BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       SB 1017|
          |Office of Senate Floor Analyses   |                              |
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                                   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:








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          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  







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          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  







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          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  







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          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







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          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









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