BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1541 (Dickinson)
As Amended May 24, 2012
Hearing Date: July 3, 2012
Fiscal: Yes
Urgency: No
TW
SUBJECT
Public Utilities Commission: Public Records
DESCRIPTION
This bill would add two exemptions from public disclosure under
the California Public Records Act (CPRA) for public utility
information. This bill would also repeal the public disclosure
requirement regarding public utility accident orders and reports
and instead provide that all records of, or information provided
to, the California Public Utilities Commission shall be publicly
disclosed pursuant to the CPRA, unless exempt from disclosure as
security related, proprietary business, and market-sensitive
information, labor organization communications, and personally
identifiable employee or customer information.
BACKGROUND
Unlike other state agencies, whose records are generally open
for public inspection, the California Public Utilities
Commission (CPUC) operates under a statute that affords the
public access to its records only when specifically permitted by
the CPUC. (Pub. Util. Code Sec. 583.) This section creates a
presumption against public inspection and has its origin in a
law enacted in 1915. Despite the "open government" reforms in
California, such as the California Public Records Act (CPRA)
(enacted in 1968), the statutory standard for public access to
utility filings with the CPUC has not fundamentally changed
since 1915.
The CPRA gives every person the right to inspect and obtain
copies of all state and local government documents not exempt
(more)
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from disclosure. (Gov. Code Sec. 6253.) Exemptions include
corporate financial records and corporate proprietary
information, including trade secrets. (Gov. Code Secs. 6254,
6254(k), 6254.15.) 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. (Gov. Code Secs. 6276, 6276.36.)
In November 2004, the voters passed Proposition 59, which
provided the public with a constitutional right of access to
records and public meetings of government officials and
agencies. Proposition 59 did not nullify or repeal any
confidentiality law existing at that time that created an
exception to the right of access to public records.
Accordingly, confidentiality statutes applicable to the CPUC
were not affected by the passage of Proposition 59 and remained
intact.
SB 1488 (Bowen, Ch. 690, Stats. 2004), as introduced and passed
out of this Committee, contained a few provisions as in this
bill and would have required the 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.
This author-sponsored bill would repeal the public disclosure
requirement regarding public utility accident orders and reports
and instead provide that all records of, or information provided
to, the CPUC shall be publicly disclosed pursuant to the CPRA,
unless exempt from disclosure as security related, proprietary
business, and market-sensitive information, labor organization
communications, and personally identifiable employee or customer
information.
This bill was heard by the Senate Energy, Utilities and
Communications Committee on June 25, 2012 and passed out on a
vote of 10-2.
CHANGES TO EXISTING LAW
1.Existing law , the California Constitution, declares the
people's right to transparency in government. ("The people
have the 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....") (Cal. Const.,
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art. I, Sec. 3.)
Existing law , the California Public Records Act (CPRA),
governs the disclosure of information collected and maintained
by public agencies. (Gov. Code Sec. 6250 et seq.) Generally,
all public records are accessible to the public upon request,
unless the record requested is exempt from public disclosure.
(Gov. Code Sec. 6254.) There are 30 general categories of
documents or information that are exempt from disclosure,
essentially due to the character of the information, and
unless it is shown that the public's interest in disclosure
outweighs the public's interest in non-disclosure of the
information, the exempt information may be withheld by the
public agency with custody of the information.
Existing law defines state agency, for purposes of the CPRA,
to include every state office, department, division, bureau,
board, and commission or other state body or agency, except
for the Legislature and the Judiciary. (Gov. Code Sec. 6252.)
Existing law , the CPRA, requires the California Public
Utilities Commission (CPUC) to establish written guidelines
for accessibility of records; the guidelines and regulations
adopted shall be consistent with other sections of the CPRA
and reflect the intention of the Legislature to make the
records accessible to the public. (Gov. Code Sec. 6253.4.)
Existing law provides a list of information contained in a
public record that may be exempt from public disclosure.
Existing law provides that the listing of a statute in this
article does not itself create an exemption, and requesters of
public records and public agencies are cautioned to review the
applicable statute to determine the extent to which the
statute, in light of the circumstances surrounding the
request, exempts public records from disclosure. (Gov. Code
Sec. 6275.) Included in the list of exemptions are documents
of public utilities that contain confidential information
received by the CPUC. (Gov. Code Sec. 6276.36.)
This bill would create two new exemptions from public
disclosure under the CPRA, one for confidential public utility
market sensitive information pursuant to Section 454.5 of the
Public Utilities Code and another for confidential broadband
and video services and low-income household census tract
information submitted by a public utility pursuant to Section
5960 of the Public Utilities Code.
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2.Existing law requires the CPUC to investigate the cause of all
accidents occurring in California on the property of any
public utility accident resulting in the loss of life or
injury to person or property; the CPUC is authorized to make
any order or recommendation regarding the accident
investigation. (Pub. Util. Code Sec. 315.)
Existing law requires every public utility to file with the
CPUC, under such rules as the CPUC prescribes, a report of
each public utility accident. (Pub. Util. Code Sec. 315.)
This bill would provide that any order or recommendation made
by CPUC pursuant to this section, and any accident report
filed with the commission pursuant to this section, shall be
subject to the CPRA, unless exempt from public disclosure as
specified.
3.Existing law requires the CPUC to adopt appropriate procedures
to ensure the confidentiality of any market sensitive
information submitted in an electrical corporation's proposed
procurement plan or resulting from or related to its approved
procurement plan, including, but not limited to, proposed or
executed power purchase agreements, data request responses, or
consultant reports, or any combination, provided that the
Office of Ratepayer Advocates and other consumer groups that
are nonmarket participants shall be provided access to this
information under confidentiality procedures authorized by the
commission. (Pub. Util. Code Sec. 454.5(g).)
This bill would provide that, notwithstanding the
non-disclosure provisions contained in Section 583 of the
Public Utilities Code, the CPUC shall adopt the above
procedures.
4. Existing law provides that no information, unless
specifically required, furnished to the CPUC by a public
utility, business that is a subsidiary or affiliate of a
public utility, or corporation that holds a controlling
interest in a public utility shall be publicly available
unless ordered to be public by the CPUC in the course of a
hearing or proceeding. (Pub. Util. Code Sec. 583.)
Existing law provides that any present or former employee of
the CPUC who divulges any confidential public utility
information provided to the CPUC is guilty of a misdemeanor.
(Pub. Util. Code Sec. 583.)
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This bill would repeal this section of the Public Utilities
Code and instead provide that all records of, or information
furnished to, the CPUC are public records that shall be made
available to the public, upon request, pursuant to the CPRA,
unless exempted from disclosure under the CPRA, or if the
records are any of the following:
(1) security-related information;
(2) proprietary business information;
(3) market-sensitive information;
(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; or
(5) Personally identifiable information of employees or
customers.
This bill would also provide that documents containing
personally identifiable information of employees or customers
that are not exempt from public disclosure pursuant to
paragraphs (1) to (4) above, 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.
This bill would provide that any present or former officer or
employee of the commission who divulges any information in
paragraphs (1) to (5) above shall be guilty of a misdemeanor.
COMMENT
1. Stated need for the bill
The author writes:
The state's Public Records Act allows the California Public
Utilities Commission �CPUC] wide latitude to establish a
policy for public access to its records. Contrary to the
intent of the Public Records Act, the CPUC presumes all
documents are confidential unless it expressly acts to share
documents with the public.
On December 24, 2008 a gas pipeline explosion occurred in the
Sacramento suburb of Rancho Cordova, killing one person and
injuring five others. On September 9, 2010 a gas pipeline
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explosion in the San Francisco suburb of San Bruno killed
eight people, injured more than 50 people and destroyed 37
homes.
Following the natural gas 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 exposed 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.
2. Reduced public access to CPUC documents
Under existing law, the CPUC is required to investigate the
cause of all accidents occurring in California on the property
of any public utility accident resulting in the loss of life or
injury to person or property. (Pub. Util. Code Sec. 315.) To
aid the CPUC in its accident investigations, existing law
requires every public utility to file with the CPUC, under such
rules as the CPUC prescribes, a report of each public utility
accident. The CPUC is then authorized to make any order or
recommendation regarding the accident investigation. (Id.)
The author asserts that "all documents held by the �C]PUC are
considered confidential, subject to consideration by the �C]PUC
for release. The CPRA allows the �C]PUC significant discretion
in determining what documents are available to the public.
Historically, the practice has been to severely limit the
information made available to the public. AB 1541 seeks to turn
this around by making all �C]PUC documents open to public view,
with exceptions for Security-related information, Proprietary
business information, market-sensitive information,
communications between labor and management, and personally
identifiable information."
Although the author argues that this bill would provide more
public disclosure, it would add two exemptions from public
disclosure under the CPRA for public utility information, repeal
the public disclosure requirement regarding public utility
accident orders and reports, and instead provide that all
records of, or information provided to, the CPUC shall be
publicly disclosed pursuant to the CPRA, unless exempt from
disclosure as security related, proprietary business, and
market-sensitive information, labor organization communications,
and personally identifiable employee or customer information.
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Further, the bill would remove the provision allowing the CPUC
to order that certain information received from a public utility
be made public, thus, preventing the CPUC from ordering the
public disclosure of accident reports related to the San Bruno,
Rancho Cordova, and any other utility-related accident.
In opposition to this bill, The Utility Reform Network (TURN)
argues that "�t]here is no need for these special exemptions
that would be applicable only to utilities regulated by the
CPUC. . . . TURN could support AB 1541 if the April 16, 2012
and May 24, 2012 amendments were removed and the legislation
fulfilled its original purpose of promoting more transparency
regarding the CPUC's regulation and supervision of public
utilities. Otherwise, TURN must oppose the bill."
3. Exemptions from public disclosure
Under existing law, the CPUC has discretion, pursuant to a
formal process, to release documents received from public
utilities. This bill would strike that discretion and require
the CPUC to disclose documents in accordance with the CPRA and
impose five ambiguous criteria under which a document may not be
publicly disclosed as follows:
(1)security-related information;
(2)proprietary business information;
(3)market-sensitive information;
(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; or
(5)Personally identifiable information of employees or
customers.
Although the author's stated intent is to increase transparency,
this bill would provide five specific exemptions from disclosure
for public utility records. The CPRA already exempts from
public disclosure corporate financial records and corporate
proprietary information, including trade secrets (Gov. Code
Secs. 6254, 6254(k), 6254.15, 6276.44), employee personal
information (Gov. Code Secs. 6254(c), 6254.3, 6276.34, 6276.36),
and information affecting public safety or security (Gov. Code
Secs. 6253.9, 6254(aa), (ab), 6254.19, 6254.23). 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. (Gov. Code Secs. 6276, 6276.36.)
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Notably, the CPRA provides a balancing test for these
exemptions, taking into account the circumstances surrounding
the request. Yet, this bill would not provide these five
criteria under the CPRA, but rather include these provisions as
flat prohibitions on disclosure under the Public Utilities Code
with no balancing of interests as to whether the information
should be disclosed. As a result of these new exemptions, the
CPUC, in opposition, argues that "�t]he Commission could no
longer legally disclose such records to anyone, regardless of
the public's interest in disclosure."
The California Newspaper Publishers Association (CNPA), in
opposition, argues that these exemptions are "much more harmful
to the public's right to know than the prolonged process that a
requester must currently use to access information from the CPUC
under existing law." Further CNPA points out that:
Under current law, information that is exempt from disclosure
under the CPRA is allowed to be redacted but the remainder of
the document is required to be disclosed. AB 1541 fails to
recognize this bedrock principle because the entire record
that falls into any of the three broad, undefined categories
�security-related information, proprietary business
information, and market-sensitive information] is NOT required
to be disclosed. Moreover, �this] language . . . seems to
turn on its head the requirement that even redacted documents
be disclosed. As we read this section, no document is
required to be disclosed if it is exempt from disclosure under
the CPRA or falls into one of the three categories.
This approach completely eviscerates the CPRA and allows the
exemptions (and undefined categories) to swallow the rule.
The breadth of the attack on the public's right to know is
breathtaking.
?
Rather than provide greater transparency, �proposed Public
Utilities Code Section 583] operates to protect those who are
responsible for the horrible tragedies that resulted in the
loss of innocent lives in the San Bruno and Rancho Cordova
explosions. Striking �proposed Public Utilities Code Section
583] would provide the residents of these communities as well
as others in potentially vulnerable areas with the tools to
identify potential safety risks.
Unlike the exemptions from CPUC disclosure enumerated in this
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bill that would require the CPUC to withhold requested
information without further consideration, the CPRA provides for
a balancing test that takes into consideration the extent to
which the information is exempt. (Gov. Code Sec. 6275.)
Further, each and every CPUC employee who plays a part in
determining that a document does not qualify for an exemption
provided under this bill and discloses such document could face
a misdemeanor penalty if a public utility claimed that the
document could be argued to fall under an enumerated exemption.
An example of this scenario is a document request for accident
reports, which are currently publicly disclosed by the CPUC
under order or at a public hearing. If the accident reports
reveal that many pipelines of a public utility are in disrepair,
under this bill, the accident reports may qualify for the
market-sensitive exemption since this ambiguous term could
incorporate any market changes on the price of pipe that the
utility would need to purchase to fix the pipelines.
Accordingly, the accident report could be argued by the utility
to be exempt from public disclosure.
In the event the accident report was publicly disclosed, the
CPUC employee, his or her supervisor, or any other person
involved in disclosing this accident report would be subject to
a misdemeanor penalty if the utility claims the accident report
was exempt under this bill. For this reason, the CPUC would be
less likely to publicly disclose documents. TURN argues that
"�t]he threat of criminal sanctions would have the likely effect
of causing the CPUC to adopt the most restrictive possible
interpretation of these vague and sweeping exemptions." As
argued by the CPUC, "�b]y making it a crime for any current or
former Commission officer or employee to divulge such
information, the bill guarantees that the Commission will, of
necessity, take the most restrictive position regarding any
disclosure that could arguably involve records it is prohibited
from disclosing." Notably, under the five broad categories of
exemptions provided under this bill, a utility could argue that
no document submitted by a utility or regarding a utility would
be subject to public disclosure. As a result, this bill would
appear to limit information from public disclosure rather than
provide more public access.
4. Preemption of CPUC regulatory procedure
The author argues that this bill would require the CPUC to
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provide increased public access to CPUC documents. After the
recent San Bruno gas explosion, recent attention has been paid
to the public disclosure process of the CPUC. The CPUC has
become aware that the existing public disclosure methods under
Public Utilities Code Section 583 and General Order 66, the
regulatory public disclosure framework utilized by the CPUC that
is currently in the process of being updated, are outdated and
dysfunctional. A memorandum prepared by the Office of
Governmental Affairs to the CPUC stated that:
Current rules and practices dictate that the CPUC prepare,
circulate for public comment and then act on routine draft
resolutions authorizing staff to disclose records of completed
CPUC accident investigations. These rules and practices
represent an unnecessary procedural barrier to the prompt
disclosure of records to the public. (Office of Governmental
Affairs - Sacramento, Memorandum, SB 1000 (Yee) - Public
Utilities Commission: public records (Feb. 1, 2012)
�as of June 27, 2012].)
Further, the CPUC has admitted that it has received over 100
appeals to obtain investigative reports on gas pipeline
accidents, safety audit reports and inspection records, all of
which were withheld. In those instances where the CPUC released
information after adopting a formal resolution, the CPUC
acknowledged that the documents were of the type that would be
readily disclosed under the CPRA. As discussed above, although
this bill would require the CPUC to disclose documents pursuant
to the CPRA, it then provides five ambiguous exemptions, not
subject to the balancing considerations provided under the CPRA,
that could be claimed by a public utility, which potentially
would halt most, if not all, public disclosure of CPUC accident
reports.
To address the issues regarding the cumbersome disclosure review
process, the CPUC is currently in the process of revising its
public disclosure procedures. Coincidentally, this bill would
also address the CPUC's disclosure review process, but add
additional hurdles to public access to CPUC records. Rather
than wait for the CPUC to finalize its new document disclosure
process, which is being publicly vetted, this bill would
substantially impact any disclosure regulations enacted by the
CPUC upon completing of its vetting process. Further, the CPUC
states "�i]f AB 1541 is enacted as is, the Commission will need
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to revise its current Rules of Practice and Procedure, Central
Files Office public access policies, and internet posting
practices, to eliminate from formal proceeding files any
information it would be a crime to disclose. The Commission
would also need to maintain two sets of records in a multitude
of contexts, with one redacted set being available only to
Commission employees."
Incidentally, the CPUC also notes that implementing this bill
would "require substantial staff and information technology
resources. The Commission would need to devote several staff
exclusively to the task of reviewing and information was
divulged outside the Commission. The redaction process, whether
done by hand, or electronically, is a time consuming process
that involves close attention to details."
The provisions of this bill would inhibit public disclosure and
most likely require the CPUC, without having been able to put
any of its revised practices in place pursuant to its current
disclosure review, to restart its current exhaustive review and
public vetting of disclosure practices, as well as require the
CPUC to substantially increase staffing resources in order to
properly review documents to make certain no documents were
improperly disclosed.
5. Increased hurdles to public access
This bill would provide that the CPUC is required to publicly
disclose records in accordance with the CPRA. The CPRA provides
that any person may institute proceedings for injunctive or
declarative relief or writ of mandate in any court of competent
jurisdiction to enforce his or her right to inspect or to
receive a copy of any public record. (Gov. Code Sec. 6258.)
As discussed above, this bill provides five ambiguous criteria
under which CPUC documents may be considered exempt from
disclosure. Because of the criminal penalty imposed upon CPUC
employees for improper disclosure of exempt documents under this
bill, the CPUC has asserted that it will have to take the most
restrictive approach to public disclosure of CPUC documents. As
such, public access to CPUC documents will become difficult
because employees who do not wish to commit a crime must err on
the side of nondisclosure.
As a result of the exemptions under this bill, combined with the
criminal penalty for improperly disclosing documents, it is
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highly likely that document requesters will be forced to turn to
the courts to resolve disputes regarding document disclosure.
Furthermore, because of the breadth of exemptions provided under
this bill and the probability that any CPUC document could be
exempt under these provisions, it is not hard to imagine that
all document requesters will be turning to the courts for
adjudication of their document requests. Document requesters
can utilize the provisions under the CPRA to seek judicial
remedies for enforcement of the public's right to access public
records. At a time when judicial budgets are severely
restrained, it is disconcerting that this bill will most likely
increase the courts' work load to resolve document disclosure
disputes.
Support : AT&T; CTIA, the Wireless Association; CalCom;
California Association of Competitive Telecommunications
Companies; California Cable and Telecommunications Association;
California's Independent Telecommunications Companies;
California State Pipe Trades Council; California State
Association of Electrical Workers; Charter Communications;
Coalition of California Utility Employees; Comcast; Frontier
Communications; San Diego Gas & Electric Company; Sempra Energy
Utilities; Southern California Gas Company; Verizon; Utility
Workers Union of America
Opposition : California Newspaper Publishers Association;
California Public Utilities Commission; Southern California
Edison; The Utility Reform Network
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 1000 (Yee, 2012), among other things, would have required the
California Public Utilities Commission to determine, prior to
disclosing any record, whether any exemptions to the California
Public Records Act or other law restricting disclosure applies
to that record. Last week, SB 1000 died in the Assembly
Utilities and Commerce Committee.
SB 1488 (Bowen, Ch. 690, Stats. 2004) See Background.
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Prior Vote :
Senate Committee on Energy, Utilities and Communications (Ayes
10, Noes 2)
Assembly Floor (Ayes 76, Noes 0)
Assembly Committee on Appropriations (Ayes 17, Noes 0)
Assembly Committee on Governmental Organization (Ayes 16, Noes
0)
Assembly Committee on Utilities and Commerce (Ayes 14, Noes 0)
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