Pa. PUC v. Friedman, E., Aplt.Pa. PUC v. Friedman, E., Aplt.
DISSENTING OPINION
JUSTICE WECHT DECIDED: December 22, 2021
In February of 2019, Eric Friedman submitted a request under the
The Commonwealth Court reversed, holding that ORR had no authority to determine whether records sought through a RTKL request were not public under the CSI Act. The Majority affirms, holding that the public utility had designated the records as confidential under the CSI Act, and that OOR has no jurisdiction to review this designation. I cannot agree. Under the circumstances of this case, Energy Transfer did not designate the requested records as confidential under the CSI Act. Nor does PUC‘s reliance upon the CSI Act deprive the OOR of jurisdiction to assess whether the CSI Act establishes the nonpublic nature of responsive records under the RTKL. Accordingly, I dissent.
This case presents a purported conflict between two statutes, one of which generally presumes that records held by an agency are public records, and the other of which protects the disclosure of certain confidential security information. The RTKL presumes that a record in the possession of a Commonwealth agency is public. See
The more specific legislation is the CSI Act, which is a comprehensive statutory scheme pertaining to the handling of material containing confidential security information (“CSI“). The CSI Act provides a substantive definition of CSI, details specific measures by which documents are designated as CSI, provides an appeals process for members of the public to challenge CSI designations, and imposes obligations upon an agency receiving CSI. Section 2 defines “Confidential Security Information” as follows:
information 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[.]
It is the public utility that is charged in the first instance with “determining whether a record or portion thereof contains [CSI].”
(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 Right-to-Know-Law.
Section 3(c) of the CSI Act provides a method for members of the public to challenge a public utility‘s CSI designation: “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.”
Among the mandatory procedures is the requirement that the agency give notice to the public utility upon receiving either a request to examine CSI records or a challenge to the designation of the information as CSI,
The agency is required to develop protocols regarding its own handling of CSI, including protocols that ensure that “each copy of a record or portion thereof containing [CSI] is clearly marked as confidential and not subject to the provisions of the [RTKL].”
The CSI Act plainly exempts CSI from public disclosure under the RTKL: “Public utility records or portions thereof which
As directed by the CSI Act, PUC has enacted regulations imposing requirements upon public utilities that submit CSI to PUC. In particular, the public utility is required to “(1) Clearly state in its transmittal letter to the Commission that the record contains confidential security information and explain why the information should be treated as confidential.”
The public utility is required to “stamp or label each page of the record containing confidential security information with the words ‘Confidential Security Information’ and place all pages labeled as containing confidential security information in a separate envelope marked ‘Confidential Security Information.‘”
Like the CSI Act, PUC‘s regulations place the responsibility for designating CSI records squarely upon the public utility. See
When PUC receives a document designated as containing CSI, the material is to be handled in a manner consistent with the CSI Act: the public utility‘s unopened envelope is given to an authorized employee of PUC, who will make a preliminary determination of “whether the information has been properly designated in accordance with the definition of confidential security information under [the CSI Act].”
The statutory and regulatory requirements described above apply to the instant dispute concerning records connected to the Mariner East I Pipeline. The Mariner East 1 Pipeline is a highly volatile liquid (“HVL“) pipeline operated by Energy Transfer. PUC—the entity charged with regulating Energy Transfer and the pipeline—has investigated Energy Transfer
Eric Friedman lives near the Mariner East 1 Pipeline. At a public meeting about the pipeline, PUC representatives answered questions from concerned residents regarding the pipeline and the most recent complaint filed by PUC. Friedman asked specifically about the blast radius of the pipeline. PUC Pipeline-Safety Manager Paul Metro reported that PUC was in possession of Hazard Assessment Reports that contained estimates of the blast radius. In an effort to obtain the specific range of the blast, Friedman filed a RTKL request with PUC, seeking records relating to its calculation or estimation of the blast radius of thermal or overpressure events on HVL pipelines. Friedman stated that his request did not seek information that had been designated as CSI.
PUC accepted and treated Friedman‘s request as a request under the RTKL, not as a challenge under the CSI Act. However, the open records officer denied the request in its entirety, for two reasons: (1) the documents Friedman sought had been designated by the utility company as CSI and they were therefore prohibited from disclosure; and (2) the documents were exempt from disclosure under exceptions contained within the RTKL.
Friedman appealed to OOR. PUC identified six documents as responsive to the request: Hazard Assessment Reports from December 17, 2013; March 27, 2017; and October 5, 2018; as well as PUC‘s corresponding Inspection Reports. PUC stated that the three Hazard Assessment Reports were created by Energy Transfer, submitted to PUC, and “marked as confidential.” PUC‘s Response to OOR Appeal, 4/15/2019, at 2, 5. PUC also provided OOR with an affidavit from its Safety Manager, Paul Metro, who attested that Energy Transfer had submitted Hazard Assessment Reports “marked as confidential.” Affidavit of Paul Metro, 4/15/2019, at 1. PUC also argued that the requested records are exempt from disclosure under the RTKL.
To ascertain whether PUC was correct in its assertion that the responsive records were designated as containing CSI, the OOR directed PUC to submit copies of the transmittal letters that were statutorily and regulatorily required to accompany the transmission of CSI to PUC. See
OOR held that PUC failed to establish that the requested records were protected from disclosure by the CSI Act because Energy Transfer had not designated the records as containing CSI in accord with
PUC appealed and the Commonwealth Court reversed, holding that OOR did not have the authority to determine whether records sought through a RTKL request were CSI under the CSI Act. Rather, a requesting individual is required to challenge an agency‘s determination that certain records are CSI through the administrative procedure of the CSI Act.
The Majority today affirms the Commonwealth Court‘s decision, holding that OOR has no statutory authority under the CSI Act to identify and release records that the public utility has designated as CSI. Highlighting Energy Transfer‘s purported designation, the Majority reasons that there is a conflict between two overlapping, unambiguous statutes, and that reconciling the two statutes weighs in favor of affording PUC exclusive jurisdiction with regard to administering the CSI Act. According to the Majority, Energy Transfer‘s failure to comply with the CSI Act‘s procedures for designating CSI is immaterial, as the Majority finds no indication that the General Assembly intended for CSI to be disclosed under the RTKL due to a public utility‘s procedural failures. Maj. Op. at 18. I cannot agree.
As detailed above, the CSI Act is a comprehensive statute providing a means for public utilities and the agency that regulates them to protect CSI from public disclosure, and providing an administrative appeals process to challenge the utility‘s designation. To invoke the protections of the Act, there are statutory and regulatory requirements, none of which were followed in this case.
From the evidence below, PUC failed to establish that Energy Transfer submitted a transmittal letter to PUC explaining that the records contain CSI or explaining why the information should be treated as such. Both the CSI Act and PUC‘s regulation make it abundantly clear that Energy Transfer was required to do so. See
Energy Transfer and PUC are attempting retroactively to fit the requested records into the CSI Act to avoid disclosure in the face of a public records request by simply asserting that, although not designated as such, the records in fact meet the statutory definition of CSI. The Majority validates this disregard of the statutory and regulatory requirements. Our law is not a buffet table; neither individuals nor government agencies can select at whim which laws apply and which do not. If a law, be it statute or regulation, conditions the receipt of a benefit upon the adherence to certain procedures, the rule of law demands that no entity receive that benefit absent compliance with those procedures. The Majority errs in holding otherwise.
I would also take this opportunity to respond to the argument PUC has advanced in this Court that it is immaterial that Energy Transfer failed to follow PUC‘s regulations in designating the Hazard Assessment Reports in the manner prescribed by PUC‘s own regulations because PUC is entitled to waive its regulations. The Public Utility Code affords PUC the authority “to rescind or modify” its own regulations.
A petition to the Commission for the issuance, amendment, waiver or repeal of a regulation must set forth clearly and concisely the interest of the petitioner in the subject matter, the specific regulation, amendment, waiver or repeal requested, and cite by appropriate reference the statutory provision or other authority involved. The petition must set forth the purpose of, and the facts claimed to constitute the grounds requiring the regulation, amendment, waiver or repeal. Petitions for the issuance or amendment of a regulation shall incorporate the proposed regulation or amendment.
There is no suggestion that PUC waived any regulatory requirements pertaining to Energy Transfer‘s submission of material to PUC. Further, the CSI Act, which the PUC is attempting to invoke to protect the release of this information, required PUC to develop protocols to implement it. PUC developed these protocols in its regulations. As a litigation strategy, it now wants
Further, I cannot agree with the Majority‘s apparent belief that simply uttering “CSI Act” before OOR deprives OOR of jurisdiction or authority to ascertain the role of the CSI Act under the RTKL and the particular records request at issue. The RTKL plainly provides that it does not supersede another statute that establishes the nonpublic nature of a record (
Otherwise, OOR would have to halt proceedings immediately based upon nothing more than an agency‘s bald assertion that another law established the record as nonpublic, or based upon an agency hastily writing “confidential” across a responsive record after the RTKL request was made and the parties were before OOR, or based upon an agency‘s assertion that it believed that the requested information met the definition of CSI without regard to whether it had ever been designated as such. Perhaps the PUC has only to utter “CSI Act” to OOR to defeat the RTKL request. By depriving OOR of jurisdiction based upon nothing more than PUC‘s assertion that the record “was confidential” under the CSI Act, the Majority is compelling OOR appeal‘s officers to throw up their hands and swiftly conclude the proceedings based upon post-hoc, unilateral designations by the agency. Under the Majority‘s approach, by simply incanting “CSI” the public agency deprives the OOR of jurisdiction to assess, under Section 306 of the RTKL, whether the CSI Act does indeed establish the nonpublic nature of the requested records. In addition to being contrary to the procedural requirements of the CSI Act and PUC‘s regulations, this is not what the RTKL requires.
OOR here applied the analysis required by the RTKL. Because the RTKL gives way to other laws establishing the public or nonpublic nature of a record,
“The RTKL contemplates that the foundational question of whether a record or document is exempt from disclosure is a factual one.” Bowling v. Off. of Open Recs., 75 A.3d 453, 476 (Pa. 2013). OOR has the authority to assess the public or nonpublic nature of records under any other law.
Energy Transfer did not designate its Hazard Assessment Reports as containing CSI as required by the CSI Act or the regulations PUC implemented under the CSI Act‘s statutory directive. Because Energy Transfer failed to invoke the protections of the CSI Act, the CSI Act does not establish the Hazard Assessment Reports or the Inspection Reports as nonpublic. See
Justice Todd joins this dissenting opinion.