BILL ANALYSIS � 1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
ALEX PADILLA, CHAIR
AB 1541 - Dickinson Hearing
Date: June 25, 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 the information is 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, as it currently appears in print , 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.
This bill, as proposed to be amended by the author , strikes the
preceding provision and instead exempts from release any
document that 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. Each
category is defined and the commission could resolve disputes
concerning the designation of records in each category but only
by a full vote of the commission. A specific document could be
released by a commissioner in the course of a hearing but also
only if ordered by the commission.
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 Amendments . The author has proposed amendments
to this bill which will strike section 6 of the bill by
striking at page 12, lines 33 through 39, and on page 13,
lines 1 through 20. This analysis is based on these
amendments a draft of which is attached as Appendix A.
2. 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.
3. 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.
4. 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 enhanced restrictions occur because the author has
specified and defined categories of records which the CPUC
must exempt from disclosure. These categories arguably
cover every document filed with the commission. The
exemptions would also prohibit the CPUC from using the
balancing of interests called for under the CPRA where an
agency is required to, on the facts of the particular case,
consider whether the public interest served by not
disclosing the record clearly outweighs the public interest
served by disclosure of the record. Although the author's
amendments afford some latitude to the commission to
resolve "disputes" about whether records fall into those
categories, the dispute could only be resolved by a vote of
the full commission thus preventing the commission from
establishing policies and guidelines for the release of
records that can be routinely accessed by the public.
Moreover, the burdens associated with going to a full
commission vote for any and every records release would
effectively preclude records release in all but the most
extraordinary circumstances.
The bill in-print has five broad categories of information
required to be exempt (page 13, lines 3-17) but the
author's amendments attempt to define those categories
which adds further barriers for the commission to respond
to requests for records disclosure. As an example,
"proprietary business information" is defined as "reports,
records, and information which, if revealed, would place
the furnishing entity or an affiliate at an unfair business
disadvantage." This language requires the commission to
solely consider the interests of the utility in the
disclosure of records and excludes from consideration the
public interest served by disclosure of the records as
required by the CPRA.
The fundamental issue presented by this bill is what entity
should be the decision maker for the release of records and
under what limitations. The bill as it currently appears
in print is also deficient in that it limits the CPUC's
discretion but it does not try to pre-define the categories
of records exempt as the author's amendments do. It too
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."
All of the above issues could easily be addressed by
rejecting the author's amendments and providing the CPUC
with the clear authority to determine whether records fall
under the specified categories, coupled with reinstating
current law which permits the CPUC to order records
disclosure during a hearing or proceeding. These
provisions would avoid placing further barriers in the way
of public disclosure and allow the commission 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. Consequently, the committee may wish to consider
rejecting the author's amendments and instead amending the
bill to 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.
5. 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: Scheduled for hearing in the Assembly Committee on
Utilities and Commerce on June 25th.
6. 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, Local 132
Support, if amended:
California Public Utilities Commission
Oppose:
Southern California Edison, unless amended
Kellie Smith
AB 1541 Analysis
Hearing Date: June 25, 2012
APPENDIX A
AB 583 (DICKINSON)
AUTHOR'S AMENDMENTS
Strike Section 6 of the bill by striking, page 12, lines 33
through 39, and on page 13, lines 1 through 20 and insert:
583 (a) All records of, or information furnished to, the
commission are public records that shall be made available to
the public, upon request, pursuant to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code), unless exempted
from disclosure pursuant to that act or if the records are any
of the following:
(1) Security-related information. As used in this section,
"security - related information" means information, the
public disclosure of which would jeopardize the safety of
the public or of the infrastructure or operations of the
furnishing entity or an affiliate.
(2) Proprietary business information. As used in this
section, "proprietary business information" means reports,
records, and information which, if revealed, would place
the furnishing entity or an affiliate at an unfair business
disadvantage.
(3) Market-sensitive information. As used in this section,
"market-sensitive information" means information having the
potential to materially affect the market price for any
goods or services provided or procured by the furnishing
entity or an affiliate.
(4) Communication between a certified labor organization
and public utility management personnel made in the context
of labor negotiations, grievances, disputes, or
communication of any other matter that is not directly
related to health and safety concerns.
(5) Personally identifiable information of employees or
customers. Documents containing personally identifiable
information of employees or customers that are not exempt
from public disclosure pursuant to paragraphs (1) to (4),
inclusive, shall be redacted to maintain the
confidentiality of the personally identifiable information
of employees or customers, and shall be made public in
their redacted form.
(b) Any dispute regarding the designation of records into
categories (1) through (5) above shall be resolved by Commission
order, or by a commissioner in the course of a hearing or
proceeding provided that such order is subject to review by the
full commission. The information shall remain confidential
while this review is pending.
(c) Any present or former officer or employee of the commission
who divulges any information in paragraphs (1) to (5),
inclusive, of subdivision (a) shall be guilty of a misdemeanor,
unless such information is made public by Commission order, or
by a commissioner in the course of a hearing or proceeding
provided that such order is subject to review by the full
commission. The information shall remain confidential while
this review is pending.
(d) The commission may take appropriate action to implement the
provisions in subdivision (a).