BILL ANALYSIS                                                                                                                                                                                                    





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 1520 (Committee on Judiciary)
          Version: July 2, 2015
          Hearing Date: July 14, 2015
          Fiscal: Yes
          Urgency: No
          TMW


                                       SUBJECT
                                           
             Public Records:  exemptions:  residential utility customers

                                      DESCRIPTION  

          This bill, under the California Public Records Act, would  
          clarify the exemption from public disclosure for specified  
          personal information of residential utility customers.

                                      BACKGROUND  

          The California Public Records Act (CPRA) requires state and  
          local agencies to make public records available for inspection  
          by the public, with specified exceptions.  The CPRA provides for  
          the confidentiality and non-disclosure of numerous classes of  
          information, including the residential address of an individual  
          in a record maintained by the Department of Housing and  
          Community Development, the residence or mailing address of any  
          person in any record of the Department of Motor Vehicles, and  
          the name, credit history, utility usage data, home address, or  
          telephone number of utility customers of local agencies.  These  
          confidentiality provisions were enacted to protect individual  
          privacy in the wake of several instances of criminal activity  
          against individuals whose residential information was disclosed  
          by public agencies.  (AB 1779 (Roos, Chapter 1213, Statutes of  
          1989); SB 448 (Sher, Chapter 276, Statutes of 1997).)

          However, recent news articles charge that SB 448 was actually a  
          measure to weaken the CPRA.  According to one article:

            In the midst of a historic drought, Californians have no way  








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            of knowing who's guzzling the most water.  For the source of  
            this legislation, look no further than Silicon Valley, where  
            the [C]ity of Palo Alto decided it needed to do more to  
            protect the privacy of the tech elite.  "Palo Alto, even then,  
            was home to a number of very high-profile tech-related  
            residents," said Ariel Calonne, who was the city attorney at  
            the time.  "We had fairly extensive databases that covered a  
            lot of sensitive information for a lot of noteworthy people,  
            and that became a concern for our utility managers."

            In the name of privacy and security, the [C]ity of Palo Alto  
            backed legislation sponsored by Byron Sher, the local [S]tate  
            [S]enator.  It allowed utilities to keep secret their  
            customers' "utility usage data" - that is, how much water and  
            power they were using.  Other supporters included the  
            California Municipal Utilities Association and the League of  
            California Cities.

            At the time, the Public Records Act required agencies that  
            operated utilities to make customers' bills public upon  
            request.  During a 1991 drought, the press exposed California  
            water wasters by relying on data from water utilities.  The  
            Los Angeles Times found that the top 100 water users in San  
            Diego gulped down 3,000 gallons or more a day, while the  
            average household used 349 gallons.  Atop the list of the  
            biggest users:  The San Diego Union-Tribune's publisher, Helen  
            Copley, who pumped an average of 10,203 gallons a day on her  
            9.5-acre La Jolla estate, which was tended by 10 full-time  
            gardeners.  Dozens of those top water users complained that  
            publicizing their water use would expose them to security  
            concerns or ridicule, the L.A. Times reported.

            In lobbying to change the law, proponents of the Sher measure  
            noted that utility bills include ratepayers' home addresses.   
            They argued that it was dangerous to make that information  
            public, citing the 1989 shooting of actress Rebecca Schaeffer,  
            who was killed by a stalker who got her address from  
            Department of Motor Vehicles records.  The Legislature  
            restricted access after that.

            State agencies routinely redact personal information in  
            releasing public records to address security concerns. But  
            proponents of the measure also argued that because private  
            utilities like PG&E did not have to release utility usage  
            data, public ones shouldn't have to either.







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            Last year, the nonprofit First Amendment Coalition sued to get  
            water usage data for major business customers of the Coachella  
            Valley Water District in the Palm Springs area, where golf  
            courses are prodigious water users.  Peter Scheer, the  
            coalition's executive director, argued that the 1997 law was  
            intended to protect the privacy only of people, not  
            corporations.  Earlier this month, a judge ruled that  
            corporate water bills also should remain secret, saying that  
            while businesses don't have the same privacy rights as people,  
            the law nevertheless applies to all customers.

            Under present law, there are a few exceptions that allow for  
            some limited public scrutiny of water bills.  Last year, The  
            Center for Investigative Reporting used the public-official  
            exemption to reveal the water use of officials who weren't  
            living up to their own calls for conservation.  Many water  
            agencies redacted the home addresses of the officials but  
            provided copies of their bills.  The law also allows the  
            agencies to disclose customers' water use if they have  
            violated "utility usage policies." As water agencies restrict  
            use in response to Gov. Jerry Brown's recently announced  
            mandatory water cuts, scofflaws could find themselves in the  
            public eye.  But only if the agencies feel like sharing that  
            information.  (K. Mieszkowski, L. Williams, To Shield Tech  
            Executives, California's Biggest Water Users are Secret (Apr.  
            16, 2015)  
             [as of June 28,  
            2015].)

          A Sacramento Bee article also noted that "[s]ome cities and  
          water agencies used to make usage data public, including the  
          Desert Water Agency and Coachella Valley Water District in  
          Southern California, which have some of the state's highest  
          per-capita water use.  But after The Desert Sun newspaper in  
          March 2014 published who was pumping the most groundwater, both  
          agencies stopped.  The First Amendment Coalition sued the  
          agencies to obtain usage data for major businesses.  Desert  
          Water settled and agreed to make the numbers available; they  
          show that golf resorts and country clubs are among the biggest  
          users.  Coachella Valley, however, refused - and won in court  
          last month."  (Editorial Board, California Water Use Numbers  
          Should Flow Freely (Apr. 28, 2015) The Sacramento Bee  
            







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          [as of June 28, 2015].)


          This bill seeks to expand disclosure by clarifying that the  
          confidentiality provisions under the CPRA for utility customers  
          pertain to residential customers of a local agency.

                                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  provides individuals an express right to privacy  
          specifically designed to "prevent government ... from collecting  
          and stockpiling unnecessary information about us and misusing  
          information gathered for one purpose in order to serve another  
          purpose."  (Cal. Const., art. I., Sec. 1; White v. Davis (1975)  
          13 Cal.3d 757, 774.)

           Existing law  , the California Public Records Act (CPRA), governs  
          the public 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.  (Gov. Code Sec. 6254 et seq.)
           
          Existing law  defines state agency, for purposes of the CPRA, to  
          include every state office, 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  exempts from public disclosure records that are the  
          residence address of any person contained in the Department of  
          Housing and Community Development, if the person has requested  
          confidentiality of that information, as specified, and the  







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          residence or mailing address of any person in any record of the  
          Department of Motor Vehicles.  (Gov. Code Sec. 6254.1.)

           Existing law  exempts from public disclosure the name, credit  
          history, utility usage data, home address, and telephone number  
          of utility customers of local agencies, except that disclosure  
          of name, utility usage data, and the home address of utility  
          customers of local agencies shall be made available upon request  
          as follows:
           to an agent or authorized family member of the person to whom  
            the information pertains;
           to an officer or employee of another governmental agency when  
            necessary for the performance of its official duties;
           upon court order or the request of a law enforcement agency  
            relative to an ongoing investigation;
           upon determination by the local agency that the utility  
            customer who is the subject of the request has used utility  
            services in a manner inconsistent with applicable local  
            utility usage policies;
           upon determination by the local agency that the utility  
            customer who is the subject of the request is an elected or  
            appointed official with authority to determine the utility  
            usage policies of the local agency, provided that the home  
            address of an appointed official shall not be disclosed  
            without his or her consent; and
           upon determination by the local agency that the public  
            interest in disclosure of the information clearly outweighs  
            the public interest in nondisclosure.  (Gov. Code Sec.  
            6254.16.)

           Existing law  exempts from public disclosure 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(aa), (ab), 6254.19,  
          6254.23).

           Existing law  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.)

           Existing law  provides that no information, unless specifically  
          required, furnished to the CPUC by a public utility, business  







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          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.)  Any present or former employee of the  
          CPUC who divulges any confidential public utility information  
          provided to the CPUC is guilty of a misdemeanor.  (Id.)
           
          Existing law  provides that any person may institute proceedings  
          for injunctive or declarative relief or writ of mandate in any  
          court of competent jurisdiction to enforce his or her right to  
          inspect or to receive a copy of any public record or class of  
          public records, and authorizes an award of court costs and  
          reasonable attorney fees to the plaintiff should the plaintiff  
          prevail in litigation, and those costs and fees are required to  
          be paid by the public agency, as specified (Gov. Code Secs.  
          6258, 6259(d)).  The test for determining whether a record may  
          be withheld from public access is whether the public's interest  
          in disclosure is outweighed by the public's interest in  
          withholding disclosure of the record.  (Gov. Code Sec. 6255.)

           This bill  would clarify that the public disclosure exemption for  
          the name, credit history, utility usage data, home address, and  
          telephone number of utility customers of local agencies applies  
          to residential customers.

           This bill  would provide legislative findings and declarations  
          that this bill furthers the purposes of the California  
          Constitution as it relates to the right of public access to the  
          meetings of local public bodies or the writings of local public  
          officials and local agencies, it is in the public's interest to  
          know the usage rates of industrial, institutional, and  
          commercial water and energy users, and, unlike residential  
          utility users, the privacy interests of industrial,  
          institutional, and commercial users are not sufficient to  
          justify granting an exemption from the public disclosure  
          requirements, in this context.

          This bill  would also make other technical and conforming  
          changes.

                                        COMMENT
           
          1.  Stated need for the bill  








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          The author writes:

            The four year drought in California has, among other things,  
            led to calls for water conservation reductions, especially for  
            urban users.  Efforts by newspapers and others to determine  
            the largest water users within a district or city, in order to  
            determine whether they were meeting conservation goals, have  
            been stymied by Government Code Section 6254.16.

            However, when Government Code Section 6254.16 was added to the  
            [California Public Records Act (CPRA)] in 1997, it was  
            primarily concerned about the privacy rights of individual,  
            residential users (see below).  Commercial, industrial, and  
            institutional users do not have the same privacy concerns.  AB  
            1520 would continue to protect the legitimate privacy  
            interests of residential users while serving the public's  
            interest in determining whether the largest users are meeting  
            conservation goals.  Although the drought is the primary  
            impetus for this bill, it should be noted that this bill would  
            apply to all utilities, not just water.

          2.  Clarifying confidentiality of utility consumer's information  

          Under existing law, a utility consumer's name, credit history,  
          utility usage data, home address, and telephone number are  
          exempted from public disclosure under the CPRA.  (Gov. Code Sec.  
          6254.16.)  This information is required to be disclosed only in  
          the following circumstances:
           to the utility customer's agent or authorized family member;
           to an officer or employee of another governmental agency when  
            necessary for the performance of its official duties;
           upon court order or the request of a law enforcement agency  
            relative to an ongoing investigation;
           upon determination by the local agency that the utility  
            customer has used utility services in a manner inconsistent  
            with applicable local utility usage policies;
           upon determination by the local agency that the utility  
            customer is an elected or appointed official with authority to  
            determine the utility usage policies of the local agency,  
            provided that the home address of an appointed official is not  
            disclosed without his or her consent; and
           upon determination by the local agency that the public  
            interest in disclosure of the information clearly outweighs  
            the public interest in nondisclosure.  (Gov. Code Sec.  
            6254.16.)







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          Following below average precipitation since 2007, and record  
          high temperatures and record dry conditions last year,  
          California is in an unprecedented drought in which nearly all of  
          California has been affected.  In January of this year, Governor  
          Brown declared a drought State of Emergency and directed state  
          officials to take all necessary actions to prepare for water  
          shortages.  (California Drought,  [as of  
          June 28, 2016].)  The drought has called into question who is  
          using the most water in California.  According to the author,  
          "[n]otwithstanding [Government Code] Section 6254.16, until  
          fairly recently some cities and water agencies used to make  
          usage data available.  After all, the [California Public Records  
          Act (CPRA)] does not prohibit disclosure; it merely states  
          nothing requires the agency to disclose the information.   
          Agencies may disclose it if they like.  However, as the drought  
          has prompted new requests for information, many cities and  
          agencies have stopped disclosing this information and they cite  
          Section 6254.16 as justification.  For example, the Desert Water  
          Agency and Coachella Water District stopped providing this data  
          after a local newspaper, in March of 2014, published a list of  
          the top users.  After the First Amendment Coalition filed a  
          lawsuit in August of 2014 to obtain usage data for large  
          consumers, the Desert Water Agency settled and made the data  
          available. . . .  However, the Coachella Water District refused  
          to settle and eventually won in court, based on the exemption  
          provided in Government Code Section 9254.16."  [Emphasis in  
          original.]

          Recent allegations have been made that the legislation enacting  
          the current CPRA exemption for utility customer usage data  
          claimed to be about protecting individual privacy in the wake of  
          several tragedies involving the use of personal information  
          disclosed by public agencies, but in reality, according to  
          several news articles, the exemption was aimed at protecting  
          high-profile Californians using significant amounts of water  
          during the California drought in the early 1990s.  Now, public  
          water districts are using the exemption to deny public access to  
          water usage of companies, such as golf courses, in order to  
          determine which entities are the biggest water wasters.

          The First Amendment Coalition, in support, argues that "[t]he  
          public is entitled to know - indeed, the public has a need to  
          know - water usage data of commercial and other institutional  
          users.  Access to this information is the only way for the  







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          public to assess the effectiveness of government water  
          conservation policies.  The severe [drought] afflicting  
          California only underscores the importance of this access."   
          Further, the California Newspapers Association, Inc., in  
          support, asserts that this bill "would provide the public with a  
          better understanding of whether the policies of local agencies  
          are effective in achieving state mandated cut-backs and whether  
          enforcement is selective or is fairly applied."

          This bill would clarify that the CPRA exemption for utility  
          customer information, including the usage, home address, and  
          telephone number of the customer, only applies to residential  
          customers.  In this way, this CPRA exemption would no longer  
          apply to commercial utility customers.

          3.  Oppositions' concerns
           
          The opposition, a coalition of business groups, asserts that  
          this bill "inappropriately makes industrial, institutional, and  
          commercial water and energy use public information.  It is an  
          attempt to shame business under the guise of ensuring that large  
          users are meeting conservation goals."  Further, the opposition  
          argues that current utility usage information privacy  
          protections serve an important purpose and protect commercial  
          users from their competitors gaining information and knowledge  
          regarding energy and water usage, which could be used by  
          competitors to determine production capacity and other  
          production information.  The opposition argues that this usage  
          information serves no public purpose other than to exploit  
          business operations and to shame businesses who may be  
          considered unfavorable to some and provide an avenue for  
          protest.  On this point in particular, the California  
          Manufacturers & Technology Association states that "[t]his bill  
          seeks to take advantage of the current and significant drought  
          that plagues California to eliminate a privacy right of  
          [commercial, industrial, and institutional (CII)] utility  
          customers they currently rely on to help protect information  
          regarding their processes from becoming public and available to  
          competitors who may be able to use utility data to gain  
          confidential information [which undermines] the privacy  
          interests of California manufacturers who are subject to  
          competition from out-of-state manufacturers who will not be  
          subject to similar data disclosures.  California manufacturers  
          are particularly sensitive to the release of CII utility data in  
          light of the current drought as some may seek to use this  







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          information to publicly shame a company . . . [which, as]  
          evidenced by recent media reports, we already see this taking  
          place across California without context, forcing companies to  
          expend valuable resources to repair their reputation unjustly  
          disparaged by those seeking to push water conservation burdens  
          onto others."

          The opposition further asserts that "current law also levels the  
          playing field between customers of private investor owned  
          utilities and utility customers of local agencies.  In 1997, SB  
          448 (Sher) determined that utility usage information from local  
          agencies was not public information.  Yet, this bill is  
          deliberately trying to overturn that, picking and choosing which  
          information should remain private.  Most large commercial,  
          industrial, and institutional users of water and energy pay  
          based on volume they use.  Under existing regulations, local  
          water districts, for example, are able to determine if  
          conservation goals have been met.  If the conservation goal is  
          not met, the local agency can impose fines of up to $10,000 per  
          violation, and $500 per day thereafter for every day the  
          violation continues to enforce compliance."  The opposition  
          states that it is also unclear how this bill, by making  
                                                 commercial utility usage information public, would help reduce  
          water usage or energy consumption.

          The California Municipal Utilities Association, in opposition,  
          states that "[u]nder existing law, private utilities are not  
          required to share their utility customer information upon public  
          request.  Under SB 448 (Sher, Chp. 276, Statutes 1997), public  
          safety concerns and the issue of 'parity' between privacy rights  
          that apply only to private utility customers versus no such  
          protections for utility customers of a public agency prompted  
          the Legislature to ensure privacy protections are equal for all  
          utility customers.  The current law provides essential limited  
          protections on the public's right to access individual customer  
          information, striking a balance between the right to public  
          information and the right for both residential and commercial  
          customer's usage information to be withheld.  In lieu of the six  
          exceptions [under the CPRA], it is unclear why 'names, credit  
          histories, usage data, home addresses, or telephone numbers'  
          should only apply to residential customers when such protections  
          benefit all customers."

          The Sacramento Municipal Utility District, in opposition, notes  
          that "investor-owned utilities are not subject to the [CPRA].   







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          Consequently, investor[-]owned utilities (70 [percent] of the  
          State) are able to protect the confidentiality of proprietary  
          business and customer information.  This law would effectively  
          mean that commercial or industrial customers in our service  
          territory have less of a privacy interest in their commercial  
          data than their competitors located in the service territory of  
          an investor[-]owned utility."

          In response, the author states that the coalition's argument  
          that the usage data would be improperly used by competitors is  
          essentially a trade secret argument, for which there is already  
          an exemption from disclosure under the CPRA.  With respect to  
          the coalition's arguments, the author also writes:  "They claim  
          that this would create an 'uneven playing field' because  
          investor-owned utilities (IOU) like PG&E are not 'exempted' from  
          [C]PRA request. . . . Actually, IOUs are not 'exempted' from the  
          [C]PRA; as a private enterprise they are not covered by [C]PRA  
          at all, so there is no need for an exemption.  [C]PRA only  
          covers government entities.  Also, IOUs are regulated by the  
          PUC, and PUC records are subject to [C]PRA."

          As for the coalition's assertion that this bill would be an  
          effort to shame businesses, the author states that "[t]his is  
          partly true.  But it is also a way for people, the press, and  
          policy-makers to get a handle on who the major users are, so as  
          to encourage and/or make policies accordingly."  Regarding the  
          coalition's claim that the public has no interest in usage data  
          because the local agency can impose fines on users who violate  
          existing limits, the author asserts that "[i]t's true that the  
          local agency can impose a fine on a violator.  In fact, if the  
          agency has determined that a user has violated a policy,  
          subdivision (d) of [Government Code] Section 6254.16 says that  
          the information is not exempt and should be disclosed.  But  
          whether or not an agency has taken an action against a user, the  
          public still has a legitimate interest in usage data.  After  
          all, the public may want to ensure that the agency is  
          appropriately taking against violators or failing to do so."

          The author also states that "rebuttals to all of the above  
          include[:]  (1) before 1997 this information was not exempted  
          and there is no evidence of any harm that resulted from it; (2)  
          even after 1997, some water districts and other agencies  
          voluntarily disclosed this information ([C]PRA exemptions, after  
          all, say that 'nothing requires' disclosures of these items, but  
          an agency may still disclose and many did until recently); (3)  







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          the legislative history for this section shows that it was  
          concerned with privacy of individuals.  But for commercial  
          enterprises, there is no comparable privacy or confidentiality  
          interest - except perhaps trade secrets, which are already  
          exempted."


           Support  :  California Newspaper Publishers Association;  
          Californians Aware; California Coastal Protection Network;  
          California League of Conservation Voters; Clean Water Action;  
          Community Water Center; Environmental Justice Coalition for  
          Water; Environmental Working Group; First Amendment Coalition;  
          Natural Resources Defense Council; Sierra Club California;  
          TreePeople

           Opposition  :  African American Farmers of California;  
          Agricultural Council of California; American Pistachio Growers;  
          American Planning Association; Association of California Egg  
          Farmers; Automotive Specialty Products Alliance; Building Owners  
          and Managers Association of California; California Association  
          of Nurseries and Garden Centers; California Business Properties  
          Association; California Chamber of Commerce; California Citrus  
          Mutual; California Construction and Industrial Materials  
          Association; California Cotton Ginners Association; California  
          Cotton Growers Association; California Farm Bureau Federation;  
          California Fresh Fruit Association; California Grain and Feed  
          Association; California League of Food Processors; California  
          Manufacturers and Technology Association; California Municipal  
          Utilities Association; California Paint Council; California  
          Restaurant Association; California Seed Association; California  
          Tomato Growers Association; California Warehouse Association;  
          Consumer Specialty Products Association; Grocery Manufacturers  
          of America; Independent Energy Producers; International Council  
          of Shopping Centers; NAIOP - Commercial Real Estate Development  
          Association; National Federation of Independent Business;  
          National Hmong American Farmers; Nisei Farmers League; Pacific  
          Coast Rendering Association; Sacramento Municipal Utility  
          District; Western Plant Health Association; Wine Institute

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  SB 20 (Pavley, 2015) would repeal  
          existing law makes confidential reports of completion of water  







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          wells, and, instead, require the Department of Water Resources  
          to make the reports available to the public.  SB 20 is currently  
          in the Assembly Water, Parks and Wildlife Committee.

           Prior Legislation  :

          SB 448 (Sher, Chapter 276, Statutes of 1997) See Background.

          AB 1779 (Roos, Chapter 1213, Statutes of 1989) See Background.

           Prior Vote  :  Prior votes not relevant

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