BILL NUMBER: AB 1541 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 24, 2012
AMENDED IN ASSEMBLY APRIL 16, 2012
INTRODUCED BY Assembly Member Dickinson
JANUARY 24, 2012
An act to amend Sections 6276.36 and 11125.1 of the Government
Code, and to amend Sections 315 and 454.5 of, and to repeal and add
Section 583 of, the Public Utilities Code, relating to the Public
Utilities Commission.
LEGISLATIVE COUNSEL'S DIGEST
AB 1541, as amended, Dickinson. Public Utilities Commission:
public records.
(1) Existing law, the California Public Records Act, requires any
public record of a state or local agency to be open to inspection at
all times during office hours of the agency and, upon request, a copy
shall be made promptly available to any person upon payment of
copying costs. The act makes certain records exempt from disclosure.
Existing law provides the Public Utilities Commission with
regulatory authority over public utilities and authorizes it to
establish its own procedures, subject to statutory limitations and
constitutional requirements of due process. The Public Utilities Act
requires the commission to investigate the cause of all accidents
occurring upon the property of any public utility or directly or
indirectly arising from or connected with its maintenance or
operation, resulting in loss of life or injury to person or property
and requiring, in the judgment of the commission, investigation by
it, and authorizes the commission to make any order or recommendation
with respect to the investigation that it determines to be just and
reasonable.
This bill would subject to the California Public Records Act,
except as specified, an order or recommendation made by the
commission and any accident report filed with the commission pursuant
to these requirements.
(2) The public Public Utilities Act
prohibits the commission or an officer or employee of the commission
from disclosing any information furnished to the commission by a
public utility, a subsidiary, an affiliate, or corporation holding a
controlling interest in a public utility, unless the information is
specifically required to be open to public inspection under the act,
except on order of the commission or a commissioner in the course of
a hearing or proceeding. A violation of that provision is a crime.
This bill would repeal that provision and instead provide that all
records of, or information furnished to, the commission are public
records that shall be subject to the California Public Records Act,
except as specified. The bill would provide that any present or
former officer or employee of the commission who divulges any
information that is exempt from disclosure is guilty of a
misdemeanor. The bill would make conforming changes to the California
Public Records Act. By expanding the scope of a crime, the bill
would impose a state-mandated local program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6276.36 of the Government Code is amended to
read:
6276.36. Pregnancy tests by local public health agencies,
confidentiality of, Section 123380, Health and Safety Code.
Pregnant women, confidentiality of blood tests, Section 125105,
Health and Safety Code.
Prehospital emergency medical care, release of information,
Sections 1797.188 and 1797.189, Health and Safety Code.
Prenatal syphilis tests, confidentiality of, Section 120705,
Health and Safety Code.
Prescription drug discounts, confidentiality of corporate
proprietary information, Section 130506, Health and Safety Code.
Prisoners, behavioral research on, confidential personal
information, Section 3515, Penal Code.
Prisoners, confidentiality of blood tests, Section 7530, Penal
Code.
Prisoners, medical testing, confidentiality of records, Sections
7517 and 7540, Penal Code.
Prisoners, transfer from county facility for mental treatment and
evaluation, confidentiality of written reasons, Section 4011.6, Penal
Code.
Private industry wage data collected by public entity,
confidentiality of, Section 6254.6.
Private railroad car tax, confidentiality of information, Section
11655, Revenue and Taxation Code.
Probate referee, disclosure of materials, Section 8908, Probate
Code.
Probation officer reports, inspection of, Section 1203.05, Penal
Code.
Produce dealer, confidentiality of financial statements, Section
56254, Food and Agricultural Code.
Products liability insurers, transmission of information, Section
1857.9, Insurance Code.
Professional corporations, financial statements, confidentiality
of, Section 13406, Corporations Code.
Property on loan to museum, notice of intent to preserve an
interest in, not subject to disclosure, Section 1899.5, Civil Code.
Property taxation, confidentiality of change of ownership, Section
481, Revenue and Taxation Code.
Property taxation, confidentiality of exemption claims, Sections
63.1, 69.5, and 408.2, Revenue and Taxation Code.
Property taxation, confidentiality of property information,
Section 15641, Government Code and Section 833, Revenue and Taxation
Code.
Proprietary information, availability only to the director and
other persons authorized by the operator and the owner, Section 2778,
Public Resources Code.
Psychologist and client, confidential relations and
communications, Section 2918, Business and Professions Code.
Psychotherapist-patient confidential communication, Sections 1012
and 1014, Evidence Code.
Public employees' home addresses and telephone numbers,
confidentiality of, Section 6254.3.
Public Employees' Medical and Hospital Care Act, confidentiality
of data relating to health care services rendered by participating
hospitals to members and annuitants, Section 22854.5.
Public Employees' Retirement System, confidentiality of data filed
by member or beneficiary with board of administration, Section
20134.
Public investment funds, exemption from disclosure for records
regarding alternative investments, Section 6254.26.
Public school employees organization, confidentiality of proof of
majority support submitted to Public Employment Relations Board,
Sections 3544, 3544.1, and 3544.5.
Public social services, confidentiality of digest of decisions,
Section 10964, Welfare and Institutions Code.
Public social services, confidentiality of information regarding
child abuse or elder or dependent persons abuse, Section 10850.1,
Welfare and Institutions Code.
Public social services, confidentiality of information regarding
eligibility, Section 10850.2, Welfare and Institutions Code.
Public social services, confidentiality of records, Section 10850,
Welfare and Institutions Code.
Public social services, disclosure of information to law
enforcement agencies, Section 10850.3, Welfare and Institutions Code.
Public social services, disclosure of information to law
enforcement agencies regarding deceased applicant or recipient,
Section 10850.7, Welfare and Institutions Code.
Public utilities, confidentiality of information, Section 583,
Public Utilities Code.
Public utilities, confidentiality of market sensitive information,
Section 454.5, Public Utilities Code.
Public utilities, confidentiality of information submitted
pursuant to, Section 5960, Public Utilities Code.
Pupil, confidentiality of personal information, Section 45345,
Education Code.
Pupil drug and alcohol use questionnaires, confidentiality of,
Section 11605, Health and Safety Code.
Pupil, expulsion hearing, disclosure of testimony of witness and
closed session of district board, Section 48918, Education Code.
Pupil, personal information disclosed to school counselor,
confidentiality of, Section 49602, Education Code.
Pupil record contents, records of administrative hearing to change
contents, confidentiality of, Section 49070, Education Code.
Pupil records, access authorized for specified parties, Section
49076, Education Code.
Pupil records, disclosure in hearing to dismiss or suspend school
employee, Section 44944.1, Education Code.
Pupil records, release of directory information to private
entities, Sections 49073 and 49073.5, Education Code.
SEC. 2. Section 11125.1 of the Government Code is amended to read:
11125.1. (a) Notwithstanding Section 6255 or any other law,
agendas of public meetings and other writings, when distributed to
all, or a majority of all, of the members of a state body by any
person in connection with a matter subject to discussion or
consideration at a public meeting of the body, are disclosable public
records under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1), and shall
be made available upon request without delay. However, this section
shall not include any writing exempt from public disclosure under
Section 6253.5, 6254, or 6254.7 or Section 583 of the Public
Utilities Code.
(b) Writings that are public records under subdivision (a) and
that are distributed to members of the state body prior to or during
a meeting, pertaining to any item to be considered during the
meeting, shall be made available for public inspection at the meeting
if prepared by the state body or a member of the state body, or
after the meeting if prepared by some other person. These writings
shall be made available in appropriate alternative formats, as
required by Section 202 of the Americans with Disabilities Act of
1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations
adopted in implementation thereof, upon request by a person with a
disability.
(c) In the case of the Franchise Tax Board, prior to that state
body taking final action on any item, writings pertaining to that
item that are public records under subdivision (a) that are prepared
and distributed by the Franchise Tax Board staff or individual
members to members of the state body prior to or during a meeting
shall be:
(1) Made available for public inspection at that meeting.
(2) Distributed to all persons who request notice in writing
pursuant to subdivision (a) of Section 11125.
(3) Made available on the Internet.
(d) Prior to the State Board of Equalization taking final action
on any item that does not involve a named tax or fee payer, writings
pertaining to that item that are public records under subdivision (a)
that are prepared and distributed by board staff or individual
members to members of the state body prior to or during a meeting
shall be:
(1) Made available for public inspection at that meeting.
(2) Distributed to all persons who request or have requested
copies of these writings.
(3) Made available on the Internet.
(e) Nothing in this section shall be construed to prevent a state
body from charging a fee or deposit for a copy of a public record
pursuant to Section 6253, except that no surcharge shall be imposed
on persons with disabilities in violation of Section 202 of the
Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and
the federal rules and regulations adopted in implementation thereof.
The writings described in subdivision (b) are subject to the
requirements of the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1), and shall
not be construed to limit or delay the public's right to inspect any
record required to be disclosed by that act, or to limit the public's
right to inspect any record covered by that act. This section shall
not be construed to be applicable to any writings solely because they
are properly discussed in a closed session of a state body. Nothing
in this article shall be construed to require a state body to place
any paid advertisement or any other paid notice in any publication.
(f) "Writing" for purposes of this section means "writing" as
defined under Section 6252.
SEC. 3. Section 315 of the Public Utilities Code is amended to
read:
315. (a) The commission shall investigate the cause of all
accidents occurring within this state upon the property of any public
utility or directly or indirectly arising from or connected with its
maintenance or operation, resulting in loss of life or injury to
person or property and requiring, in the judgment of the commission,
investigation by it, and may make any order or recommendation with
respect thereto as in its judgment seems just and reasonable. Neither
the order or recommendation of the commission nor any accident
report filed with the commission shall be admitted as evidence in any
action for damages based on or arising out of such loss of life, or
injury to person or property. Every public utility shall file with
the commission, under rules the commission prescribes, a report of
each accident so occurring of the kinds or classes as the commission
from time to time designates.
(b) Any order or recommendation made by the commission pursuant to
this section, and any accident report filed with the commission
pursuant to this section, shall be subject to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code), except as provided in Section
6254 of the Government Code or Section 583.
SEC. 4. Section 454.5 of the Public Utilities Code is amended to
read:
454.5. (a) The commission shall specify the allocation of
electricity, including quantity, characteristics, and duration of
electricity delivery, that the Department of Water Resources shall
provide under its power purchase agreements to the customers of each
electrical corporation, which shall be reflected in the electrical
corporation's proposed procurement plan. Each electrical corporation
shall file a proposed procurement plan with the commission not later
than 60 days after the commission specifies the allocation of
electricity. The proposed procurement plan shall specify the date
that the electrical corporation intends to resume procurement of
electricity for its retail customers, consistent with its obligation
to serve. After the commission's adoption of a procurement plan, the
commission shall allow not less than 60 days before the electrical
corporation resumes procurement pursuant to this section.
(b) An electrical corporation's proposed procurement plan shall
include, but not be limited to, all of the following:
(1) An assessment of the price risk associated with the electrical
corporation's portfolio, including any utility-retained generation,
existing power purchase and exchange contracts, and proposed
contracts or purchases under which an electrical corporation will
procure electricity, electricity demand reductions, and
electricity-related products and the remaining open position to be
served by spot market transactions.
(2) A definition of each electricity product, electricity-related
product, and procurement related financial product, including support
and justification for the product type and amount to be procured
under the plan.
(3) The duration of the plan.
(4) The duration, timing, and range of quantities of each product
to be procured.
(5) A competitive procurement process under which the electrical
corporation may request bids for procurement-related services,
including the format and criteria of that procurement process.
(6) An incentive mechanism, if any incentive mechanism is
proposed, including the type of transactions to be covered by that
mechanism, their respective procurement benchmarks, and other
parameters needed to determine the sharing of risks and benefits.
(7) The upfront standards and criteria by which the acceptability
and eligibility for rate recovery of a proposed procurement
transaction will be known by the electrical corporation prior to
execution of the transaction. This shall include an expedited
approval process for the commission's review of proposed contracts
and subsequent approval or rejection thereof. The electrical
corporation shall propose alternative procurement choices in the
event a contract is rejected.
(8) Procedures for updating the procurement plan.
(9) A showing that the procurement plan will achieve the
following:
(A) The electrical corporation, in order to fulfill its unmet
resource needs, shall procure resources from eligible renewable
energy resources in an amount sufficient to meet its procurement
requirements pursuant to the California Renewables Portfolio Standard
Program (Article 16 (commencing with Section 399.11) of Chapter
2.3).
(B) The electrical corporation shall create or maintain a
diversified procurement portfolio consisting of both short-term and
long-term electricity and electricity-related and demand reduction
products.
(C) The electrical corporation shall first meet its unmet resource
needs through all available energy efficiency and demand reduction
resources that are cost effective, reliable, and feasible.
(10) The electrical corporation's risk management policy,
strategy, and practices, including specific measures of price
stability.
(11) A plan to achieve appropriate increases in diversity of
ownership and diversity of fuel supply of nonutility electrical
generation.
(12) A mechanism for recovery of reasonable administrative costs
related to procurement in the generation component of rates.
(c) The commission shall review and accept, modify, or reject each
electrical corporation's procurement plan. The commission's review
shall consider each electrical corporation's individual procurement
situation, and shall give strong consideration to that situation in
determining which one or more of the features set forth in this
subdivision shall apply to that electrical corporation. A procurement
plan approved by the commission shall contain one or more of the
following features, provided that the commission may not approve a
feature or mechanism for an electrical corporation if it finds that
the feature or mechanism would impair the restoration of an
electrical corporation's creditworthiness or would lead to a
deterioration of an electrical corporation's creditworthiness:
(1) A competitive procurement process under which the electrical
corporation may request bids for procurement-related services. The
commission shall specify the format of that procurement process, as
well as criteria to ensure that the auction process is open and
adequately subscribed. Any purchases made in compliance with the
commission-authorized process shall be recovered in the generation
component of rates.
(2) An incentive mechanism that establishes a procurement
benchmark or benchmarks and authorizes the electrical corporation to
procure from the market, subject to comparing the electrical
corporation's performance to the commission-authorized benchmark or
benchmarks. The incentive mechanism shall be clear, achievable, and
contain quantifiable objectives and standards. The incentive
mechanism shall contain balanced risk and reward incentives that
limit the risk and reward of an electrical corporation.
(3) Upfront achievable standards and criteria by which the
acceptability and eligibility for rate recovery of a proposed
procurement transaction will be known by the electrical corporation
prior to the execution of the bilateral contract for the transaction.
The commission shall provide for expedited review and either approve
or reject the individual contracts submitted by the electrical
corporation to ensure compliance with its procurement plan. To the
extent the commission rejects a proposed contract pursuant to this
criteria, the commission shall designate alternative procurement
choices obtained in the procurement plan that will be recoverable for
ratemaking purposes.
(d) A procurement plan approved by the commission shall accomplish
each of the following objectives:
(1) Enable the electrical corporation to fulfill its obligation to
serve its customers at just and reasonable rates.
(2) Eliminate the need for after-the-fact reasonableness reviews
of an electrical corporation's actions in compliance with an approved
procurement plan, including resulting electricity procurement
contracts, practices, and related expenses. However, the commission
may establish a regulatory process to verify and ensure that each
contract was administered in accordance with the terms of the
contract, and contract disputes that may arise are reasonably
resolved.
(3) Ensure timely recovery of prospective procurement costs
incurred pursuant to an approved procurement plan. The commission
shall establish rates based on forecasts of procurement costs adopted
by the commission, actual procurement costs incurred, or combination
thereof, as determined by the commission. The commission shall
establish power procurement balancing accounts to track the
differences between recorded revenues and costs incurred pursuant to
an approved procurement plan. The commission shall review the power
procurement balancing accounts, not less than semiannually, and shall
adjust rates or order refunds, as necessary, to promptly amortize a
balancing account, according to a schedule determined by the
commission. Until January 1, 2006, the commission shall ensure that
any overcollection or undercollection in the power procurement
balancing account does not exceed 5 percent of the electrical
corporation's actual recorded generation revenues for the prior
calendar year excluding revenues collected for the Department of
Water Resources. The commission shall determine the schedule for
amortizing the overcollection or undercollection in the balancing
account to ensure that the 5-percent threshold is not exceeded. After
January 1, 2006, this adjustment shall occur when deemed appropriate
by the commission consistent with the objectives of this section.
(4) Moderate the price risk associated with serving its retail
customers, including the price risk embedded in its long-term supply
contracts, by authorizing an electrical corporation to enter into
financial and other electricity-related product contracts.
(5) Provide for just and reasonable rates, with an appropriate
balancing of price stability and price level in the electrical
corporation's procurement plan.
(e) The commission shall provide for the periodic review and
prospective modification of an electrical corporation's procurement
plan.
(f) The commission may engage an independent consultant or
advisory service to evaluate risk management and strategy. The
reasonable costs of any consultant or advisory service is a
reimbursable expense and eligible for funding pursuant to Section
631.
(g) Notwithstanding Section 583, the commission shall adopt
appropriate procedures to ensure the confidentiality of any market
sensitive information submitted in an electrical corporation's
proposed procurement plan or resulting from or related to its
approved procurement plan, including, but not limited to, proposed or
executed power purchase agreements, data request responses, or
consultant reports, or any combination, provided that the Office of
Ratepayer Advocates and other consumer groups that are nonmarket
participants shall be provided access to this information under
confidentiality procedures authorized by the commission.
(h) Nothing in this section alters, modifies, or amends the
commission's oversight of affiliate transactions under its rules and
decisions or the commission's existing authority to investigate and
penalize an electrical corporation's alleged fraudulent activities,
or to disallow costs incurred as a result of gross incompetence,
fraud, abuse, or similar grounds. Nothing in this section expands,
modifies, or limits the State Energy Resources Conservation and
Development Commission's existing authority and responsibilities as
set forth in Sections 25216, 25216.5, and 25323 of the Public
Resources Code.
(i) An electrical corporation that serves less than 500,000
electric retail customers within the state may file with the
commission a request for exemption from this section, which the
commission shall grant upon a showing of good cause.
(j) (1) Prior to its approval pursuant to Section 851 of any
divestiture of generation assets owned by an electrical corporation
on or after the date of enactment of the act adding this section, the
commission shall determine the impact of the proposed divestiture on
the electrical corporation's procurement rates and shall approve a
divestiture only to the extent it finds, taking into account the
effect of the divestiture on procurement rates, that the divestiture
is in the public interest and will result in net ratepayer benefits.
(2) Any electrical corporation's procurement necessitated as a
result of the divestiture of generation assets on or after the
effective date of the act adding this subdivision shall be subject to
the mechanisms and procedures set forth in this section only if its
actual cost is less than the recent historical cost of the divested
generation assets.
(3) Notwithstanding paragraph (2), the commission may deem
proposed procurement eligible to use the procedures in this section
upon its approval of asset divestiture pursuant to Section 851.
SEC. 5. Section 583 of the Public Utilities Code is repealed.
SEC. 6. Section 583 is added to the Public Utilities Code, to
read:
583. (a) All records of, or information furnished to, the
commission are public records that shall be made available to the
public, upon request, pursuant to the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code), unless exempted from disclosure pursuant to
that act or if the records are any of the following:
(1) Security-related information.
(2) Proprietary business information.
(3) Market-sensitive information.
(4) Communication between a certified labor organization and
public utility management personnel made in the context of labor
negotiations, grievances, disputes, or communication of any other
matter that is not directly related to health and safety concerns.
(4)
(5) Personally identifiable information of employees or
customers. Documents containing personally identifiable information
of employees or customers that are not exempt from public disclosure
pursuant to paragraph (1), (2), or (3)
paragraphs (1) to (4), inclusive , shall be redacted to
maintain the confidentiality of the personally identifiable
information of employees or customers, and shall be made public in
their redacted form.
(b) Any present or former officer or employee of the commission
who divulges any information in paragraphs (1) to (4)
(5) , inclusive, of subdivision (a) shall be
guilty of a misdemeanor.
SEC. 7. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.