In Re The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SAN MIGUEL, The Coalition of Concerned San Miguel County Homeowners, Hans (Henson) Jones, The Wilson Mesa Homeowners Association, and Ptarmigan Ranch Owners Association, Plaintiffs and Petitioners v. The COLORADO PUBLIC UTILITIES COMMISSION; Commissioner Gregory E. Sopkin; Commissioner Polly Page; Commissioner Carl Miller; Former Commissioner Jim Dyer; Tri-State Generation and Transmission Association, Inc.; and The Board Of County Commissioners of the County of Montrose, Defendants and Respondents.
No. 06SA213.
Supreme Court of Colorado, En Banc.
April 30, 2007.
As Modified on Denial of Rehearing May 21, 2007.
157 P.3d 1083
* Justice Martinez and Justice Bender would grant the Petition; Justice Eid does not participate.
Steven J. Zwick, San Miguel County Attorney, Rebekah S. King, San Miguel Assistant County Attorney, Telluride, Colorado, Attorneys for Plaintiff and Petitioner The Board of County Commissioners of the County of San Miguel.
Arnold & Porter LLP, David S. Neslin, Harris D. Sherman, Denver, Colorado, Attorneys for Plaintiffs and Petitioners Coalition of Concerned San Miguel County Homeowners, Hans (Henson) Jones, The Wilson Mesa Homeowners Association, and Ptarmigan Ranch Owners Association.
No appearance by or on behalf of Defendants and Respondents Tri-State Generation and Transmission Association, Inc. and The Board of County Commissioners of the County of Montrose.
Justice HOBBS delivered the Opinion of the Court.
In this original proceeding under
PUC employees include among their numbers two groups of agency experts—a testimonial staff and an advisory staff. Performing different functions in PUC proceedings, these two groups operate independently and in isolation of each other. The testimonial staff is active in making presentations to the Commission during the evidentiary phase of proceedings, in which parties present evidence. In the deliberative phase, the advisory staff assists the PUC Commissioners in analyzing the record made during the evidentiary phase, and arraying the various choices the Commissioners have before them in making their decision.
Advisory memoranda contain an analysis of the record made prior to the Commissioners’ deliberation; these memoranda also contain staff recommendations to the Commissioners. Members of the advisory staff are not decision-makers. The PUC Commissioners are the decision-makers, and they may accept or reject all or any portion of the advisory staff‘s analysis and/or recommendations.
After they complete their deliberations in a public proceeding, the PUC Commissioners enter a final written decision or order under section
In the case before us, the district court held that the advisory staff‘s memoranda must always be included in the records of PUC‘s proceedings, under section
The parties who filed this judicial review proceeding in the District Court for San Miguel County contend, and the district court agreed, that the PUC violates section
they were obtained at the PUC‘s initiative and considered by the PUC in rendering the decision under review; . . . the memoranda are not privileged because their contents were publicly disclosed; and . . . the memoranda are relevant because they contain factual findings and recommendations contrary to the PUC‘s positions on the merits.
Pls. and Petrs.‘s Resp. 8.
We hold that section
Accordingly, we discharge the rule in part and make it absolute in part. We return this case to the district court, with directions that it (1) conduct an in camera review of the advisory memoranda in this case, (2) determine whether the staff injected new factual information during the open meeting deliberative phase of this proceeding and whether such factual information has not been made part of the record, and (3) include in the section
I.
Tri-State Generation and Transmission Association, Inc. (Tri-State) operates the Nucla-Telluride transmission line, which transports power from a station in Montrose County to a substation in San Miguel County. Tri-State has proposed replacing the existing 69 kV transmission line with a more powerful 115kV transmission line in order to better serve a growing regional population.
The San Miguel County Commissioners (the County) and the Coalition of Concerned San Miguel County Homeowners (the Homeowners’ Coalition) do not dispute that this upgraded service is needed. At issue is how the new transmission line will be installed.
When Tri-State proposed upgrading the line, the County imposed conditions on the upgrade. The County required Tri-State to construct designated portions underground because of aesthetic and environmental concerns. Tri-State appealed these conditions to the PUC pursuant to section
The PUC followed its usual procedures. In September and October of 2003, it took public comment and held evidentiary hearings. The parties filed direct, answer, and rebuttal testimony in accordance with procedural orders the PUC issued. After the evidentiary hearings, the parties filed statements of position. This concluded the formal hearing phase during which evidence is gathered and the record is compiled, including pleadings, testimony, and exhibits presented during the hearing phase.
During this deliberative meeting, one or more members of the advisory staff read from portions of advisory memoranda prepared for the Commissioners. The advisory memoranda were not otherwise made available to the public.
The PUC Commissioners conducted their deliberations and voted in public at the meeting. The PUC later issued its decision in writing, pursuant to section
The PUC‘s decision provided that the County and Homeowners’ Coalition could return for resolution of disagreement over cost estimates after Tri-State gathered and reported its estimated costs to the PUC. Subsequently, the County and Homeowners’ Coalition asserted that Tri-State‘s cost estimates were generally incomplete and that the cost estimates for an underground transmission line ought to be based on a method known as direct burial. Tri-State had based its underground cost estimates on a more expensive technique known as duct bank, which it claimed to be superior for maintenance reasons.
The PUC held a two-day evidentiary hearing on the cost issue and conducted its public deliberative meeting to decide this issue. The advisory staff made a presentation that included reading from parts of an advisory memorandum submitted to the PUC Commissioners, but the memorandum was not otherwise made available public. The PUC broadcasted the public meeting over the Internet.
During the public meeting, advisory staff discussed with the PUC Commissioners whether Tri-State should be allowed to use the cost of duct bank construction, as opposed to direct burial, for its estimate of the cost of an underground transmission line. In the course of the discussion, an advisory staff member stated that she had independently investigated a direct burial project that had taken place in New Zealand and which Tri-State claimed had failed.
The staff‘s investigation revealed that the New Zealand project involved a different type of cable than Tri-State would use and that the project had failed for reasons other than direct burial. The advisory staff recommended direct burial, with Tri-State absorbing the cost.
The PUC Commissioners deliberated in public, voted orally, and subsequently issued a written decision. They agreed with the County and Homeowners that Tri-State‘s cost estimates were incomplete, but rejected the staff‘s recommendation that Tri-State make underground cost projections based on direct burial. The Commission reasoned that Tri-State would have to maintain the transmission line; thus, if the company preferred to use the more expensive duct bank technique, they could do so and they should also be entitled to use the duct bank technique for cost estimates. In response to the Homeowners’ argument that cost estimates should be based on direct burial, the Commission stated,
The cost estimate shall be based upon a type of construction that will be used. We have left it to the discretion of Tri-State whether to use duct bank construction or direct burial, again because we traditionally do not interfere with utility engineering practices, and leave it to the utility to determine what expenditures are prudent in light of maintenance, safety, and reliability concerns.
The Commission certified its record of proceedings to the district court. As described by the PUC, the record includes the transcript of formal evidentiary hearings, the pleadings, the Commission‘s written decisions, and all other papers on file in, or in connection with, said proceedings. The PUC did not include the advisory memoranda its staff prepared and provided to the PUC Commissioners for their use in the deliberative phase of the proceedings.
The County and the Homeowners sent a written request to the PUC, asking that it supplement the record with all advisory memoranda in the proceedings. The PUC refused, asserting that section
The district court ordered the inclusion of all advisory memoranda prepared in the proceedings for the PUC Commissioners, relying on section
The PUC did not provide the advisory memoranda to the district court. Instead, it filed this
II.
We hold that section
A. Standard of Review
Here, we exercise our discretion for the purpose of considering an issue of significant public importance we have not yet decided. See CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d 658, 660 (Colo.2005); City & County of Denver v. Dist. Court, 939 P.2d 1353, 1361 (Colo.1997).
We review the district court‘s ruling of law de novo. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). We may consider and defer to an agency‘s interpretation of its own enabling statute and regulations the agency has promulgated, but we are not bound by the agency‘s interpretation. Williams v. Kunau, 147 P.3d 33, 36 (Colo. 2006); Lobato v. ICAO, 105 P.3d 220, 223 (Colo.2005).
In prior decisions, we have deferred to the PUC‘s statutory interpretation because of the considerable authority and expert role the Colorado Constitution and statutes assign to it. See, e.g., City of Fort Morgan v. Colo. Pub. Utils. Comm‘n, No. 06SA118, 159 P.3d 87 (Colo. Apr. 23, 2007); Trans Shuttle, Inc. v.Pub. Utils. Comm‘n of Colo., 89 P.3d 398, 403 (Colo.2004); Powell v. Pub. Utils. Comm‘n, 956 P.2d 608, 613 (Colo.1998).
Under the rules of statutory construction, legislative inaction to change this court‘s interpretation of a statute is presumed to be ratification of that interpretation. Grissom v. People, 115 P.3d 1280, 1285 (Colo.2005); Hendricks v. People, 10 P.3d 1231, 1239 (Colo.2000); Mason v. People, 932 P.2d 1377, 1380 (Colo.1997). A similar presumption should be accorded to the PUC in the case before us, because the General Assembly has chosen to invest the PUC with authority to conduct its proceedings in such manner as will best conduce the proper dispatch of business and the ends of justice. §
Nonetheless, deference would not be appropriate if the PUC‘s statutory interpretation would defeat the General Assembly‘s intent in enacting the statute or is contrary to the plain meaning of the statute. See Colo. Dep‘t of Revenue v. Garner, 66 P.3d 106, 109 (Colo.2003); AviComm, Inc. v. Colo. Pub. Utils. Comm‘n, 955 P.2d 1023, 1031 (Colo.1998).
Here, because the interpretation made by the PUC is not one that involves use of its technical expertise, for example ratemaking, we do not owe a high degree of deference to the PUC‘s interpretation; nonetheless, we defer to it as a reasonable construction of the pertinent agency statutes and implementing rules, guidance, and determinations. Washington County Bd. of Equalization v. Petron Dev. Co., 109 P.3d 146, 150 (Colo.2005).
B. Construction of Section 40-6-113(6)
In this case we must construe section
In case of an action to review an order or decision of the commission, a transcript of such testimony or the affidavits or other evidence under the shortened or informal procedure, together with all exhibits or copies thereof introduced and all information secured by the commission on its own initiative and considered by it in rendering its order or decision, and the pleadings, record, and proceedings in the case, shall constitute the record of the commission.
(Emphasis added).
The PUC has a long-standing interpretation of this statutory section and its procedural rules, according to which it does not include in the record advisory staff memoranda prepared for the PUC Commissioners’ use in the deliberative phase when certifying a record to the district court for judicial review under section
Section 1504(a) of the PUC procedural rules states, The record of a proceeding shall include all information introduced by the parties, as provided in §
Advisory memoranda are the work product of a particular group of expert PUC employees, whose job it is to analyze the record made in the formal phase of the PUC proceedings and to make recommendations to the Commissioners for use in their deliberations. No part of an advisory memorandum is binding on the Commissioners. The Commissioners are free to accept or reject any part or all of an advisory memorandum.
What the Commissioners must do is issue a written decision or order pursuant to section
A reviewing court may not substitute its own judgment for that of the PUC; the court‘s role is to determine whether there is substantial evidence in the record to support the PUC‘s decision. See Powell, 956 P.2d at 613. The PUC‘s factual findings supported by substantial evidence are final and are not subject to review. Durango Transp., 122 P.3d at 247; §
Section
C. Application to This Case
The district court‘s construction of section
However, the advisory staff to the Commissioners acts as an integral and essential part of the decision-making function of the PUC in the deliberative phase of the proceedings. The PUC‘s adoption of such a procedure is within the authority the General Assembly gave it to conduct its proceedings in such manner as will best conduce the proper dispatch of business and the ends of justice. §
By statute, the Commissioners depend upon a staff director, assistants, and employees to carry out and implement the policies, procedures, and decisions of the Commissioners. §§
More recently we said,
Our examination of whether the PUC‘s decision was just and reasonable under the circumstances likewise recognizes the considerable discretion Colorado law has vested in this agency. The PUC‘s expertise and extensive staff support render it much better able to assess impacts to the public interest from a utility action than the courts.
City of Boulder, 996 P.2d at 1270.
Thus, the purpose of the experts of the advisory staff is to help the Commissioners sort through their decision-making options in the deliberative phase of the proceedings, based upon the record made in the formal evidentiary phase. As a matter of general practice, the advisory staff‘s role does not include securing additional factual information for the Commissioners. Factual presentation to the Commissioners is ordinarily accomplished by the parties and the PUC‘s testimonial staff before deliberations commence. Often the factual information is presented to PUC hearing officers who make factual findings that the Commissioners may adopt in making their written decisions and orders. The record and exhibits of a proceeding conducted by a PUC hearing officer or administrative law judge, together with a written recommendation containing findings of fact and conclusions of law, must be included in the PUC‘s record pursuant to sections
Our primary task in interpreting a statute is to give effect to the intent of the General Assembly. City of Florence v. Pepper, 145 P.3d 654, 657 (Colo.2006); see also AviComm, 955 P.2d at 1031. The General Assembly‘s intent is ascertained by examining the statute‘s language. People v. Cross, 127 P.3d 71, 73 (Colo.2006). When we look to Colorado‘s Public Utilities law as a whole, we should give it a consistent, harmonious, and sensible reading. AviComm, 955 P.2d at 1031.
Here, the language of section
Section
40-6-113(6) acknowledges that the PUC may rely on evidence other than that obtained at a formal hearing, thus allowing the PUC to consider a broader range of information in making an adjudicatory decision than that allowed by strict application of the [Administrative Procedure Act]. This court has recognized that the PUC at times may have a duty to investigate on its own.
Colo. Energy Advocacy Office, 704 P.2d at 304.
The General Assembly has assigned many responsibilities to the PUC. See Atchison, Topeka & Santa Fe, 194 Colo. at 266, 572 P.2d at 140. The PUC‘s findings of fact are final, and may not be set aside if they are supported by substantial evidence in the record. Powell, 956 P.2d at 608; §
The district court does not have the statutory authority to reverse the PUC‘s decision on the grounds that the Commissioners disagreed with staff recommendations, and the district court must give deference to the expertise of the PUC in deciding what weight to give to the facts and the expert testimony contained in the record. §§
The staff recommended that Tri-State estimate underground transmission line costs using the direct burial technique, but the Commission ultimately decided that since Tri-State would maintain the lines, it was entitled to estimate costs using the duct bank technique. The gauge of the lawfulness of a PUC decision is not what the advisory staff has to say, but what the Commissioners do and say in their written decision, based on the record.
We recognize that federal courts routinely require advisory memoranda from staff to be included in the record, but the federal court decisions do not address the design of the Colorado PUC statutes as a whole or section
The County and Homeowners cite federal cases that set forth policy reasons for including agency advisory memoranda in the judicial record. For example, in National Courier Association v. Board of Governors of the Federal Reserve System, 516 F.2d 1229, 1241 (D.C.Cir.1975), the District of Columbia Circuit Court of Appeals held that intra-agency memoranda containing internal recommendations, staff analysis and work product and legal opinions are considered to be evidence within the federal APA‘s statutory definition because [p]rivate parties and reviewing courts alike have a strong interest in fully knowing the basis and circumstances of an agency‘s decision. Id. The court also held that memoranda remain subject to any privilege that an agency claims to protect its interest in nondisclosure.
The federal decisions turn on the federal statutory definition of the record on review.
Under Colorado‘s Public Utilities Code, however, the General Assembly has enacted a specific provision, section
In this context, the Commissioners and their staff function as one in sorting through the deliberative choices presented by the record in the exercise of PUC authority. Section
In its definition of what constitutes evidence that must be included in the record, the PUC has determined that all matters introduced into the pre-deliberative formal stage of the proceedings by the parties and staff are part of the record. The record also includes facts as to which the PUC takes administrative notice, as provided in its regulations:
The Commission may take administrative notice of general or undisputed technical or scientific facts, state and federal constitutions, statutes, rules, regulations, tariffs, price lists, time schedules, rate schedules, annual reports, documents in its files, matters of common knowledge, matters within the expertise of the Commission, and facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Any fact to be so noticed shall be specified in the record, and copies of all documents relating thereto shall be provided to all parties and the Commission, unless they are readily available from the parties, or they are voluminous. Every party shall be afforded an opportunity to controvert the fact to be so noticed.
This has been the traditional procedure and statutory interpretation of the PUC over a long period of time, a procedure and interpretation well known to practitioners and parties that appear before the PUC on a regular basis. The General Assembly has had ample opportunity to change the statute to require the PUC to include advisory memoranda in the record, and has not chosen to do so. To the contrary, the General Assembly has consigned to the PUC the authority to conduct its proceedings in such manner as will best conduce the proper dispatch of business and the ends of justice. §
Having an expert advisory staff that assists the PUC Commissioners in the deliberative phase is a reasonable choice in the conduct of PUC business. Deliberations necessarily involve give and take that postulates the various decisional choices that could be made, with the ultimate goal of producing a decision a majority of the Commissioners can agree upon. The Commissioners conduct their deliberations in public, pursuant to the Open Meetings Law, sections
The thought processes of PUC decision-makers cannot be used as evidence to impeach a PUC decision or order. The use of advisory staff in deliberations is part of this thought process. Utilizing a position of the advisory staff to provide grounds for impeaching the Commissioners’ decision would introduce evidence that is irrelevant as a matter of law, and would thus serve no purpose beyond chilling the deliberative process. See Gilpin County Bd. of Equalization v. Russell, 941 P.2d 257, 264-65 (Colo.1997) (noting that thought processes or motivations of an administrator are irrelevant in judicial determinations as to whether an agency order is reasonably sustained by appropriate findings and conclusions) (internal citations omitted).
Accordingly, we defer to the PUC‘s long-standing procedure of not including advisory memoranda in the record of PUC proceedings. See City of Boulder, 996 P.2d at 1274-75. Deference is especially appropriate in this case, because the PUC Commissioners and the advisory staff act with a common purpose in the deliberative phase, in that the staff assists the Commissioners in reaching a just and reasonable decision grounded in the evidence of the proceeding and informed by the PUC‘s expertise, as contemplated by section
Nonetheless, when the staff injects new factual information into the proceedings
Here, the County and Homeowners allege that an advisory staff member stated during the public deliberative meeting that she had conducted independent Internet investigation concerning a New Zealand direct burial transmission line project. They claim that she injected this factual information into the open public meeting of the Commissioners by reading from the advisory memoranda. If so, such factual information would be within the section
The PUC asserts that the Commissioners did not consider in their decision the New Zealand information that the advisory staff had obtained after the formal hearings had been concluded. However, whether the factual information the staff obtained is of great or little importance to the Commissioners, it belongs in the record pursuant to section
III.
Accordingly, we discharge the rule in part and make it absolute in part. We return this case to the district court, with directions that it (1) conduct an in camera review of the advisory memoranda in this case, (2) determine whether the staff injected new factual information during the open meeting deliberative phase of this proceeding and whether such factual information has not been made part of the record, and (3) include in the section
Justice MARTINEZ dissents, and Justice BENDER joins in the dissent.
Justice EID does not participate.
Justice MARTINEZ, dissenting.
I respectfully dissent. The majority holds that all information secured by the commission on its own initiative and considered by it in rendering its order or decision as stated in section
Before beginning its purported analysis of the statutory language, the majority signals its intent to afford deference to the PUC‘s historical interpretation of the statute because of the PUC‘s considerable authority and expert role. Maj. op. at 1088. The majority then builds its analysis around this deference. Maj. op. at 1092, 1092-1094.
The majority also states that deference is appropriate because it is the PUC‘s long-standing practice, long-standing interpretation, long-standing procedure, and traditional procedure over a long period of time to exclude advisory memoranda from the record. Maj. op. at 1085-86, 1089, 1093. Thus, the majority concludes, we should accept the PUC‘s interpretation because the General Assembly has had ample opportunity to change the statute to require the PUC to include advisory memoranda in the record, and has not chosen to do so. Maj. op. at 1093. However, there is a vast difference between assuming legislative ratification when the General Assembly chooses not to respond to a published, widely distributed court decision, and assuming ratification because the legislature has not responded to an unofficial office practice that has not been codified in any statute, regulation, or even mentioned in a published court opinion. In fact, the PUC certifies its record of proceedings with a cover letter to the reviewing court stating that the enclosed record includes all other papers on file in, or in connection with, said proceedings. Maj. op. at 1088. Only if you are one of the insiders that appear before the PUC on a regular basis, maj. op. at 1093, are you likely to know that this really means all other papers in connection with said proceedings except the advisory memoranda.
According to the majority, we should further presume legislative ratification because the General Assembly gave the PUC the authority to conduct its proceedings in such manner as will best conduce the proper dispatch of business and the ends of justice. Maj. op. at 1089, 1090-91, 1093. It is quite a stretch to assume that this language authorizes the PUC to disregard the plain language of a statute in favor of an unwritten office practice. Taken to its extreme, this argument would allow the PUC to disregard or override any statute related to its proceedings that it felt necessary to the proper dispatch of business and the ends of justice. Obviously, the General Assembly only meant to give the PUC authority to conduct its proceedings in a manner consistent with the other applicable statutes.
Most importantly, the majority errs in deferring to the PUC‘s historical interpretation because it is inconsistent with the statute‘s plain language. Courts are not bound by an agency interpretation that is contrary to the plain meaning of a statute. People v. Rockwell, 125 P.3d 410, 420 (Colo.2005). If the legislature has addressed the precise question at issue, we construe the statute accordingly and afford no deference to the agency‘s interpretation. City of Boulder v. Colo. Pub. Utils. Comm‘n, 996 P.2d 1270, 1277 (Colo. 2000). Here, the question before us can be resolved by reading the plain language of the statute, and the PUC‘s interpretation is not consistent with this plain language. Thus, the majority should afford no deference to the PUC‘s interpretation. To the contrary, the majority actually begins its analysis of the statute with the PUC‘s conclusion of what it means, and then works backward, altering the plain language of the statute to accord with the PUC‘s interpretation. Maj. op. at 1089-90, 1091, 1092-93.
The addition of the word factual is not inconsequential. As I explain later, factual information is only a subset of the plain language of the statute—information is a broader term that properly encompasses the analysis and recommendations of the advisory staff. In qualifying information with factual, the majority recognizes that in order to align the language of the statute with the PUC‘s historical interpretation, it is necessary to add language to the statute.
The majority‘s analysis as to why the statute should be limited to factual information is based on an incomplete analysis of section
shall not extend further than to determine whether the PUC has regularly pursued its authority, . . . , and whether the decision of the PUC is just and reasonable, and whether the PUC‘s conclusions are in accordance with the evidence.
(Emphasis added). The majority disregards the portion of section
The majority‘s interpretation of the statute also contradicts our previous case law. We have specifically recognized that if the PUC relies on evidence in its files . . . and data gathered through its own investigation in support of an order, that information should be included in the record. Consol. Freightways Corp. of Del. v. Pub. Utils. Comm‘n, 158 Colo. 239, 253, 406 P.2d 83, 90 (1965). Both evidence in its files and data gathered through its own investigation may refer to the analysis and recommendations of advisory staff in addition to factual information. Thus, the majority‘s conclusion that the language of the statute only refers to factual information is inconsistent with our decision in Consolidated Freightways. Maj. op. at 1086, 1088, 1090, 1091-92, 1093-94.
The majority emphasizes the word fact in
Further, this PUC regulation does not describe a formal process for taking administrative notice of information. It is reasonable to conclude that if the PUC considers some piece of information, such as documents in its files or matters within the expertise of the Commission as part of a proceeding, they are thereby taking administrative notice of it, and that information must then be included in the record under the regulation.2 Therefore, this PUC regulation contradicts the majority‘s conclusion that only factual information must be included in the record.
The majority further limits information by stating that only new factual information injected by staff through an advisory memorandum read at the open meeting deliberations must be included in the record. Maj. op. at 1086, 1088, 1093-94. This was the method by which the new factual information in this particular case became evident to others besides the PUC, but that circumstance should not improperly limit the majority‘s interpretation of section
This disclosure requirement reaches far beyond the plain language of the statute. Section
The majority‘s disclosure requirement is also directly contradictory to our decision in Colorado Energy that states: section
Moreover, the disclosure requirement creates the anomalous situation where a fact
Finally, the majority‘s rationale for excluding the analysis and recommendations of the advisory staff is based in part on an erroneous application of Colorado‘s common law privilege doctrine.3 The majority explains that the advisory memoranda should not be included in the record because the thought processes of PUC decision-makers cannot be used as evidence to impeach a PUC decision or order. The use of advisory staff in deliberations is part of this thought process. Maj. op. at 1093. Although I recognize the mental process privilege may apply in some instances to protect the PUC, placing the analysis and recommendations of the advisory staff in the record does not involve probing the mental processes of the PUC or its commissioners. First, although the analysis and recommendations of the advisory staff may in some instances help to explain the PUC‘s ultimate decision, a requirement to place the advisory staff‘s analysis and recommendations in the record for judicial review is not equivalent to a requirement that the PUC or its commissioners provide an explanation of their decision after the decision has been made. There is no discovery request involving the manner in which the PUC arrived at its decision, as in City of Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974) and Public Utilities Commission v. District Court, 163 Colo. 462, 431 P.2d 773 (1967), and the PUC commissioners have not been called as witnesses in a subsequent proceeding to explain or justify their decision, as in Gilpin County Board of Equalization v. Russell, 941 P.2d 257 (Colo.1997). Thus, the mental process privilege does not bar the advisory staff‘s analysis and recommendations from inclusion in the record.4
Instead of the statutory interpretation that the majority constructs in order to defer to the PUC‘s historical interpretation, I would follow our primary obligation to interpret the statute consistent with its plain language. Construing the language in question according to the rules of grammar and common usage, the record should include all information the PUC acquires while acting independently of outside influence or control and takes into account in making its decision. See generally, §
This conclusion is supported by the fact that section
This interpretation is also supported by reading the language of section
As the District of Columbia Circuit Court of Appeals has aptly stated:
The Government takes the position that internal staff memoranda are never part of the record. . . . We think a fuller analysis is called for. Private parties and reviewing courts alike have a strong interest in fully knowing the basis and circumstances of an agency‘s decision. The process by which the decision has been reached is often mysterious enough without the agency‘s maintaining unnecessary secrecy. . . . The proper approach, therefore, would appear to be to consider any document that might have influenced the agency‘s decision to be evidence within the statutory definition, but subject to any privilege that the agency properly claims as protecting its interest in non-disclosure.
Nat‘l Courier Ass‘n v. Bd. of Governors of the Fed. Reserve Sys., 516 F.2d 1229, 1241 (D.C.Cir.1975). In addition to placing all of the same information before the reviewing court, this approach appropriately places the burden on the PUC to justify excluding information that otherwise should be in the record under the statute‘s plain language. The majority‘s interpretation requires the opposing
In sum, I would find that all new information within the advisory memoranda is necessarily part of the record under section
I am authorized to state that Justice BENDER joins in this dissent.
Justice MARTINEZ
Justice BENDER