BILL ANALYSIS Ó
SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS
Senator Ben Hueso, Chair
2015 - 2016 Regular
Bill No: SB 1017 Hearing Date: 3/29/2016
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|Author: |Hill |
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|Version: |2/11/2016 As Introduced |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Nidia Bautista |
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SUBJECT: Public Utilities Commission: public availability of
utility supplied documents
DIGEST: This bill would authorize the California Public
Utilities Commission (CPUC) to adopt rules providing for the
disclosure of information furnished to the commission by a
CPUC-regulated utility or corporation and not require a vote of the
CPUC or order of a commissioner for every disclosure of matters
marked as confidential by the utility.
ANALYSIS:
Existing law:
1)Establishes the public has a 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.
(Article I of the California Constitution, § 3 (b) (1))
2)Requires every public utility to provide information to the CPUC
including specific answers to all questions posed by the CPUC.
(Public Utilities Code § 581)
3)Requires every public utility to deliver 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. (Public Utilities Code
§ 582)
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4)Provides that no information provided to the CPUC by a public
utility or its subsidiary or affiliate shall be open to the
public except on the order of the CPUC or a commissioner in the
course of a hearing or proceeding. Also provides that any
present or former officer or employee of the CPUC who divulges
information is guilty of a misdemeanor. (Public Utilities Code §
583)
5)Requires public utilities to furnish reports periodically,
special, or both concerning any matter about which the CPUC is
authorized to inquire to keep itself informed or which it is
required to enforce. (Public Utilities Code § 584)
6)Requires the public utilities to provide access to all computer
models used by the public utility, in any rate proceeding or
proceeding that may influence a rate, to the CPUC. (Public
Utilities Code § 585)
7)Finds and declares that access to information concerning the
conduct of the people's business is a fundamental and necessary
right of every person in this state and establishes the
California Public Records Act (CPRA). (Government Code § 6250,
et seq)
8)Provides that agencies shall justify withholding any record by
demonstrating that the record in question is exempt under express
provisions of the CPRA or that on the facts of the particular
case the public interest service by not disclosing the record
clearly outweighs the public interest served by the disclosure of
the record. (Government Code § 6255)
This bill authorizes the CPUC to adopt rules providing for the
disclosure of information furnished to the CPUC by a public
utility, a subsidiary, an affiliate, or a corporation holding a
controlling interest in a public utility.
Background
California Public Records Act and the CPUC. The California
Constitution and the CPRA require that most government records be
available to the public and, as such, allow agencies, including the
CPUC, wide latitude to establish policies for public access to
their records. However, unique among other agencies, the CPUC is
also governed by statute nearly as old as the agency itself,
Section 583 of the Public Utilities Code, which states that no
information furnished to the CPUC by a public utility "except those
SB 1017 (Hill) Page 3 of ?
matters specifically required to be open to public inspection by
this part, shall be open to public inspection or made public except
on order of the CPUC, or by the CPUC or a commissioner in the
course of a hearing or proceeding. Any present or former officer
or employee of the CPUC who divulges any such information is guilty
of a misdemeanor." As a result, the CPUC rules provide that
regulated entities can stamp their documents and information as
confidential (which they routinely do) and place the burden on the
CPUC to determine whether the claims of confidentiality are
justified. General Order (GO) 66-C governs disclosure of CPUC
records. GO 66-C is a five-page document which largely restates
existing statutory authority. These rules have mostly remained the
same since 1974, when they were first adopted, with some amendments
in 1982. Among the rules in GO 66-C is section (2.2(a)) that
identifies as confidential "records of investigations and audits
made by the CPUC, except to the extent disclosed at a hearing or by
formal CPUC action." GO 66-C also exempts from disclosure
personnel records, other than job classification, job
specification, or salary range.
Efforts to streamline. As a result of the threat of criminal
liability inherent in Section 583, release of information in
investigations and audits is generally handled on a case-by-case
basis by a vote of the CPUC, or decisions by the assigned
commissioner or administrative law judge (ALJ). Regulated
utilities and companies have routinely marked many of their
documents "confidential subject to Section 583 and GO 66" which has
generally slowed the ability of the agency to satisfy public
records requests in a prompt manner. Over the years, often
prompted by tragedy, the CPUC has considered streamlining the
process to disclose information. In the late 1990s, after a
homeowner was injured from coming into contact with an overhead
electrical line, the CPUC stated its intent to streamline the
procedures for release of accident reports and records of
investigations. In 2004, legislation was introduced by Senator
Bowen to attempt to reverse the presumption from the CPUC to
utilities by stating that all records furnished would be considered
public in the absence of a CPUC order. The bill was ultimately
amended to require the CPUC to examine its procedures related to
Section 583 confidentiality requirements and energy procurement
processes. As part of the effort, the CPUC stated its intention to
review changes to GO 66-C. However, the effort was abandoned
within a year after several of the stakeholders expressed concerns
and opposition to changes.
SB 1017 (Hill) Page 4 of ?
San Bruno Pipeline Explosion. In the aftermath of the 2010 PG&E
San Bruno Pipeline explosion which killed eight residents and
decimated an entire neighborhood, the CPUC experienced a marked
increase in public records requests. Inundated with public records
requests stemming from the explosion, including requests from the
City of San Bruno, the CPUC struggled to satisfy the requests in a
timely and efficient manner. In light of these and other
frustrations with the agency's response, legislative bills were
introduced in 2012 to attempt to help streamline the process for
disclosure. However, the bills stalled in the Legislature. In
March of the same year, the CPUC embarked on an effort to
streamline the procedures for disclosing some information to the
public with a priority on safety-related records. According to the
CPUC, in the past, the application of GO 66-C Section 2.2(a) has
"unnecessarily delayed disclosure of records of completed safety
investigations and audits."
Current CPUC efforts. In February 2013, the CPUC adopted
resolution (L-436) which established disclosure procedures for
categories of routine safety-related records, after any appropriate
redactions, without requiring a vote of the CPUC or an ALJ ruling.
Specifically, these categories of documents include: (1)
CPUC-generated reports, summaries, and correspondence regarding
completed CPUC safety-related inspections, audits, and
investigations; and (2) annual reports that gas operators file with
the United States Department of Transportation Pipeline and
Hazardous Materials Safety Administration (PHMSA). The CPUC
created a safety information portal on its website to host the
documents and future records. The resolution also stated the
CPUC's intent to open formal rulemaking proceeding to address
"improving the public's access to records that are not exempt under
the CPRA or other state or federal law, and the CPUC's ability to
process records requests and requests for confidential treatment in
an efficient, well-reasoned, and consistent manner." The CPUC
directed their staff to hold workshops to discuss additional
safety-related disclosures that should be considered.
Rulemaking opened. As part of the settlement agreement between the
CPUC and the City of San Bruno related to public records requests
for emails between CPUC and PG&E, the CPUC agreed to open a
rulemaking by December 31, 2014 to modify GO 66-C and improve
public access to public records. On November 6, 2014, the CPUC
opened an order instituting a rulemaking to improve public access
to public records pursuant to the CPRA and address proposed changes
to GO 66-C. As of this analysis, the rulemaking remains open with
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active participation from several parties. The CPUC held a public
workshop on the issue on February 2, 2016. In the meantime the
CPUC continues to receive additional requests for public records,
receiving over 400 CPRA requests for information in 2015 and
currently on pace to receive more in 2016.
Governor's message. In vetoing all of the CPUC reform bills passed
by the Legislature last fall, the governor included his desire to
reform Section 583 in veto messages for SB 18, SB 48 and AB 825.
In response to proposals in the bills to allow parties to bring
lawsuits in Superior Court against the CPUC related to compliance
with Open Meetings Act and CPRA, the governor stated: "amending
Section 583 of the Public Utilities Code to require more
information to be publicly available is a much better way to ensure
that the public is provided with this information." The governor's
interest to reform the Section 583 was further acknowledged in the
Governor's Office recent release, CPUC Principles for Reform
document which states: Public Utilities Code section 583 should be
revised to better enable the CPUC to respond in a full, complete,
and timely manner to CPRA requests and to make documents in
proceedings available to the public in a timely and complete
fashion.
"Or Rule." The main distinction between an order versus a rule is
the decisionmakers and the process. The communications and trade
associations opposing the bill cite their concern that
commissioners may delegate to staff decisions regarding what is
considered confidential and without the benefit of public notice
and the opportunity to have their perspectives heard. The
coalition of companies and associations opposed to the bill suggest
that the current system is "balanced" and "has worked perfectly for
decades." They are concerned that the current practice and
understanding of having information designated as "confidential"
until a dispute arises would be undermined by the addition of "or
rule." The coalition argues that a CPUC "rule" could simply
attempt to delegate the decision-making process to staff without
notice to the regulated companies or the opportunity to be heard.
The author argues that language proposed in this bill is consistent
with the CPUC's current powers and its proposal in the current, yet
to be finalized, rulemaking, reflective of this consistency.
Double-referred. Should this bill be approved by this committee,
it will be referred to the Senate Committee on Judiciary.
Prior/Related Legislation
SB 1017 (Hill) Page 6 of ?
AB 825 (Rendon, 2015) would have proposed a suite of reforms to
make the CPUC more accessible and transparent to the public,
including requiring a public utility to file a public version of a
document that has been claimed to contain confidential information.
The bill was vetoed by the governor.
AB 1541 (Dickinson, 2012) among many of the provisions of the bill,
it would have added to the list of records that the CPUC may exempt
from disclosure, as well as, required disclosure of CPUC orders or
recommendations regarding an accident unless the CPUC determined it
is proprietary, security-related, market-sensitive information, or
personally identifiable information. The bill was held in Senate
Committee on Appropriations.
SB 1000 (Yee, 2012) would have required the CPUC to revise its
guidelines, resolutions, and general orders for the disclosure of
public records and required the CPUC investigation orders,
recommendations, and accident reports to be made publicly available
pursuant to the CPRA. The bill died in Assembly Committee on
Utilities and Commerce.
SB 1488 (Bowen, Chapters 690, Statutes of 2004) 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.
FISCAL EFFECT: Appropriation: No Fiscal Com.:
Yes Local: No
SUPPORT:
None received.
OPPOSITION (unless amended):
AT&T
CTIA
Consolidated Communications
Frontier Communications
Sprint
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T - Mobile
TechNet
Verizon
ARGUMENTS IN SUPPORT: According to the author, AB 1017 would
clarify that the CPUC may develop regulations to permit streamlined
public access to safety-related information without requiring a
vote of the commissioners to release public records. These
regulations allow CPUC staff to produce public records to
requestors without fear of utilities pressing for criminal charges
against them. The author argues that Section 583 results in a
strict prohibition against release of utility-furnished documents
without a vote of the CPUC - under pain of misdemeanor - and that
this is inconsistent with the CPRA (and California Constitution)
presumption that documents used by public officials to make
decisions be available to the public. The author further states,
much information furnished by the CPUC-regulated utilities and
other service providers should be withheld from the public - such
as information that would disrupt competitive markets or would
expose critical infrastructure to security threats - but the CPUC
needs to be able to more quickly provide records not exempt from
the CPRA to the public and be overburdened by indulging every
unconsidered utility wish for confidential treatment with a full
vote of the CPUC to deny it. The solution is to ensure the CPUC
has sufficient discretion to release public records that do not
merit confidential treatment without a CPUC vote.
ARGUMENTS IN OPPOSITION: The communications companies and trade
associations opposed to this bill express concern that the proposed
changes to Section 583 "could readily lead to the improper and
unlawful public disclosure of highly sensitive and confidential
information, without notice and an opportunity to be heard." They
explicitly raise concerns about "delegating the CPUC
decision-making process to staff, rather than the current due
process protections that are included in the procedures that are
necessary predicates to an order."
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