*1 ORDER already paid, does had which Claimant into litigation entirety of the transform 2015, July, NOW, day of AND 28th sched- Claimant petition.9 When a review Compensation of the the order Workers’ deposition, for Dr. Pelicci’s paid uled and 2014, September Appeal Board dated testimony to expert medical he needed hereby matter above-captioned in the any injury, work that he sustained prove litiga- respect part in with REVERSED frac- process transverse the L2-3-4 even costs, respect VACATED tion on an issue testified Dr. Pelicci tures. AF- injury alleged thoracic to the upon which contested and being was respects, and the in all FIRMED other Employer having prevailed by Claimant pro- for further REMANDED matter is of the during the course an NCP issue foregoing with the ceedings accordance Thus, the WCJ the fact litigation. opinion. with re-
ultimately against Claimant ruled relinquished. Jurisdiction on the injuries not listed to other gard entitle- Claimant’s is irrelevant NCP more, costs. litigation his What
toment on remand, succeed could still Claimant any In injury. a thoracic claim for
his
event, regardless outcome remand, to be reim- is entitled ALI, Appellant Claimant Jihad $2,000 of' cost by Employer for the bursed v. deposition. Dr. Pelicci’s PLANNING PHILADELPHIA CITY affirming sum, Board erred COMMISSION. light petition of Claimant’s denial Pеnnsylvania. Commonwealth Court issue crucial failure to address the WCJ’s tho- injury includes a the work of whether Argued May Further, Claimant is entitled injury. racic 1, 2015. Decided Oct. cost of Dr. Pelic- for the to be reimbursed deposition. ci’s Board’s
Accordingly, portion affirming disallowance
order the WCJ’s deposition $2,000 cost for Dr. Pelicci’s Additionally, the order
is reversed. affirming the denial
Board WCJ’s injuries petition
Claimant’s add alleged respect to the is vacated with
NCP matter is remanded injury
thoracic and the findings of specific
for the WCJ to render that issue. of law on
fact and conclusions occurred; rather, disput- injury Reyes. In some work 9. This differentiates this case injury and the existence extent of the petition for ed the Reyes, filed a claim the claimant litigated is- disability. parties these acci- injuries automobile he sustained not successful. As hearing well sues and claimant WCJ be- the first dent. At result, the claimant was expert, this Court held that deposed his medical fore the claimant litigation his costs. dispute entitled to specified did not employer that it *3 Masters, ap- D. for Philadelphia, Steven pellant. Ewing, ap- Philadelphia,
Eleanor N. pellee. PELLEGRINI, DAN
BEFORE: and RENÉE Judge, President COHN JUBELIRER, Judge, ROBERT and SIMPSON, Judge, MARY HANNAH and LEAVITT, Judge, P. and KEVIN BROBSON, Judge, A. PATRICIA and McCULLOÚGH, E. Judge, ANNE COVEY, Judge.' BY KEVIN Judge OPINION P. BROBSON. (Ali) appeals Ali
Petitioner Jihad 27,2014 (docketed from a June June Order 30, 2014) of Coúrt of Common Pleas of (trial court), Philadelphia County affirming Pennsylvania a decision of the Office (OOR) Open Right'to Records under the (RTKL).1 Know Law At issue is whether refusing OOR erred to order the ' Philadelphia' City Planning Commission (Commission) provide Ali with unredaсt copies ed infor records which contained pro mation that Commission deemed 106 of tected under Section the federal Act, 106. For U.S.C. below, part reasons set forth we reverse grounds affirm in alternative the trial decision.2 court’s 14, 2008, 6, February competent 1. supported Act of P.L. fact are 'evidence or §§ error whether the trial committed an 67.101-3104. court reaching or an law abuse of discretion its statutory appeal Dep't Transp., in a This Court's review decision." Piasecki v. Bu 1067, determining findings Licensing, ‘'limited to n. whether reau Driver A.3d I. BACKGROUND in-the unredacted titles on the rele- vant pages. 15, 2013, April On or submit- about (cid:127) In the document entitled “60th ted a under the records Property Analysis,” maps Street Commission, seeking RTKL to “[a]ll renderings and artists’ have been pres- ... records 2003 to pages 4,10,13,14, redacted from relating to ent time revitalization renderings Artists and 19. have redevelopment the 60th Street commer- from pages been redacted and 19 (R.R.) (Reproduced cial corridor.” Record depicting projects the finished de- 25-26.) The denied Ali’s re- Commission therein, scribed remainder quest in part. to this appeal Relevant depicting are maps redactions redact Commission’s decision to - boundaries referenced- responsive documents and/or *4 projects. sites and/or subject protection: formation to copyright (R.R. (citations omitted).) 28-29 Specifically, the will not [Commission] 13, 2013, On appealed par- June Ali provide copies plans, architectural 2013, 25, denial to tial OOR. On June drawings, renderings, etc., photographs, position Commission its submitted state- protection. that are to copyright officer, assigned appeals ment OOR The does not apply docu- [RTKL]. Williams, along with an affidavit'of Steven prohibited that being ments from Executive Partnership Director pursuant disclosed law. Federal Community Development Corporation (cid:127) The has [Commission] redacted the (The CDC). (-R.R.38-43.) Partnership In following subject to material that is claimed, affidavit,3 Mr.'Williams inter copyright: alia, Partnership that The CDC holds (cid:127) In the document entitled “Afford- copyright on the withheld materials n Housing Development able Rental. above, described Commission and Corridor,” Proposal Street —60th Partnership The CDC submitted to. architectural floor drawings Commission as its proposed rede- plans have been redacted from project. velopment He further claimed pages 45 A through 50. map Partnership CDC would suffer “community in the 60th services” competitive harm if the information was Street Corridor has been redacted result, As a released. the Commission from 53. page contended,, alia, that it preclud- inter disclosing ed (cid:127) materi- copyrighted
In the document entitled “60th al under federal law. Street Commercial Corridor Assessment,” maps, UP.UD archi- position Ali filed his statement with the schematics, tectural artists’ 5, appeals July officer on or OOR about renderings have (R.R. 45-54.) been redacted 2013. Ali contended 21, 18, 45, 51, pages 47, 49, 53-54, the Commission meet its burden failed 56, 64, 67, 79, 59, 74, 77, 81, 70, 83, proof any. exemptions respect with 94-98, 85-91, Descriptions 100. the RTKL. Ali challenged-the-Com- of each redacted can be pro-. item mission’s on found reliance (Pa.Cmwlth.20lO). scope “The of review The affidavit 3. is in form of an unsworn question expressly subject pen- of law under the made [RTKL] statement plenary.” Plymouth Twp., alty perjury Stein v. 994 A.2d Pa-C.S. 4904. See Pa, (definition affidavit). (Pa.Cmwlth.2010). 1181 n. 4 R.C.P. No. .76 Following court. withholding nation to the trial brief- certain as a basis
tection argument, oral trial court is- inquiring ing and into whether information without Order, affirming fall the “fair June request would within sued its Ali’s Ali Final Determination. After filed found Section 107 OOR use” exception Court, Act, sup- his with this the trial court appeal Copyright U.S.C. affidavit, Opinion support Ali of its Order. disclosed he issued porting 139-48.) (R.R. “to The trial court noted that information ensure requested seeks comply exception rele- “fair use” was an developers all affirmative federal, copyright infringe- laws and to to a claim state and local defense vant however, Because, development proposed will ment. the Commission ensure that tangible Partnership in direct and bene- CDC’s actually result did disclose (R.R. community.” surrounding response fits for the 53.) purposes fall be no request, Ali these Ali’s there could claims and, thus, excep- “fair use” claim of no occa- scope infringement, within the if the Commission sion “fair use” contends that to raise the defense. The tion. rely pur- federal law for trial court noted an absence of case OOR requester protection, they that would poses law allow under the “fair apply exception. the “fair use” Other- RTKL to assert the use” also defense wise,. sup- the Commission and the OOR are Section 107 *5 to giving port request effect the federal law of a under RTKL. In a full on the footnote, relying. they possi- which thé trial court also raised a application conflict of the “fair ble between Fi- appeals The issued her OOR officer way exception proposed by use” in the Ali (R.R. July on nal Detеrmination 302(b) RTKL, of the and Section P.S. sub-, 56-62.) Based the Commission’s 67.302(b), § precludes a local mission, appeals officer that the concluded requester “deny[ing] access to a Partnership CDC the copyright The holds ' to the public use of record due intended on the materials that the Commission requester the public the unless response withheld from its to Ali’s RTKL provided by law.” The trial otherwise not request to the and did consent release it jurisdiction court also that lacks to held of the officer appeals information. The the of a “fair determine merits use” claim the precluded, concluded that OOR Copyright under the Act. in -Finally, light 305(a)(3) RTKL, under Section of the merits, disposition of its on the the trial 67.305(a)(3), § ordering the P.S. re- opined justified it was court that refus- exempt' lease of would records that be ing attorneys’ to award Ali fees under Citing any prior federal law. 1304(a) of the Section 65 P.S. decision, however,’ appeals OOR OOR 67.1304(a). officer to conduct a “fair anal- refused use” analysis ysis, concluding that such II. DISCUSSION conducted outside of the context. (R.R. 60.) footnote, appeals In a the OOR First, appeal, On Ali raises two issues. officer the Copyright pro- noted that Act Ali to asks Court consider whether reproduction requested hibitеd of the upholding trial court erred the OOR’s
formation, inspection. copies deny to Ali decision redacted (cid:127) Exercising statutory appeal remedy his on a misapplication based under Section 1302 of Copyright the RTKL Act and 67.1302, Ali Final appealed Determi- lack of record evidence that the holder CDC, Partnership Partnership copyright, give CDC refused con- copyright- disclosure of the objected copies sent the Commission to make response the Commission ed material those available to materials the public Next, Ali requests. asks the to RTKL should a be made under to consider whether trial court Court RTKL. denying Ali an award' reason- erred But, if Partnership even The CDC did attorneys’ litigation fees and costs of able consent, grant Ali refuse to contends that 1304(a) of the RTKL. fully analyzed OOR should have Act, Copyright including the “fair use” ex- Copyright
A.
Law
emption,
whether
determine
the re-
matter,
As
ad
an initial
we 'will
quested
exempt
records were
from disclo-
question
of whether
OOR
dress
Ali argues
sure under the RTKL.
that
authority
interpret
provi
has the
because
Commission claimed the ex-
Act in
Copyright
sions
the context
emption,
merely
it
could
rest
with the
hearing an appeal
under the RTKL.
that
sought
contention
the mаterials
were
specifically disputes
Ali
the trial court’s
copyright.
to a
The Commission
that
jurisdiction
conclusion
lacked
had the burden to show
duplicating
of Ali’s
determine
merits
“fair use”
response
a RTKL re-
argument.
Department
Labor &
quest
actually violate the Copyright
(Pa.
Heltzel,
Industry v.
of
is
appropriately
“fair use”
made
unquestionably
it is
within our
because
bright
a
inquiry,
interpret
a
either as
authority
apply
and
that law
court,
302(a)
or
line rule
a state
without
Under
of the
matter.
Section
RTKL,
67.302(a),
participation
agency,
§
holder.
a local
65 P.S.
Commission,
court,
a
provide
Nor is it at all clear that
such as the
“shall
subsequent "infringement
public
a
accordance with this act.”
faced with
rеcords
Justice,
Mo.,
(Mo.Ct.App.2014);
Weisberg
Dep’t
5. See
v.
99 701(a)- RTKL, addition, 65 In privilege. P.S. 306 of Section Section RTKL, 67.306, § 67.701(a), provides: 65 provides general § rule of P.S. provided by
access: “Unless Nothing otherwise supersede this act shall or law, a shall public modify nonpublic ... be accessible public or record nature inspection duplication in accor- a record or document established in law, or regulation judi- Federal State parties appear with this All or dance act.” cial or order decree. agree in dispute that the materials meet the definition of a “record” under Finally, RTKL, Section 3101.1 65 question 67.3101.1, § RTKL.6 The that we must resolve P.S. provides:' possession is whether a in the record provisions If'the of this act regarding subject agency local to a is any access to conflict with other by a party “public held third record” law, Federal or provisions State RTKL, be disclosed under the this act apply. shall not is, subjected inspection dupli- proving The burden of that a record is cation. exempt from RTKL is access local receiving request. agency public The RTKL defines record 708(a)(1) Section follows: 67.708(a)(1). designed RTKL is A ... of a Commonwealth or promote government access local that: secrets, in order to prohibit scruti permit
(1) exempt is not under Section officials, ny the actions of public 708; make officials accountable for their Pa., Levy actions. v. Senate 619 Pa. (2) being is not from exempt dis- 586, (2013); 361, 65 A.3d Pa. State closed under other or Federal McGill, (Pa. Police v. 83 A.3d or or regulation judicial State law or- Cmwlth.2014) (en banc). In furtherance of decree; or der purposes, exemptions these remedial all (3) protected by privilege. is not disclosure, including exemptions un 305(a) 102 of RTKL. Section law, narrowly der federal must be con RTKL provides presumption v. Scolforo, strued. Governor Office of d possession records in of a all local (Pa.Cmwlth.2013) (en A.3 305(a) are records. Section banc). RTKL, however, mirrors the defini- 305(a)(3) Exemption 1. Section “public tion record” in Section 102 the RTKL, by providing presumption that the Both appeals the OOR officer not apply ques- does the record in where copyright the trial court held that (1) exempt tion éither under Section 708 materials at in this matter are not ed issue ' (2) 67.708; exempt they P.S. exempt records because law, ie., regulation, undеr federal or state under federal disclosure law— decree; (3) judicial disagree. order or to a Act. We order *8 document, letter, The RTKL paper, defines "record” as follows: term includes a book, Information, map, tape,, photograph, film or sound regardless physical of form or characteristics, recording, that documents a transac- stored or main- information. activity tion or of an and that is electronically data-processed tained created, pursuant received retained or image-processed or document. transaction, law or in with a connection § Section 102 P.S. 65 67.102. activity agency. business or 100 (2) any employee no exemption officer or under Section constitute statute
305(a)(3) of
the federal
State ...
the record
provide
expressly
or
any
return
shall disclose
return
confidential, private,
sought is
and/or
any
man-
information obtained Him
example,
public disclosure. For
...
ner.
Township
Dis
Sherry v.
School
Radnor
Pennsylva
v.
Project
In
(Pa.Cmwlth.),
Advancement
trict,
appeal
20
515
A.3d
60
Transportation,
(2011),
Department
710,
nia
292
denied,
31 A.3d
612 Pa.
(Pa.Cmwlth.2013),
Pennsylva
891
relating A.3d
that school records
held
this Court
(Pa-
Department
Transportation
nia
exempt un
were
to honоr code violations
alia,
DOT) argued,
inter
that Section
Rights
and Educational
Family
der the
(FERPA),7 and,
6114(a)(1)
Code,
Pa.C.S.
1974
there
75
Privacy Act of
the Vehicle
6114(a)(1),
fore,
exempt
§
disclosure under
Pri
Driver’s
were
federal
305(a)(3)
reaching
In
Act,
of the RTKL.
§§
vacy
Section
2721-
Protection
18 U.S.C.
conclusion,
specifically
cited
Sec
this
we
2725,
disclosing,
prohibited PaDOT from
FERPA, 20
1232g(b)(l) of
tion
U.S.C.
request,
to a RTKL
information
response
provides
§ 1232g(b)(l),
“[n]o
which
is
photo
about
identification cards that
any
shall
made available under
funds
6144(a)(1) of the
sued. Section
Vehicle
any
educational
program
applicable
sell,
or
publish
makes
Code
it unlawful “to
policy
which has a
institution
...
which re
reports
disclose
records
practice
permitting
the release of edu
driving
person.”
late
... of students without
cation records
2721(a)(1)
Privacy
the federal
parents.”
of their
More
written consent
prohibits
depart
Act
state motor vehicle
over,
Miami
citing
v.
Uni
United States
making
from disclosing
ments
or otherwise
Cir.2002),
(6th
versity,
information shall be and ex- Inc., 432-34, 104 S.Ct. U.S. title— cept (1984). authorized to this Relevant L.Ed.2d
matter, copy- rights the exclusive 1232g. 7. 20 U.S.C.
101 (4)the holder, in of forth Section 106 of right upon as set effect the use n market, 106, Copyright Act, potential 17 U.S.C. or value of the copyrighted work. following: clude the fact that a is unpublished work 122, Subject through to sections 107 finding shall not itself bar a of fair if use of copyright the owner under this title finding is upon made such consideration rights has the to and to exclusive do . the above fаctors. all following: authorize Copyright Section 107 Act is the (1)to reproduce the copyrighted . judicially-created of the codification “fair phonorecords; work copies in or copyright infringement use” defense Pipeline, action. Video Inc. v. Buena Vista Entm’t, Inc., 191, Home 342 F.3d (3) copies or phonorec- distribute Cir.2003). (3d “Fair in use” is the nature ords of copyrighted work to the defense, and, therefore, of an affirmative public by or sale other transfer alleged infringer bears the burden rental, lease, ownership, byor or lend- proof. analysis, The “fair Id. use” howev ing; er, is not limited the four “non-exhaus list of tive factors” set forth above: however, These rights, give way exclusive four statutory “do not factors what is as “fair referred use” of the represent promises score card copyrighted public. work In this victory to the majority,” winner regard, Act, of the Copyright Rather, each explored, factor is “to be 107, provides: 17 U.S.C. together, results weighed light purposes of copyright.” provisions sec- Notwithstanding the Thus, law, apply we and the 106A, tions 106 and of a use fair fair in particular, use doctrine we bear work, copyrighted including such use purpose encourage its mind “crea- reproduction copies.or phonorecords activity” for public good. tive by any specified by other means (quoting Leval, Id. at 198 N. To Pierre section, criticism, such purposes Standard, ward a Fair Use 103 Harv. (in- comment, reporting, teaching news (1990); Campbell v. L.Rev. cluding multiple copies for classroom Music, Inc., 569, 578, 510 U.S. use), research, scholarship, or is not Acuff-Rose (1994)). 114-S.Ct. L.Ed.2d infringement copyright. determin- ing whether the use made of a work in our Copyright Based on review - any particular case is use the precedent, fair Act and our conclude that factors to be considered shall include— Copyright Act is not law a federal exempts materials from disclosure (1) purpose and character It expressly the RTKL. makes neither use, including whether such use n copyrighted private material confiden- of a for non- commercial nature tial, expressly preclude gov- nor does
profit purposes; educational agency, lawfully possession ernment (2) copyrighted the nature material,- copyrighted disclosing work; (cid:127) . That public. material (3) substantiality grants rights the amount and exclusive portion duplica- used relation to the holder to authorize whole; copyrighted work as a tion of material does not *10 Heltzel, in as to “[conflicts Act As we noted Copyright the us persuade alone n . by Section governed .. are public access law that the General type federal is the Heltzel, 90 A.3d at of the RTKL.” 3101.1 to include within the Assembly intended provides RTKL 832. 3101.1 of the Section 305(a)(3) of RTKL. the of Section scope provisions [the RTKL] the “[i]f rights exclusive because the is so This conflict regarding access with records unqualified not copyright are the holder law, the Federal other. State provi- Act. Copyright the 107 of Section light apply.” The sions of act not’ this shall words, every disclosure not In other access to records provides owner’s without the copyrighted material duplication. ways inspection two — This Copyright Act. the consent violates 701(a) of the RTKL. The Commis- Section Act from state distinguishes Copyright the under the duplication sion contends recog- this Court has laws that and federal 106 of with the RTKL conflicts Section scope falling nized within Copyright Act. (cid:127) 305(a)(3) exemption Section - above, Copy- 106 of As noted Section RTKL. copy- of the right Act vests in the owner right duplicate right the exclusive 2. 306 —Public Nature Section duplication copyrighted of the authorize analysis to our ’above Similar Copyright Act does re- work. The 305(a)(3) respeсt Section inspection. Although rights strict con- "nothing Copyright we conclude that copyright are ferred holder copyrighted nature of establishes the Act use,” Act is nonethe- Copyright “fair above, As material noted “nonpublic.” agencies for when problematic less local very purpose Copyright Act‘is to of the a RTKL seeks faced with "public for encourage labor creative copy- copyrighted materials. Unless good. Accordingly, Section right duplication, holder has consented the trial court’s support RTKL does not duplication copyrighted material un- decision. risk that the der the RTKL carries the agency will local holder sue the If court. infringement for found federal 3. 3101.1 —Public Access Section infringer, agency an the local could above, Summarizing conclusions our to the holder be held liable rejected conten- háve the Commission’s which, in statutory damages, actual or that- the á Copyright tions federal infringement, up could be case of willful ' copyrighted exempts law that material $150,000. § 504. The local 17 U.S.C. (Section the RTKL disclosure under pay ordered to could also be RTKL) 305(a)(3) of or is a law attorneys’ costs- and copyright owner’s "nonpublic” that renders materials such whilе, All the local fees. 505. Id.. RTKL). (Section-306 Accordingly, expending taxpayer dollars action, purposes attorneys’ to defend itself in costs and fees un- “public materials at records” issue by action infringement occasioned now the RTKL. der We must determine its own the risk and subse- assessment disclosure, voluntary conflict quent whether there is a but forced between OOR or this access order of the afforded to disclosure Court.8 RTKL and the Act. 67.1306(a), 1306(a) brief, argues reply his *11 here, however, a just in.response request. not FOIA to Much as
The conflict
respect
with
an order of
we do above
the-
disclosure under
the
risk
may trigger
liability
the D.C.
held
exis
RTKL
civil
under
Circuit
that'“the mere
the
Act,
by itself,
of
auto
Copyright
copyright,
is also that
tence
not
the
federal
does
matically
FOIA inapplicable to
powerless
this Court
resolve
render
ma
law makes
:
clearly agency
that-are
of
records.”
question
the
whether a disclosure of
terials
Weisberg,
at 825.
631 F.2d
Cir
copyrighted
by
material
a
D.C.
local
is,
cuit,- however, vacated the district
permission of the
in
court’s
without
owner
question
the
of
order because
whether du
under
fringement
Copyright
the
Act. See
1338(a)
plication
FOIA
§
be
(vesting
ju
should
allowed
28 U.S.C.
exclusive
not
the
could
be.resоlved
absence of
over claims “arising under”
risdiction
(cid:127)
holder, TIME,
Act).9
which the D.C.
Copyright
Though
directly
not
on-
indispensable,
Circuit
an
party
held was
point,
opinion
an-
from
States
the United
the action. The
reasoned:
for
court
Court of
of Colum
Appeals
District
n
illustrates
jurisdictional
bia Circuit
how a
We intimate.no view
respect
with
-
limit
problem
ability
can
a court’s
to re
Contentions concerning
[the FBI’s]
public-.access
solve the tension between
relationship
proper
between FOIA and
copyright.
Weisberg v.
De
U.S.
laws.-
We conclude
Justice,
partment
824
F.2d
stead that the district court
have
should
of
(D.C.Cir.1980), a case
a re
dealing
sought
copy-
presence
alleged
n
[Fed.R.Ciy.P.
quest
copyrighted
for
material under the
right
19]
holder under
be-
Freedom,
(FOIA),10
deciding
of Information Act
fore
case.-
TIME
Because
court,
FBI to
a..party,
federal
ordered the
has
district
the district court
produce copies
copyrighted photographs
subjected the Government “to a substan-
jf
every agency, public
only
complaint
remedy
“shields
official or
is for
ex-
a
employee
exposure
liability
Act,
from
to civil
from
by
granted
e.g.,
pressly
a
suit
compliance
legally
right
with a
know
valid
infringement
statutory
or for the
royalties
(Ali
16.)
Reply
request.”
Br. at
reproduction,
for record
claim
or asserts a
1306(a)
provides:
Act, or,
requiring
construction
at
provided
Except
in sections 1304 and
least,
doubtfully,
perhaps
.very
more
governing
other
re-
1305 and
statutes
presents
policy
where
a case
distinctive
records,
no agency,
lease of
official
requires
principles
the Act
that federal
con-
public employee
liable for civil
be
shall
gen-
disposition
trol
claim. The
penalties resulting
compliance
or fail-
copyrights,
eral interest that
all other
like
comply
ure to
with this act.
by
property,
enjoyed
should-
forms
added.)
language
(Emphasis
Clearly, this
enough
their true
is not
owner
to meet this
not,
contends,
lopal agen-
Ali
does
shield
last test.
employees
officers
cies and their
from all
Eliscu,
T.B. Harms Co. v.
339 F.2d
liability,
liability
let alone
civil
civil
,
(2d
(citations omitted)
Cir.1964)
(emphasis
only
law. The section
to civil
federal
refers
added). Here,
i.e.,
asserts
claim—
penalties, which are in
a fine
the nature of
reproduction
copyrighted
re
material
governmental
imposed
body.
aby
See Sec-
sponse
is "fair
to RTKL
use” under Section
tion 1305 of the
67.1305
Copyright
requires con
Act—that
(authorizing
impose
courts to
penalty
civil
Accordingly,
Act.
if
were
struction of the
we
agency’s
faith denial
bad
of access to
claim,
intruding
to address Ali’s
would be
record).
(cid:127)
jurisdiction
of the federal
the exclusive
jurisdiction
9. The
under this
reach
’(cid:127)
courts.
section is
as follows:
described
Mindful
hazards ‘offormulation in
.
552
10. U.S.C.
area,
an
this treacherous
we think that
ac-
if
Copyright
tion ‘arises under’ the
Act
court,
ruling
pleas
or a common
incurring ...
OOR
inconsistent
tial risk
dupli-
agency or
court
a state
state
obligations.”
local
cation
rulings vitally af-
court’s
The district
“fair
RTKL is
pursuant
material
copy-
alleged
TIME’S
fect
value
107 of the
use” under Section
own
bring'its
If
were
right.
TIME
copyright owner
preclude
the Government’s
challenging
action
n right duplicate
infringement
lawsuit
pursuing
photos,
the'district
*12
court,
the
court would
and
district
federal
not neces-
would
court’s determination
by
not'
our “fair use” decision.13
be bound
Non-parties gen-
a bar.
sarily serve as
We, therefore,
con-
have
the same
here
by prior judgments
erally can be bound
ie.,
conflicting legal
prospect
the
they
fairly repre-
have been
only where
cerns —
government and the
obligations for the
by
parties
the
in the earli-
one of
sented
litigation
duplicative
potential
interest
for
litigation.
agency’s
And an
er
—that
in
problematic
Circuit found
likely
diverge
to
the D.C.
in FOIA
suits
Indeed,
Weisberg.
the
D.C. Circuit resolved those
parties.
The
private
those
vacating
court’s
by
in this
the-district
concedes
ease
concerns
Government
remanding
matter for fur-
order
the
protect
no
to
and
had
incentive
TIME’S
copy-
copyright
with
owner
key
one of
ther
the
proceedings
least
the
terests
at
simply
not have that
by
as a
do
right
party.
the district
We
issues decided-
*
-
option.
possibility
court.
therefore remains
by
would
separate
that a
action
TIME
therefore,
can,
in this
only go as far
We
pros-
proceed, raising
the
be allowed
undisputed
RTKL
the
and the
matter as
conflicting legal
pect
obligations
Act
allow. See
will
Copyright
terms
respect
to the dis-
Government with
Project,
Here, consent constitutes problem our cannot jurisdictional Act, Copyright where a local has by simply joining agency be solved The Partner- record ship indispensable duplicate A refused party.12 CDC as an response by invoking necessary. request to a change in law'would be RTKL Act, our review be copyright Copyright Even if force a owner we could the local participate proceedings determining RTKL whether before confined "key Partnership appeared 11.Interestingly, copyright 12. CDC has not ’issue” D.C, any stage proceeding. party at this RTKL that the Circuit refers into. the.above- quoted passage duplication by is whether Jones, v. 536. Pa. DeCoatsworth See FBI would use” under Section be "fair 107 (1994) (holding judg- A.2d Weisberg, Copyright 631 F.2d Act. at jurisdiction is entitled ment entered without n. 38. respect). authority or to no right proving response its burden of facts owner to duplication has met to a duplication of presumed. that forced sufficient RTKL should bе .show im- the RTKL copyrighted material under rights potential
plicates liabilities aris- In examining the Commission’s ing only Act that Copyright can written submission OOR and the accom resolved the federal courts. Mr. panying affidavit of Williams of The CDC, Partnership we conclude above, As outlined there is con appropriately invoked Commission flict between the Copyright Act as basis to limit access to (i e., respect RTKL duplica access at by redacting copy issue tion) (1) ques where righted duplicates under a protected tion held that it provided response to Ali in to his (2) party third the local does request. For the reasons set forth not have the consent own above, however, reject OOR’s determi duplication of er to the record in *13 nation to the that it that concluded .extent to response request. a RTKL re With exempt the information is redacted or non element, spect to the second we do not public under the RTKL. There is material ,agency any hold that the local is under difference between an non exempt obligation to out and/or copyright seek the owner record, public agency an which is not re and endeavor to secure its To do consent. all quired to to provide access at the under impose additional so burdens and RTKL, a public and nonexempt record agencies already costs on local challenged may subject that to limited un by access the strict deadlines set forth in the der the Instead, Copyrighted RTKL. RTKL. we it to the- local leave and, category. falls into the so, Copy latter The agency to whether if decide under right Act limits the level of to a by what access circumstances what method it public only respect record with to duplica should endeavor to secure consent.15 Be tion, inspection. public local is The agency obligation cause a under no record must, consent, therefore, to secure the still be copyright owner’s made available however, RTKL, inspection agen hold that a under the allowing we where local the cy public agency’s Act as to a local Copyright invokes a basis scrutinize reli the to limit to to on inspection copyright access record ance or consideration of the only, copy- the absence consent the ed material.16 however, emphasize, request
14. We con- that where a a RTKL materials submitted applicant approval pro- flict is under Section established 3101.1 the the indemnify Copyright the limit level cess or hold the local and/or Act.will only respect agency any infringement to a record access with harmless for action duplication, may duplication. because the result said does fróm Alter- inspection. natively, agency not restrict record could seek waiver/indem- must, therefore, still be at made available nification the time the submission. As pub- inspection allowing option, agency under the waiv- another could seek agency’s lic to scrutinize local on reliance owner er/indemnification copyrighted applicant agency or consideration of material. once the receives and/or request implicates copyrighted a RTKL ways 15. We can envision in which a several material. wished, could, agency if it local secure the February consent of owner. The local 16. In a motion to dismiss filed 10, 2015, agency pro- an could the Commission enact ordinance notified the Court that, applicant seeking subsequent filing appeal vides that an local Court, approval duplication Partnership gave, response con authorizes CDC its n Attorneys’ under 3101.1 of appropriately Section B. Fees certain copyright- RTKL when it redacted he is entitled contends pro- information from the records it ed attorneys’ fees and an of reasonable award response to Ali his duced 1304(a) of Section litigation costs of under Moreover, nothing we see 1304(a) request. disagree. Section the' RTKL. We justify finding Com- record to provides: of the RTKL We, faith. there- mission has acted bad reverses final determi- If a court fore, grants reject or Ali’s is enti- appeals officer contention he nation request for a record after a statutory attorneys’ access to award of tled denied, the court deemed access was 1304(a) fees costs fees attorney reasonable may award RTKL. por- appropriate or an litigation
costs requester if the court tion thereof III. CONCLUSION following: of the1 finds either (1) origi- agency receiving the above, will For the reasons forth set willfully wanton nal trial 2014 Or- court’s June reverse disregard deprived requester der, to extent affirmed OOR’sdeter- .public access to mination that information in bad faith or otherwise acted in access exempt of a local possession act; provisions of this 305(a)(3) of the RTKL under Section *14 (2) exеmptions, exclusions nonpublic of under Section 306 the RTKL. by in asserted its defenses on 3101.1 of the we Based final, on determination were based 27, trial 2014 will affirm the court’s June thé law. interpretation a reasonable of Order, to extent it Com- held attorneys’ his of fees support claim redacting in appropriately mission acted section, argues and this costs -under copyrighted duplicate information from the ... of [Commission’s denial “[t]he provided to Ali response records that in Ali’s to on the basis of right know request. agree to his RTKL also We patently unrea- copyright federal law trial court that Ali is not entitled to derogation in of both and sonable clear attorneys’ fees in this matter. award landscape and copyright legal (Ali expansive Br. goals of the RTKL.” at
32.)
ORDER
above,
rejected
As noted
have
some
we
October,
NOW,
day
this
AND
1st
legal arguments
in
the Commission’s
2015,
the order
the Court
Common
support of its
Ali’s RTKL
treatment
Philadelphia County, affirming
Pleas
however,
have,
request.
also conclud-
We
Pennsylvania
Open
of the
Office of
decision
legal position
ed
on
that the Commission’s
Records,
in
hereby
AFFIRMED
a conflict
and
between RTKL access
in
Indeed,
part,
set forth
REVERSED
Copyright Act was reasonable.
opinion.
аccompanying
have held
acted
Commission
2015,
24,
'finding
duplicate
copy
March
sent to
Commission to
Order dated
righted
response
likely
presented
materials at issue
Ali’s
be
[is]
"the
here
issue
request. Accordingly,
the Commission
continuing significance
repeated,
[is]
asked that we
appeal
dismiss this
as moot.
ripe
disposition."
[is]
by
This Court denied the motion
dismiss
by
DISSENTING OPINION
President
use.”
U.S.C.
This “fair
use”
Judge
equitable
PELLEGRINI.
is an
rule of
doctrine
reason and
case must
each
its
decided
facts. A
This
City
case involves whether the
purpose
court must consider the
and char
Philadelphia may
disclose
refuse
certain
use,
acter of the
the nature of the copy
reports
City’s
to the
Planning
submitted
work,
righted
the amount and substantiali
Partnership
Commission
Communi-
ty
portion
of the
used
relation
ty Development Corporation (Partnership
copyrighted
whole,
work as a
ef
CDC)
development
regarding the
potential
fect
use on the
market for
(Corridor)
60th Street Corridor
for resi-
or the valúe
copyrighted
work.
purposes.
dential and commercial
Even
Productions,
Twin Peaks
Inc. v. Publica
though this information was going to be
Ltd.,
(2d
tions Int’l
based 708(b) of the RTKL. 67.305(a)(3), section ordering sumed within from the release of then, Clearly the issues have been pre- as that be exempt specifically on appeal, to this Court sented However, law. the OOR also con- pro- within a that the documents contained that chided the Commission had failed exempt are from disclosure posal based meet its that establishing burden of law, necessarily copyright we must consid- financial operating PCDC’s statement and applicable provisions. er budget were exempt disclosure case, this Ali a filed with and, proprietary confidential City Planning Philadelphia Commission hence, directed the disclosure the same (Commission) seeking public records “[a]ll without’ redaction. The Court of Common possession in the [Commission] (trial court) Philadelphia County Pleas of relating to- to the present time Ali;s appeal. thereafter denied further redevelopment of revitalization and Hоwever, analysis by the OOR fails (Trial 60th Street commercial corridor.” 1.) question consider the documents op. granted in at The Commission court Ali’s part, part, request. part proposal were contained as a even denied explained The Commission that-certain re- clearly though part indicated records, sponsive including plans, architec- Moreover, the record before it. this con- drawings, renderings, photo- tural necessarily sideration a critical graphs, review as the PCDC asserts OOR’s PCDC and redacted. copyright exemption to the materials. proposal. In an
The Commission also noted that certain affidavit submitted records, namely (OOR), of Open statement and the Office Records Steven financial operating budget, being Williams,'Executive PCDC, were redacted Director as trade in- proprietary secrei/confidential that the stated PCDC submitted the docu- formation. The Commission stated that titled, in á ments record Rent- '“Affordable by was advised rec- PCDC these Housing Development Proposal” al relat- ’ ords contained confidential proprietary ing redevelopment to the revitalization and formation, the release of which would of the 60th commercial Street corridor competitive cause substantial harm to its City, Philádelphia. The RTKL position given that these records contain clearly proposals addresses construc- pricing model created the PCDC tion/redevelopment projects. techniques financing to scat- relating it is the holder of a PCDC asserted housing. tered site affordable The Com- respect to the documents 708(b)(ll) mission cited section i.e., proposal, within archi- 67.708(b)(ll), contained which ex- P.S. schematics, architectural draw- or reveals tectural empts constitutes proprietary maps, renderings trade ings, secret confidential artists’ requester. information from access -responsive appear documents. requested also Williams stated partial denial to the appealed *17 financial,state- in of the a records nature OOR, the which that since concluded budget, operating also ment submitted holds PCDC the certain rec of proposal, as confídéntial the were by withheld and the ords Commission PCDC, of proprietary information PCDC did not consent to the of the release same,' precluded it of would was under section which cause substantial disclosure (c) Except provided in subsections competitive position.2 as to the PCDC’s
harm (d), exempt from following are we must address is question first this Act: requester under access á pub- a qualify these documents whether of record under section lic as: is defined
which . (26) pertaining agency to proposal A disposal supplies, or ser- procurement record, record, including a financial A prior or vices construction to' award agency or local that: a Commonwealth opening prior or of the contract to 708; (1) exempt is not under section rejection bids; financial of all request- a or .(2) formation bidder offeror being exempt is not disclosed request for or for ed bid an invitation or any Federal State law other bidder’s or proposals to or demonstrate regulation judicial or order de- or or. capability; economic offeror’s cree; or members, identity and other *18 HI subject use; are full- value applies and the records nomic from its or disclosure disclosure. '(2)
I the Commission’s and the recognize subject efforts that are documents, i.e., position PCDC’s .that reasonable under the circumstances to schematics, architectural the architectural secrecy. its maintain drawings, maps, renderings, finan- artists’ The term includes data sоft- processing statement, budget, cial and operating by ware obtained' an were and trade se-' ‘licensing agreement disclo- prohibiting ' However, cref/proprietary information. sure. for award of a corn- proposals submitted added).3 (emphasis 67.102 P.S. tract for construction do contain' typically Hence, drawings, such as architectural legislature clearly such and the documents drawings, schematics, renderings, "artists’ distinguished proposals of this nature etc., of a proposal submitted property from docu- other intellectual ’ n contract, indepen- award derive which ments submitted to it. by being dent economic not gener- benefit Indeed, section 102 of RTKL ad- ally readily by known and ascertainable dresses matters in property intellectual can persons who obtain economic value general and defines such documents as (i.e., its competing from disclosure contrac- follow: tors, etc.) firms, fall architectural would “CONFIDENTIAL PROPRIETARY purview within this definition INFORMATION.” or fi- Commercial 708(b)(ll) trade' secret. Section of the" by agen- nancial information received exempts specifically “[a] cy: that constitutes or reveals a trade secret (1) confidential; or privileged which confidential'proprietary information.” 67.708"(b)(ll). §' analysis If
(2) the disclosure which here, were end the records would be competi- substantial cause harm to the However,"the exempt. RTKL further ad- position person tive that sub- requests dresses how for such documents mitted the information. be handled under section entitled “Production certain rec- ords,” states, in pertinent part, Information, “TRADE SECRET.” follows: formula, drawing,, cluding pattern, a-
compilation, including list,, a customer (b) REQUEST TRADE SE- FOR. device, method, program, technique notify agency shall CRETS.—An process that: of a if party third a record
(1)
party
third
independent
provided
derives
economic val-
the record and
ue,
potential,
signed
being
actual
included
written statement
generally
being
a representative
party
known to
of the third
trad¿
readily
by proper
contains,a
ascertainable
means
that the record
secret
persons
other
can
eco-
proprietary
who
obtain
or confidential
information.
The definition of "trade secret" is derived
RTKL. See
disclosure under the
Common
Eiseman,
(Pa.
language
from identical
in section
85 A.3d
contained
wealth v.
—
-,
Cmwlth.),
Pennsylvania
granted,
appeal
Uniform Trade Se-
Pa.
(Trade
Act),
(2014);
Pennsylvania
crets Act
Secrets
12 Pa.C.S.
A.3d 610
Parsons v.
(PHEAA),
recognized
Higher
Agency
§ 5302. This Court has
the Trade
Assistance
Education
(Pa.Cmwlth.2006).
statutory exemption
Secrets Act as a
While the exempt have would, been disclosure necessary PCDC whether the included contract, but, since before award of language proposal per notification its PCDC with- contract awarded 707(b) of the section the Commis objection to release of the rec- drew its notify request. them of sion did ords, they, subject are now to disclosure. initially objected to release of the PCDC 708(b)(22) Additionally, I that section asserting note proprie records confidential 67.708(b)(22), (in also tary information and docu exemption the content of contains fall ments which within the trade secret engineering or RTKL), real estate feasi- appraisals, subsequently definitions of the but estimates, reviews, bility environmental objection. federal courts withdrew its relating audits construc- by submitting pro if evaluations have bid held similarly provides tion sec- projects, government agency, company posal ‘ ' 708(b)(22)(ii), tion P.S. required informa is to disclose confidential 67.708(b)(22)(ii), exemption no tion, if it exempted is disclosure .the applies is mаde to longer once decision competi substantial harm to the will cause proceed with project. the construction position person tive from whom the information was obtained. National Notwithstanding the mootness this Parks & Mor Conservation Association v. appeal, legislature the intent of is ton, (D.C.Cir.1974). 498 F.2d Proposals for of construc- clear. award However, here, its the PCDC withdrew tion/redevelopment contracts are objection, re and with it claim that exemption before the records lease of sub the information would cause awarded, but once the contract contract Hence, stantial harm. renders -awarded, these are sub- records moot, appeal clearly these ject spe- to full disclosure unless otherwise subject to disclosure. Here, cifically exempted. the PCDC’s proposal
Because these records were sub- was submitted the Commission project for a mitted of a for construc- consideration construction proposal H3 Now, in City Philadelphia. light objection withdrawal PCDC’s *20 information, more release than proposal years
ten after submission of the project, development these rec- clearly subject to
ords are full disclosure the RTKL. I first
Accordingly, would hold moot,
appeal was but the alternative I
would vacate the order the trial court remand, specific instructions to OOR, to fully
remand consider requested records,
whether the
cluded materials submitted
proposal, a “public constitute un- record” 708(b)
der sections 102 and RTKL. RUSSO,
Alfred J. Petitioner
v. COUNTY,
ALLEGHENY and the Court Allegheny
of Common Pleas of Coun
ty, Pennsylvania, Division, Criminal
Respondents. Pennsylvania.
Commonwealth Court
Submitted Briefs June 2015.
Decided Oct. notes (3) protected privilege. n agency proposal evaluation 305(a) § 65 P.S. 67.102. Section Pa.C.S. committees established in the presumes pos that a § (relating competitive sealed agency is a a Commonwealth proposals). session 67.305(a). Here, § public 65 P.S. record. 67.708(b)(26) added). (emphasis by the PCDC proposal was submitted clearly exempts This section disclo- award of a the Commission agency pertaining sure a ser- proposal and is in project contract a construction prior vices or construction award Clearly, possession agency. of the prior opening to the contract A, proposal public rec record. rejection Here, pro- bids. all upon request ord be disclosed unless construction/redevelopment posal for the exemption. to an entitled otherwise project submitted in 2003 and the was prove is on burden the local for all informa- was made exempt from public a record is access. pertaining project. tion to the While we 708(a)(1) RTKL, 65 P.S. specific findings could remand to have 67.708(a)(1); Pennsylvania Heavens v. concerning made the PCDC whether was Protection, Department Envirоnmental contract for the construc- awarded the (Pa.Cmwlth.2013) 1069, 1073 65 A.3d . tion/redevelopment, seems obvious 708(b) look project We to Section such is Because the the case here. exceptions underway years,' sets for has and the con- forth certain been awarded, records, part, in relevant tract it is clear that providing, no exemption proposals longer granted as follows: 708(c) likely physical provides for result in risk of 2. Section of the RTKL financial'records, security limited re- personal release of an indi- harm or the' states, Specifically, vidual, this section daction. safely jeopardize criminal pertinent exceptions part, "[t]he set investigation, personal or reveal medical or (b)' apply forth shall not subsection The record does identification information. records, except may financial an. PCDC raised these indicate that pro- portion redact that of a financial record protections exemption of basis for (b)(1), (2), (3), (4), tected under subsection parties appeal financial records. The did not (5), (6), (17).” (16) protections These re- disclosure of financial documents. to, alia, late the disclosure of records inter