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FILED
SacraintMito
tcrowthar
1 KELLY M. KLAUS (State Bar No. 161091)
kelly.klaus@mto.com Bv , Oaput\i
2 BRYAN H. HECKENLIVELY (State Bar No. 279140) Catie Number
bryan.heckenlively@mto.com 34-2021 °S0OOSS12
3 ROSE LEDA EHLER (State Bar No. 296523)
rose.ehler@mto.com
4 MUNGER, TOLLES & OLSON LLP
560 Mission Street
5 Twenty-Seventh Floor
San Francisco, Califomia 94105-2907
6 Telephone: (415)512-4000
Facsimile: (415)512-4077
7
Attomeys for Intervenor National Fire Protection
8 Association, Inc.
9
LOUIS Y. LEE (State Bar No. 315753)
10 louis.lee@morganlewis.com
MORGAN, LEWIS & BOCKIUS LLP
11 One Market, Spear Street Tower
San Francisco, CA 94105-1596
12
J. KEVIN FEE (admitted pro hac vice)
13 kevin.fee@morganlewis.com
JANE W. WISE (admittedpro hac vice)
14 jane.wise@morganlewis.com
MORGAN, LEWIS & BOCKIUS LLP
15 l l l l Pennsylvania Ave. NW
Washington, DC 20004-2541
16
Attorneys for Intervenor
17 Intemational Code Council, Inc. 13
18 SUPERIOR COURT OF THE STATE OF CALIFORNIA
19 COUNTY OF SACRAMENTO
20 Public.Resource.Org., Inc., Case No. 34-2021-80003612
21 Petitioner, ANSWER-IN-INTERVENTION
22 Date: Dec. 17, 2021
vs.
Time: 10:00 a.m.
23 Califomia Office of Administrative Law, and Dept.: 27
the Califomia Building Standards Judge: Hon. Steven M. Gevercer
24 Commission,
Action Filed: March 17, 2021
25 Respondents.
26
27
28
ANSWER-IN-INTERVENTION
1 Intervenors National Fire Protection Association, Inc. ("NFPA") and International Code
2 Council, Inc. ("ICC") answer the Verified Petition for Writ of Mandate on file in this action as
3 follows:
4 1. Answering paragraph 1, Intervenors allege that the paragraph consists of legal conclusions that
5 do not require a response.
6 2. Answering paragraph 2, Intervenors allege that the last clause consists of a legal conclusion to
7 which no response is required. Intervenors lack sufficient information to admit or deny the
8 remaining allegations in paragraph 2 and on that basis deny them.
9 3. Answering paragraph 3, Intervenors allege that the second and third sentences consist of legal
10 conclusions to which no response is required. Intervenors lack sufficient information to admit
11 or deny the remaining allegations in paragraph 3 and on that basis deny them.
12 4. Answering paragraph 4, Intervenors allege that the paragraph consists of legal conclusions that
13 do not require a response.
14 5. Answering paragraph 5, Intervenors lack sufficient information to admit or deny the
15 allegations in paragraph 5 and on that basis deny them.
16 6. Answering paragraph 6, Intervenors allege that the paragraph consists of legal conclusions that
17 do not require a response.
18 7. Answering paragraph 7, Intervenors allege that the paragraph consists of legal conclusions that
19 do not require a response.
20 8. Answering paragraph 8, Intervenors allege that the paragraph consists of legal conclusions that
21 do not require a response.
22 9. Answering paragraph 8, Intervenors allege that the paragraph consists of legal conclusions that
23 do not require a response. To the extent there are factual allegations in this paragraph,
24 Intervenors lack sufficient information to admit or deny them and on that basis deny them.
25 10. Answering paragraph 10, Intervenors allege that the first sentence of paragraph 10 consists of
26 legal conclusions that do not require a response. Intervenors lack sufficient information to
27 admit or deny the remaining allegations in paragraph 10 and on that basis deny thern.
28
ANSWER-IN-INTERVENTION
I Intervenors state that Exhibits A and B are documents that speak for themselves, and
2 Intervenors therefore deny the characterization of the documents as set forth in paragraph 10.
3 11. Answering paragraph 11, Intervenors deny the allegation in the last two sentences of paragraph
4 11 that OAL has "full control" of the contents ofthe Master Database and "maintains
5 ownership over the CCR," to the extent that those allegations imply control over the
6 distribution of the works. Intervenors lack sufficient information to admit or deny the
7 remaining allegations in paragraph 11 and on that basis deny them. Intervenors state that
8 Exhibit B is a document that speaks for itself, and Intervenors therefore deny the
9 characterization ofthe document as set forth in paragraph 11.
10 12. Answering paragraph 12, Intervenors lack sufficient information to admit or deny the
11 allegations in paragraph 12 and on that basis deny them.
12 13. Answering paragraph 13, Intervenors lack sufficient infonnation to admit or deny the
13 allegations in paragraph 13 and on that basis deny them. Intervenors state that Exhibit C is a
14 document that speaks for itself, and Intervenors therefore deny the characterization ofthe
15 documents as set forth in paragraph 13.
16 14. Answering paragraph 14, Intervenors lack sufficient infonnation to admit or deny the
17 allegations in paragraph 14 and on that basis deny them. Intervenors state that Exhibit D is a
18 document that speaks for itself, and Intervenors therefore deny the characterization of the
19 document as set forth in paragraph 14.
20 15. Answering paragraph 15, Intervenors lack sufficient information to admit or deny the
21 allegations in paragraph 15 and on that basis deny them.
22 16. Answering paragraph 16, Intervenors lack sufficient infonnation to admit or deny the
23 allegations in paragraph 16 and on that basis deny them.
24 17. Answering paragraph 17, Intervenors lack sufficient information to admit or deny the
25 allegations in paragraph 17 and on that basis deny them.
26 18. Answering paragraph 18, Intervenors lack sufficient infonnation to admit or deny the
27 allegations in paragraph 18 and on that basis deny them. Intervenors state that Exhibit D is a
28
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ANSWER-IN-INTERVENTION
1 document that speaks for itself, and Intervenors therefore deny the characterization of the
2 document as set forth in paragraph 18.
3 19. Answering paragraph 19, Intervenors lack sufficient information to admit or deny the
4 allegations in paragraph 19 and on that basis deny them. Intervenors state that Exhibit D is a
5 document that speaks for itself, and Intervenors therefore deny the characterization of the
6 document as set forth in paragraph 19.
7 20. Answering paragraph 20 and the footnote thereto, Intervenors lack sufficient information to
8 admit or deny the allegations pertaining to the Intemational Association of Plumbing and
9 Mechanical Officials and on that basis deny them. Intervenor NFPA admits that it sells copies
10 of its copyrighted publication, the National Electrical Code. NFPA also sells copies of the
11 publication entided the Califomia Electrical Code ("CEC"), which includes the NEC and the
12 California-enacted amendments to the NEC. NFPA publishes and distributes the portions of
13 the CEC that NFPA does not author pursuant to agreement with the BSC. NFPA further
14 admits that it sells printed copies of the CEC for $216.50. Intervenor ICC admits that it sells
15 copies of its copyrighted publications including the Intemational Building Code, Intemational
16 Residential Code, Intemational Fire Code, and Intemational Existing Building Code, admits
17 that it sells printed copies ofthe Title 24 ofthe Califomia Code of Regulations ("CCR"). ICC
18 publishes and distributes the CCR that ICC does not author pursuant to agreement with the
19 BSC. ICC admits that it sells a multi-tiered subscription service (Basic and Premium) that
20 provide additional capabilities for Title 24 ofthe CCR, Parts 1, 2, 2.5, 6, 8, 9,10, 11, and 12,
21 referred to as Basic Plus, Premium Lite, and Premium. ICC denies that it sells Title 24 ofthe
22 CCR through its Basic service, which is offered online at no cost. NFPA and ICC also make
23 the same and other publications available for no charge online in read-only format. Except as
24 otherwise admitted, Intervenors deny the allegations in paragraph 20 and the footnote thereto.
25 21. Answering paragraph 21, Intervenors lack sufficient information to admit or deny the
26 allegations in paragraph 21 and on that basis deny them. Intervenors state that Exhibit F is a
27 document that speaks for itself, and Intervenors therefore deny the characterization of the
28 document as set forth in paragraph 21.
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ANSWER-IN-INTERVENTION
1 22. Answering paragraph 22, Intervenors lack sufficient information to admit or deny the
2 allegations in paragraph 22 and on that basis deny them. Intervenors state that Exhibit G is a
3 document that speaks for itself, and Intervenors therefore deny the characterization ofthe
4 document as set forth in paragraph 22.
5 23. Answering paragraph 23, Intervenors admit that print editions of Title 24 are available at
6 libraries and for purchase. Intervenors lack sufficient information to admit or deny the
7 remaining allegations in paragraph 23 and on that basis deny them. Intervenors state that
8 Exhibit G is a document that speaks for itself, and Intervenors therefore deny the
9 characterization of the document as set forth in paragraph 23.
10 24. Answering paragraph 24, Intervenors admit that the sections of Title 24 that contain their
11 copyrighted works can be viewed online for free in read-only format. Intervenors lack
12 sufficient information to admit or deny the remaining allegations in paragraph 24 and on that
13 basis deny them. Intervenors state that Exhibit G is a document that speaks for itself, and
14 Intervenors therefore deny the characterization of the document as set forth in paragraph 24.
15 25. Answering paragraph 25, Intervenors admit that Title 24 includes standards produced by
16 Intervenors, that BSC does not have the publishing rights to the sections of Title 24 that
17 contain Intervenors' copyrighted works, that it cannot provide free copies to the public, and
18 that those works retain copyright protections. Intervenors lack sufficient information to admit
19 or deny the remaining allegations in paragraph 25 and on that basis deny them.
20 26. Answering paragraph 26, Intervenors lack sufficient information to admit or deny the
21 allegations in paragraph 26 and on that basis deny them. Intervenors state that Exhibit H is a
22 document that speaks for itself, and Intervenors therefore deny the characterization of the
23 document as set forth in paragraph 26.
24 27. Answering paragraph 27, Intervenors lack sufficient information to admit or deny the
25 allegations in paragraph 28 regarding what Petitioner's letter stated and on that basis deny
26 them. The remaining allegations in paragraph 27 consists of legal conclusions that do not
27 require a response. Intervenors state that Exhibit H is a document that speaks for itself, and
28 Intervenors therefore deny the characterization of the document as set forth in paragraph 27.
ANSWER-IN-INTERVENTION
1 28. Answering paragraph 28, Intervenors lack sufficient information to admit or deny the
2 allegations in paragraph 28 regarding what Petitioner's letter stated and on that basis deny
3 them. The remaining allegations in paragraph 28 consists of legal conclusions that do not
4 require a response. Intervenors state that Exhibit H is a document that speaks for itself, and
5 Intervenors therefore deny the characterization of the document as set forth in paragraph 28.
6 29. Answering paragraph 29, Intervenors lack sufficient information to admit or deny the
7 allegations in paragraph 29 regarding what Petitioner's letter stated and on that basis deny
8 them. The remaining allegations in paragraph 29 consists of legal conclusions that do not
9 require a response. Intervenors state that Exhibit H is a document that speaks for itself, and
10 Intervenors therefore deny the characterization of the document as set forth in paragraph 29.
11 30. Answering paragraph 30, Intervenors lack sufficient information to admit or deny the
12 allegations in paragraph 30 and on that basis deny them. Intervenors state that Exhibit I is a
13 document that speaks for itself, and Intervenors therefore deny the characterization of the
14 document as set forth in paragraph 30.
15 31. Answering paragraph 31, Intervenors allege that the paragraph consists of legal conclusions
16 that do not require a response.
17 32. Answering paragraph 32, Intervenors allege that the paragraph consists of legal conclusions
18 that do not require a response.
19 33. Answering paragraph 33, Intervenors allege that the paragraph consists of legal conclusions
20 that do not require a response.
21 34. Answering paragraph 34, Intervenors allege that the paragraph consists of legal conclusions
22 that do not require a response.
23 35. Answering paragraph 35, Intervenors lack sufficient information to admit or deny the
24 allegations in the first sentence of paragraph 35 and on that basis deny them. Intervenors
25 allege that the second sentence of paragraph 35 consists of legal conclusions that do not
26 require a response. Intervenors admit the allegations in the third sentence of paragraph 35.
27 36. Answering paragraph 36, Intervenors allege that the paragraph consists of legal conclusions
28 that do not require a response.
ANSWER-IN-INTERVENTION
1 37. Answering paragraph 37, Intervenors allege that the paragraph consists of legal conclusions
2 that do not require a response.
3 38. Answering paragraph 38 and the footnote thereto, Intervenors lack sufficient information to
4 admit or deny the allegations in the final sentence of paragraph 38 and on that basis denies
5 them. Intervenors allege that the remainder ofthe paragraph and the footnote thereto consists
6 of legal conclusions that do not require a response.
7 39. Answering paragraph 39, Intervenors lack sufficient information to admit or deny the
8 allegations in the second sentence of paragraph 39 and on that basis deny them. Intervenors
9 allege that the remainder ofthe paragraph consists of legal conclusions that do not require a
10 response. Intervenors state that Exhibits D and G are documents that speak for themselves,
11 and Intervenors therefore deny the characterization of the document as set forth in paragraph
12 39.
13 40. Answering paragraph 40, Intervenors allege that the paragraph consists of legal conclusions
14 that do not require a response.
15 41. Answering paragraph 41 and the footnote thereto, Intervenors lack sufficient information to
16 admit or deny the allegations regarding the agreement between OAL and West and on that
17 basis deny them. Intervenors allege that the remainder of the paragraph and the footnote
18 thereto consists of legal conclusions that do not require a response. Intervenors state that
19 Exhibit B is a document that speaks for itself, and Intervenors therefore deny the
20 characterization of the documents as set forth in paragraph 41.
21 42. Answering paragraph 42, Intervenors allege that the paragraph consists of legal conclusions
22 that do not require a response.
23 43. Answering paragraph 43, Intervenors allege that the paragraph consists of legal conclusions
24 that do not require a response.
25 44. Answering paragraph 44, Intervenors lack sufficient information to admit or deny the
26 allegations in the first sentence of the paragraph and on that basis deny them. Intervenors
27 allege that the remainder of the paragraph consists of legal conclusions that do not require a
28
ANSWER-IN-INTERVENTION
1 response. Intervenors state that Exhibit G is a document that speaks for itself, and Intervenors
2 therefore deny the characterization of the document as set forth in paragraph 44.
3 45. Answering paragraph 45, Intervenors allege that the paragraph consists of legal conclusions
4 that do not require a response.
5 46. Answering paragraph 46, Intervenors allege that the paragraph consists of legal conclusions
6 that do not require a response.
7 47. Answering paragraph 47, Intervenors allege that the paragraph consists of legal conclusions
8 that do not require a response.
9 48. Answering paragraph 48, Intervenors allege that the paragraph consists of legal conclusions
10 that do not require a response.
11 49. Answering paragraph 49, Intervenors lack sufficient information to admit or deny the
12 allegations in the first sentence of paragraph 49 and on that basis deny them. Intervenors
13 allege that the remainder of the paragraph consists of legal conclusions that do not require a
14 response. Intervenors state that Exhibits D and G are documents that speak for themselves,
15 and Intervenors therefore deny the characterization of the documents as set forth in paragraph
16 49.
17 50. Answering paragraph 50 and the footnote thereto, Intervenors admit that ICC makes read-only
18 versions of Tide 24, Parts 1, 2, 2.5, 6, 8, 9, 10, 11 and 12 available online for free at the URL
19 alleged and that NFPA makes a read-only version of Title 24, Part 3 available online for free at
20 the URL alleged. Intervenors lack sufficient infonnation to admit or deny the allegations in
21 paragraph 50 regarding (a) statements made by Respondents and (b) the practices of lAMPO
22 and West and on that basis deny them. Intervenors allege that the remainder of the paragraph
23 and the footnote thereto consists of legal conclusions that do not require a response.
24 Intervenors state that Exhibits D and G are documents that speak for themselves, and
25 Intervenors therefore deny the characterization of the documents as set forth in paragraph 50.
26 51. Answering paragraph 51, Intervenors allege that the paragraph consists of legal conclusions
27 that do not require a response. Intervenors state that Exhibit G is a document that speaks for
28
ANSWER-IN-INTERVENTION
1 itself, and Intervenors therefore deny the characterization of the document as set forth in
2 paragraph 51.
3 52. Answering paragraph 52, Intervenors allege that the paragraph consists of legal conclusions
4 that do not require a response. Intervenors state that Exhibit D is a document that speaks for
5 itself, and Intervenors therefore deny the characterization of the document as set forth in
6 paragraph 52.
7 53. Answering paragraph 53, Intervenors allege that the paragraph consists of legal conclusions
8 that do not require a response.
9 54. Answering paragraph 54, Intervenors lack sufficient information to admit or deny the
10 allegations in the first sentence of paragraph 54 and on that basis deny them. Intervenors
11 allege that the remainder of the paragraph consists of legal conclusions that do not require a
12 response. Intervenors state that Exhibits D, G and I are documents that speak for themselves,
13 and Intervenors therefore deny the characterization of the documents as set forth in paragraph
14 54.
15 55. Answering paragraph 55, Intervenors allege that the paragraph consists of legal conclusions
16 that do not require a response.
17 56. Answering paragraph 56, Intervenors allege that the paragraph consists of legal conclusions
18 that do not require a response.
19 57. Answering paragraph 57, Intervenors allege that the paragraph consists of legal conclusions
20 that do not require a response.
21 58. Answering paragraph 58, Intervenors allege that the paragraph consists of legal conclusions
22 that do not require a response.
23 59. Answering paragraph 59, Intervenors allege that the paragraph consists of legal conclusions
24 that do not require a response.
25 60. Answering paragraph 60, Intervenors allege that the paragraph consists of legal conclusions
26 that do not require a response.
27 61. Answering paragraph 61, Intervenors allege that the paragraph consists of legal conclusions
28 that do not require a response.
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ANSWER-IN-INTERVENTION
1 62. Answering paragraph 62, Intervenors allege that the paragraph consists of legal conclusions
2 that do not require a response.
3 63. Answering paragraph 63, Intervenors allege that the paragraph consists of legal conclusions
4 that do not require a response.
5 64. Answering paragraph 64, Intervenors allege that the paragraph consists of legal conclusions
6 that do not require a response.
7 65. Answering paragraph 65, Intervenors allege that the paragraph consists of legal conclusions
8 that do not require a response.
9
10 AFFIRMATIVE DEFENSES
11 In support of their affirmative defenses, NFPA and ICC allege the following facts:
12 1. NFPA and ICC are non-profit entities that create voluntary consensus standards in
13 highly technical areas, such as electrical installation and construction. Govemmental bodies often
14 incorporate portions of these standards by reference. This is a valuable public-private partnership,
15 and the results of that partnership greatly benefit the public. NFPA's and ICC's standards are
16 developed with substantial expertise and provide accurate, high-quality works that resource-
17 constrained govemmental entities otherwise would have to create themselves. The existence and
18 refinement of these standards serves the critical public interest in safety.
19 2. NFPA and ICC receive remuneration when they sell copies to or license the
20 exercise of their exclusive rights to people and businesses that use these works in their commercial
21 trade. NFPA and ICC rely on this revenue to fund their development and updating of their
22 standards.
23 3. BSC has incorporated by reference NFPA's National Electrical Code ("NEC"),
24 with certain California-specific amendments. The combined document consisting of the NEC and
25 the California-specific amendments is published under the title, Califomia Electrical Code, which
26 appears at Title 24, Part 3 of the Califomia Code of Regulations. Califomia's Office of
27 Administrative Law ("OAL") has also incorporated other NEC standards into Titles 8 and 19 of
28 the Califomia Code of Regulations.
ANSWER-IN-INTERVENTION
1 4. BSC has incorporated by reference ICC's Intemational Building Code ("IBC"),
2 Intemational Residential Code ("IRC"), Intemational Fire Code ("IFC"), and Intemational
3 Existing Building Code ("lEBC"), with certain California-specific amendments. The combined
4 document consisting of the IBC and the California-specific amendments is published under the
5 title, Califomia Building Code, which appears at Title 24, Part 2 of the Califomia Code of
6 Regulations. The combined document consisting of the IRC and the California-specific
7 amendments is published under the title Califomia Residential Code, which appears at Title 24,
8 Part 2.5 of the Califomia Code of Regulations. The combined document consisting of the IFC and
9 the California-specific amendments is published under the title, Califomia Fire Code, which
10 appears at Title 24, Part 9 of the Califomia Code of Regulations. The combined document
11 consisting of the lEBC and the California-specific amendments is published under the title,
12 Califomia Existing Building Code, which appears at Title 24, Part 10 ofthe Califomia Code of
13 Regulations.
14 5. NFPA and ICC retain copyrights in their standards. Title 24, Parts 2, 2.5 9, and 10
15 consists of copyrighted works of ICC. Title 24, Part 3 consists of a copyrighted work of NFPA.
16 Title 8 and Title 19 also contain copyrighted works of NFPA. NFPA and ICC have not authorized
17 BSC, OAL, or any other person or entity to make and distribute unrestricted copies of their
18 copyrighted works. Yet the Petition seeks to compel Respondents to produce copyrighted works
19 created and published by NFPA and ICC without any restrictions on use, copying or
20 dissemination.
21 6. Protecting Intervenors' copyright interest ensures that Intervenors have the
22 resources and incentive to develop and improve standards in areas such as building and fire safety.
23 7. The public interest in the disclosure Petitioner seeks is minimal because the
24 documents are already available online free of charge in read only format. NFPA makes read-only
25 versions of Title 8, Title 19, and Title 24, Part 3 available for no cost online. ICC makes read-only
26 versions of Title 24, Parts 1, 2, 2.5, 6, 8, 9, 10, 11 and 12 available for no cost online. Anyone
27 who wants to leam what the documents say can easily do so and without incurring any cost.
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ANSWER-IN-INTERVENTION
1 FIRST AFFIRMATIVE DEFENSE - GOVERNMENT CODE 265400
2 The portions of Title 8, Title 19, and Title 24, Parts 2, 2.5, 3,9 and lOconsisting of
3 NFPA's and ICC's copyrighted material ("Intervenors' Copyrighted Works") are exempt from
4 disclosure under Govemment Code section 6254(k). Federal copyright law prohibits Respondents
5 from disclosing Interveners' Copyrighted Works in the manner requested.
6 SECOND AFFIRMATIVE DEFENSE - PREEMPTION
7 The Public Records Act is preempted by the federal Copyright Act, 17 U.S.C. § 301, to the
8 extent it would require Respondents to provide unauthorized copies of Intervenor's Copyrighted
9 Works to Petitioner.
10 THIRD AFFIRMATIVE DEFENSE - GOVERNMENT CODE 6255
11 Interveners' Copyrighted Works are exempt from disclosure under Govemment Code
12 section 6255. The public interest served by not disclosing Interveners' Copyrighted Works clearly
13 outweighs the public interest served by disclosure of the record.
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ANSWER-IN-INTERVENTION
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3 DATED: August 31, 2021 MUNGER,'TOLLES & OLSON LLP
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By: _ Isl Bryan H. Heckenlively
6 BRYAN H. HECKENLIVELY
Attomeys for Intervenor National Fire Protection
7 Association, Inc.
8
DATED: August 31, 2021 MORGAN, LEWS & BOCKIUS LLP
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By: Isl Louis Y. Lee
11 LOUIS Y. LEE
12 Attomeys for Intervenor Intemational Code Council,
Inc.
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ANSWER-IN-INTERVENTION
Preview
FILED SacraintMito tcrowthar 1 KELLY M. KLAUS (State Bar No. 161091) kelly.klaus@mto.com Bv , Oaput\i 2 BRYAN H. HECKENLIVELY (State Bar No. 279140) Catie Number bryan.heckenlively@mto.com 34-2021 °S0OOSS12 3 ROSE LEDA EHLER (State Bar No. 296523) rose.ehler@mto.com 4 MUNGER, TOLLES & OLSON LLP 560 Mission Street 5 Twenty-Seventh Floor San Francisco, Califomia 94105-2907 6 Telephone: (415)512-4000 Facsimile: (415)512-4077 7 Attomeys for Intervenor National Fire Protection 8 Association, Inc. 9 LOUIS Y. LEE (State Bar No. 315753) 10 louis.lee@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 11 One Market, Spear Street Tower San Francisco, CA 94105-1596 12 J. KEVIN FEE (admitted pro hac vice) 13 kevin.fee@morganlewis.com JANE W. WISE (admittedpro hac vice) 14 jane.wise@morganlewis.com MORGAN, LEWIS & BOCKIUS LLP 15 l l l l Pennsylvania Ave. NW Washington, DC 20004-2541 16 Attorneys for Intervenor 17 Intemational Code Council, Inc. 13 18 SUPERIOR COURT OF THE STATE OF CALIFORNIA 19 COUNTY OF SACRAMENTO 20 Public.Resource.Org., Inc., Case No. 34-2021-80003612 21 Petitioner, ANSWER-IN-INTERVENTION 22 Date: Dec. 17, 2021 vs. Time: 10:00 a.m. 23 Califomia Office of Administrative Law, and Dept.: 27 the Califomia Building Standards Judge: Hon. Steven M. Gevercer 24 Commission, Action Filed: March 17, 2021 25 Respondents. 26 27 28 ANSWER-IN-INTERVENTION 1 Intervenors National Fire Protection Association, Inc. ("NFPA") and International Code 2 Council, Inc. ("ICC") answer the Verified Petition for Writ of Mandate on file in this action as 3 follows: 4 1. Answering paragraph 1, Intervenors allege that the paragraph consists of legal conclusions that 5 do not require a response. 6 2. Answering paragraph 2, Intervenors allege that the last clause consists of a legal conclusion to 7 which no response is required. Intervenors lack sufficient information to admit or deny the 8 remaining allegations in paragraph 2 and on that basis deny them. 9 3. Answering paragraph 3, Intervenors allege that the second and third sentences consist of legal 10 conclusions to which no response is required. Intervenors lack sufficient information to admit 11 or deny the remaining allegations in paragraph 3 and on that basis deny them. 12 4. Answering paragraph 4, Intervenors allege that the paragraph consists of legal conclusions that 13 do not require a response. 14 5. Answering paragraph 5, Intervenors lack sufficient information to admit or deny the 15 allegations in paragraph 5 and on that basis deny them. 16 6. Answering paragraph 6, Intervenors allege that the paragraph consists of legal conclusions that 17 do not require a response. 18 7. Answering paragraph 7, Intervenors allege that the paragraph consists of legal conclusions that 19 do not require a response. 20 8. Answering paragraph 8, Intervenors allege that the paragraph consists of legal conclusions that 21 do not require a response. 22 9. Answering paragraph 8, Intervenors allege that the paragraph consists of legal conclusions that 23 do not require a response. To the extent there are factual allegations in this paragraph, 24 Intervenors lack sufficient information to admit or deny them and on that basis deny them. 25 10. Answering paragraph 10, Intervenors allege that the first sentence of paragraph 10 consists of 26 legal conclusions that do not require a response. Intervenors lack sufficient information to 27 admit or deny the remaining allegations in paragraph 10 and on that basis deny thern. 28 ANSWER-IN-INTERVENTION I Intervenors state that Exhibits A and B are documents that speak for themselves, and 2 Intervenors therefore deny the characterization of the documents as set forth in paragraph 10. 3 11. Answering paragraph 11, Intervenors deny the allegation in the last two sentences of paragraph 4 11 that OAL has "full control" of the contents ofthe Master Database and "maintains 5 ownership over the CCR," to the extent that those allegations imply control over the 6 distribution of the works. Intervenors lack sufficient information to admit or deny the 7 remaining allegations in paragraph 11 and on that basis deny them. Intervenors state that 8 Exhibit B is a document that speaks for itself, and Intervenors therefore deny the 9 characterization ofthe document as set forth in paragraph 11. 10 12. Answering paragraph 12, Intervenors lack sufficient information to admit or deny the 11 allegations in paragraph 12 and on that basis deny them. 12 13. Answering paragraph 13, Intervenors lack sufficient infonnation to admit or deny the 13 allegations in paragraph 13 and on that basis deny them. Intervenors state that Exhibit C is a 14 document that speaks for itself, and Intervenors therefore deny the characterization ofthe 15 documents as set forth in paragraph 13. 16 14. Answering paragraph 14, Intervenors lack sufficient infonnation to admit or deny the 17 allegations in paragraph 14 and on that basis deny them. Intervenors state that Exhibit D is a 18 document that speaks for itself, and Intervenors therefore deny the characterization of the 19 document as set forth in paragraph 14. 20 15. Answering paragraph 15, Intervenors lack sufficient information to admit or deny the 21 allegations in paragraph 15 and on that basis deny them. 22 16. Answering paragraph 16, Intervenors lack sufficient infonnation to admit or deny the 23 allegations in paragraph 16 and on that basis deny them. 24 17. Answering paragraph 17, Intervenors lack sufficient information to admit or deny the 25 allegations in paragraph 17 and on that basis deny them. 26 18. Answering paragraph 18, Intervenors lack sufficient infonnation to admit or deny the 27 allegations in paragraph 18 and on that basis deny them. Intervenors state that Exhibit D is a 28 -2- ANSWER-IN-INTERVENTION 1 document that speaks for itself, and Intervenors therefore deny the characterization of the 2 document as set forth in paragraph 18. 3 19. Answering paragraph 19, Intervenors lack sufficient information to admit or deny the 4 allegations in paragraph 19 and on that basis deny them. Intervenors state that Exhibit D is a 5 document that speaks for itself, and Intervenors therefore deny the characterization of the 6 document as set forth in paragraph 19. 7 20. Answering paragraph 20 and the footnote thereto, Intervenors lack sufficient information to 8 admit or deny the allegations pertaining to the Intemational Association of Plumbing and 9 Mechanical Officials and on that basis deny them. Intervenor NFPA admits that it sells copies 10 of its copyrighted publication, the National Electrical Code. NFPA also sells copies of the 11 publication entided the Califomia Electrical Code ("CEC"), which includes the NEC and the 12 California-enacted amendments to the NEC. NFPA publishes and distributes the portions of 13 the CEC that NFPA does not author pursuant to agreement with the BSC. NFPA further 14 admits that it sells printed copies of the CEC for $216.50. Intervenor ICC admits that it sells 15 copies of its copyrighted publications including the Intemational Building Code, Intemational 16 Residential Code, Intemational Fire Code, and Intemational Existing Building Code, admits 17 that it sells printed copies ofthe Title 24 ofthe Califomia Code of Regulations ("CCR"). ICC 18 publishes and distributes the CCR that ICC does not author pursuant to agreement with the 19 BSC. ICC admits that it sells a multi-tiered subscription service (Basic and Premium) that 20 provide additional capabilities for Title 24 ofthe CCR, Parts 1, 2, 2.5, 6, 8, 9,10, 11, and 12, 21 referred to as Basic Plus, Premium Lite, and Premium. ICC denies that it sells Title 24 ofthe 22 CCR through its Basic service, which is offered online at no cost. NFPA and ICC also make 23 the same and other publications available for no charge online in read-only format. Except as 24 otherwise admitted, Intervenors deny the allegations in paragraph 20 and the footnote thereto. 25 21. Answering paragraph 21, Intervenors lack sufficient information to admit or deny the 26 allegations in paragraph 21 and on that basis deny them. Intervenors state that Exhibit F is a 27 document that speaks for itself, and Intervenors therefore deny the characterization of the 28 document as set forth in paragraph 21. -3- ANSWER-IN-INTERVENTION 1 22. Answering paragraph 22, Intervenors lack sufficient information to admit or deny the 2 allegations in paragraph 22 and on that basis deny them. Intervenors state that Exhibit G is a 3 document that speaks for itself, and Intervenors therefore deny the characterization ofthe 4 document as set forth in paragraph 22. 5 23. Answering paragraph 23, Intervenors admit that print editions of Title 24 are available at 6 libraries and for purchase. Intervenors lack sufficient information to admit or deny the 7 remaining allegations in paragraph 23 and on that basis deny them. Intervenors state that 8 Exhibit G is a document that speaks for itself, and Intervenors therefore deny the 9 characterization of the document as set forth in paragraph 23. 10 24. Answering paragraph 24, Intervenors admit that the sections of Title 24 that contain their 11 copyrighted works can be viewed online for free in read-only format. Intervenors lack 12 sufficient information to admit or deny the remaining allegations in paragraph 24 and on that 13 basis deny them. Intervenors state that Exhibit G is a document that speaks for itself, and 14 Intervenors therefore deny the characterization of the document as set forth in paragraph 24. 15 25. Answering paragraph 25, Intervenors admit that Title 24 includes standards produced by 16 Intervenors, that BSC does not have the publishing rights to the sections of Title 24 that 17 contain Intervenors' copyrighted works, that it cannot provide free copies to the public, and 18 that those works retain copyright protections. Intervenors lack sufficient information to admit 19 or deny the remaining allegations in paragraph 25 and on that basis deny them. 20 26. Answering paragraph 26, Intervenors lack sufficient information to admit or deny the 21 allegations in paragraph 26 and on that basis deny them. Intervenors state that Exhibit H is a 22 document that speaks for itself, and Intervenors therefore deny the characterization of the 23 document as set forth in paragraph 26. 24 27. Answering paragraph 27, Intervenors lack sufficient information to admit or deny the 25 allegations in paragraph 28 regarding what Petitioner's letter stated and on that basis deny 26 them. The remaining allegations in paragraph 27 consists of legal conclusions that do not 27 require a response. Intervenors state that Exhibit H is a document that speaks for itself, and 28 Intervenors therefore deny the characterization of the document as set forth in paragraph 27. ANSWER-IN-INTERVENTION 1 28. Answering paragraph 28, Intervenors lack sufficient information to admit or deny the 2 allegations in paragraph 28 regarding what Petitioner's letter stated and on that basis deny 3 them. The remaining allegations in paragraph 28 consists of legal conclusions that do not 4 require a response. Intervenors state that Exhibit H is a document that speaks for itself, and 5 Intervenors therefore deny the characterization of the document as set forth in paragraph 28. 6 29. Answering paragraph 29, Intervenors lack sufficient information to admit or deny the 7 allegations in paragraph 29 regarding what Petitioner's letter stated and on that basis deny 8 them. The remaining allegations in paragraph 29 consists of legal conclusions that do not 9 require a response. Intervenors state that Exhibit H is a document that speaks for itself, and 10 Intervenors therefore deny the characterization of the document as set forth in paragraph 29. 11 30. Answering paragraph 30, Intervenors lack sufficient information to admit or deny the 12 allegations in paragraph 30 and on that basis deny them. Intervenors state that Exhibit I is a 13 document that speaks for itself, and Intervenors therefore deny the characterization of the 14 document as set forth in paragraph 30. 15 31. Answering paragraph 31, Intervenors allege that the paragraph consists of legal conclusions 16 that do not require a response. 17 32. Answering paragraph 32, Intervenors allege that the paragraph consists of legal conclusions 18 that do not require a response. 19 33. Answering paragraph 33, Intervenors allege that the paragraph consists of legal conclusions 20 that do not require a response. 21 34. Answering paragraph 34, Intervenors allege that the paragraph consists of legal conclusions 22 that do not require a response. 23 35. Answering paragraph 35, Intervenors lack sufficient information to admit or deny the 24 allegations in the first sentence of paragraph 35 and on that basis deny them. Intervenors 25 allege that the second sentence of paragraph 35 consists of legal conclusions that do not 26 require a response. Intervenors admit the allegations in the third sentence of paragraph 35. 27 36. Answering paragraph 36, Intervenors allege that the paragraph consists of legal conclusions 28 that do not require a response. ANSWER-IN-INTERVENTION 1 37. Answering paragraph 37, Intervenors allege that the paragraph consists of legal conclusions 2 that do not require a response. 3 38. Answering paragraph 38 and the footnote thereto, Intervenors lack sufficient information to 4 admit or deny the allegations in the final sentence of paragraph 38 and on that basis denies 5 them. Intervenors allege that the remainder ofthe paragraph and the footnote thereto consists 6 of legal conclusions that do not require a response. 7 39. Answering paragraph 39, Intervenors lack sufficient information to admit or deny the 8 allegations in the second sentence of paragraph 39 and on that basis deny them. Intervenors 9 allege that the remainder ofthe paragraph consists of legal conclusions that do not require a 10 response. Intervenors state that Exhibits D and G are documents that speak for themselves, 11 and Intervenors therefore deny the characterization of the document as set forth in paragraph 12 39. 13 40. Answering paragraph 40, Intervenors allege that the paragraph consists of legal conclusions 14 that do not require a response. 15 41. Answering paragraph 41 and the footnote thereto, Intervenors lack sufficient information to 16 admit or deny the allegations regarding the agreement between OAL and West and on that 17 basis deny them. Intervenors allege that the remainder of the paragraph and the footnote 18 thereto consists of legal conclusions that do not require a response. Intervenors state that 19 Exhibit B is a document that speaks for itself, and Intervenors therefore deny the 20 characterization of the documents as set forth in paragraph 41. 21 42. Answering paragraph 42, Intervenors allege that the paragraph consists of legal conclusions 22 that do not require a response. 23 43. Answering paragraph 43, Intervenors allege that the paragraph consists of legal conclusions 24 that do not require a response. 25 44. Answering paragraph 44, Intervenors lack sufficient information to admit or deny the 26 allegations in the first sentence of the paragraph and on that basis deny them. Intervenors 27 allege that the remainder of the paragraph consists of legal conclusions that do not require a 28 ANSWER-IN-INTERVENTION 1 response. Intervenors state that Exhibit G is a document that speaks for itself, and Intervenors 2 therefore deny the characterization of the document as set forth in paragraph 44. 3 45. Answering paragraph 45, Intervenors allege that the paragraph consists of legal conclusions 4 that do not require a response. 5 46. Answering paragraph 46, Intervenors allege that the paragraph consists of legal conclusions 6 that do not require a response. 7 47. Answering paragraph 47, Intervenors allege that the paragraph consists of legal conclusions 8 that do not require a response. 9 48. Answering paragraph 48, Intervenors allege that the paragraph consists of legal conclusions 10 that do not require a response. 11 49. Answering paragraph 49, Intervenors lack sufficient information to admit or deny the 12 allegations in the first sentence of paragraph 49 and on that basis deny them. Intervenors 13 allege that the remainder of the paragraph consists of legal conclusions that do not require a 14 response. Intervenors state that Exhibits D and G are documents that speak for themselves, 15 and Intervenors therefore deny the characterization of the documents as set forth in paragraph 16 49. 17 50. Answering paragraph 50 and the footnote thereto, Intervenors admit that ICC makes read-only 18 versions of Tide 24, Parts 1, 2, 2.5, 6, 8, 9, 10, 11 and 12 available online for free at the URL 19 alleged and that NFPA makes a read-only version of Title 24, Part 3 available online for free at 20 the URL alleged. Intervenors lack sufficient infonnation to admit or deny the allegations in 21 paragraph 50 regarding (a) statements made by Respondents and (b) the practices of lAMPO 22 and West and on that basis deny them. Intervenors allege that the remainder of the paragraph 23 and the footnote thereto consists of legal conclusions that do not require a response. 24 Intervenors state that Exhibits D and G are documents that speak for themselves, and 25 Intervenors therefore deny the characterization of the documents as set forth in paragraph 50. 26 51. Answering paragraph 51, Intervenors allege that the paragraph consists of legal conclusions 27 that do not require a response. Intervenors state that Exhibit G is a document that speaks for 28 ANSWER-IN-INTERVENTION 1 itself, and Intervenors therefore deny the characterization of the document as set forth in 2 paragraph 51. 3 52. Answering paragraph 52, Intervenors allege that the paragraph consists of legal conclusions 4 that do not require a response. Intervenors state that Exhibit D is a document that speaks for 5 itself, and Intervenors therefore deny the characterization of the document as set forth in 6 paragraph 52. 7 53. Answering paragraph 53, Intervenors allege that the paragraph consists of legal conclusions 8 that do not require a response. 9 54. Answering paragraph 54, Intervenors lack sufficient information to admit or deny the 10 allegations in the first sentence of paragraph 54 and on that basis deny them. Intervenors 11 allege that the remainder of the paragraph consists of legal conclusions that do not require a 12 response. Intervenors state that Exhibits D, G and I are documents that speak for themselves, 13 and Intervenors therefore deny the characterization of the documents as set forth in paragraph 14 54. 15 55. Answering paragraph 55, Intervenors allege that the paragraph consists of legal conclusions 16 that do not require a response. 17 56. Answering paragraph 56, Intervenors allege that the paragraph consists of legal conclusions 18 that do not require a response. 19 57. Answering paragraph 57, Intervenors allege that the paragraph consists of legal conclusions 20 that do not require a response. 21 58. Answering paragraph 58, Intervenors allege that the paragraph consists of legal conclusions 22 that do not require a response. 23 59. Answering paragraph 59, Intervenors allege that the paragraph consists of legal conclusions 24 that do not require a response. 25 60. Answering paragraph 60, Intervenors allege that the paragraph consists of legal conclusions 26 that do not require a response. 27 61. Answering paragraph 61, Intervenors allege that the paragraph consists of legal conclusions 28 that do not require a response. -8- ANSWER-IN-INTERVENTION 1 62. Answering paragraph 62, Intervenors allege that the paragraph consists of legal conclusions 2 that do not require a response. 3 63. Answering paragraph 63, Intervenors allege that the paragraph consists of legal conclusions 4 that do not require a response. 5 64. Answering paragraph 64, Intervenors allege that the paragraph consists of legal conclusions 6 that do not require a response. 7 65. Answering paragraph 65, Intervenors allege that the paragraph consists of legal conclusions 8 that do not require a response. 9 10 AFFIRMATIVE DEFENSES 11 In support of their affirmative defenses, NFPA and ICC allege the following facts: 12 1. NFPA and ICC are non-profit entities that create voluntary consensus standards in 13 highly technical areas, such as electrical installation and construction. Govemmental bodies often 14 incorporate portions of these standards by reference. This is a valuable public-private partnership, 15 and the results of that partnership greatly benefit the public. NFPA's and ICC's standards are 16 developed with substantial expertise and provide accurate, high-quality works that resource- 17 constrained govemmental entities otherwise would have to create themselves. The existence and 18 refinement of these standards serves the critical public interest in safety. 19 2. NFPA and ICC receive remuneration when they sell copies to or license the 20 exercise of their exclusive rights to people and businesses that use these works in their commercial 21 trade. NFPA and ICC rely on this revenue to fund their development and updating of their 22 standards. 23 3. BSC has incorporated by reference NFPA's National Electrical Code ("NEC"), 24 with certain California-specific amendments. The combined document consisting of the NEC and 25 the California-specific amendments is published under the title, Califomia Electrical Code, which 26 appears at Title 24, Part 3 of the Califomia Code of Regulations. Califomia's Office of 27 Administrative Law ("OAL") has also incorporated other NEC standards into Titles 8 and 19 of 28 the Califomia Code of Regulations. ANSWER-IN-INTERVENTION 1 4. BSC has incorporated by reference ICC's Intemational Building Code ("IBC"), 2 Intemational Residential Code ("IRC"), Intemational Fire Code ("IFC"), and Intemational 3 Existing Building Code ("lEBC"), with certain California-specific amendments. The combined 4 document consisting of the IBC and the California-specific amendments is published under the 5 title, Califomia Building Code, which appears at Title 24, Part 2 of the Califomia Code of 6 Regulations. The combined document consisting of the IRC and the California-specific 7 amendments is published under the title Califomia Residential Code, which appears at Title 24, 8 Part 2.5 of the Califomia Code of Regulations. The combined document consisting of the IFC and 9 the California-specific amendments is published under the title, Califomia Fire Code, which 10 appears at Title 24, Part 9 of the Califomia Code of Regulations. The combined document 11 consisting of the lEBC and the California-specific amendments is published under the title, 12 Califomia Existing Building Code, which appears at Title 24, Part 10 ofthe Califomia Code of 13 Regulations. 14 5. NFPA and ICC retain copyrights in their standards. Title 24, Parts 2, 2.5 9, and 10 15 consists of copyrighted works of ICC. Title 24, Part 3 consists of a copyrighted work of NFPA. 16 Title 8 and Title 19 also contain copyrighted works of NFPA. NFPA and ICC have not authorized 17 BSC, OAL, or any other person or entity to make and distribute unrestricted copies of their 18 copyrighted works. Yet the Petition seeks to compel Respondents to produce copyrighted works 19 created and published by NFPA and ICC without any restrictions on use, copying or 20 dissemination. 21 6. Protecting Intervenors' copyright interest ensures that Intervenors have the 22 resources and incentive to develop and improve standards in areas such as building and fire safety. 23 7. The public interest in the disclosure Petitioner seeks is minimal because the 24 documents are already available online free of charge in read only format. NFPA makes read-only 25 versions of Title 8, Title 19, and Title 24, Part 3 available for no cost online. ICC makes read-only 26 versions of Title 24, Parts 1, 2, 2.5, 6, 8, 9, 10, 11 and 12 available for no cost online. Anyone 27 who wants to leam what the documents say can easily do so and without incurring any cost. 28 •10- ANSWER-IN-INTERVENTION 1 FIRST AFFIRMATIVE DEFENSE - GOVERNMENT CODE 265400 2 The portions of Title 8, Title 19, and Title 24, Parts 2, 2.5, 3,9 and lOconsisting of 3 NFPA's and ICC's copyrighted material ("Intervenors' Copyrighted Works") are exempt from 4 disclosure under Govemment Code section 6254(k). Federal copyright law prohibits Respondents 5 from disclosing Interveners' Copyrighted Works in the manner requested. 6 SECOND AFFIRMATIVE DEFENSE - PREEMPTION 7 The Public Records Act is preempted by the federal Copyright Act, 17 U.S.C. § 301, to the 8 extent it would require Respondents to provide unauthorized copies of Intervenor's Copyrighted 9 Works to Petitioner. 10 THIRD AFFIRMATIVE DEFENSE - GOVERNMENT CODE 6255 11 Interveners' Copyrighted Works are exempt from disclosure under Govemment Code 12 section 6255. The public interest served by not disclosing Interveners' Copyrighted Works clearly 13 outweighs the public interest served by disclosure of the record. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- ANSWER-IN-INTERVENTION 1 2 3 DATED: August 31, 2021 MUNGER,'TOLLES & OLSON LLP 4 5 By: _ Isl Bryan H. Heckenlively 6 BRYAN H. HECKENLIVELY Attomeys for Intervenor National Fire Protection 7 Association, Inc. 8 DATED: August 31, 2021 MORGAN, LEWS & BOCKIUS LLP 9 10 By: Isl Louis Y. Lee 11 LOUIS Y. LEE 12 Attomeys for Intervenor Intemational Code Council, Inc. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12- ANSWER-IN-INTERVENTION