PA PUC v. E. FriedmanPA PUC v. E. Friedman
In these consolidated petitions for review, the Pennsylvania Public Utility Commission (PUC) and Energy Transfer (together, Petitioners) seek review of the October 10, 2019 Final Determination of the Office of Open Records (OOR) granting in part and denying in part Eric Friedman‘s (Requester) appeal of the PUC‘s denial of Requester‘s Right-to-Know Law (RTKL)1 request (Request). Relevantly, the PUC denied the Request, asserting the responsive records constituted or contained confidential security information (CSI) not disclosable under the Public Utility Confidential Security Information Disclosure Protection Act (CSI Act),2 the Request was insufficiently specific and overly broad, and any responsive records were separately exempt from disclosure under Section 708(b)(2)-(3), (11), and (17) of the RTKL,
During the pendency of this action, this Court decided Pennsylvania Public Utility Commission v. Friedman, 244 A.3d 515 (Pa. Cmwlth. 2020) (Friedman I), which involved Requester and a different request for Energy Transfer records from the PUC, the PUC‘s determination that those records were CSI and not subject to release, and the OOR‘s reversal based on the PUC not establishing that there was CSI in the records or that the records were CSI. In Friedman I, we held: the OOR had erred in determining that the requested records were not or did not contain CSI; the authority to administer the CSI Act rests with the PUC; and the OOR acted outside its authority when it determined that requested records were not CSI or did not contain CSI and, therefore, were subject to disclosure under the RTKL. Id. at 519-20. Unsurprisingly, Petitioners submitted briefs arguing that Friedman I required a reversal of the OOR Final Determination in this matter, and Requester responded that Friedman I was distinguishable.
Following this briefing, the parties agreed to stay resolution of this matter while our Supreme Court considered Requester‘s appeal of Friedman I.3 The Supreme Court rendered its decision affirming
I. BACKGROUND
A. The Request
Energy Transfer is the owner of Sunoco Pipeline LP (Sunoco Pipeline or Sunoco), which is a jurisdictional public utility, (Reproduced Record (R.R.) at 0012a, 0077a), and operates the Mariner East 1 Pipeline, a highly volatile liquid pipeline, Friedman II, 265 A.3d at 423. On June 9, 2019, Requester emailed the PUC‘s Open Records Officer, Secretary Rosemary Chiavetta (Secretary), the following:
Under Pennsylvania‘s [RTKL], I respectfully request the following records of the . . . PUC[].
1. Any record(s) of the PUC that contain the names of “authorized [PUC] employees” as that term is used in 52 Pa. Code [§] 102.3(a)(3).4
2. All transmittal letters submitted to the PUC by Sunoco Pipeline, or any parent or subsidiary of Sunoco Pipeline, as the term “transmittal letter” is used in 52 Pa. Code [§] 102.3(b)(1).5
3. All records that were submitted to the PUC along with the transmittal letters specified in [I]tem [No.] 2 above that fall in the category of “Records that are public in nature and subject to the [RTKL],” in accordance with 52 Pa. Code [§] 102.3(b)(2)(i).
(R.R. at 0009a.6)
After invoking the 30-day extension period set forth in Section 902(b) of the RTKL,
(b) Filing requirements. When a public utility is required to submit a record that contains [CSI] to the [PUC], the public utility shall do the following:
(1) Clearly state in its transmittal letter to the [PUC] that the record contains [CSI] and explain why the information should be treated as confidential. The transmittal letter will be treated as a public record and may not contain any [CSI].
(2) Separate the information being filed into at least two categories:
(i) Records that are public in nature and subject to the [RTKL].
(ii) Records that are to be treated as containing [CSI] and not subject to the [RTKL].
(3) Stamp or label each page of the record containing [CSI] with the words “Confidential Security Information” and place all pages labeled as containing [CSI] in a separate envelope marked “Confidential Security Information.”
(4) Redact the portion of the record that contains [CSI] for purposes of including the redacted version of the record in the public file.
52 Pa. Code § 102.3(b).
explained the records were exempt from disclosure pursuant to: (1) the noncriminal investigation exception of the RTKL,
B. Appeal to OOR
Requester appealed to the OOR on August 6, 2019. Energy Transfer was permitted to participate, and both it and the PUC filed Position Statements and supporting affidavits, asserting essentially the same position as the PUC‘s July 16, 2019 letter denying Requester‘s request. Specific to it, Energy Transfer raised the trade secrets and confidential proprietary information exception of the RTKL,
Several affidavits were offered in support of Petitioners’ positions before the OOR. The PUC submitted the affidavit of Secretary, in which Secretary stated that
confidentiality designation. (Id.) The PUC also offered the affidavit of Paul J. Metro, Manager of BIE‘s Safety Division (Metro). (Id. at 0102a-03a.) Metro stated:
3) [BIE] is and has been, for more than five years, engaged in multiple noncriminal investigations of Sunoco Pipeline and affiliated companies.
4) To the best of my knowledge, in the last two years, [BIE] has received from Sunoco Pipeline hundreds of transmittal letters with thousands of attached documents.13 Every document submitted by Sunoco Pipeline that contains confidential material - including CSI - must be identified through and attached to a transmittal letter. Sunoco Pipeline‘s transmittal letters have multiple documents attached in many cases.
5) [BIE] does not have any requested records other than records that are part of a noncriminal investigation.
6) Many of the numerous records submitted to [BIE] under Sunoco Pipeline‘s transmittal letters contain “[CSI]” within the meaning of the [CSI Act] . . . . In my professional opinion, release of records marked as CSI would compromise security against sabotage or criminal or terroristic acts . . . .
7) To access and review all of the documents requested by [Requester] would be unduly burdensome on [BIE] staff.
(Id.)
Energy Transfer submitted a declaration by Todd Nardozzi, Senior Manager of Energy Transfer‘s Department of Transportation Compliance (Nardozzi), in support of Energy Transfer‘s positions (verified statement). (Id. at 0077a-0081a.14) Nardozzi indicated Energy Transfer submitted documents for a variety of reasons
and stated that part of his job is to ensure the protection and safety of Energy Transfer assets, including records and other documents, and that he has “knowledge of records submitted to the [PUC] and possibly implicated by the June 9, 2019 request” for Item Nos. 2 and 3. (Id. at 0077a.) Nardozzi explained that “[s]ince 2008, [Energy Transfer] has submitted substantial information regarding the operation, location, and vulnerabilities of [Energy Transfer]‘s pipeline, which it treats as [CSI] in accordance with the” CSI Act. (Id. at 0078a.) Nardozzi also stated Energy Transfer “consistently provide[s] the PUC with valuable trade secret information . . . which may be implicated by such requests” and Energy Transfer “treats its proprietary and trade secret information as confidential and takes substantial steps to guard its secrecy. . . .” (Id. at 0079a.)
On October 10, 2019, the OOR issued its Final Determination.15 Regarding Item
As to the transmittal letters requested in Item No. 2, the OOR held “[f]or a record to be designated as non[]disclosable CSI under the [CSI] Act, [Energy Transfer/Sunoco Pipeline] and the [PUC] must comply with the ‘[p]rocedures for submitting . . . and protecting [CSI]’ set forth in [Section] []3 [of the CSI Act] and
52 Pa. Code § 102.3(b)(1), as a condition precedent for nondisclosure.” (Id. at 16.) The OOR stated that
[t]he regulations implementing the CSI designation procedures of the [CSI] Act clearly state that a transmittal letter “may not contain any [CSI].” 52 Pa. Code § 102.3(b). In addition, the same regulation, which implements Section []3(a) of the [CSI] Act, provides that the public utility “must clearly state in its transmittal letter, upon submission to an agency, that the record contains [CSI] and explain why the information should be treated as such“; most importantly, it expressly states that ”the transmittal letter will be treated as a public record.” 52 Pa. Code § 102.3(b). . . .
. . . .
. . . Section []3 of the [CSI] Act makes clear that the [PUC] shall instruct public utilities that materials submitted are to be segregated in[to] two categories - one of which is “subject to the provisions of the [RTKL]” and one which is not. In contrast to the [CSI] Act, the protocols and procedures developed by the [PUC] for the submission of confidential documents, including CSI, include express language stating that ”[t]he transmittal letter will be treated as a public record” without the limiting language [“]and subject to the RTKL.[“] 52 Pa. Code § 102.3(b)(1) (emphasis added). Whereas[] the subsection addressing the documents to be submitted as attachments to transmittal letters distinguishes between “[r]ecords that are public in nature and subject to the [RTKL]” and “records that are to be treated as containing [CSI] and not subject to the [RTKL].” 52 Pa. Code § 102.3(b)(2)(i)-(ii) (emphasis added).
(Id. at 16-18 (emphasis in original).)
Concerning Item No. 3, requesting records submitted with the transmittal letters that would be records that are public in nature and subject to the RTKL, the OOR explained “Section []3 of the [CSI] Act contemplates that the records attached to a transmittal letter may include public, as well as confidential information and places the onus on the [PUC] to instruct public utilities ‘[that] submit records to an agency to separate their information into at least two categories[,]‘” one public and
subject to the RTKL, and one confidential and not subject thereto. (Id. at 20.) The OOR noted that Requester expressly limited his request in Item No. 3 “to ‘[r]ecords public in nature and subject to the [RTKL],‘” and “[b]ased on a plain reading of [52 Pa. Code § 102.3(b)], the records requested would not include non[]disclosable material because,” in order for that material to be non[]disclosable, “[Energy Transfer/Sunoco Pipeline] would have had to submit the records segregated into ‘public’ and ‘non-public’ categories, with the confidential material marked as CSI
The OOR also found Petitioners’ challenge to the OOR‘s jurisdiction to review and determine the designation of CSI in submissions by public utilities to be without merit. The OOR explained
the [CSI] Act and the regulations specifically mandate that certain records are public and/or subject to [the] RTKL. Accordingly, in this adjudication, the OOR is not determining the propriety of a CSI designation; rather, we are analyzing applicability of the RTKL to the records requested, which are subject to the RTKL.
(Id. at 22-23.)
Next, the OOR addressed Petitioners’ RTKL exception arguments. Upon its review, the OOR held Petitioners did not demonstrate that records attached to the transmittal letters were exempt pursuant to Section 708(b)(2)-(3), (11), and (17). Regarding Section 708(b)(2) and (3), the public safety and infrastructure exceptions, the OOR explained that although Metro and Nardozzi attested the records “contained CSI and other security-sensitive information, [the PUC] has not identified any responsive records.” (Id. at 25.) Comparing the Request here to the request made in Friedman I and II, the OOR noted the request there sought “‘calculations or estimates of blast radius . . . regarding accidents or releases from [highly volatile liquid (]HVL[)] pipelines,’ a particularly described record to which the [PUC‘s] evidence regarding risk of public safety or security of a public utility could be attributed” and “here, no [such] records have been identified at all.” (Id. (emphasis in original).) As a result, the OOR held
[b]ecause the [PUC] has not identified the responsive transmittal letters and publicly designated documents attached to them, the conclusory and speculative statements made regarding the risk of harm in the release of all potential responsive records do not support the [PUC‘s] and [Energy Transfer/Sunoco Pipeline]‘s position that the disclosure of the public portions of Item 3 would jeopardize public safety or the security of a public utility.
(Id.)
As to the trade secrets exception pursuant to Section 708(b)(11), the OOR found that no responsive records had been identified and “Nardozzi‘s declarations are merely conclusory and speculative and fail to demonstrate that implicated records, in fact, contain confidential proprietary or trademarked information.” (Id. at 29.) Regarding the noncriminal investigation exception set forth in Section 708(b)(17), the OOR explained that while Metro and Secretary attested to multiple
ongoing investigations of Energy Transfer by BIE, the PUC had “not identified any individual investigation by number or general description. As a result, the [PUC] has not shown that the requested records relate to noncriminal investigations conducted by” the PUC. (Id. at 27.)
II. DISCUSSION
While Petitioners’ filings appear to suggest that all the responsive records either were CSI or contained CSI, Petitioners conceded at oral argument that there are two distinct groups of records - those which are CSI or contain CSI, or are alleged to do so (CSI Records), and those which are not CSI or do not contain CSI (Non-CSI Records). We will initially address the first group of records - CSI Records.
A. CSI Records
Petitioners first challenge, pursuant to Friedman I and II, the OOR‘s authority to determine whether a record is properly designated as CSI or as containing CSI and argue the OOR erred in finding Petitioners did not establish that the requested records were protected by the CSI Act. Petitioners assert Friedman I and II made clear that the CSI Act placed exclusive authority to hear challenges to the designation
of a record as CSI or as containing CSI in the agency to which the records were submitted, in this case the PUC. Requester argues the OOR did not exceed its authority because it did not administer the CSI Act in its Final Determination, but simply ordered the release of non-CSI records, which are subject to the RTKL, making Friedman I and II distinguishable. Requester asserts Friedman I and II are further distinguishable because, unlike those in that case, the affidavits of Secretary and Metro, and verified statement of Nardozzi, did not establish that the responsive records contained or constituted CSI.
As these arguments reflect, this case involves the interplay between the CSI Act and the RTKL. Thus, an overview of the law concerning the CSI Act and the RTKL, as well as Friedman I and II, is necessary to resolving whether the OOR exceeded its authority in its Final Determination.
1. Relevant Statutory Provisions
The RTKL was implemented as “remedial legislation to facilitate government transparency and accountability,” and the RTKL is “construed to maximize access to public records” in an agency‘s possession. McKelvey v. Pa. Dep‘t of Health, 255 A.3d 385, 399-400 (Pa. 2021). The RTKL was also implemented “[t]o ‘prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions,’ [and] the RTKL places the statutory duty of disclosing public records ‘solely on the government agency.‘” Friedman II, 265 A.3d at 428-29 (quoting McKelvey, 255 A.3d at 400). The RTKL mandates that a Commonwealth agency or a local agency “shall provide public records in accordance with” the RTKL without regard to a requester‘s “intended use of the public record . . . unless otherwise provided by law.” Sections 301 and 302 of the RTKL,
agency or local
review[] record requests and denials of record requests through the lens of the RTKL. In defining “public record” in the RTKL, however, the General Assembly anticipated the OOR‘s interpretation of other laws. Cf. [Dep‘t of Lab. & Indus. v.] Heltzel, 90 A.3d [823,] 828 [(Pa. Cmwlth. 2014)] . . . . The RTKL contains two caveats related to how other laws impact its presumption that a record is public and, therefore, subject to public disclosure. These caveats concern the nature of a record and the accessibility of a record, which are distinct concepts. Id. at 831 . . . .
According to the first caveat, nothing in the RTKL “shall supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” [Section 306 of the RTKL,]
65 P.S. § 67.306 . Thus, where a federal or state law establishes a record as public, the record is not subject to a public record analysis under the RTKL. “Given this significant consequence, a statute should be clear when it establishes the public nature of records.” Heltzel, 90 A.3d at 832. According to the second caveat, if the provisions of the RTKL “regarding access to records conflict with any other Federal or State law, the provisions of [the RTKL] shall not apply.” [Section 3101.1 of the RTKL, 65 P.S.] § 67.3101.1. Thus, where a federal or state law prescribes certain procedures to access records in a manner that conflicts with the RTKL, the provisions of the other law prevail.Friedman II, 265 A.3d at 429-30 (emphasis added).
The CSI Act was enacted “to create mechanisms for the safeguarding of [CSI] of public utilities that is provided to various state agencies, such as the [PUC], from disclosure that may compromise security against sabotage or criminal or terrorist
acts.” Id. at 430 (quoting Designation of Qualified Documents for Elec. Filing, L-00070187, 2008 WL 5582647, at *2 (Pa. PUC Nov. 19, 2008)). The CSI Act defines CSI as “[i]nformation contained within a record maintained by an agency in any form, the disclosure of which would compromise security against sabotage or criminal or terrorist acts and the nondisclosure of which is necessary for the protection of life, safety, public property or public utility facilities . . . .” Section 2 of the CSI Act,
(a) General Rule.--The public utility is responsible for determining whether a record or portion thereof contains [CSI]. When a public utility identifies a record as containing [CSI], it must clearly state in its transmittal letter, upon submission to an agency, that the record contains [CSI] and explain why the information should be treated as such.
(b) Submission of [CSI].--An agency shall develop filing protocols and procedures for public utilities to follow when submitting records, including protocols and procedures for submitting records containing [CSI]. Such protocols and procedures shall instruct public utilities [that] submit records to an agency to separate their information into at least two categories: (1) Public.--Records or portions thereof subject to the provisions of the . . . [RTKL].
(2) Confidential.--Records or portions thereof requested to be treated as containing [CSI] and not subject to the [RTKL].
(c) Challenges to designation of [CSI].--Challenges to a public utility‘s designation or request to examine records containing [CSI] 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 examine records [CSI] . . . .
2. Friedman I and Friedman II
Shortly after the petitions for review were filed in this matter, this Court issued Friedman I. In that case, Requester submitted a request to the PUC under the RTKL for records transmitted to the PUC by Energy Transfer which had not been designated as CSI.18 Friedman II, 265 A.3d at 424. As here, after the PUC denied the request in its entirety because the responsive records had been designated as CSI, Requester appealed the PUC‘s denial with the OOR. The OOR held that the PUC had not proven that the requested records were CSI and, therefore, directed their disclosure.
Petitioners appealed to this Court, making essentially the same arguments as they make here - any challenges to a designation of a record as CSI under the CSI Act must be made before the agency originally receiving the record and the responsive records were exempt from disclosure pursuant to RTKL exceptions.
Petitioners argued that the OOR erred in finding that the records requested were not protected from disclosure pursuant to the CSI Act. We agreed, explaining that, under the plain language of the CSI Act, the “OOR does not administer the CSI Act and is not directed by the statute to oversee the determination of whether requested information qualifies as CSI.” Friedman I, 244 A.3d at 519-20. Instead, we concluded, “the administration of the CSI Act rests with the PUC,” and the OOR acted outside its authority by determining that the requested information was not CSI. Id. at 520. This Court did not reach whether the records were exempt under the RTKL because all the responsive records involved were CSI. Requester appealed to the Supreme
In Friedman II, our Supreme Court described the issue before it as “whether the OOR had any statutory authority to identify and release to the public records that a public utility has submitted to the PUC with a designation of CSI.” 265 A.3d at 428. In resolving this issue, the Supreme Court recognized that the RTKL and the CSI Act “overlap[ped] in the areas of designating and disclosing a record[, and b]oth statutes include procedures for requesting a record in possession of an agency and for challenging the denial of a record request.” Id. However, “[t]hey diverge . . . with respect to identifying the nature of, and providing access to, records containing CSI.” Id. (emphasis added). Concerning the proper administrative body authorized to enforce the CSI Act, the Supreme Court explained
[w]hereas the OOR enforces the RTKL, the CSI Act identifies as the administrative body authorized to consider and review a public utility‘s submission of CSI, “the agency in which the record or portions thereof were originally submitted,” and having “protocols and procedures to address [filing CSI-designated records and] challenges to the designations or requests to examine records” containing CSI. 35 [P.S.] § 2141.3(b), (c)(1)-(4).[] As with the RTKL, the CSI Act also addresses the impact of other laws. Specifically, public utility “records or
portions thereof which contain [CSI], in accordance with the provisions of this act, shall not be subject to the provisions of the [RTKL].” [Section 4 of the CSI Act,]
35 P.S. § 2141.4 .
Friedman II, 265 A.3d at 430-31 (first, third, and sixth alterations added) (footnote omitted). As to which entity has jurisdiction regarding determinations of what material constitutes CSI, the Supreme Court held
[u]pon review of the purposes and provisions of the RTKL and the CSI Act, we conclude that reconciling the two statutes weighs in favor of the PUC having exclusive jurisdiction with regard to CSI. Evidence of this primacy is found foremost in the plain language of the competing statutes with respect to three topics: the type of information protected from disclosure, the applicability of other laws, and specific procedures for submitting CSI-designated records and challenging a CSI designation or request for records containing CSI.
Id. at 431 (emphasis added). Regarding the disclosure of CSI and the General Assembly‘s intent, the Supreme Court explained
[b]ecause the disclosure of a public utility‘s CSI-records could present a significant risk to public safety, we conclude that the General Assembly intended to provide a unique vehicle in the CSI Act for protecting CSI from disclosure. To that end, it removed CSI from the domain of the OOR under the RTKL and placed it squarely in the hands of public utilities and qualified agencies under the CSI Act. In other words, where CSI-designated records are at issue, the General Assembly intended the specific provisions of the CSI Act to prevail over the general provisions of the RTKL.
Id. (emphasis added).
In response to Requester‘s belief that “Energy Transfer‘s procedural blunder with respect to its transmittal letters was fatal to its designation of the records as CSI and, therefore, to protection under the CSI Act” and characterization of the central issue as being “whether the OOR had the authority to determine if Energy Transfer
complied with the CSI Act‘s procedures for designating records as CSI,” Friedman II, 265 A.3d at 426, 432 (emphasis added), the Supreme Court focused on which entity, the PUC or the OOR, has the requisite authority to administer the CSI Act, both substantively and procedurally. The Supreme Court concluded
[t]he PUC is . . . the administrative body that oversees public utilities in Pennsylvania, the PUC receives records from public utilities and has developed protocols and procedures for the filing of a CSI record, the maintenance of CSI records, and challenges to CSI-designations and requests to examine CSI records.
35 P.S. §§ 2141.2 & [2141].3; 52 Pa. Code §§ 102.3 & [102].4. Such challenges include claims that a public utility failed to comply with the filing requirements of the CSI Act. In such cases, the PUC has express authority, and the expertise, to determine if a public utility record has been properly designated, both substantively and procedurally, and to afford a public utility with the opportunity to resubmit a record that was improperly, defectively, or not designated as CSI. 52 Pa. Code § 102.3(d)-(f). Thus, determining the consequences of failing to comply with the CSI Act or PUC regulations is also an express function of the PUC, not the OOR.Based on our interpretation of the RTKL and the CSI Act, we conclude the General Assembly intended for the RTKL to yield to the CSI Act in the dual areas of designating and accessing CSI. In short, a CSI record is not a “public record” under the RTKL and, therefore, is not subject to disclosure through a RTKL request. . . .
. . . .
. . . [T]he OOR had authority to interpret the CSI Act as to the public nature of Energy Transfer‘s CSI, but it was not in a position to enforce the CSI Act‘s procedures for public access to CSI. Although Friedman specifically requested non-CSI records from the PUC through the RTKL, the PUC determined, as it was authorized to do, that Energy Transfer had designated records responsive to Friedman‘s request as containing CSI. That designation and determination triggered the protections of the CSI Act, including the procedure for challenging a CSI-designation or the denial of a request for records that contain CSI in the PUC. The OOR had only to consider the definition of “public record” in the RTKL to realize that
CSI-designated records fall outside its bailiwick and that it lacked authority to apply the substantive or procedural provisions of the CSI Act or to conclude that records designated by Energy Transfer as CSI and accepted by the PUC as CSI were, in fact, public and accessible.
Id. at 432-33 (emphasis added). Based on this reasoning, the Supreme Court affirmed Friedman I, agreeing the OOR lacked the authority to consider the nature of CSI-designated records or the public accessibility of those records. The Supreme Court explained that “[u]pon receipt of CSI-designated records and supporting affidavits [from the PUC], the OOR should have yielded jurisdiction of [Requester‘s] request to the PUC.” Id. at 434.
3. Analysis
Petitioners maintain the OOR has no authority to determine whether a record is properly designated as CSI pursuant to the CSI Act, and, pursuant to Section 3 of the CSI Act, challenges to transmittal letters that are averred to contain CSI or records submitted along with transmittal letters that are designated as CSI or contain CSI must be brought to the PUC, not the OOR. Petitioners assert review of a
Requester argues this case deals with a request made for records that were not CSI records; thus, Friedman I and II are inapplicable. Requester draws the Court‘s attention to Item No. 2 of the Request, explaining he is requesting public records, as expressly defined by
Regarding the CSI Records, a review of the OOR‘s Final Determination here reflects the OOR made the same errors reversed in Friedman I and II. The OOR made an express determination that, in order for a record to be nondisclosable CSI, Petitioners were required to comply with the procedures for submitting and protecting CSI ”as a condition precedent” for preventing their disclosure under the
As the Supreme Court explained, “the PUC has express authority, and the expertise, to determine if a public utility record has been properly designated, both substantively and procedurally, and to afford a public utility with the opportunity to resubmit a record that was improperly, defectively, or not designated as CSI.” Id. at 432 (emphasis added). Determining the consequences of a public utility‘s failure to comply with PUC regulations or the
However, our inquiry does not end here, and we now turn to the OOR‘s Final Determination directing the disclosure of Non-CSI Records.21
B. Non-CSI Records
The Non-CSI Records consist of transmittal letters not containing or not being alleged to contain CSI and other records submitted by Energy Transfer to the PUC not containing or are not being alleged to contain CSI. Because these records are not alleged to contain or are not CSI, they are not entitled to protection under the
1. Non-CSI Transmittal Letters
Petitioners argue that all the responsive records, which would include the non-CSI transmittal letters, are protected from public disclosure by the claimed
The OOR relied on
When a public utility is required to submit a record that contains [CSI] to the [PUC], the public utility shall do the following:
(1) Clearly state in its transmittal letter to the [PUC] that the record contains [CSI] and explain why the information should be treated as confidential. The transmittal letter will be treated as a public record and may not contain any [CSI].
Here, non-CSI transmittal letters “will be treated as a public record . . . .”
2. Non-CSI Records
There is no dispute the OOR has the authority to consider whether the non-CSI records were exempt from disclosure pursuant to
Regarding the public nature of and public access to records submitted by a public utility,
When a public utility is required to submit a record that contains [CSI] to the [PUC], the public utility shall do the following: . . . .
(2) Separate the information being filed into at least two categories:
(i) Records that are public in nature and subject to the [
RTKL ].(ii) Records that are treated as containing [CSI] and not subject to the
RTKL .
Regarding public access to records, “[c]onflicts as to public access, as opposed to public nature, are governed by
Under the
Generally,
[a]ffidavits are the means through which a governmental agency details the search it conducted for the documents requested and justifies nondisclosure of the requested documents under each exemption upon which it relied []. The affidavits must be detailed, nonconclusory, and submitted in good faith. . . . Absent evidence of bad faith, the veracity of an agency‘s submissions explaining reasons for nondisclosure should not be questioned. . . . In other words, a generic determination or conclusory statements are not sufficient to justify the exemption of public records.
Off. of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc) (citation omitted) (emphasis added); see also McGowan v. Pa. Dep‘t of Env‘t Prot., 103 A.3d 374, 382-83 (Pa. Cmwlth. 2014) (generally, where “no evidence has been presented to show that [an agency] acted in bad faith, the averments in [that agency‘s] affidavits should be accepted as true.“). However, exceptions to the
With these principles in mind, we turn to the
The PUC contends Metro‘s “affidavit identified [] specific records within the scope of” the Request, which include “blast radius zones, damage assessments, and operating parameters of [Energy Transfer] pipelines, and [] how release of those records risks harm to the public and [Energy Transfer] pipelines from criminal or terrorist acts.” (PUC‘s Br. at 26.) Moreover, the PUC maintains its affidavits establish that the responsive “records clearly relate to a public safety activity, BIE‘s investigation of [Energy Transfer‘s] pipelines,” and disclosure would be “reasonably likely to endanger public safety and public utility infrastructure.” (Id.)
Energy Transfer argues the public safety exception under
Requester responds Petitioners offer mere speculation in the affidavits and verified statement that Non-CSI Records could present a security risk if released. Requester asserts Nardozzi fails to describe any Energy Transfer designated Non-CSI Records or explain how the Non-CSI Record disclosure could cause a security risk. Moreover, Requester contends Metro‘s affidavit centers on records marked as CSI, without addressing Requester‘s request for attachments specifically designated as non-CSI. Requester “accepts the possibility that disclosure of some of the records could create a security risk,” but argues Petitioners “have not provided any detail as to the scope of these records that would enable an assessment of which records may or may not implicate security implications.” (Requester‘s Br. at 20 (emphasis in original).)
Both of these exceptions are security related, and “[a]n agency must offer more than speculation or conjecture to establish the security-related exceptions under the [
Petitioners rely on the affidavits and verified statement to argue they established the applicability of both the public safety exception and the public utility infrastructure security exception, but the OOR found this evidence to be insufficient. (Final Determination at 25.) Reviewing that evidence, we agree with the OOR.
Here, Secretary‘s affidavit states only that BIE “has initiated numerous noncriminal investigations against” Energy Transfer, and the PUC “does not have any responsive records other than those that are part of these [BIE] investigations.” (R.R. at 0095a.) The Secretary‘s affidavit offers no insight or details related to these exceptions. Metro‘s affidavit states ”[m]any of the numerous records submitted to [BIE] under Sunoco Pipeline‘s transmittal letters contain ‘[CSI]’ . . . . In my professional opinion, release of records marked as CSI would compromise security against sabotage or criminal or terroristic acts regarding pipeline facilities” in a number of ways. (Id. at 0103a (emphasis added).) While Metro‘s attestation provides that many records submitted to BIE contain CSI and describes specific dangers related to releasing records marked as CSI, his statement referenced security concerns related only to CSI Records. Metro does not identify or address records not containing or not constituting CSI or explain why release of those records would meet the standards required by these exceptions. Nardozzi‘s verified statement similarly focused on CSI Records. (R.R. at 0077a-0081a.) Therein, Nardozzi referenced those “records in possession of the PUC
Based on the evidence presented, Petitioners did not show it was more likely than not that release of the Non-CSI Records “would be ‘reasonably likely’ to threaten public safety or a public protection activity,” Carey, 61 A.3d at 374-75, or that disclosure of the Non-CSI Records “would create a reasonable likelihood of endangerment to the safety or physical security of certain structures,” McKelvey, 255 A.3d at 394. For these reasons, the OOR did not err in concluding Petitioners did not meet their burden of proving that the public safety and public utility infrastructure security exceptions applied to exempt the Non-CSI Records from disclosure.
b. Trade Secrets/Confidential Proprietary Information Exception
Energy Transfer argues Nardozzi‘s verified statement is sufficient to support its argument that Item Nos. 2 and 3 of the Request implicate records exempt from disclosure pursuant to the trade secrets/confidential proprietary information exception found in
additional specificity was needed, the OOR should have afforded it the opportunity to provide more supporting evidence.
Requester argues Nardozzi‘s verified statement “merely parrots back th[e] definition” of a trade secret and does not make any representations about any particular record. (Requester‘s Br. at 22.) Requester asserts Nardozzi‘s verified statement is devoid of detail regarding what documents would be exempt under this exception. According to Requester, simply reciting the statute, without more, is insufficient to exempt records under this exception. Energy Transfer, Requester argues, is seeking a blanket exception for all records because some of those documents might be exempt, a result that is inconsistent with the
rev‘d on other grounds, 125 A.3d 19 (Pa. 2015). In considering whether disclosing confidential information will result in substantial harm to the competitive position of the entity from which the information was obtained, that entity must show: “(1) actual competition in the relevant market; and[] (2) a likelihood of substantial competitive injury” based on the release of the information. Dep‘t of Corr. v. Maulsby, 121 A.3d 585, 590 (Pa. Cmwlth. 2015).
Like the confidential proprietary information test, trade secret information must satisfy both components of a two-part test in order to be considered a trade secret. A trade secret is defined as:
Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that:
(1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
(1) the extent to which the information is known outside of the business; (2) the extent to which the information is known by employees and others in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to the business and to competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.
Smith on behalf of Smith Butz, LLC v. Pa. Dep‘t of Env‘t Prot., 161 A.3d 1049, 1064 (Pa. Cmwlth. 2017). “A ‘trade secret’ must be an ‘actual secret of peculiar
importance to the business and constitute competitive value to the owner.‘” Id. (quoting Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177, 185 (Pa. Cmwlth. 2006)). Substantial secrecy and competitive value are the most important of the trade secret criteria. Id.
In the verified statement, Nardozzi explained:
Since 2008, [Energy Transfer] has provided the PUC with numerous records containing commercial and financial information regarding [Energy Transfer‘s] operations. This information includes details regarding [Energy Transfer‘s] specialized business practices and operations that [were] developed after investing significant time and resources. For example, Sunoco is required to create various procedures and plans for construction, operation, and maintenance
of its pipelines pursuant to 49 C.F.R. Part 195 . Each pipeline operator is required to have its own such procedures and plans. Sunoco has invested significant time and resources to create these proprietary documents that have substantial economic value within the industry.
(R.R. at 0079a (emphasis added).) Regarding trade secrets, Nardozzi stated:
Since 2008, [Energy Transfer] has consistently provided the PUC with valuable trade secret information, such as processes, formulas, and plans, which may be implicated by the requests. This information includes details regarding [Energy Transfer‘s] specialized business practices and operations, which derive their value from not being generally known. This information is the result of [Energy Transfer‘s] years of experience operating its pipeline system and significant monetary investment in the development of its proprietary processes.
(Id. (emphasis added).) Finally, Narduzzi indicated “[Energy Transfer] treats its proprietary and trade secret information as confidential and takes substantial steps to guard its secrecy” by “limiting access . . . to authorized personnel and requiring non-disclosure agreements prior to disclosing” the information to third parties. (Id. at 0079a-0080a.)
Nardozzi‘s verified statement does not specify any particular records as being responsive and simply tracks the language found in the statute itself, although not completely. Here, Nardozzi alluded to records “which may be implicated by the Request[],” (id. at 0079a (emphasis added)), but did not provide or describe any particular Non-CSI Records so as to allow for a determination as to whether those responsive records were actually subject to this exception. There is no meaningful way to determine if a responsive record, listed in the verified statement merely as “commercial [or] financial information” or “processes, formulas, and plans,” (id.), is implicated by the Request, and exempt from disclosure, based on the generic information provided by Nardozzi. “[A] generic determination or conclusory statements are not sufficient to justify the exemption of public records.” Scolforo, 65 A.3d at 1103.
Also absent from Nardozzi‘s verified statement was reference to the competitive harm to Energy Transfer if the responsive records were released and the competitive value the records provided to Energy Transfer, which are required to establish that the responsive records were, respectively, confidential and privileged information or a trade secret. Maulsby, 121 A.3d at 590; Smith, 161 A.3d at 1064. Finally, although Energy Transfer now argues that Nardozzi could not be more specific due to the number of potential responsive records implicated, the size of a request does not excuse the obligation to produce responsive records. Pa. State Sys. of Higher Educ. v. Ass‘n of State Coll. & Univ. Facs., 142 A.3d 1023, 1031-32 (Pa. Cmwlth. 2016) (PASSHE). Rather, where the number of potentially responsive records is so large that determining whether they would be exempt from disclosure within the timeframe is not possible, the agency must provide the OOR with information regarding the number of potential records and the amount of time
needed in order for the OOR to grant additional time to determine if exceptions would apply. Id. at 1032. There is no indication in the record of any such request in this matter.
For these reasons, the OOR did not err in finding that Energy Transfer did not meet its burden of proving that the Non-CSI Records were exempt under the trade secrets/confidential and privileged information exception.
Petitioners argue the OOR erred in finding that they did not meet their burden of proof on the noncriminal investigation exception because the affidavits and verified statement establish that all of the responsive records were submitted by Energy Transfer to BIE as part of ongoing investigations. This is because, as the PUC contends, “the purpose of BIE [is] to conduct investigations and prosecute enforcement actions.” (PUC‘s Br. at 27 (emphasis omitted).) Moreover, investigations of pipelines conveying natural or artificial gas or petroleum products, like the one operated by Energy Transfer, are part of the PUC‘s official duties as the investigations are conducted pursuant to the
Energy Transfer argues that for Petitioners to meet their burden of proof under Sherry v. Radnor Township School District, 20 A.3d 515 (Pa. Cmwlth. 2011), and Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010), they were only required to supply affidavits, made under penalty of perjury, which constituted
competent evidence supporting the application of the exceptions. (Energy Transfer‘s Br. at 41.) Energy Transfer acknowledges that Metro‘s affidavit is “laconic,” but nonetheless asserts the affidavit is complete and supports the claimed exception. (Id. at 42.) In addition, Energy Transfer contends the “OOR has no cause to require the specifics of the noncriminal investigations at issue in order to conclude that they exist,” and there was no evidence of bad faith, which would provide a basis to reject Metro‘s affidavit. (Id.)
Requester argues that not only did Petitioners fail to provide any case numbers, but they also failed to even describe the investigations and/or the records themselves. The PUC‘s reliance on the mere assertion of numerous, ongoing investigations, Requester maintains, is insufficient to exempt all of the responsive records Energy Transfer has ever submitted. Requester points out the Request did not seek any documents created by the PUC or investigative materials, such as the PUC‘s notes and analysis; rather, the Request sought transmittal letters and Non-CSI Records submitted by Energy Transfer.
what investigations . . . entail” to meet its burden under this exception “because merely stating that an investigation occurred is not sufficient.” Pa. Dep‘t of Lab. & Indus. v. Darlington, 234 A.3d 865, 877 (Pa. Cmwlth. 2020) (citing Bagwell, 131 A.3d at 660) (emphasis added). In determining whether this exception applies, “courts [should] focus[] on the nature of the particular documents involved and whether they were created during the course of an investigation.” Dep‘t of Health, 4 A.3d at 813 (emphasis added). Applying these principles, we discern no error in the OOR‘s determination that Petitioners did not meet their burden of proof on this exception.
In Pennsylvania Public Utility Commission v. Gilbert, the requester sought access to records related to underground natural gas pipelines, including “[a]ll records related to probable violations identified by the [PUC,]” such as those related to safety and kept by pipeline operators for inspection, “[a]ll records related to pipeline incidents reported to the [PUC],” and any other communications received by the PUC from pipeline operators as mandated by the “Pipeline Safety Improvement Act of 2002.”25 40 A.3d 755, 757 (Pa. Cmwlth. 2012). The PUC denied the request for incident reports, as well as communications from pipeline owners and operators regarding public awareness programs procured by PUC gas safety inspectors during their compliance evaluations based on the noncriminal investigation exception. The requester appealed, and the OOR found the responsive records to be public and not exempt from disclosure under
On appeal to this Court, the PUC argued the OOR erred in not exempting the requested gas safety inspection records under the noncriminal investigation exception. This Court agreed and reversed, explaining
[h]ere, the investigations performed by the PUC are done as part of the requirement for eligibility for funding from the United States Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA).[] In order to qualify for funding, PHMSA requires an annual certification by the PUC. To facilitate the certification process, the PUC created [the BIE] and hired gas safety inspectors whose sole duty is to conduct inspections/investigations of gas utilities for compliance with applicable state and federal gas safety regulations. (Affidavit of Paul Metro . . . .) The gas safety inspectors’ inspections/investigations involve the investigation of the gas utility‘s entire operation, the plant, the infrastructure, the records and employees. (Id. . . .) The purpose of these inspections/investigations is to assess whether the gas utility is providing the quality of service mandated by law. (Id.) The gas safety inspections involve systematic, searching, detailed examinations of a natural gas utility‘s operations and whether such operations were in compliance with the applicable federal and state pipeline safety regulations.
Gilbert, 40 A.3d at 759-60 (emphasis added). The Court in Gilbert compared the matter before it to the one in Department of Health, which involved records from government-mandated inspections and surveys of nursing homes the disclosure of which could lead to less cooperation in future inspections and surveys, and determined the records requested in Gilbert were related to BIE investigations and inspections to ensure compliance with the Code and other state and federal regulations. Id. at 760. Noting that the records at issue involved investigative materials of BIE‘s inspectors and
noncriminal investigations and the requested investigative materials and utility employee statements were exempt from public disclosure. Id. at 761-62.
In Darlington, this Court distinguished between records resulting from regular inspections and those from inspections or investigations which exceeded the regular review of an agency. There, a requester sought “any and all records and relevant materials . . . including but not limited to correspondence, inspections, investigations, reports, citations, violations, penalties, photographs, etc.[,] pertaining to” a specific incident at an energy plant. 234 A.3d at 868. The Department of Labor and Industry (DOL) denied the request as it implicated records related to a noncriminal investigation. The requester appealed to the OOR, arguing the DOL‘s response was vague and non-specific. The DOL filed a position statement explaining the records were gathered pursuant to its investigation of whether the specific incident violated the
The OOR granted in part and denied in part the requester‘s appeal. After reviewing the original and supplemental attestations by the BOIS director, and examining the Boiler Law, the OOR distinguished Department of Health and found that the attestations established an exemption for the inspections related to the incident but did not establish an exemption for the regular inspections, which did not rise to the level of a noncriminal investigation. On the DOL‘s appeal, this Court addressed the regular boiler field inspection reports at issue, agreeing with the OOR‘s determination
that the routine inspections at issue d[id] not meet the standards of a “noncriminal investigation” as set out in our precedent for essentially four reasons: 1) because the Boiler Law itself differentiates between “inspections” and “investigations“; 2) because the inspections can be performed by non-[DOL] personnel while the investigations cannot be; 3) the affidavits did not provide sufficient details to show how the inspections met the standards in our case law; and 4) the disclosure here does not raise the same public policy concerns as were present in Department of Health.
Darlington, 234 A.3d at 874-75. Regarding the BOIS director‘s attestations, we held
only list[] what the safety inspection reports entail and gives a very general description of what the [DOL] does in both investigations and inspections. Importantly, [the BOIS director] also does not distinguish between what a routine field inspection involves compared to an investigation of boiler-related incidents, notwithstanding that the statute distinguishes between the two activities.
Id. at 876 (bold emphasis added). We held the attestations did not demonstrate that the DOL was “making a systematic and searching inquiry, a detailed examination, or an official probe” into operations and compliance with the Boiler Law and regulations. Id. (quoting Dep‘t of Health, 4 A.3d at 811). Thus, the attestations did
not support a finding that the regular inspections were noncriminal investigations the records of which would be exempt.
Examining the evidence offered by Petitioners here, we conclude this matter is more like Darlington than Gilbert, and the noncriminal investigation exception requirements, as set forth in our precedent, have not been met. Petitioners appear to invite this Court to establish a bright line rule. In Petitioners’ view, to establish the applicability of this exception, they only need to submit an affidavit declaring the ongoing occurrence of “multiple investigations.” This position is contrary to our precedent, which holds that ”merely stating that an investigation occurred is not sufficient.” Darlington, 234 A.3d at 877 (emphasis added).
Metro‘s affidavit, which the PUC asserts satisfies its burden, states that BIE has been engaged in multiple noncriminal investigations of Energy Transfer for more than five years, BIE had received “hundreds of transmittal letters with thousands of pages of attached documents,” and BIE “does not have any requested records other than records that are part of a noncriminal investigation.” (R.R. at 102a-03a.) These statements reflect only that noncriminal investigations of Energy Transfer have occurred, which is insufficient under our precedent, and do not establish that the investigations were “a systematic and searching inquiry, a detailed examination, or an official probe,” rather than just being part of its “routine performance of its duties.” Sherry, 20 A.3d at 523.
Further, Metro stated: “To access and review all of the documents requested by [Requester] would be unduly burdensome on [BIE] staff,” and the number of documents involved and the limited timeframe prevented BIE from confirming the exact number of documents involved. (R.R. at 0102a-03a.) However, determining whether a record is exempt under this exception requires the Court to “focus[] on the
nature of the particular documents involved and whether they were created during the course of an investigation.” Dep‘t of Health, 4 A.3d at 813 (emphasis added). The failure to review the responsive documents and provide details as to why they fall within this exception, or to request additional time to do so, PASSHE, 142 A.3d at 1031-32, prevents a determination of whether a particular document involved was created during the course of a noncriminal investigation.
Secretary‘s affidavit provides even less than Metro‘s affidavit. Therein, Secretary simply states that BIE “has initiated numerous noncriminal investigations against” Energy Transfer and has no responsive records other than those related to those investigations. (R.R. at 0095a.) Nardozzi‘s verified statement is also vague and general in nature, with no indication of which, if any, of the responsive records implicate an ongoing noncriminal investigation, either by number or general description. (Id. at
The affidavits and verified statement submitted in this matter are unlike the more detailed affidavit found to be sufficient in Gilbert. The affidavits in Gilbert established that the investigations performed were done pursuant to PHMSA, described the purpose of those investigations, and noted the specific gas safety
inspections there involved “systematic, searching, detailed examinations of a natural gas utility‘s operations and whether such operations were in compliance with the applicable federal and state pipeline safety regulations.” Gilbert, 40 A.3d at 759-60. In contrast, Metro‘s and Secretary‘s affidavits offer only obscure references to multiple or numerous ongoing investigations, and do not explain what law or laws these investigations pertain to or the purpose of these investigations, even in a general sense. And, Nardozzi‘s verified statement suggests Energy Transfer has submitted documents which might be unrelated to ongoing investigations.
Based on our precedent, Petitioners’ submissions are simply not enough. Petitioners’ evidence must offer some level of specificity beyond that all records received by BIE are exempt by default due to the nature of BIE as an investigative body. This is because an agency cannot rely merely on a statement that an investigation has occurred, without more. Darlington, 234 A.3d at 877. For these reasons, the OOR did not err in determining that
III. CONCLUSION
To the extent the OOR held that any transmittal letters or records which are alleged to constitute CSI or contain CSI should be disclosed, under Friedman I and II, the OOR does not have the authority to consider whether those letters or records actually contain CSI or are CSI. Administration of the
Non-CSI Records, which Petitioners acknowledged at oral argument exist, we hold the OOR did have the authority to determine whether those records were subject to disclosure under the
RENÉE COHN JUBELIRER, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Public Utility Commission, Petitioner v. Eric Friedman, Respondent : No. 1560 C.D. 2019
Energy Transfer, Petitioner v. Eric Friedman, Respondent : No. 1576 C.D. 2019
O R D E R
NOW, April 25, 2023, the October 10, 2019 Final Determination of the Office of Open Records is hereby AFFIRMED IN PART and REVERSED IN PART in accordance with the foregoing opinion. The parties request in the July 29, 2021 Joint Status Report to stay oral argument in this matter is DISMISSED as moot.
RENÉE COHN JUBELIRER, President 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 . . . 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.
. . . .
all records in the possession of [] Metro, his superiors or subordinates, that relate to the calculation or estimation of the range at which thermal or overpressure events related to accidents on hazardous, highly volatile liquid (HVL) pipelines may be experienced. This request does not seek information provided by Sunoco if that information has been designated as [CSI]. Rather, it seeks records containing or relating 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 [the] PUC by an external source or that was developed internally.
Friedman II, 265 A.3d at 424 (quotation and citation omitted).
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 [CSI] in camera to determine if they are protected from disclosure under this act. During pendency of the in camera review, the records subject to the in camera review shall not be made part of the public court filing.