FOIA requests yields calculations 2

[enginerding]

It is my opinion that the end product of a structural engineer is the construction drawings. While I have no problem submitting my calculations to a building official to help them with their due diligence while they do their plan reviews, I do not believe these to be a part of the public record, especially for a private project. The calculations are a tool used to help generate the drawings.

I have been informed that a company made a FOIA (Freedom Of Information Act) request for permits for a particular structure I designed. This company told me that the building department who fulfilled this request sent them a copy of my structural drawings and also my calculations.

This is not a public project. I do not believe the structural drawings are public record. I also do not believe that the calculations should be public record - or even available to anyone after the building permits have been issued.

Is it legal for a building department to give copies of structural drawings and calculations to another company not associated with the owner, just because of a FOIA request?

What are your thoughts about this?

 

[xnuke]

This is a summary of an exemption from the Illinois FOIA law that I found provided at the web link below:

k. Architects and Engineers. Architects and engineers' technical submissions for projects that are not developed—in whole or in part—with public funds. Projects constructed or developed with public funds are exempt when disclosure would compromise security. See 5 ILCS 140/7(1)(k).

https://www.rcfp.org/illinois-open-...legal-limitations/exemptions-open-records-s-4

I'm sure each state is different, so consult the laws for your state and an attorney in your state for legal advice.

xnuke
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[enginerding]

Great response! I am located in Illinois too, so very appropriate.

If you look at the enclosed link from the same website, it looks like these exemptions are not mandatory.
[URL unfurl="true"]https://www.rcfp.org/illinois-open-government-guide/ii-exemptions-and-other-legal-limitations/exemptions-open-records-s-2[/url]

I understand the whole "get a lawyer for legal advice" position and advice, but does anyone else have a similar experience? Is it possible to prohibit, one way or another, municipalities from disseminating structural drawings and calculations to anyone who would ask?

 

[IRstuff]

Unless you had stipulated that the calculations were proprietary information or contained trade secrets, I think your calculations are fair game for FOIAs. Certainly, you should have no obligation to provide your work for free to companies attempting to mooch off your work.

TTFN
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[IRstuff]

From the Open Government Guide on the website:

g. Trade Secrets and Commercial Information. If disclosure would cause competitive harm, the following are exempt: trade secrets, commercial information, or financial information, obtained from a person or business, where the trade secrets or information are proprietary, privileged or confidential. The claim must directly apply to the requested records. See BlueStar Energy Services, Inc. v. Illinois Commerce Comm’n, 374 Ill. App. 3d 990, 871 N.E.2d 880 (1st Dist. 2007).

Note: It is permissible consent to public disclosure. See 5 ILCS 140/7(1)(g). Legislative history indicates that trade secrets includes information that would inflict substantial competitive harm or make it more difficult for the agency to induce people to submit similar information in the future. Roulette v. Dep of Centr. Mgmt. Servs., 141 Ill. App. 3d 394, 400, 490 N.E.2d 60, 64, 95 Ill. Dec. 587, 591 (1st Dist. 1986). See discussion at 2, below. See also Cooper v. Dep’t of Lottery, 266 Ill. App. 3d 1007, 640 N.E.2d 1299, 203 Ill. Dec. 926 (1994).

Seems to me that you'd be on reasonably plausible ground to mark your submitted calculations as proprietary, which they are, which should theoretically force the official to ask for your permission to release. Otherwise, you'd be within your rights to sue for damages,

TTFN
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[Ron]

Unfortunately, when something is submitted to a public body in support of their review for the issuance of a permit, that all becomes public record. If you don't want that to happen, you'll have to sit down with the reviewer and go over the info but not leave it with him/her.

As part of our forensic work, we routinely request the full file of a project from the building department. Those files can contain almost nothing to more junk than you ever wanted.

 

[SLTA]

FYI - the board here in my state has a lawyer on staff who happily answers these kinds of questions, for free. See if IL has the same.

Please remember: we're not all guys!

 

[greenone]

I do many file reviews in California, and when I ask for a file on a property, I do see the calculations that have been submitted. Most building departments will not let me make a copy of a stamped drawing, but none of them have said I cannot have a copy of stamped calcs. Maybe hardly anyone ever asks for it....
For certain submittals dealing with hazardous materials, we have been semi-successful in providing 2 sets-one with full info for agency use, and one with proprietary data redacted for public use. Of course, that doesn't help when agency personnel have no idea what they are supposed to do with the two sets, and in a request for file review, actually provide both the docs.

 

[enginerding]

Thank you all for your posts! A follow-up question: Should it make a difference whether the owner of the building in question did not give permission for the requester to see either the drawing or the calculations?

In this case a third-party not associated with the owner requested structural drawings and calcs - and received them. And the drawing includes a note that says it may not be copied or distributed without the written permission of the owner.

 

[RossABQ]

Is this third party looking to sue someone related to the building, or are they perhaps doing re-work/remodeling of the building?

 

[IRstuff]

While I understand your concern, and if the owner wanted to, there can be at least a legal recourse, since the city ostensibly agreed to the conditions by accepting the calculations without objection or comment.

That said, such calculations would be invaluable from the perspective of knowing what assumptions and constraints the engineer operated under when designing something. That's something that pretty much any engineer experiences when working on an existing design. How much design margin did the engineer allow for? What specific conditions did they design for?

TTFN
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[enginerding]

This is actually a non-building structure. A competitor of my client has had difficulty getting approval on other similar structures in this municipality due to the structural plan reviewer rejecting their engineer's calculations. They did the FOIA request so that their engineer could see what our company had done on a previous project. This was not in the interest of working with this structure, or working with us, but it was to help an inexperienced engineer see their competitor's submittal packages without their permission. Fortunately for us, the middle-man doing the requesting is a fabricator that we work with regularly, so they limited the "damage". But who knows how often this happens without us ever finding out?

While my immediate problem with this is a competitor effectively stealing my calculations without my permission, or even the structure owner's permission; I think the major implication is that we can have people with bad motives easily obtaining structural drawings and calculations. If any nutjob can simply request and receive structural drawings and calculations without the owner or engineer's knowledge, how safe do you feel when you walk into a building?

 

[IRstuff]

The Oklahoma City bomber didn't need no stinkin calculations ;-)

If a "nutjob" could actually read and understand all the calculations, I doubt that they would actually need the calculations in the first place.

TTFN
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[wannabeSE]

enginerding,
You should be flattered. I encourage everyone to help fellow engineers. Was there anything proprietary or special about the calculations? None of the calcs I have done could be considered trade secrets. Its unfortunate that your competitor was too embarrassed to ask you instead of going behind your back with a FOIA.

 

[EdStainless]

If this was a fully private project then all they should have gotten was a copy of the permits, none of the calcs or drawings.
Unless they can show a 'public good' reason.
Heck, they can walk into the permit office and look at them can't they? Where I worked on this stuff you could see them (drawings and calcs) but no copies.
If you wan to yank their tail why don't you send them a bill for engineering services, label it 'training'.

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[tstructural]

My problem with what your competitor's engineer did is the fact that the other engineer either doesn't understand the code well enough or doesn't understand structures well enough to pass a permit review. So we have an engineer that isn't really qualified (regardless of what their stamp means) to be performing the work. The way you explain it this junior engineer is simply using your equations and replacing your number values with his/her own. That is not engineering and should be unsettling to all PE's.

Unfortunately you can't prove that is the reason they asked for and received your calcs. If you could prove it I would absolutely go to the board and have that engineer's license at the very least suspended.

As to wannabeSE - I don't know if I would be flattered but I agree that we should be helping junior engineers. The problem is that giving copies of calc packages so junior engineers can blindly follow (with no conversations or discussions) is not mentoring. It sounds like the work being done is similar construction but small changes for each project. This type of work can be lucrative but it does take a few trial and error packages before you figure out the most efficient way to do your work and also present it to contractors, clients, reviewers. Those trial and error packages cost money and the junior engineer just got all of that work for free.

This is just bad in so many ways. I don't know that it's illegal but it is disturbing in my opinion.