PA PUC v. E. FriedmanPA PUC v. E. Friedman
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
FILED: October 21, 2020
Energy Transfer and the Pennsylvania Public Utility Commission (PUC) (Petitioners) petition for review of the Final Determination of the Office of Open Records (OOR) granting in part Eric Friedman‘s (Requester) appeal of the PUC‘s denial of Requester‘s
I. Background
On January 31, 2019, Requester attended a public meeting in East Goshen Township, Chester County, with PUC representatives. Reproduced Record (R.R.) at 6a. At the meeting, Requester asked questions related to the blast radius for Energy Transfer‘s (Sunoco Pipeline L.P.) Mariner Highly Volatile Liquids (HVL) pipelines to which Paul Metro, a PUC representative, responded that the PUC had its own estimate of “buffer zone” or “blast radius” within Hazard Assessment Reports associated with accidents on HVL pipelines. Id. The subject of one of these reports, the Mariner East 1 (“ME1“) Pipeline, runs through Requester‘s neighborhood. Requester‘s Br. at 3.
Requester filed a RTKL request with the PUC on February 4, 2019, requesting all records in the PUC‘s possession that relate to blast radius calculations for Energy Transfer‘s (Sunoco Pipeline L.P.) Marinеr HVL pipelines. R.R. at 6a. Requester requested:
all records . . . that relate to the calculation or estimation of the range at which thermal or overpressure events related to accidents on hazardous . . . HVL pipelines may be experienced. This request does not seek information provided by Sunoco if that information has been designated as confidential security information. Rather, it seeks records containing or related to calculations or estimates of blast radius (Sunoco‘s term) or “buffer zone” (PUC‘s term) regarding accidents or releases from HVL pipelines in the possession of the PUC, including (but not limited to) information that was produced for PUC by an external source or that was developed internally.
Requester appealed the PUC‘s decision to OOR on April 1, 2019. Id. at 4a. On June 26, 2019, an OOR Appeals Officer granted in part and denied in part Requester‘s apрeal. Id. at 142a. OOR found that the PUC did not prove that the records requested by Requester are CSI, but that the PUC did demonstrate that certain records are exempt under
II. Discussion
Petitioners argue that OOR erred in requiring the PUC to release hazard assessment records related to the Sunoco pipelines. Specifically, Petitioners assert that OOR erred in finding that the rеquested records were not protected from disclosure under the CSI Act. Additionally, while OOR found that the records were exempt from disclosure under the RTKL‘s infrastructure security protection exemption and the noncriminal investigation exemption, Petitioners argue that OOR inappropriately direсted disclosure of the records pursuant to
Petitioners argue that OOR lacks the authority to make the determination that the records requested by Requester do not qualify as CSI under the CSI Act. Petitioner asserts that it is the exclusive authority of the PUC to make such a determination. In support of its position, Petitioners cite to Section 3(c) of the CSI Act:
Challenges to a public utility‘s designation or request to examine records contаining confidential security information by a member of the public shall be made in writing to the agency in which the record or portions thereof were originally submitted. The agency shall develop protocols and procedures to address challenges to the designations or requests to examinе records containing confidential security information.
Subsection 3(c)(6) of the CSI Act,
Following written notification by the agency of its decision on confidentiality, the public utility and member of the public shall be given 30 days to file an appeal in Commonwealth Court where the court may review the records containing confidential security information in camera to determine if they are protected from disclosure under this act.
Petitioners argue accordingly that any challenge to a designation that a record is CSI under the CSI Act must be made before the agency which originally received the record. In the presеnt case, consideration of Requester‘s challenge, in Petitioners’ view, appropriately rests with the PUC and, if necessitated by further appeal, this Court. Requester also acknowledges the relevance of this provision, yet asserts that the RTKL still allows OOR to review the PUC‘s decision because thе CSI Act does not conflict with the RTKL. See Brown v. Pa. Dep‘t of State, 123 A.3d 801, 806 (Pa. Cmwlth. 2015).
“Conflicts as to public access, as opposed to public nature, are governed by
Petitioners argue that OOR may review assertions by agencies as part of OOR‘s enforcement of the RTKL, but must defer to an agency‘s decisions regarding CSI since challenges to CSI designations must be heard before the agency holding the records. See
While Petitioners also argue that OOR erred in determining that the information requested by Requester is not CSI, the primary issue beforе this Court is whether OOR has the authority to determine whether the requested information is CSI. This Court appreciates that the analysis by OOR regarding the public nature of records may require a consideration of additional agency-specific disclosure statutes. However, as argued by Petitioners, OOR does not аdminister the CSI Act and is not directed by statute to oversee the determination
Under
B. Disclosure of Records under Section 335(d) of the Public Utility Code
Petitioners also argue that OOR erred in requiring disclosure of Requester‘s requested records under
As we have now determined that the informаtion requested by Requester warrants review by the PUC under the CSI Act, this Court will not reach the issue of disclosure under
III. Conclusion
OOR erred in determining that Requester‘s requested information is not CSI. OOR is charged with administering the RTKL and its statutory provisions. However, as the administration of the CSI Act rests with the PUC, OOR acted outside of its authority when it determined that the requested information is not CSI and therefore subject to disclosure under the RTKL.
We reverse the Final Determination of OOR.
J. ANDREW CROMPTON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Public Utility Commission, Petitioner v. Eric Friedman, Respondent
No. 980 C.D. 2019
Energy Transfer, Petitioner v. Eric Friedman, Respondent
No. 982 C.D. 2019
ORDER
AND NOW, this 21st day of October 2020, we REVERSE the Final Determination of the Office of Open Records.
J. ANDREW CROMPTON, Judge
Notes
The following are exempt from access by a requester under this act:
. . .
A record of an agency relating to a noncriminal investigation, including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence and reports.
(iii) A record that includes the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law [, Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421-1428].
(iv) A record that includes information made confidential by law.
(v) Work papers underlying an audit.
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court.
(B) Deprive a person of the right to an impartial adjudication.
(C) Constitute an unwarranted invasion of privacy.
(D) Hinder an agency‘s ability to secure an administrative or civil sanction.
(E) Endanger the life or physical safety of an individual.
In addition to any other requirements imposed by law, including the act of June 21, 1957 (P.L. 390, No. 212), referred to as the Right-to-Know Law, and the act of July 3, 1986 (P.L. 388, No. 84), known as the Sunshine Act, whenever the commissiоn conducts an investigation of an act or practice of a public utility and makes a decision, enters into a settlement with a public utility or takes any other official action, as defined in the Sunshine Act, with respect to its investigation, it shall make part of the public record and releasе publicly any documents relied upon by the commission in reaching its determination, whether prepared by consultants or commission employees, other than documents protected by legal privilege; provided, however, that if a document contains trade secrets or proprietary information and it has been determined by the commission that harm to the person claiming the privilege would be substantial or if a document required to be released under this section contains identifying information which would operate to the prejudice or impairment of a person‘s reputation or personal security, or information that would lead to the disclosure of a confidential source or subject a person to potential economic retaliation as a result of their cooperation with a commission investigation, or information which, if disclosed to the public, could be used for criminal or terroristic purposes, the identifying information may be expurgated from the copy of the document made part of the public record. For the purposes of this section, “a document” means a report, memorandum or other document prepared for or used by the commission in the course of its investigation whether prepared by an adviser, consultant or other person who is not an employee of the commission or by an employee of the commission.
Agency review of the public utility‘s designation or request to examine records сontaining confidential security information shall be based on consistency with the definition of confidential security information contained in this act or when there are reasonable grounds to believe disclosure may result in a safety risk, including the risk of harm to any person, or mass destruction.
(a) General Rule. An agency shall not release, publish or otherwise disclose a public utility record or portion thereof which contains confidential security information, in accordance with the provisions of this act.
(b) Exception. Notwithstanding subsection (a), an agency may, after notification and consultation with the public utility, disclose a public utility record or portion thereof which contains confidential security information, in accordance with the provisions of this act, that is necessary for construction, renovation or remodeling work on any public building or project. Releasе or disclosure of such records or portions thereof for these purposes does not constitute prohibited disclosure under subsection (a) and does not result in such records or portions thereof becoming public records subject to the provisions of the act of June 21, 1957 (P.L. 390, No. 212), referred to as the Right-to-Know Law.