265 A.3d 421
Pa.2021Background
- Eric Friedman filed a Right-to-Know Law (RTKL) request with the Pennsylvania Public Utility Commission (PUC) seeking Hazard Assessment Reports and related PUC Inspection Reports concerning the Mariner East I pipeline.
- The reports were originally produced to PUC by the pipeline operator, Energy Transfer; PUC asserted the reports contained Confidential Security Information (CSI) under the CSI Act and refused full disclosure.
- Energy Transfer did not provide the statutorily- and regulatorily-required public transmittal letters, did not separate or stamp pages as CSI, and did not provide redacted public versions as the CSI Act and PUC regulations require.
- The Office of Open Records (OOR) directed PUC to produce the transmittal letters, found Energy Transfer had not complied with CSI-designation procedures, concluded CSI protections did not apply, and applied RTKL exemptions (e.g., infrastructure-security exemption) to the Hazard Assessment Reports.
- The Commonwealth Court reversed OOR, holding OOR lacked authority to determine CSI status under the CSI Act; the Pennsylvania Supreme Court majority affirmed that reversal. Justice Wecht filed the dissent summarized here, arguing Energy Transfer failed to designate CSI and OOR had jurisdiction to assess that failure.
Issues
| Issue | Plaintiff's Argument (Friedman) | Defendant's Argument (PUC/Energy Transfer) | Held |
|---|---|---|---|
| Whether OOR has jurisdiction to decide if records are nonpublic under the CSI Act | OOR may assess whether another law establishes a record's nonpublic nature under RTKL §306 and test whether CSI protections were validly invoked | Only the CSI Act's administrative procedures (agency review and Commonwealth Court appeal) control CSI determinations; OOR lacks jurisdiction | Majority: OOR lacks authority to reclassify utility-designated CSI; dissent (Wecht): OOR may and should assess whether CSI Act procedures were followed and thus whether CSI applies |
| Whether Energy Transfer complied with CSI Act and PUC regulations when transmitting the Hazard Assessment Reports | Energy Transfer failed to follow mandatory designation, transmittal, separation, stamping, and redaction procedures, so CSI protections do not apply | The utility's designation should be given effect; procedural noncompliance does not automatically defeat CSI protection | Majority: treated the materials as designated CSI for purposes of jurisdiction; dissent: noncompliance defeats CSI claim and precludes invoking CSI protections |
| Whether, absent CSI protection, the Hazard Assessment Reports are exempt under the RTKL | Even if CSI Act inapplicable, OOR may apply RTKL exemptions (e.g., infrastructure-security exemption §708(b)(3)) to deny disclosure | PUC argued CSI Act bars disclosure and alternatively asserted RTKL exemptions; PUC argued the CSI administrative process governs access | OOR: applied RTKL exemptions to deny public access to Hazard Assessment Reports; Commonwealth Court/Supreme Court majority reversed OOR on CSI-jurisdiction ground; dissent would let OOR reach RTKL-exemption analysis after finding no CSI |
Key Cases Cited
- Bowling v. Off. of Open Recs., 75 A.3d 453 (Pa. 2013) (RTKL contemplates factual inquiry into whether a record is exempt and permits OOR to evaluate other statutes when assessing public nature of records)
- Dep’t of Labor & Indus. v. Heltzel, 90 A.3d 823 (Pa. Cmwlth. 2014) (OOR may interpret statutes other than the RTKL when evaluating whether records are public)