No Secrets: Office of Open Records Directs PaPUC to Disclose Documents

What protection do public utilities have against public disclosure of documents relating to the settlement of investigations launched by the Bureau of Investigation and Enforcement (“I&E”) staff of the Pennsylvania Public Utility Commission (“PaPUC" or "PUC”)? Participants in PUC proceedings generally view the discussions and materials reviewed during settlement negotiations to be private, if not confidential. However, according to the Pennsylvania Office of Open Records (“OOR”), the Public Utility Code (“Code”) and the Right-to-Know Law (“RTKL”) afford only limited protection to documents in the possession of the PUC relating to settlements reached between a public utility and the PUC’s bureaus.

The OOR recently directed the PUC to release documents regarding a $60,000 settlement it approved with PPL Electric Utilities (“PPL”) resolving I&E’s investigation into allegations that PPL improperly diverted crews restoring electric service to customers during the October 2011 snowstorm. See Scott Kraus and the Morning Call v. Pennsylvania PUC, OOR Docket No. AP2013-1986 (Final Order Entered November 20, 2013). The OOR’s decision underscores the importance of protecting the confidentiality of documents submitted to Commonwealth agencies like the PUC from disclosure in response to Right-to-Know Law, 65 P.S. § 67.101 et seq. (“RTKL”) requests.

The PUC’s investigation was prompted by an anonymous tip letter sent to the PUC’s Bureau of Consumer Services (“BCS”) from a person identifying himself/herself as an employee of PPL. The tip letter alleged that during PPL’s service restoration response efforts following an unusually heavy snowstorm in October 2011, a PPL repair crew was improperly directed to restore power to a lower priority neighborhood while a higher priority neighborhood remained dark. The improper diversion of the service restoration crew left approximately 1,326 customers without power for four hours longer than necessary. On April 26, 2013, I&E instituted an informal investigation into the letter’s claims and asked PPL to provide information and documents relating to the incident.

On August 28, 2013, a reporter from The Morning Call (“Requester”) filed a RTKL request with the PUC seeking records pertaining to the I&E investigation, including the anonymous tip letter. In denying request, the PUC argued that the records were confidential under Code Section 335(d), 66 Pa.C.S. § 335(d) and exempt from public disclosure pursuant to the RTKL, 65 P.S. § 67.708(b)(10) and (17) because they reflect the PUC’s internal, pre-decisional deliberations and records of a noncriminal investigation.

On October 22, 2013, the Requester filed an appeal of the PaPUC’s denial to the OOR. During that appeal, the Commission voted to approve a proposed settlement agreement between PPL and I&E resolving the investigation. See Pennsylvania PUC v. PPL Electric Utilities Corp., PaPUC Docket No. M-2013-2275471 (Opinion and Order entered October 31, 2013). PPL did not admit to any wrongdoing in the settlement, and no evidentiary hearing was held. The approved settlement neither revealed the location or nature of the outages at issue, nor the reason why restoration crews were directed to the lower priority outage.

On November 20, 2013, the OOR issued a Final Determination directing the PUC to provide the withheld materials to the Requester, except for information identifying the anonymous tipster. In its determination, the OOR relied primarily on Code Section 335(d), which requires the PUC to disclose documents it relies upon in concluding an investigation, other than those that contain, among other things, identifying information that would prejudice or impair a person’s reputation or personal security. The OOR noted that the PUC did not dispute that the records at issue are “documents” under Code Section 335(d) and stressed that Code Section 335(d) expressly provides for disclosure of documents like the tip letter with identifying information redacted. The OOR rejected the PUC’s argument that redaction of information identifying the confidential source and the tipster was not practical due to the form and brevity of the letter. In addition, the OOR rejected the PUC’s argument that even if Code Section 335(d) required disclosure of the documents requested, RTKL Sections 708(b)(10) and 708(b)(17) exempted the documents from disclosure.

The OOR’s determination emphasizes the importance of properly understanding the interplay between the RTKL and the standard confidential protections afforded by Commonwealth agencies¹ like the PUC and raises two important questions:

• What role does a party before the PUC (like PPL) have when a RTKL request is made to the PUC seeking disclosure of documents PPL has provided to the PUC as part of an investigation that ultimately concludes in an approved settlement?
• What can a party before the PUC do to prevent disclosure of a document like the anonymous tip letter (that may contain confidential proprietary information or trade secrets) that was not provided by PPL but nevertheless addresses issues relating to PPL in the investigation?

This ORR decision makes it clear that public utilities, competitive energy companies and other participants in PUC proceedings must recognize that merely obtaining a protective order from the PUC prohibiting the dissemination of confidential material during a PUC proceeding will not be sufficient to guard against an agency’s disclosure of information in response to a RTKL request. To have any hope of ultimately protecting such information from disclosure by the PUC via a RTKL request, the PUC participant must comply with Section 707(b) of the RTKL. That section requires an agency like the PUC to notify a party within five business days of a RTKL request for a particular record containing confidential proprietary or trade secret information if that party provided to the agency a written statement signed by its representative that the record contains such confidential information when originally submitting the record. If such a statement is provided initially, the submitter has five business days after receiving notification of the RTKL request to “provide input on the release of the record.” However, if no such signed written statement is submitted, the agency is under no obligation to provide prior notice to the submitter prior to disclosing the records.

While RTKL Sections 708(b)(10) and (17) appear to exclude from disclosure the materials relied upon by the PUC in reaching its determination, Code Section 335(d) specifically states that the PUC must publicly release the documents it relied upon in reaching its decision. Importantly, other than filing an appeal with the Commonwealth Court, neither statute provides a remedy to a submitter if the PUC decides to disclose a record provided to it previously in response to a RTKL request.

In this case, PPL would have had the opportunity to provide input on the PUC’s disclosure of PPL’s documents only if it had initially submitted to the PUC a signed, written statement identifying the documents containing confidential proprietary/trade secret information.

The anonymous tip letter, however, is very different than any confidential or proprietary information that PPL may have submitted to the PUC in the investigation, since it originated outside of PPL and was provided directly to the PUC by a person identifying himself/herself as a PPL employee, and PPL had no opportunity to provide the written statement that would have required the PUC to provide some notice of the letter’s disclosure to the Requester. To the extent the tip letter contained information that could be considered confidential and proprietary to PPL, existing law does not appear to provide PPL or other similarly situated entities the opportunity afforded under Section 707(b) of the RTKL to receive notice of the PUC’s intended disclosure of information provided by others in order to take action to prevent or mitigate the effects of such disclosure.

Public utilities and other entities providing information to the PUC must always keep in mind that materials provided to the PUC may become “public records” subject to disclosure under the RTKL and take appropriate steps to ensure their sensitive information receives proper treatment.

The PUC has until December 20, 2013 to appeal the OOR’s determination to the Commonwealth Court.

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¹ Pursuant to 65 P.S. § 102, the PUC is a “State-Affiliated Entity” that is a “Commonwealth Agency.” Per Section 67.301(a), Commonwealth Agencies are directed to provide public records in accordance with the RTKL.

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