Ali v. Phila. City Planning Comm'n

• Decision Date: 01 October 2015
• Docket Number: No. 1335 C.D. 2014,1335 C.D. 2014
• Citation: 125 A.3d 92
• Parties: Jihad ALI, Appellant v. PHILADELPHIA CITY PLANNING COMMISSION.
• Court: Pennsylvania Commonwealth Court

125 A.3d 92

Jihad ALI, Appellant

v.PHILADELPHIA CITY PLANNING COMMISSION.

No. 1335 C.D. 2014

Commonwealth Court of Pennsylvania.

Argued May 6, 2015.

Decided Oct. 1, 2015.

Steven D. Masters, Philadelphia, for appellant.

Eleanor N. Ewing, Philadelphia, for appellee.

BEFORE: DAN PELLEGRINI, President Judge, and RENÉE COHN JUBELIRER, Judge, and ROBERT SIMPSON, Judge, and MARY HANNAH LEAVITT, Judge, and P. KEVIN BROBSON, Judge, and PATRICIA A. McCULLOUGH, Judge, and ANNE E. COVEY, Judge.

OPINION BY Judge BROBSON.

Petitioner Jihad Ali (Ali) appeals from a June 27, 2014 Order (docketed June 30, 2014) of the Court of Common Pleas of Philadelphia County (trial court), affirming a decision of the Pennsylvania Office of Open Records (OOR) under the Right to Know Law (RTKL).¹ At issue is whether the OOR erred in refusing to order the Philadelphia City Planning Commission (Commission) to provide Ali with unredacted copies of records which contained information that the Commission deemed protected under Section 106 of the federal Copyright Act, 17 U.S.C. § 106. For the reasons set forth below, we reverse in part and affirm in part on alternative grounds the trial court's decision.²

I. BACKGROUND

On or about April 15, 2013, Ali submitted a request for public records under the RTKL to the Commission, seeking "[a]ll public records ... from 2003 to the present time relating to the revitalization and redevelopment of the 60th Street commercial corridor." (Reproduced Record (R.R.) 25–26.) The Commission denied Ali's request in part. Relevant to this appeal is the Commission's decision to redact from responsive documents records and/or information subject to copyright protection:

Specifically, the [Commission] will not provide copies of plans, architectural drawings, renderings, photographs, etc., that are subject to copyright protection. The [RTKL] does not apply to documents that are prohibited from being disclosed pursuant to Federal law.

• The [Commission] has redacted the following material that is subject to copyright:

• In the document entitled "Affordable Rental Housing Development Proposal—60th Street Corridor," architectural drawings of the floor plans have been redacted from pages 45 through 50. A map of "community services" in the 60th Street Corridor has been redacted from page 53.

• In the document entitled "60th Street Commercial Corridor UP.UD Assessment," maps, architectural schematics, and artists' renderings have been redacted from pages 18, 21, 45, 47, 49, 51, 53–54, 56, 59, 64, 67, 70, 74, 77, 79, 81, 83, 85–91, 94–98, and 100. Descriptions of each redacted item can be found in the unredacted titles on the relevant pages.

• In the document entitled "60th Street Property Analysis," maps and artists' renderings have been redacted from pages 2, 4, 10, 13, 14, 16, and 19. Artists renderings have been redacted from pages 13 and 19 depicting the finished projects described therein, and the remainder of the redactions are maps depicting the boundaries of the referenced sites and/or projects.

(R.R. 28–29 (citations omitted).)

On June 13, 2013, Ali appealed the partial denial to OOR. On June 25, 2013, the Commission submitted its position statement to the assigned OOR appeals officer, along with an affidavit of Steven Williams, Executive Director of the Partnership Community Development Corporation (The Partnership CDC). (R.R. 38–43.) In the affidavit,³ Mr. Williams claimed, inter alia, that The Partnership CDC holds a copyright on the materials withheld by the Commission and described above, which The Partnership CDC submitted to the Commission as part of its proposed redevelopment project. He further claimed that The Partnership CDC would suffer competitive harm if the information was released. As a result, the Commission contended, inter alia, that it was precluded from disclosing the copyrighted material under federal law.

Ali filed his position statement with the OOR appeals officer on or about July 5, 2013. (R.R. 45–54.) Ali contended that the Commission failed to meet its burden of proof with respect to any exemptions under the RTKL. Ali challenged the Commission's reliance on federal copyright protection as a basis for withholding certain information without inquiring into whether Ali's request would fall within the "fair use" exception found in Section 107 of the Copyright Act, 17 U.S.C. § 107. In a supporting affidavit, Ali disclosed that he seeks the requested information "to ensure that the developers comply with all relevant federal, state and local laws and to ensure that the proposed development will actually result in direct and tangible benefits for the surrounding community." (R.R. 53.) Ali claims that these purposes fall within the scope of the "fair use" exception. Ali contends that if the Commission and the OOR rely on federal law for purposes of copyright protection, they must also apply the "fair use" exception. Otherwise, the Commission and the OOR are not giving full effect to the federal law on which they are relying.

The OOR appeals officer issued her Final Determination on July 23, 2013. (R.R. 56–62.) Based on the Commission's submission, the appeals officer concluded that The Partnership CDC holds the copyright on the materials that the Commission withheld from its response to Ali's RTKL request and did not consent to the release of the information. The appeals officer concluded that the OOR was precluded, under Section 305(a)(3) of the RTKL, 65 P.S. § 67.305(a)(3), from ordering the release of records that would be exempt under any federal law. Citing a prior OOR decision, however, the OOR appeals officer refused to conduct a "fair use" analysis, concluding that such an analysis must be conducted outside of the RTKL context. (R.R. 60.) In a footnote, the OOR appeals officer noted that the Copyright Act prohibited reproduction of the requested information, not public inspection.

Exercising his statutory appeal remedy under Section 1302 of the RTKL, 65 P.S. § 67.1302, Ali appealed the Final Determination to the trial court. Following briefing and oral argument, the trial court issued its June 27, 2014 Order, affirming the OOR Final Determination. After Ali filed his appeal with this Court, the trial court issued an Opinion in support of its Order. (R.R. 139–48.) The trial court noted that the "fair use" exception was an affirmative defense to a claim of copyright infringement. Because, however, the Commission did not disclose The Partnership CDC's copyrighted information in response to Ali's RTKL request, there could be no claim of infringement, and, thus, no occasion to raise the "fair use" defense. The trial court noted an absence of any case law that would allow a requester under the RTKL to assert the "fair use" defense in Section 107 of the Copyright Act in support of a request under the RTKL. In a footnote, the trial court also raised a possible conflict between application of the "fair use" exception in the way proposed by Ali and Section 302(b) of the RTKL, 65 P.S. § 67.302(b), which precludes a local agency from "deny[ing] a requester access to a public record due to the intended use of the public record by the requester unless otherwise provided by law." The trial court also held that it lacks jurisdiction to determine the merits of a "fair use" claim under the Copyright Act. Finally, in light of its disposition on the merits, the trial court opined that it was justified in refusing to award Ali attorneys' fees under Section 1304(a) of the RTKL, 65 P.S. § 67.1304(a).

II. DISCUSSION

On appeal, Ali raises two issues. First, Ali asks this Court to consider whether the trial court erred in upholding the OOR's decision to deny Ali copies of redacted information based on a misapplication of the RTKL and the Copyright Act and the lack of any record evidence that the holder of the copyright, The Partnership CDC, objected to the disclosure of the copyrighted material by the Commission in response to RTKL requests. Next, Ali asks the Court to consider whether the trial court erred in denying Ali an award of reasonable attorneys' fees and costs of litigation under Section 1304(a) of the RTKL.

A. Copyright Law

As an initial matter, we will address the question of whether the OOR has the authority to interpret the provisions of the Copyright Act in the context of hearing an appeal under the RTKL. Ali specifically disputes the trial court's conclusion that it lacked jurisdiction to determine the merits of Ali's "fair use" argument. In Department of Labor & Industry v. Heltzel, 90 A.3d 823 (Pa.Cmwlth.2014) (en banc), this Court held that the OOR "enjoys the authority to interpret federal statutes that involve public records and public access to agency information." Heltzel, 90 A.3d at 829. Because the Commission contends that the Copyright Act bars duplication of the requested records, both the OOR and the trial court necessarily had the jurisdiction and authority under the RTKL to interpret that federal law in order to determine the public nature of the records at issue.

Turning to the merits, Ali does not dispute that The Partnership CDC holds the copyright to the plans, drawings, and maps at issue. He argues, however, that nothing in the record supports the OOR's finding that The Partnership CDC objected to the disclosure of its copyrighted material in response to Ali's RTKL request. Ali noted that although Mr. Williams, in his affidavit, established that The Partnership CDC owns the copyright on the records in question, Mr. Williams did not aver that The Partnership CDC refused to give consent to the Commission to make copies of those materials available to the public should a request be made under the RTKL.

But, even if The Partnership CDC did refuse to grant consent, Ali contends that the OOR should have fully analyzed the Copyright Act, including the "fair use" exemption, to determine whether the requested records were exempt from disclosure under the RTKL. Ali argues that because the Commission claimed the...