Q: The city attorney is citing the Health and Safety Code Section 19851 to support the city’s denial of copying building plans submitted to the city and on the planning commission agenda and council agenda but not yet approved. He says that until building plans are approved, they are the architect’s property and can be viewed, but cannot be copied.
Is this the common interpretation of Health and Safety Code Section 19851
We had wanted a copy of a rendering of a project before the commission but the city said they could not copy it because it was signed by the architect, making it the architect’s property, until the city approves the plan. I don’t understand how the city’s approval of a project triggers the submitted plans as then becoming city property, if that is in fact the case.
A: As you may know, Health & Safety Code § 19850 provides that California’s city and county building departments must maintain an official copy of the plans of every building for which the department issued a building permit. Section 19851 provides that those copies must be open to inspection but:
“may not be duplicated in whole or in part except
(1) with the written permission, … of the certified, licensed or registered professional or his or her successor, if any, who signed the original documents and the written permission of the original or current owner of the building, or, if the building is part of a common interest development, with the written permission of the board of directors or governing body of the association established to manage the common interest development, or
(2) by order of a proper court or upon the request of any state agency.”
The statute does not seem to tie the copying restrictions on the city’s approval of the plan, and the restrictions of the statute seem limited to the “official copy of the plans maintained by the building department of the city or county,” as required by § 19850.
Conceivably a city agency other than the building department could possess building plans that fall outside the scope of § 19851 because the architect was not obligated to provide them to the agency under § 19850.
In that case, there might have to be some other justification for refusing to permit copying of the records (or the records might be subject to disclosure). With the language of § 19851 in hand, it might be worth pushing back on the asserted connection between the ability to copy and the city’s approval of plans.
There appears to be virtually no authority construing § 19851. To the extent particular building plans are subject to copyright owned by the architect, however, there is some authority, outside the context of § 19851, permitting California agencies to refuse to provide copies of materials where the reproduction of such material would constitute copyright infringement. See 64 Ops. Cal. Atty. Gen. 186 (1981).
Although the legislative history of § 19851 is not readily available, that statute might be read as formalizing a procedure to avoid incurring copyright liability to the extent the government has mandated that architects’ works be deposited with a government agency.
Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.
One Comment
The questioner appeared to be asking about CONCEPTUAL plans submitted prior to approval.
These are and should be available to the public for review AND copying for purposes of review, comment and criticism.
Without the ability to copy conceptual plans and renderings members of the public are denied the ability to provide meaningful comment on a project or offer alternatives.
FINAL building plans submitted AFTER approval of CONCEPTUAL plans are indeed protected by copyright and are covered by 19851.
There is an important distinction between conceptual plans which are part of application packages submitted to cities and county planning departments for discretionary approvals and the final plans drafted after those approvals.
Here is a discussion on the issue by Best, Best & Kreiger
http://bbklaw.com/?t=40&an=1427
This is also related to Attorney General Opinion 05-1004, answering the question:
“Are interim grading documents, including geology reports, compaction reports, and soils reports, submitted by a property owner to a city’s building department in conjunction with an application for a building permit subject to public inspection and copying under the California Public Records Act at the time the documents are first received by the building department?”
The Opinion said, “Yes”.
This is an important issue and I hope Mr. Cave looks at this again in the context of CONCEPTUAL plans and considers revising the answer.
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