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 ****