Responding to Public Record Requests for Building Permit Documents

Posted by on Feb 6, 2013 in Municipal Law | 0 comments

Responding to Public Record Requests for Building Permit Documents

Many of you have recently received a request to provide copies of building permits issued in the past, names and addresses of building permit applicants, and also copies of building permits as they are issued in the future.  We received several questions whether the document request is proper.  We are sending you this update to clarify your public record responsibilities regarding building permits under the Pennsylvania Right-To-Know Law, 65 P.S. §§67.101 et seq. (“RTKL”), and the Pennsylvania Uniform Construction Code (“UCC”) regulations codified at 34 Pa. Code §403.85(e).

A record is not a public record subject to disclosure if it is exempt from being disclosed under any Federal or State law, or regulation, or judicial order or decree.  The UCC Regulations state in §403.85(e) that “a municipality and a third party agency acting on behalf of a municipality may prohibit release of applications received, building plans and specifications, inspection reports and similar documents to the public under the … Right-To-Know Law.”

The Township is required to provide copies of approved building permits.  The Pennsylvania Office of Open Records (hereafter, “OOR”) has held that approved building permits are items issued by the Township, and therefore they don’t receive the same exclusionary protection that “applications” and “building plans and specifications” receive because the latter are documents submitted to the Township by third parties.  See In the Matter of Pohlman v. Middle Smithfield Township, OOR AP 2011-0660.  Furthermore, the OOR has previously held that building permits are not facially exempt under the RTKL.  See Pleasantville Water Auth. v. West St. Clair Twp., OOR Dkt. AP 2010-0465.

Municipalities do not, however, have to produce building permit applications or names and addresses from applications.  Under the UCC, a municipality may prohibit the release of “applications received, building plans, and specifications, inspection reports, and similar documents.”  See 34 Pa. Code § 403.85(e).  Therefore, under the UCC, a Township may exercise its discretion and refuse to release building permit applications or names and addresses from applications pursuant to the RTKL.

Municipalities, likewise, do not have to compile lists of the names and addresses of people with permits.  An agency is not required to modify its practices by compiling lists of information when such lists are not otherwise kept by the agency or required by law; and an agency is not required to modify its duties to become the agent of a commercial enterprise. Current Status, Inc. v. Hykel, 778 A.2d 781 (Pa. Cmwlth. Ct. 2001).  Furthermore, the RTKL only requires agencies to make records available for inspection; it is up to the requester to conduct searches or compile lists from those records.  Lewis, III v. Pennsylvania Dept. of Transp., 777 A.2d 538 (Pa. Cmwlth Ct. 2001).

Municipalities, likewise, do not have to produce future building permits as they are issued.  Future permits do not currently exist.  The RTKL does not require agencies to compile and distribute information they do not possess at the time of the request. Dynamic Student Services v. State System of Higher Educ., 697 A.2d 239.  If the requester wants access to future monthly permit records, the requester will have to submit monthly requests for the permits that have already been issued.

Please call us if you have more specific questions about responding to these record requests.