BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1000 (Yee)
As Amended April 18, 2012
Hearing Date: April 24, 2012
Fiscal: Yes
Urgency: No
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SUBJECT
Public Utilities Commission: Records
DESCRIPTION
This bill would require California Public Utility Commission
(CPUC) investigation orders, recommendations, and accident
reports to be made publicly available pursuant to the California
Public Records Act (CPRA). With respect to public utility
information furnished to the CPUC, this bill would do the
following:
delete the misdemeanor penalty for any present or former CPUC
officer or employee who divulges confidential public utility
information;
require the CPUC to create a list of safety-related reports
that the commission will automatically disclose to the public;
require the CPUC to create and maintain on the CPUC's Internet
Web site information, as specified;
require the CPUC to comply with the exemption requirements of
the CPRA; and
require the CPUC to revise its guidelines, resolutions, and
general orders for the disclosure of public records.
BACKGROUND
Unlike other state agencies, whose records are generally open
for public inspection, the California Public Utilities
Commission (CPUC) operates under a statute that affords the
public access to its records only when specifically permitted by
the CPUC. (Pub. Util. Code Sec. 583.) This section creates a
presumption against public inspection and has its origin in a
law enacted in 1915. Despite the "open government" reforms in
(more)
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California, such as the California Public Records Act (CPRA)
(enacted in 1968), the statutory standard for public access to
utility filings with the CPUC has not fundamentally changed
since 1915.
The CPRA gives every person the right to inspect and obtain
copies of all state and local government documents not exempt
from disclosure. (Gov. Code Sec. 6253.) Exemptions include
corporate financial records and corporate proprietary
information, including trade secrets. (Gov. Code Secs. 6254,
6254(k), 6254.15.) 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. (Gov. Code Secs. 6276, 6276.36.)
In November 2004, the voters passed Proposition 59, which
provided the public with a constitutional right of access to
records and public meetings of government officials and
agencies. Proposition 59 did not nullify or repeal any
confidentiality law existing at that time that created an
exception to the right of access to public records.
Accordingly, confidentiality statutes applicable to the CPUC
were not affected by the passage of Proposition 59 and remained
intact.
SB 1488 (Bowen, Ch. 690, Stats. 2004), as introduced and passed
out of this committee, contained similar provisions as in this
bill and would have required the CPUC to provide public access
to public utility information received by the CPUC, as
specified. SB 1488 was subsequently amended to require the CPUC
to examine its public disclosure practices to provide for
meaningful public participation and open decision-making.
This author-sponsored bill would require CPUC investigation
orders, recommendations, and accident reports to be made
publicly available pursuant to the CPRA. With respect to public
utility information furnished to the CPUC, this bill would
require the CPUC, pursuant to exemptions under the CPRA, to
provide public disclosure of public utility reports, as
specified, and revise its guidelines, resolutions, and general
orders for the disclosure of public records.
This bill was heard by the Senate Energy, Utilities and
Communications Committee on April 17, 2012 and passed out on a
vote of 7-4.
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CHANGES TO EXISTING LAW
Existing law , the California Constitution, declares the people's
right to transparency in government. ("The people have the
right of access to information concerning the conduct of the
people's business, and therefore, the meetings of public bodies
and the writings of public officials and agencies shall be open
to public scrutiny....") (Cal. Const., art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA), governs
the disclosure of information collected and maintained by public
agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public
records are accessible to the public upon request, unless the
record requested is exempt from public disclosure. (Gov. Code
Sec. 6254.) There are 30 general categories of documents or
information that are exempt from disclosure, essentially due to
the character of the information, and unless it is shown that
the public's interest in disclosure outweighs the public's
interest in non-disclosure of the information, the exempt
information may be withheld by the public agency with custody of
the information.
Existing law defines state agency, for purposes of the CPRA, to
include every state officer, department, division, bureau,
board, and commission or other state body or agency, except for
the Legislature and the Judiciary. (Gov. Code Sec. 6252.)
Existing law , the CPRA, requires the California Public Utilities
Commission (CPUC) to establish written guidelines for
accessibility of records; the guidelines and regulations adopted
shall be consistent with other sections of the CPRA and reflect
the intention of the Legislature to make the records accessible
to the public. (Gov. Code Sec. 6253.4.)
Existing law requires the CPUC to investigate the cause of all
accidents occurring in California on the property of any public
utility accident resulting in the loss of life or injury to
person or property; the CPUC is authorized to make any order or
recommendation regarding the accident investigation. (Pub.
Util. Code Sec. 315.)
Existing law requires every public utility to file with the
CPUC, under such rules as the CPUC prescribes, a report of each
public utility accident. (Pub. Util. Code Sec. 315.)
Existing law provides that no information, unless specifically
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required, furnished to the CPUC by a public utility, business
that is a subsidiary or affiliate of a public utility, or
corporation that holds a controlling interest in a public
utility shall be publicly available unless ordered to be public
by the CPUC in the course of a hearing or proceeding. (Pub.
Util. Code Sec. 583.)
Existing law provides that any present or former employee of the
CPUC who divulges any confidential public utility information
provided to the CPUC is guilty of a misdemeanor. (Pub. Util.
Code Sec. 583.)
This bill would require any CPUC accident investigation order or
recommendation, and any accident report filed or generated in
connection therewith, to be made publicly available pursuant to
the CPRA.
This bill would delete the misdemeanor penalty for any present
or former officer or employee of the CPUC who divulges any
confidential public utility information provided to the CPUC.
This bill would require the CPUC to do the following:
create a list of safety-related reports that the commission
will, upon completion of the report, automatically disclose to
the public;
on its Internet Web site, the CPUC shall create and maintain
the following: (1) a comprehensive index of the CPUC's records
that explains whether and how the public can access the CPUC's
records; (2) a database that details the requests the CPUC has
received to treat documents as confidential and the CPUC's
decisions regarding these requests; (3) routinely post
safety-related reports the CPUC determines are subject to
disclosure; and (4) provide a description of the CPUC's safety
jurisdiction, inspection, investigation, and enforcement
activities;
redact a publicly released document in compliance with the
CPRA; and
immediately revise its guidelines, resolutions, and general
orders for the disclosure of public records to provide
guidance on the showing necessary to justify a CPUC decision
to withhold public disclosure of the categories of public
records defined under the CPUC.
COMMENT
1. Stated need for the bill
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The author writes:
After the explosion in San Bruno, certain accident reports
and investigation information was not readily available for
public disclosure.
The CPUC ÝCalifornia Public Utilities Commission] itself
believes its policies and practices regarding the release
of information needs to be modified and issued a support
position for the original contents of this bill. The CPUC
is also conducting a review of its current disclosure
policies with a goal of allowing for more transparency at
the agency.
The California Newspapers Publishers Association (CNPA), a
supporter of this bill, writes:
Existing law provides a prolonged process that makes it
difficult, if not impossible, to obtain accident information,
safety reports and inspection records from the CPUC. Unlike a
request made under the CPRA ÝCalifornia Public Records Act],
before the commission can release any information (which is
automatically sealed) it must first adopt a formal resolution
allowing disclosure after a lengthy process.
The current process deprives the public and journalists of
timely, much-needed information about the threatened safety of
communities where recent deadly pipe explosions have killed
residents in neighborhoods like San Bruno and Rancho Cordova.
Without access to this information, people that live in these
communities have no means to identify the risks that may still
exist and no way of evaluating whether a decision to remain is
life threatening.
2. Providing public access to CPUC accident investigation reports
This bill would require any CPUC accident investigation order or
recommendation, and any accident report filed or generated in
connection therewith, to be made publicly available pursuant to
the CPRA. Existing law requires the CPUC to investigate the
cause of all accidents occurring in California on the property
of any public utility accident resulting in the loss of life or
injury to person or property. (Pub. Util. Code Sec. 315.) To
aid the CPUC in its accident investigations, existing law
requires every public utility to file with the CPUC, under such
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rules as the CPUC prescribes, a report of each public utility
accident. (Id.) Existing law authorizes the CPUC to make any
order or recommendation regarding the accident investigation.
(Id.)
The author argues that this bill is in response to the aftermath
of the San Bruno explosion, during which it was discovered that
certain accident reports and investigation information were not
readily available for public disclosure. Supporters of this
bill argue that existing law provides that accident
investigation reports, such as that following the San Bruno
explosion, are confidential by default and requires an extensive
process by the CPUC to gain public access to such reports, which
severely restricts the public right to access government
records. AARP argues in support of this bill that "it is
important to foster governmental openness, accountability and
civic participation, particularly at an agency that regulates
basic commodities that seniors on fixed incomes are required to
purchase."
The CPUC is aware that the existing public disclosure methods
under Public Utilities Code Section 583 and General Order 66,
the regulatory public disclosure framework utilized by the CPUC
that is currently in the process of being updated, are outdated
and dysfunctional. A memorandum prepared by the Office of
Governmental Affairs to the CPUC states that:
Ýc]urrent rules and practices dictate that the CPUC prepare,
circulate for public comment and then act on routine draft
resolutions authorizing staff to disclose records of completed
CPUC accident investigations. These rules and practices
represent an unnecessary procedural barrier to the prompt
disclosure of records to the public. Under SB 1000, those
barriers would be removed while preserving the CPUC's
authority to protect from disclosure records subject to
codified exemptions. (Office of Governmental Affairs -
Sacramento, Memorandum, SB 1000 (Yee) - Public Utilities
Commission: public records (Feb. 1, 2012) <
http://docs.cpuc.ca.gov/ word_pdf/REPORT/158501.pdf> Ýas of
Apr. 18, 2012].)
Further, according to CNPA, "Ýt]he CPUC readily admits it has
received over 100 appeals to obtain investigative reports on gas
pipeline accidents, safety audit reports and inspection records,
all of which have been withheld. In those instances where the
CPUC has released information after adopting a formal
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resolution, the CPUC has acknowledged that the documents were of
the type that would be readily disclosed under the CPRA."
Utility companies have expressed opposition to this bill
revolving around confidentiality for financial details, trade
secrets, and network security information. Southern California
Edison (SCE) argues that this bill takes "an unnecessarily broad
approach to addressing the need for accident-related information
to be publicly accessible." Further, SCE argues that existing
CPUC disclosure provisions (Pub. Util. Code Sec. 583 and General
Order 66-C) "apply to a wide range of utility information that
would have serious privacy, financial, and security implications
if it were to lose its confidential status."
In response, the author argues that this bill would provide a
default disclosure of accident reports subject to the CPRA,
which provides substantial disclosure exemptions that would
protect private documents. Indeed, the CPRA provides an
exemption from public disclosure for corporate financial records
and corporate proprietary information, including trade secrets
(Gov. Code Secs. 6254, 6254(k), 6254.15, 6276.44), employee
personal information (Gov. Code Secs. 6254(c), 6254.3, 6276.34,
6276.36), and information affecting public safety or security
(Gov. Code Secs. 6253.9, 6254.19, 6254.23). 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. (Gov. Code Secs. 6276, 6276.36.)
This bill would update the CPUC disclosure requirements in order
to provide better public access to critical information and
would provide better guidance to the CPUC as to what documents
and information are exempt from disclosure.
3. Removing the misdemeanor penalty for disclosure by a CPUC
employee or officer of confidential public utility information
Existing law provides a misdemeanor penalty for any present or
former officer or employee of the CPUC who divulges any
confidential public utility information provided to the CPUC.
(Pub. Util. Code Sec. 583.) This bill would remove this
misdemeanor penalty.
The CPUC supports removing the misdemeanor penalty because "it
would eliminate the threat of criminal sanctions for the CPUC's
public disclosure of information furnished by utilities, their
subsidiaries and their affiliates." Opponents of this bill
argue that removing the misdemeanor penalty for the improper
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release of confidential information would create the risk that
confidential information will be released unnecessarily.
Staff notes that a multitude of state and local government
agency employees are required to comply with the CPRA, and its
exemptions for confidential information, without the penalty of
a misdemeanor for accidentally or intentionally disclosing
confidential information maintained by the state agency. In
fact, only two other state agencies contain a misdemeanor
penalty for the release of confidential information. First, the
State Auditor and any employee or former employee of the Bureau
of State Audits are subject to a misdemeanor penalty for
disclosing the particulars of any record, document, or other
information received or prepared by the State Auditor. (Gov.
Code Sec. 8545.1.) This statute was enacted in 1994, prior to
the passage of Proposition 59, which created the constitutional
right to government information.
Second, any employee of the Department of Justice (DOJ) who
knowingly discloses a confidential record is subject to a
misdemeanor penalty. (Pen. Code Sec. 11141.) This provision,
enacted in 1974, is distinguishable from the CPUC misdemeanor
statute because in order for a DOJ employee who discloses
confidential information to be held guilty of a misdemeanor, he
or she must have a heightened state of mind, not mere negligence
or mistake, to be charged with the misdemeanor penalty.
This bill would require CPUC employees, prior to disclosing any
document, to first determine whether any confidentiality
exemption under the CPRA applies to the document or any
information contained therein. This bill also would require any
confidential information that falls under a disclosure exemption
of the CPRA to be redacted. As discussed under Comment 2 above,
the CPRA contains numerous exemptions from public disclosure for
corporate financial information, trade secrets, personal
employee information, public safety or security.
Support : AARP; Agricultural Energy Consumers Association;
California Newspaper Publishers Association; California Public
Utilities Commission; 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
Opposition : AT&T; California Association of Competitive
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Telecommunications Companies; California Cable &
Telecommunications Association; California Communications
Association; California State Association of Electrical Workers;
Coalition of California Utility Employees; Frontier
Communications; PacifiCorp; San Diego Gas & Electric; Sempra
Energy Utilities; Southern California Edison; Southern
California Gas Company; The Wireless Association; Verizon
HISTORY
Source : Author
Related Pending Legislation : AB 1541 (Dickinson), among other
things, would require CPUC accident investigation orders or
recommendations and all information furnished to the CPUC,
unless exempt as specified, to be subject to public disclosure
under the CPRA. AB 1541 is currently in the Assembly
Governmental Organization Committee.
Prior Legislation : SB 1488 (Bowen, Ch. 690, Stats. 2004) See
Background.
Prior Vote : Senate Energy, Utilities and Communications
Committee (Ayes 7, Noes 4)
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