4.2 Public Records Disclosure and Freedom of Information Laws

Public Records Disclosure and Freedom of Information Laws

Quick Answer: Under state-level Sunshine Laws and Public Records Acts, all documents, plans, and communications maintained by a building department are presumed to be public records. While citizens have a broad right to inspect and copy public documents, the Building Official must protect sensitive records under statutory exemptions, including critical infrastructure blueprints, active code enforcement investigation files, and personal personnel files. Additionally, federal copyright law dictates that while the public may inspect architectural plans, the department cannot reproduce or distribute copies of these plans without the written consent of the architect or engineer.

Public records disclosure laws are designed to ensure transparency, accountability, and citizen oversight in government operations. While the federal Freedom of Information Act (FOIA) applies only to federal agencies, every state has enacted its own public records law, commonly referred to as a "Public Records Act," "Sunshine Law," or "Freedom of Information Law."

For the Building Official, these laws establish a statutory presumption that all documents, communications, plans, and files maintained by the building department are public records. This means they must be made available for public inspection and copying, unless a specific statutory exemption applies.

Definition of Public Records in Code Administration

Under state laws, the definition of a public record is extremely broad. It encompasses any "writing" containing information relating to the conduct of the public’s business prepared, owned, used, or retained by the agency, regardless of its physical form. In a building department, this includes:

• Permit applications, fee receipts, and issued permits.
• Inspection reports, field notes, and digital inspection photographs.
• Permitting history logs and department database records.
• Emails, text messages, and internal memos discussing code interpretations or enforcement cases.
• Construction plans, specifications, and engineering calculations submitted for plan review.

Processing Public Records Requests

The Building Official is responsible for establishing administrative procedures to handle public records requests in compliance with statutory timelines.

• Timelines: State laws mandate strict response times. Typically, an agency has between 3 to 10 business days to determine whether the requested records exist and if they are subject to disclosure. The agency must promptly notify the requestor of its decision.
• Duty to Assist: The department must assist requestors in identifying the records they seek and facilitate access. If records are stored electronically, the department must provide them in the requested electronic format if feasible.
• Fees: Agencies are generally permitted to charge a reasonable fee for the actual cost of duplicating records (e.g., per-page photocopying costs or the cost of a USB drive). However, unless explicitly permitted by state statute, departments cannot charge requestors for the administrative time spent searching for, reviewing, or redacting files.

Statutory Exemptions to Disclosure

Public records laws balance transparency with the need to protect public safety, personal privacy, and proprietary business information. The Building Official must carefully redact exempt information before releasing files. Key exemptions include:

1. Critical Infrastructure and Public Safety

Plans, drawings, specifications, and security assessments for critical infrastructure are exempt from disclosure. This includes municipal water treatment facilities, power plants, telecommunications facilities, courthouse holding areas, banks, and schools. Releasing detailed blueprints of these structures could facilitate acts of terrorism, sabotage, or crime, posing a direct threat to public safety.

2. Proprietary Designs and Trade Secrets

Commercial construction documents often contain proprietary layouts, manufacturing process flows, or specialized engineering techniques that constitute trade secrets. Under most state laws, records that reveal trade secrets or proprietary business information are exempt from public disclosure to prevent unfair competitive advantages.

3. Active Investigations and Code Enforcement Files

Records associated with active code enforcement investigations, pending civil or criminal prosecutions, or investigations under administrative warrants are exempt from disclosure. Releasing these files prematurely could compromise the investigation, tip off violators, or violate the due process rights of the property owner. Once the investigation is closed or formal notice is served, the records generally become public.

4. Personal Privacy and Personnel Files

The personal information of department staff (such as home addresses, personal phone numbers, social security numbers, and medical records) must be redacted. Furthermore, the private contact details of citizens filing code complaints are often protected to prevent retaliation or harassment.

The Copyright Dilemma: Architectural and Engineering Plans

One of the most complex legal challenges facing a Building Official is the intersection of state public records laws and federal copyright law. Under the Federal Copyright Act (specifically the Architectural Works Copyright Protection Act of 1990), architectural plans, drawings, and engineering specifications are copyrighted works owned by the design professional who created them.

This creates a legal conflict: state public records laws mandate public access to documents submitted to the city, while federal copyright law prohibits the unauthorized reproduction or distribution of copyrighted works. To navigate this conflict, courts and legal scholars have established a distinction between the "Right of Inspection" and the "Right of Duplication":

• Right of Inspection: Members of the public have a statutory right to view and inspect building plans at the department's public counter or through a secure viewer. This constitutes a "fair use" exception for public review and transparency.
• Right of Duplication (Copying): The department cannot make physical copies, printouts, scans, or digital copies of architectural plans to distribute to the public without the express written permission of the copyright owner (the architect or engineer), or the property owner if the copyright has been legally transferred. Doing so would expose the municipality to liability for copyright infringement.
• Exceptions: Copying may be permitted if a court order is issued, if the plans are needed by another government agency for official business, or in the case of a public safety emergency. Building departments must implement strict "no copy" policies for architectural drawings unless a signed copyright release form is submitted.

Privileged Records and Litigation Holds

Communications between the building department and the city attorney regarding active, pending, or reasonably anticipated litigation are protected by Attorney-Client Privilege and the Attorney Work-Product Doctrine. These documents are strictly exempt from public disclosure. If a public records request is received for files related to an active dispute, the Building Official must coordinate with legal counsel to identify and withhold privileged communications.