BILL ANALYSIS                                                                                                                                                                                                    Ó



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          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