BILL ANALYSIS � 1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
ALEX PADILLA, CHAIR
AB 1541 - Dickinson Hearing
Date: June 19, 2012 A
As Amended: May 24, 2012 FISCAL B
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DESCRIPTION
Current law requires that the records of every state agency be
made available for public inspection upon request, with certain
exemptions and subject to procedures. This law is commonly
referred to as the California Public Records Act (CPRA).
Exemptions for specified information are included but an agency
must justify withholding any record by demonstrating that the
record in question is exempt under the law or that on the facts
of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest
served by disclosure of the record.
This bill adds to the list of records that the California Public
Utilities Commission (CPUC) may exempt from disclosure,
information exempt under Public Utilities Code Section 583 and
market sensitive information included in a gas or electric
corporations' procurement plans.
Current law requires the CPUC to investigate the cause of all
accidents involving a public utility and the operation or
maintenance of its facilities which results in a loss of life or
property damage if the commission determines an investigation is
necessary.
This bill requires disclosure of CPUC orders or recommendations
regarding an accident, or utility reports filed concerning an
accident according to the CPRA unless the commission determines
that it is proprietary, security-related, market-sensitive
information, or personally identifiable information or specified
communication between a labor organization and utility
management.
Current law establishes a presumption against public disclosure
of any information submitted to the CPUC by a public utility
unless the commission orders the information to be made public
or made public in the course of a commission hearing or
proceeding. Any official or employee of the commission who
releases confidential information not ordered for release is
guilty of a misdemeanor.
This bill eliminates the ability of the commission to order the
release of information in the course of a hearing or proceeding
and instead requires the release of all information held by the
commission, unless exempt under the CPRA or the document is
security-related, proprietary business, or market-sensitive
information, specified communications between a certified labor
organization and a utility, or personally identifiable
information of a customer or employees. Release of any
information in those categories by a commissioner or employee
would be a misdemeanor.
BACKGROUND
Historical CPUC Records Disclosure Policy - Unlike other state
agencies, the CPUC operates under a statute (Public Utilities
Code section 583) which, in practice, has made public access to
much of the information in its proceedings the exception, rather
than the rule without positive action by the commission to make
those documents public. According to prior analyses on this
issue, the statute has its origins in a law enacted in 1951.
Notwithstanding the subsequent "open government" reforms in
California reflected in the CPRA, the statutory standard for
public access to utility filings held by the CPUC, has not
fundamentally changed since 1951.
The CPRA gives every person the right to inspect and obtain
copies of all state and local government documents not exempt
from disclosure. Exemptions include corporate financial records
and corporate proprietary information, including trade secrets.
The CPRA also specifically provides that information held by the
CPUC which is deemed confidential under Public Utilities Code
Section 583 is not required to be disclosed. However, the
"exemptions" of the CPRA are narrowly construed and the fact
that a record may fall within a CPRA exemption does not preclude
the CPUC from disclosing the record if the CPUC believes
disclosure is in the public interest.
The agency shall justify withholding any record by demonstrating
that the record in question is exempt under express provisions
of this chapter or that on the facts of the particular case the
public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the record
Revision of CPUC Disclosure Policies - The CPUC issued a
proposal in March that would improve and streamline the process
for the public to access documents received or generated by the
CPUC. The CPUC's current policies for public access to records
are included in its General Order 66-C which was adopted in 1974
and amended in 1982. Consequently, the 30 year old policies are
long overdue for reform. By its own admission the CPUC's
regulations for public access to records are "outdated and
cumbersome, and often delay rather than facilitate access to
records requested under the California Public Records Act."
The CPUC has released a draft resolution to revise its policies
which would be reflected in a new General Order 66-D. The draft
is out for public comment. The schedule for formal adoption by
the CPUC is unknown at this time. The Draft Resolution is a
significant departure for the CPUC which has historically
started from the standpoint that everything they do is
confidential and the public and press has had an uphill battle
in gaining access to the records. The CPUC has reviewed
outdated rules that impede the CPUC's ability to share documents
with the public it serves, and the new policy is intended to
allow the CPUC to provide the public with more immediate access
to documents. In addition, by updating the CPUC's regulations
governing public access to CPUC records; establishing procedures
for more uniform processing of records requests and requests for
confidential treatment of documents provided to the CPUC; and
improving access to records on the CPUC's website, the CPUC
could substantially streamline public access to records and
information.
The Draft Resolution does emphasize three areas for which
confidentiality should be retained related to "privacy of
individual residents, short-term market sensitivity, and
critical infrastructure."
COMMENTS
1. Author's Purpose . The State's Public Records Act allows
the CPUC wide latitude to establish a policy for public
access to its records. Contrary to the intent of the CPRA,
the CPUC presumed all documents are confidential unless it
expressly acts to share documents with the public.
Following the natural gas pipeline explosions in Rancho
Cordova and San Bruno, consumer advocacy organizations and
the Legislature had to pressure the CPUC to release
information pertaining to accident investigations and
public safety. Many of these documents subsequently showed
a culture of cutting corners at gas utility companies that
put the public at risk, and lapses in oversight of utility
companies by the CPUC.
AB 1541 will require the CPUC to comply with the intent of
the CPRA, that the public be guaranteed access to
government documents, unless the information meets
specified criteria, such as endangering the public by its
release. The public needs and deserves the ability to
monitor the activities of utilities and the performance of
the CPUC.
2. Antiquated Records Access Policy . The author opines that
the CPUC's presumption of confidentiality for its records,
as well as a misdemeanor penalty on officials and staff
that release documents without a commission order, are a
barrier to public access of its records. The CPUC advises
that this section does not forbid the disclosure of any
information and that the CPUC has unrestricted authority to
order the release of documents. The commission opines that
the problem with this section is the "chilling effect on
the public disclosure of CPUC records" created by the
statutory threat of a misdemeanor offense for any staff
that disclose records furnished by a utility in the absence
of a CPUC order specifically authorizing such disclosure.
Every state agency is required to establish written
guidelines for accessibility of records and post them in a
conspicuous public place which the commission has done
through its General Order 66-C which is posted on its
website. However, the greatest chill on records release
appears to be that the policy was adopted in 1974 and has
not been revised since 1982 - more than 30 years ago. The
document is brief, only five pages, and the content is
primarily a restatement of statutes not a substantive
policy and direction for staff on how to manage records
release. The next most substantive provisions are the
laundry list of documents that are restricted from
released.
In March the commission released a resolution and draft of
a new general order (66-D). They have done a comprehensive
review of policies and are now updating policies and
processes governing public access to records, establishing
procedures for more uniform processing of records requests
and requests for confidential treatment of documents
provided to the CPUC, and improving access to records on
the CPUC's website. The resolution and draft of General
Order 66-D appears to have thoughtfully considered the
issue of public records access and provided a balance of
the need for proprietary, customer and security
confidentiality needs with the need for transparency.
3. Bill Does not Achieve Author's Purpose . The author's
intent is to increase access to CPUC records, but the bill
goes in the opposite direction and makes it more difficult
for the commission to provide public access to its records.
The CPRA does permit exemptions to public access and those
are listed in the Government Code. However, those
exemptions are soft and do not preclude the CPUC from
disclosing the record if the CPUC believes disclosure is in
the public interest.
This bill however places specific exemptions into the
Public Utilities Code and because they are now outside of
the CPRA, the exemptions would reduce public access to CPUC
records because the bill would make it a crime for the CPUC
to disclose several categories of records it currently has
the authority to disclose. Additionally, the CPUC would
have no authority to surgically determine what information
falls under the specified exemptions (e.g. what is
proprietary) and it would be a crime for the Commission or
an employee to disclose those records regardless of a
commission order as permitted under current law. This
absence of clarity will restrict the CPUC's disclosure of
records that might arguably fall in a proscribed class of
records and runs afoul of the intent of the CPRA which is
to permit disclosure of information which is exempt if "on
the facts of the particular case the public interest served
by not disclosing the record clearly outweighs the public
interest served by disclosure of the record."
To avoid placing further barriers in the way of public
disclosure and to balance the public interest in disclosure
with the any necessary limits on access to
security-related, proprietary business, or market-sensitive
information, specified communications between a certified
labor organization and a utility, or personally
identifiable information of a customer or employee, the
committee may wish to consider amendments which permit the
CPUC to define those exemptions or instead place those
exemptions in the CPRA which requires a balancing of
interests. Additionally, provisions of current law which
permit such information to be made public on order of the
commission, or by the commission or a commissioner in the
course of a hearing or proceeding should be reinstated.
4. Related Legislation . SB 1000 (Yee) Requires the PUC to
revise its guidelines, resolutions, and general orders for
the disclosure of public records and requires the PUC
investigation orders, recommendations, and accident reports
to be made publicly available pursuant to the CPRA.
Status: Pending hearing in the Assembly Committee on
Utilities and Commerce.
5. Double Referral . Should this bill be approved by the
committee, it should be re-referred to the Senate Committee
on Judiciary for its consideration as "Do Pass." In the
interest of time, amendments taken in this committee will
be accepted and processed by the Judiciary Committee.
ASSEMBLY VOTES
Assembly Floor (76-0)
Assembly Appropriations Committee (17-0)
Assembly Governmental Organization Committee
(16-0)
Assembly Utilities and Commerce Committee
(14-0)
POSITIONS
Sponsor:
Author
Support:
AT&T
CTIA, the Wireless Association
CalCom
California Association of Competitive Telecommunications
Companies
California Cable and Telecommunications Association
California Independent Telephone Companies
California State Pipe Trades Council
California State Association of Electrical Workers
Charter Communications
Coalition of California Utility Employees
Comcast
Frontier
San Diego Gas & Electric Company
Sempra Energy utilities
Southern California Gas Company
Verizon
Utility Workers Union of America
Support, if amended:
California Public Utilities Commission
Oppose:
Southern California Edison, unless amended
Kellie Smith
AB 1541 Analysis
Hearing Date: June 19, 2012