Friedman v. Public Utility Commission and Energy Transfer

This year, the Pennsylvania Supreme Court will address the scope of the Office of Open Records’ authority to order the disclosure of public records under laws other than Pennsylvania’s Right to Know Law. In April, the Pennsylvania Supreme Court granted allocatur to review the Commonwealth Court’s opinion in Public Utility Commission/Energy Transfer v. Friedman and on July 9th, I filed my brief on behalf of Mr. Friedman. This matter is an appeal from the Office of Open Records’ Final Determination directing the Public Utility Commission (“PUC”) to release records it relied on in coming to the decision to file a formal complaint against Energy Transfer.

Screenshot of the PACFile notification that the Court granted allocatur.

Some background:

The Mariner East 1 pipeline was originally built around 1931.  In 2013, Energy Transfer converted the pipeline to carry highly volatile liquids (“HVL”) across 300 miles in Pennsylvania to the Marcus Hook refinery.  In April 2017, approximately 20 barrels (840 gallons) of hazardous liquids leaked from the pipeline in a residential area in Berks County.  The Public Utility Commission (“PUC”) investigated the incident and filed its al Complaint C-2018-3006534 against Energy Transfer (aka Sunoco) in December 2018. [PUC Complaint]

A few months later, the PUC’s chief engineer stated at a public meeting that the PUC had its own estimate of the blast radius associated with an accident on an HVL pipeline.  After this meeting, my client submitted a RTKL request to the PUC seeking records that relate to the “calculation or estimation of the range at which the thermal or overpressure events related to accidents on hazardous HVL pipelines may be experienced.”  In other words, he wanted to know how dangerous the PUC considered this pipeline. Energy Transfer has a questionable safety record. [State Impact PA] My client can see this pipeline from his home, and its path runs near several elementary schools. Therefore, it is very important to my client to know what the pipeline’s regulator understands regarding these risks.

The Public Utility Commission denied the request and my client appealed to the Office of Open Records.  Energy Transfer participated in the appeal as an interested party.  The OOR ordered the Commission to produce the investigative records the Commission had relied upon in deciding to file its Formal Complaint C-2018-3006534 against Energy Transfer. The PUC and ET appealed to the Commonwealth Court. PUC and ET argued that the OOR exceeded its authority in making a determination that the Commission’s records must be disclosed pursuant to the Public Utility Code because the Confidential Security Information Act sets out a different procedure for challenging a utility’s designation of materials as CSI.

On appeal, I argued that the Office of Open Records has broad authority to determine whether a record is a public record that must be disclosed by any agency in the Commonwealth, whether pursuant to the Right to Know Law or another statute.

Two parts of the Public Utility Code come into play here.

First, § 335(d) of the Public Utility Code states that whenever the Commission “conducts an investigation of an act or practice of a public utility and (1) makes a decision…. it shall make part of the public record and release publicly any documents relied upon by the commission in reaching its determination…” 

Second, there is a law enacted protect certain sensitive information, the Public Utility Code Confidential Security Information Disclosure Protection Act (35 Pa.C.S. § 2141.3).  To protect confidential security information (“CSI”), a utility submitting information to the Commission must provide a transmittal letter explaining why certain information should be designated CSI and provide redacted copies for the public record as well as unredacted copies for the Commission.

The CSI Act places the burden on a public utility to establish and mark information submitted to the PUC as confidential security information:

The public utility is responsible for determining whether a record or portion thereof contains confidential security information. When a public utility identifies a record as containing confidential security information, it must clearly state in its transmittal letter, upon submission to an agency, that the record contains confidential security information and explain why the information should be treated as such. 35 P.S. § 2141.3(a).

Before the Commonwealth Court, ET and the PUC argued that the Commission’s filing of a formal complaint does not trigger the disclosure requirement in § 335(d).  However, a plain reading of the term “decision” suggests that when an agency files a formal complaint, they have made a decision (i.e., the decision to charge). 

Second, ET and PUC argued that even if the disclosure requirement in § 335(d) was triggered, the requested documents are protected by the Confidential Security Information Disclosure Protection Act.  I argued that ET and the PUC failed to meet their burden to establish there was any CSI.  Energy Transfer and the Commission did not follow the PUC’s procedure for marking certain information as CSI.  The Office of Open Records attempted to develop the evidentiary record by asking for copies of the transmittal letters explaining what records are CSI, but ET refused to properly provide this evidence.  An agency bears the burden of establishing that something is not a public record, and it failed to do so here.

The Commonwealth Court did not even address the disclosure requirement in § 335(d), and instead focused its ruling on the OOR’s authority. The Commonwealth Court held that the Office of Open Records cannot address challenges to a utility’s designation of material as CSI because the CSI act contains its own procedure for that type of appeal, presenting a conflict with the RTKL such that the RTKL does not apply.

The two key sections of the RTKL at issue here:

• Section 306 of the RTKL: Nothing in this act shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.

• Section 3101.1 of the RTKL: If the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply

In short, the RTKL creates a baseline standard for whether records are “public” and a standard procedure to access those records. If another law states that a certain type of record is confidential or public, that law supersedes the RTKL. If another law provides its own procedure for accessing those records, that law supersedes the RTKL. In a way, this case boils down to the questions of: does the CSI Act apply if a utility submitting information to the PUC doesn’t comply with the CSI procedures, and is the OOR authorized to determine whether the CSI Act applies?

Pennsylvania’s Office of Open Records allows records requesters to appeal an agency’s denial of a records request without the assistance of an attorney. Having one agency make determinations about all public records in the Commonwealth is in the public interest. A decision in PUC/ET’s favor would mean that the Public Utility Commission can bypass the Office of Open Records entirely. Appeals of its record denials would be directed to the Commonwealth Court instead, making it virtually impossible for someone without an attorney to challenge its determinations. This case involves interesting issues of statutory interpretation and public policy and I look forward to the Court’s decision.

**I cannot figure out how to embed a PDF into this blog, so if you want to read a copy of the brief (or a copy of the amici briefs - shoutout to Tuan Samahon at Villanova Law and his colleague Shawn Rogers for a great brief on behalf of East Goshen Township, and Melissa Melewski at PA News Media Association/the folks at RCFP for the amicus brief on behalf of a bunch of news orgs) send me an email.