BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1017| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 1017 Author: Hill (D) Introduced:2/11/16 Vote: 21 SENATE ENERGY, U. & C. COMMITTEE: 6-0, 3/29/16 AYES: Hueso, Hill, Lara, Leyva, McGuire, Wolk NO VOTE RECORDED: Morrell, Cannella, Gaines, Hertzberg, Pavley SENATE JUDICIARY COMMITTEE: 5-1, 4/19/16 AYES: Jackson, Hertzberg, Leno, Monning, Wieckowski NOES: Anderson NO VOTE RECORDED: Moorlach SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 SUBJECT: Public Utilities Commission: public availability of utility supplied documents SOURCE: Author DIGEST: This bill authorizes the California Public Utilities Commission (CPUC) to adopt rules providing for the disclosure of information furnished to the agency 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: SB 1017 Page 2 1)Establishes that 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. (Public Utilities Code §581) 3)Requires every public utility to deliver copies of all maps, profiles, contracts, agreements, franchises, reports, books, accounts, papers, and records relating to its property or affecting its business. (Public Utilities Code §582) 4)Provides that no information provided to the CPUC by a public utility shall be open to the public except on the order of the CPUC or a commissioner and 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 concerning any matter about which the CPUC is authorized to inquire or enforce. (Public Utilities Code §584) 6)Requires public utilities to provide access to all computer models used by the public utility in any rate proceeding 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 right of every person 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 SB 1017 Page 3 utility, a subsidiary, an affiliate, or a corporation holding a controlling interest in a public utility. Background CPRA 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, specifically Section 583 of the Public Utilities Code, which states that no information furnished to the CPUC by a public utility "except those 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." 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. Regulated utilities and companies have routinely marked many of their documents "confidential subject to Section 583 and GO 66" and placed the burden on the CPUC to determine whether the claims of confidentiality are justified. Due to the risk 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). As a result, the agency's efforts to satisfy public records requests in a prompt manner have been slowed and challenged. 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, including requests from the City of San Bruno, which overwhelmed the agency's ability to respond. In light of these and other frustrations with the SB 1017 Page 4 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. 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. The CPUC created a safety information portal on its Web site 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." 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 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, including 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 (Hill), SB 48 (Hill), and AB 825 (Rendon). 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 SB 1017 Page 5 provided with this information." The Governor's interest to reform the Section 583 was further acknowledged in the 2016 document CPUC Principles for Reform 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 and a rule is the decision maker and the process. The coalition of companies and associations opposed to this 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified5/2/16) None received OPPOSITION: (Verified5/2/16) AT&T CTIA Consolidated Communications Frontier Communications Sprint T - Mobile TechNet SB 1017 Page 6 Verizon ARGUMENTS IN SUPPORT: According to the author, this bill clarifies 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." Prepared by:Nidia Bautista / E., U., & C. / (916) 651-4107 5/4/16 14:57:59 SB 1017 Page 7 **** END ****