BILL ANALYSIS Ó
SB 1017
Page 1
Date of Hearing: June 29, 2016
ASSEMBLY COMMITTEE ON UTILITIES AND COMMERCE
Mike Gatto, Chair
SB
1017 (Hill) - As Introduced June 20, 2016
SENATE VOTE: 21-8
SUBJECT: Public Utilities Commission: public availability of
utility supplied documents
SUMMARY: Modifies statutes that limit public access to utility
supplied documents at the California Public Utilities Commission
(CPUC). Specifically, this bill:
1)Authorizes the CPUC to adopt rules providing for the
disclosure of information furnished to the commission by a
public utility, a subsidiary, an affiliate, or a corporation
holding a controlling interest in a public utility.
2)Requires the CPUC to develop rules consistent with the
California Public Records Act for the expeditious disclosure,
of information related to:
a) Public health and safety emergencies;
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b) Public, employee, and contractor safety; and
c) Environmental degradation caused by loss of operational
control by a public utility.
3)Repeals a provision that makes divulging this information a
misdemeanor.
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. (California Constitution, Article I Section 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 Section 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 Section 582)
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
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present or former officer or employee of the CPUC who divulges
information is guilty of a misdemeanor. (Public Utilities
Code Section 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 Section 584)
6)Requires the public utilities to provide access to all
computer models used by the public utility, in any rate
proceeding or a proceeding that may influence a rate, to the
CPUC. (Public Utilities Code Section 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
Section 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 Section 6255)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: "An antiquated law put in place before the
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Public Records Act (PRA) makes it very difficult for the
public to get public records from the CPUC. Public Utilities
Code [Section] 583 requires the full Commission vote to
release documents that have been designated by a utility as
'confidential.'
"While there is no penalty for a utility to designate clearly
public information as 'confidential,' CPUC staff is subject to
a misdemeanor for release of this information-regardless of
whether the utility's claim of confidentiality has any
validity.
"The CPUC has reported that utilities have claimed
confidentiality on records that are clearly not confidential,
including:
Information filed publicly with other agencies
Entire responses to data requests, even when most of the
information is not confidential
A customer service manual that is distributed to
customers
Newspaper advertisements
Scripts read to customers by customer service
representatives
The number of customer complaints logged against a
company
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Hearing exhibits that are contained in public testimony
Redaction of entire tables when only a few numbers are
confidential
"Utilities have used this as a shield to prevent the public
from access to safety information. In one case in 2005,
Southern California Gas Company was able to drag out a PRA
request from KNBC (Los Angeles) for information about gas
pipeline accidents, claiming that the station had not
identified any 'legitimate reason' for receiving
'safety-related' reports, and that it should not be allowed to
'create undue public alarm' to 'boost its own ratings and
revenues.' More recently, the non-utility underground gas
storage providers wrote to the CPUC stating that it believed
that methane leak reports should be confidential because 'a
report showing a leak of any size may attract a curious
public.'"
Governor Brown has identified this as a needed area of CPUC
reform.
1)Principles of CPUC Reform: On Monday, June 27, 2016, Governor
Brown and Assemblymember Gatto, Chair of the Assembly
Utilities and Commerce Committee announced an agreement on
Principles for Reforms of the CPUC. This bill including:
a) Clarifying 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.
b) Striking the criminal misdemeanor provision for release
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of documents submitted by a public utility without a vote
of the Commission or released by a commissioner in the
process of a hearing.
c) Requiring the CPUC to develop procedures for expedited
disclosure of public information related to: a) public
health and safety emergencies; b) public, employee, or
contractor safety; or c) environmental degradation caused
by the loss of operational control by a public utility.
SB 512 (Hill), SB 661 (Hill) and SB 215 (Leno) of 2016 include
other elements of the principles.
2)Background: In vetoing all of the CPUC reform bills passed by
the Legislature in the fall of 2015, the Governor included his
desire to reform Public Utilities Code 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 California Public
Records Act (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 Public Utilities Code 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.
This bill strikes the misdemeanor penalty applicable to
commissioners and staff who release confidential information.
The author may wish to consider retaining the misdemeanor
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penalty and limit its applicability to release of information
for economic gain, create a competitive disadvantage against a
utility, or to create a competitive advantage and specify that
information provided to the State Auditor as a result of a
whistleblower complaint or to another state agency with a
memorandum of understanding that protects confidential
information is not subject to the misdemeanor provisions.
This bill would also allow the CPUC to establish
confidentiality procedures by rule in addition to by order.
The author may wish to clarify that documents that are to be
held confidential pursuant to federal or state law may not be
made publicly available.
Concerns have been raised on an earlier version of this bill
about due process, in the event of a disagreement between a
provider of confidential information and whether this
information should or should not be held confidential. In the
event of a request for release of confidential information
this bill does not specify whether the provider of the
confidential information has the ability to challenge the
release of such information before the CPUC.
1)Proposed Amendments:The author may wish to consider an
amendment to: a) specify that documents whose release is
prohibited by federal or state law shall not be made publicly
available; b) retain the current language subjecting
commissioners and staff to misdemeanor penalties for divulging
confidential information and to limit that provision to those
circumstances where a commissioner or staff divulges
information for monetary gain or employment or to place a
public utility at a competitive disadvantage to another; and
c) to state that information provided to the Bureau of State
Audits if relevant to a whistleblower complaint or shared with
another state agency pursuant to a confidentiality agreement.
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SECTION 1. The Legislature finds and declares that, pursuant
to Section 3 of Article I of the California Constitution, the
public should have access to all public records of state
entities and this right should extend to public records of the
Public Utilities Commission.
SEC. 2. Section 583 of the Public Utilities Code is amended to
read:
583. No information furnished to the commission by a public
utility, or any business which is a subsidiary or affiliate of
a public utility, or a corporation which holds a controlling
interest in 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 or rule of the commission, or by the commission or a
commissioner in the course of a hearing or proceeding but no
document whose release is prohibited by federal or state law
shall be made open to the public or released publicly. Any
present or former officer or employee of the commission who
divulges any such information for monetary gain, employment,
or to place a public utility, who furnished the information at
a competitive disadvantage, or to provide a competitive
advantage to another, is guilty of a misdemeanor. The penalty
provisions of this section shall not apply when such
information is divulged to the Bureau of State Audits as
information relevant to a whistleblower complaint or shared
with a state agency under a memorandum of understanding that
protects the confidentiality of the information.
SEC. 3. Section 583.1 is added to the Public Utilities Code,
to read: 583.1.
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(a) The commission shall develop rules consistent with the
California Public Records Act (Article 1 (commencing with
Section 6250) of Chapter 3.5 of Division 7 of Title 1 of the
Government Code) for the expeditious disclosure of information
related to all of the following:
(1) Public health and safety emergencies.
(2) Public, employee, and contractor safety.
(3) Environmental degradation caused by loss of operational
control by a public utility.
(b) Nothing in this part requires the commission to disclose
documents when the public interest served by not disclosing
the records clearly outweighs the public interest served by
disclosure of the records.
(c) Nothing in this part requires the commission to disclose
documents regarding utility employees, contract employees, or
individuals who generally have an objectively reasonable
expectation of privacy in which disclosure would constitute an
unwarranted invasion of personal privacy.
2)Support and Opposition: Supporters state that this bill
addresses a continuing challenge of transparency of utility
practices and that current limits imposed by this section of
the Public Utilities Code dramatically slows the release of
public information. In addition, supporters believe that the
CPUC commissioners need not vote on every request to release
information.
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Opponents express concern that, as written, this bill could
lead to release of highly sensitive and confidential
information. They state that if passed it would hamper the
free flow of information that currently exists between
communication companies and the CPUC. Others suggest that the
language removes due process rights that would provide an
opportunity to be heard before the deprivation of a public
interest and lacks a process to raise disagreements with staff
interpretations of confidential documents before is released.
3)Prior Legislation:
AB 825 (Rendon) of 2015: 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. Vetoed by the Governor.
AB 1541 (Dickinson) of 2012: Added, among many of the
provisions of the bill, 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. Held in the Senate Appropriations Committee.
SB 1000 (Yee) of 2012: 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. Died in the Assembly
Utilities and Commerce Committee.
SB 1488 (Bowen), Chapters 690, Statutes of 2004: Requires the
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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.
REGISTERED SUPPORT / OPPOSITION:
Support
Alliance for Nuclear Responsibility
California Attorneys, Administrative Law Judges and Hearing
Officers in State Employment (CASE)
Engineers and Scientists of California
Utility Workers Union of America
Office of Ratepayer Advocates
State Employees International Union
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Sierra Club
The Utility Reform Network (TURN)
Opposition
AT&T
CalCom
California Association of Competitive Telecommunications
Companies
CTIA
California Cable and Telecommunications Association
Consolidated Communications
Frontier
Southern California Edison
Sprint
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T-Mobile
TechNet
Verizon
Analysis Prepared by:Sue Kateley / U. & C. / (916)
319-2083