Pennsylvania Public Utility Commission v. Seder
106 A.3d 193
| Pa. Commw. Ct. | 2014Background
- October 29, 2011 storm caused widespread outages; PPL prioritized restoration and I&E opened an informal investigation after an anonymous Tip Letter alleged crew misprioritization.
- I&E (PUC prosecutory bureau) investigated; PPL and I&E later executed a settlement (no formal complaint or hearing) under which PPL paid a civil penalty and the Commissioners approved the settlement at an open meeting.
- Reporters Kraus and Seder submitted Right-to-Know requests for the Tip Letter and investigation-related documents; PUC denied, citing 66 Pa.C.S. § 335(d) and RTKL exemptions.
- OOR ordered disclosure of the Tip Letter and related documents (with redactions of identifying information), finding § 335(d) controlled; PUC and PPL appealed.
- On appeal, PUC submitted Swindler affidavits and a Swindler legal memorandum asserting (1) the Commissioners did not receive or rely on the investigative materials when approving the settlement, (2) the Tip Letter triggered a noncriminal investigation, and (3) the memorandum is attorney work product.
- The court reversed the OOR: it held § 335(d) requires disclosure only of documents the Commissioners actually relied upon, and the investigative materials here are exempt under the RTKL noncriminal-investigation exemption and attorney work-product doctrine.
Issues
| Issue | Petitioners' Argument | Requesters' Argument | Held |
|---|---|---|---|
| Whether § 335(d) requires disclosure of PUC investigative documents used by staff but not provided to or relied upon by the Commissioners | § 335(d) applies only to documents the Commissioners relied on; staff documents not submitted to Commissioners are not subject to disclosure | § 335(d) covers documents "prepared for or used by the commission" and thus includes staff investigative files regardless of whether Commissioners saw them | Held: § 335(d) means documents must have been relied upon by the Commissioners; materials not presented to or relied upon by the Commissioners need not be disclosed |
| Whether the Tip Letter and investigation records are exempt under RTKL § 708(b)(17) (noncriminal investigation) | These records are part of a legislatively authorized informal investigation and therefore fall within the exemption | Requesters argued § 335(d) controls and OOR ordered disclosure; alternatively they disputed the applicability of the investigation exemption | Held: Records are exempt under § 708(b)(17) because they were created/collected during a noncriminal investigatory probe and disclosure would harm investigatory effectiveness |
| Whether attorney legal research memorandum (Swindler memo) is protected | The memo is attorney work product and privileged; exempt from disclosure under § 335(d) and RTKL privilege provisions | Requesters sought the memo as part of the investigative record | Held: Memo is protected by the attorney work-product doctrine and not subject to disclosure |
| Standard for what constitutes a "Commission" decision under § 335(d) | "Commission" refers to the Commissioners (the five-member body) whose votes constitute official action | Requesters argued broader meaning including PUC staff | Held: "Commission" in § 335(d) refers to the Commissioners; only documents relied upon by them trigger disclosure obligations |
Key Cases Cited
- Coulter v. Dep’t of Pub. Welfare, 65 A.3d 1085 (Pa. Cmwlth. 2013) (interpreting "investigation" for RTKL § 708(b)(17))
- Johnson v. Pa. Convention Ctr. Auth., 49 A.3d 920 (Pa. Cmwlth. 2012) (agency investigatory materials fall within noncriminal-investigation exemption)
- Pa. Pub. Util. Comm’n v. Gilbert, 40 A.3d 755 (Pa. Cmwlth. 2012) (PUC investigatory materials generated during inspections and prosecutions are exempt to protect cooperation and safety)
- Levy v. Senate of Pa., 94 A.3d 436 (Pa. Cmwlth. 2014) (work-product doctrine protects attorneys' mental impressions, strategies, research)