BILL ANALYSIS Ó 1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
ALEX PADILLA, CHAIR
SB 1000 - Yee Hearing Date: April 17, 2012
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As Amended: April 10, 2012 FISCAL B
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DESCRIPTION
Current law requires that the records of every state agency be
made available for public inspection upon request, with certain
exceptions and subject to procedures. This law is commonly
referred to as the California Public Records Act (CPRA).
This bill requires the California Public Utilities Commission
(CPUC) to immediately revise its rules and regulations related
to public access to records.
Current law requires public utilities to furnish to the CPUC, as
requested, copies of any or all maps, profiles, contracts,
agreements, franchises, reports, books, accounts, papers, and
records in its possession or in any way relating to its property
or affecting its business, and also a complete inventory of all
its property in such form as the commission may direct as
necessary it to carry out its regulatory duties.
Current law establishes a presumption against public disclosure
of any information submitted to the CPUC by a public utility
unless it orders the information to be made public. Any
official or employee of the commission who releases confidential
information not ordered for release is guilty of a misdemeanor.
This bill eliminates the misdemeanor offense for release of
confidential information by an official or employee of the CPUC.
This bill requires that any order or recommendation of the CPUC
or any accident report filed with or generated by the commission
be made public in compliance with the CPRA and that the
commission create a list of safety-related reports that will be
automatically disclosed to the public.
This bill exempts nine specific categories of safety-related
reports and records from any consideration of confidentiality by
the CPUC thus requiring public release.
This bill requires the CPUC to determine whether any exemptions
of the CPRA apply to the release of the record or any other law
restricting disclosure, and to redact information as appropriate
prior to that disclosure.
Current law requires the CPUC to establish written guidelines
for accessibility of records and post them in a conspicuous
public place.
This bill requires the CPUC to post on its Internet Web site
indices of records maintained by the CPUC and to explain whether
and how they may be located, prior requests received to
designate documents as confidential, and the disposition of
those requests, and specified records of safety investigations,
tests and reports.
BACKGROUND
Unlike other state agencies, the CPUC operates under a statute
(PUC 583) which in practice makes public access to much of the
information in its proceedings the exception, rather than the
rule without positive action by the commission to make those
documents public.
According to prior analyses on this issue, the statute has its
origins in a law enacted in 1951. Notwithstanding the
subsequent "open government" reforms in California, the
California Public Records Act (CPRA), the statutory standard for
public access to utility filings held by the CPUC, has not
fundamentally changed since 1951.
The CPRA gives every person the right to inspect and obtain
copies of all state and local government documents not exempt
from disclosure. Exemptions include corporate financial records
and corporate proprietary information, including trade secrets.
The CPRA also specifically provides that information held by the
CPUC which is deemed confidential under Public Utilities Code
Section 583 is not required to be disclosed.
CPUC Records Access - On its own accord the CPUC issued a
proposal last month that would improve and streamline the
process for the public to access documents received or generated
by the CPUC. The CPUC's current policies for public access to
records are included in its General Order 66-C which was adopted
in 1974 and amended in 1982. Consequently, the 30 year old
policies are long overdue for reform. By its own admission the
CPUC's regulations for public access to records are "outdated
and cumbersome, and often delay rather than facilitate access to
records requested under the California Public Records Act."
The CPUC has released a draft resolution to revise its policies
which would be reflected in a new General Order 66-D. The draft
is out for public comment. The schedule for formal adoption by
the CPUC is unknown at this time. The Draft Resolution is a
significant departure for the CPUC which has generally started
from the standpoint that everything they do is confidential and
the public and press has had an uphill battle in gaining access
to the records. The CPUC has reviewed outdated rules that
impede the CPUC's ability to share documents with the public it
serves, and the new policy is intended to allow the CPUC to
provide the public with more immediate access to documents. In
addition, by updating the CPUC's regulations governing public
access to CPUC records; establishing procedures for more uniform
processing of records requests and requests for confidential
treatment of documents provided to the CPUC; and improving
access to records on the CPUC's website, the CPUC could
substantially streamline public access to records and
information.
The Draft Resolution does emphasize three areas for which
confidentiality should be retained related to "privacy of
individual residents, short-term market sensitivity, and
critical infrastructure."
COMMENTS
1. Author's Amendments . The author intends to strike two
significant provisions of this bill as follows. Given his
intent, this analysis is based on the bill as he intends to
amend it.
a) Eliminate section 2 of this bill which amends Public
Utilities Code Section 454.5 which would strike, at page
3, lines 24 through 32; all of pages 4 through 7; and on
page 8, lines 1 through 35; and
b) Eliminate proposed subdivision (c) of Public
Utilities Code Section 583 which would strike, at page 9,
lines 34 through 37.
1. Author's Purpose . The author reports that there have
been multiple documented instances of the CPUC denying
public access to safety reports, audits, and other public
information. In fact, most documents at the commission are
shielded by a secrecy statute passed in 1951 and a CPUC
rule adopted in the mid-1950s. Unlike most states - as
well as all other public agencies in California - CPUC
keeps documents secret unless the commission votes to allow
public access.
Compounding the lack of disclosure, the CPUC often allows
private utility companies to determine whether information
is open or confidential - a practice that is specifically
outlawed for all other state and local agencies as a result
of a 2008 law (SB 1696) also authored by Yee.
The secrecy statute was used in 2005 to prevent public
disclosure of records regarding gas pipeline accidents to
KNBC, a Los Angeles area television station. And despite
the 2010 San Bruno disaster, the same statute is still
being used today to prevent public access by Californians
concerned about dangerous pipelines running underneath
their neighborhoods. Californians have a fundamental right
to know how their government is working and have access to
documents that they are essentially paying for and that
affect their families. There is no justification for the
CPUC to have a different set of rules. SB 1000 adds the
specificity and clarity required to insure that the CPUC
adheres to the California Public Records Act.
2. Ancient Records Access Policy . The author opines that
the CPUC's presumption of confidentiality for its records,
as well as a misdemeanor penalty on officials and staff
that release documents without a commission order, are a
barrier to public access of its records. The CPUC advises
that this section does not forbid the disclosure of any
information and that the CPUC has unrestricted authority to
order the release of documents. The commission opines that
the problem with this section is the "chilling effect on
the public disclosure of CPUC records" created by the
statutory threat of a misdemeanor offense for any staff
that disclose records furnished by a utility in the absence
of a CPUC order specifically authorizing such disclosure.
Every state agency is required to establish written
guidelines for accessibility of records and post them in a
conspicuous public place which the commission has done
through its General Order 66-C which is posted on its
website. However, the greatest chill on records release
appears to be that the policy was adopted in 1974 and has
not been revised since 1982 - more than 30 years ago. The
document is brief, only five pages, and the content is
primarily a restatement of statutes not a substantive
policy and direction for staff on how to manage records
release. The next most substantive provisions are the
laundry list of documents that are restricted from
released.
In March the commission released a resolution and draft of
a new general order (66-D). They have done a comprehensive
review of policies and are now updating policies and
processes governing public access to records, establishing
procedures for more uniform processing of records requests
and requests for confidential treatment of documents
provided to the CPUC, and improving access to records on
the CPUC's website. The resolution and draft of General
Order 66-D appears to have thoughtfully considered the
issue of public records access and provided a balance of
the need for proprietary, customer and security
confidentiality needs with the need for transparency.
3. Safety Records . The CPUC's current General Order 66-C
applies confidentiality to all records of investigations
and audits made by the commission. This restriction
appears to be at the heart of the controversy that resulted
in this bill. During the aftermath of San Bruno myriad
records requests were made of the commission for records of
PG&E's gas transmission pipelines but few were successful.
The CPUC reports that it now intends to authorize the
disclosure of safety related investigations on a routine
basis and has addressed this issue in its proposed General
Order 66-D. However, this bill goes further and expressly
requires the release of nine categories of safety-related
reports and investigations and exempts those documents from
any consideration of confidentiality by the CPUC. The
specific listing of safety-related records that shall be
released by the commission may be interpreted as preventing
the commission from redacting information related to
personnel, security, or proprietary interests or holding
documents for which confidentiality must be at least
temporarily maintained as the result of a pending
investigation or enforcement proceeding.
The commission's resolution for revision of General Order-C
reflects its intent to release these documents. The bill
also requires the commission to develop a list of
safety-related reports that will be automatically disclosed
on a routine basis. Moreover, amendments to PUC Section
315 require the commission to release "any accident report
filed with, or generated by, the commission" taking into
account the confidentiality review of PUC 583 and the CPRA.
Consequently, the committee may wish to consider striking
the exemption of the nine specific categories of
safety-related records from confidentiality (at page 9,
strike lines 8 through 33).
4. Fundamental Opposition . This bill, with the author's
amendments and with the committee's recommended amendment
in comment 4, would not in any way mandate that information
previously viewed as confidential by the commission now
suddenly be released. The California State Association of
Electrical Workers and the California Utility Employees
write in opposition to the bill that it takes "an overly
broad approach to making this narrow field of information
available." This argument could be valid if the amendments
in comment 4 are not taken by the author which would
eliminate the commission's ability to maintain
confidentiality of certain information in safety-related
reports. As amended the bill would not mandate the release
of any new information and would completely retain the
commission's current discretion to deem information
confidential and not subject to disclosure.
The remaining fundamental issue to most opponents is that
this bill will eliminate the misdemeanor penalty for
officials and staff that release documents deemed
confidential.
Telecommunications companies are also opposed to the bill
and argue for specific delineation of categories of
information that would be completely restricted from
disclosure thus removing the commission's discretion to
review information and then decide the appropriateness of
disclosure. They further argue that "the misdemeanor
penalty for divulging confidential information by CPUC
officials or staff must be maintained as it appears in
current law." The committee has asked the author and
opponents for other instances in state law where
misdemeanor penalties apply against state employees for the
release of restricted documents and only one was
discovered. Employees of the State Auditor are subject to
misdemeanor penalties for the release of specified records
but they are also subject to a misdemeanor if they fail or
refuse "to permit access and examination and reproduction"
to the public.
5. Technical Amendment . The bill directs the commission to
"revise its written guidelines" which are adopted pursuant
to the CPRA. Because the commission's guidelines are
contained in resolutions and general orders, the bill
should be amended to include those references as well at
page 10, lines 23, after "guidelines" insert ", resolutions
and general orders".
6. Related Legislation . AB 1541 (Dickinson) subjects
certain commission actions CPUC to the CPRA, repeals CPUC
nondisclosure requirements, and specifies exemptions for
market sensitive information. Status: Passed Assembly
Utilities & Commerce Committee, April 9, 2012.
7. Double Referral . Should this bill be approved by the
committee, it should be re-referred to the Senate Committee
on Judiciary for its consideration as "Do Pass." In the
interest of time, amendments taken in this committee will
be accepted and processed by the Judiciary Committee.
POSITIONS
Sponsor:
Author
Support:
AARP
Agricultural Energy Consumers Association
California Newspaper Publishers Association
California Public Utilities Commission, with technical
amendments
California Teamsters Public Affairs Council
Consumer Federation of California
South San Joaquin Irrigation District
The Utility Reform Network
Utility Workers Union of America, Local 132
Oppose:
San Diego Gas & Electric
Sempra Energy Utilities
Southern California Edison
Southern California Gas Company
Oppose (unless amended):
AT&T
California Cable & Telecommunications Association
California Communications Association
California State Association of Electrical Workers
Coalition of California Utility Employees
Frontier Communications
PacifiCorp
Kellie Smith
SB 1000 Analysis
Hearing Date: April 17, 2012