293 A.3d 803
Pa. Commw. Ct.2023Background:
- In June 2019 Eric Friedman requested from the PUC transmittal letters Sunoco Pipeline (Energy Transfer) submitted to the PUC and the attachments that were "public in nature and subject to the RTKL."
- The PUC denied the request citing the Public Utility Confidential Security Information Disclosure Protection Act (CSI Act) and RTKL exemptions (public safety/infrastructure, trade secrets, noncriminal investigation).
- Friedman appealed to the OOR; the OOR found Petitioners had not proven the records were CSI and ordered disclosure of some records; PUC and Energy Transfer petitioned for review.
- While this appeal was pending the courts decided Friedman I and Friedman II, holding the PUC (not OOR) has exclusive authority to adjudicate CSI designations.
- The Commonwealth Court (this opinion) held: (1) any records that are CSI or alleged to contain CSI are within PUC-exclusive CSI procedures and the OOR erred in ordering their release; (2) non-CSI transmittal letters are public under 52 Pa. Code §102.3(b)(1) and must be disclosed; (3) Petitioners failed to meet their burden to prove RTKL exemptions for the non-CSI attachments, so those must be disclosed.
Issues:
| Issue | Petitioners' Argument (PUC/Energy Transfer) | Respondent's Argument (Friedman) | Held |
|---|---|---|---|
| 1) Who has authority to determine whether records are CSI? | CSI Act gives exclusive jurisdiction to the PUC; OOR lacks authority. | OOR properly reviewed public-record status and ordered release of non-CSI records; it did not administer CSI Act. | PUC has exclusive authority over CSI designations; OOR erred to the extent it adjudicated CSI-designation issues (affirming Friedman II). |
| 2) Did affidavits prove responsive records are CSI? | Affidavits/verified statement show many transmittals and attachments contain CSI; sufficient to invoke CSI Act. | Affidavits are conclusory and fail to identify specific responsive CSI records. | Court treats CSI determinations as for the PUC to decide; OOR should have yielded; the OOR’s finding that records were not CSI is reversed. |
| 3) Are non-CSI transmittal letters public and disclosable? | Even if public, exemptions may apply; letters could implicate security. | PUC regulation (52 Pa. Code §102.3(b)(1)) states the transmittal letter "will be treated as a public record" and may not contain CSI; they are therefore public. | Non-CSI transmittal letters are designated public records by PUC regulation and must be disclosed; RTKL exceptions cannot alter their "public" status. |
| 4) Are non-CSI attachments exempt under RTKL (public safety/infrastructure, trade secret, noncriminal investigation)? | The affidavits establish security risks, trade secrets, and that records relate to ongoing noncriminal investigations. | Affidavits are speculative, lack specificity, and fail to link particular responsive records to claimed exemptions. | Petitioners failed to meet their preponderance burden on all claimed RTKL exceptions for non-CSI attachments; OOR did not err in ordering disclosure of those records. |
Key Cases Cited
- Pennsylvania Public Utility Commission v. Friedman, 244 A.3d 515 (Pa. Cmwlth. 2020) (OOR lacked authority to determine CSI designations)
- Energy Transfer v. Friedman, 265 A.3d 421 (Pa. 2021) (Supreme Court affirmed PUC's exclusive jurisdiction over CSI)
- McKelvey v. Pa. Dep't of Health, 255 A.3d 385 (Pa. 2021) (RTKL construed to maximize access; interplay with other laws)
- Dep't of Lab. & Indus. v. Heltzel, 90 A.3d 823 (Pa. Cmwlth. 2014) (statute establishing public nature of a record removes RTKL analysis)
- Off. of the Governor v. Scolforo, 65 A.3d 1095 (Pa. Cmwlth. 2013) (affidavits must be detailed and nonconclusory to support exemptions)
- Pa. Pub. Util. Comm'n v. Gilbert, 40 A.3d 755 (Pa. Cmwlth. 2012) (PUC inspection/investigation records may qualify as noncriminal investigations exempt under RTKL)
- Pa. Dep't of Lab. & Indus. v. Darlington, 234 A.3d 865 (Pa. Cmwlth. 2020) (mere assertion that investigations occurred is insufficient to invoke noncriminal-investigation exemption)
- Carey v. Pa. Dep't of Corr., 61 A.3d 367 (Pa. Cmwlth. 2013) (security-related RTKL exemptions require more than speculation)
- Pa. State Sys. of Higher Educ. v. Ass'n of State Coll. & Univ. Facs., 142 A.3d 1023 (Pa. Cmwlth. 2016) (when many potential records exist agency may request additional time to identify exemptions)
- Smith on behalf of Smith Butz, LLC v. Pa. Dep't of Env't Prot., 161 A.3d 1049 (Pa. Cmwlth. 2017) (trade-secret factors and secrecy/competitive-harm analysis)