 (Pa.Cmwlth. 2015), a seven judge panel of the Commonwealth Court considered the interface of the RTKL and federal copyright law. In response to an open records request, the planning commission redacted from its response and refused to provide copies of plans, architectural drawings, renderings, photographs and the like that were subject to copyright protection. It is common for engineers, architects and other professionals to protect their work by copyright.
The Commonwealth Court determined that the local agency was not under any obligation to seek out the copyright owner in an effort to secure consent for copying of the copyrighted materials. The Court also stated that because a local governmental agency is under no obligation to secure the copyright owner’s consent when the agency invokes the Copyright Act as a basis to limit access to a public record to inspection only (and not photocopying), lack of consent by the copyright owner should be presumed. The Court went on to say that to require the planning commission to seek consent for duplication would impose added costs and burdens on local agencies that already are challenged by RTKL requirements.
The Commonwealth Court concluded that the redacted copyrighted information was not, however, exempt from disclosure. Rather, it was simply exempt from duplication. It was still incumbent on the city to provide access for inspection by the requesting party. Therefore, the copyrighted materials that were submitted as part of a redevelopment project were not “nonpublic” materials and were not private and confidential so as to totally exempt them from disclosure under the Pennsylvania Right to Know Law.