Recently, the Pennsylvania Commonwealth Court issued a decision in the case of Ali v. Philadelphia City Planning Commission regarding Mr. Ali’s request for public records relating to a commercial development project in Philadelphia under the Pennsylvania Right to Know Law.  Initially, the Planning Commission denied Mr. Ali’s request in part and provided him with redacted copies of records. The Planning Commission claimed that the redacted information was subject to copyright protection.

Mr. Ali appealed the partial denial to the Office of Open Records. In response, the Planning Commission submitted a position statement, along with an affidavit of the executive director of the organization that held the copyright on the redacted materials, stating that the Planning Commission was precluded from disclosing copyrighted material under federal law, specifically the federal Copyright Act. The Office of Open Records concluded that the redacted material was protected by copyright and that the Planning Commission was precluded under Section 305 (a)(3) of the Pennsylvania Right to Know Law from releasing records that would be exempt under federal law. Mr. Ali appealed this determination to the trial court, which affirmed the determination of the Office of Open Records.  Mr. Ali then appealed to the Commonwealth Court.

The Commonwealth Court framed the question as whether a record in the possession of a local agency that is subject to a copyright held by a third party is a public record that must be disclosed under the Right to Know Law, that is, subjected to inspection and duplication. The Commonwealth Court noted that both the Office of Open Records and the trial court held that copyrighted materials are not public records under the Right to Know Law because they are exempt from disclosure under federal law, in this case the federal Copyright Act. The Commonwealth Court disagreed with this assertion, stating that in order for a record to be exempt from disclosure under Section 305(a)(3) of the Right to Know Law, a federal statute must expressly provide that the record sought is confidential, private, and/or not subject to public disclosure. The Commonwealth Court cited two federal privacy statutes, FERPA and the federal Driver’s Privacy Protection Act as examples of federal law that expressly provide that records are not subject to public disclosure. In reviewing the Copyright Act, the Commonwealth Court concluded that the Act was not a federal law that exempted materials from disclosure under the Right to Know Law, as it neither expressly made copyrighted material private nor did it expressly preclude a government agency, lawfully in possession of the copyrighted material, from disclosing the material to the public.  In further explaining its reasoning, the Court determined that the exclusive rights of the copyright holder are not “qualified”, as not every disclosure of copyrighted material without the owner’s consent violates the Copyright Act.

However, the Commonwealth Court did limit a requester’s access to copyrighted material in stating that the Copyright Act provides that the copyright holder has the exclusive right to duplicate copyrighted work. In interpreting the Copyright Act in this fashion, the Commonwealth Court ultimately concluded that the unredacted public record must be made available for inspection under the Right to Know Law. The Copyright Act limited the level of access to a public record only with respect to duplication, not inspection and, therefore, the Planning Commission properly redacted copyrighted information from the duplicates it provided to Mr. Ali. However, the public still has the right to inspect copyrighted material freely.

Interactions between copyright issues and Right to Know requests usually stem from records requests related to construction projects, as was the case in Ali.   Governmental entities should be aware that the central holding of the Ali case is that copyrighted material may be redacted when providing duplicate records in response to a Right to Know request. However, members of the public have the unfettered right to inspect copyrighted material without the governmental entity redacting copyrighted information.  Maiello, Brungo and Maiello can answer any questions you may have related to the disclosure of copyrighted material under the Pennsylvania Right to Know Law.

Christina L. Lane
Christina L. Lane

Christina Lane is an accomplished school, municipal, labor and employment attorney representing public sector employers. She has extensive knowledge and experience with Title IX and often serves as a third-party investigator.