How the Public Utilities Commission circumvents the California Public Records Act

The California Public Utilities Fee — which regulates day-to-day providers as various as electrical utilities and ride-hailing corporations — has lengthy vowed to turn out to be extra clear in response to criticism it operates far too secretively.

But regardless of these guarantees, the CPUC has erected a number of roadblocks to forestall the general public from studying about its dealing with of lethal disasters and company scandals, based on a San Francisco Public Press evaluate of courtroom information and interviews with 1st Modification attorneys.

Making use of century-old legal guidelines meant to struggle railroad corruption, the fee has successfully restricted courtroom enforcement of the state’s public information act. However a forthcoming ruling in a lawsuit difficult that long-standing follow might deliver extra transparency to the highly effective fee.

The lawsuit disputes the company’s refusal to launch information regarding its communications with Gov. Gavin Newsom’s workplace concerning the 2018 Camp hearth — the state’s deadliest wildfire — and the company’s determination to waive a $200-million penalty in opposition to PG&E.

The case was introduced by tv station ABC10 in Sacramento and its reporter Brandon Rittiman, whose protection of the fireplace has garnered nationwide consideration. It claims the company should adjust to the California Public Information Act, which says all businesses should launch public information “promptly.”

The fee contends the lawsuit needs to be dismissed as a result of Rittiman’s request — already greater than a yr outdated — didn’t adjust to a prolonged administrative course of supposed to restrict abusive litigation by railroad barons preventing regulatory choices.

However at a listening to earlier this month earlier than the first District Court docket of Enchantment in San Francisco, two of the three justices appeared skeptical concerning the fee’s declare that the outdated regulation applies to the more moderen information act.

“I discover it kind of putting, if not excessive,” Presiding Justice Jim Humes mentioned to the company’s lawyer, including later, “You just like the Legislature’s actions a century in the past, however you don’t actually just like the Legislature’s actions extra lately?”

David Snyder, government director of the First Modification Coalition, a nonpartisan group devoted to advancing authorities transparency, which is supporting the lawsuit, mentioned it’s “completely essential” that individuals have well timed courtroom evaluate of company denials of their requests for data.

“Administrative businesses shouldn’t and can’t have the ultimate say on whether or not the Public Information Act has been adopted,” mentioned Snyder, a lawyer and former journalist. “That’s the proverbial fox guarding the henhouse.”

Citing particular powers granted no different state company, the fee has denied requests for information on its dealing with of catastrophes corresponding to Pacific Gasoline & Electrical Co.’s Camp hearth, the failed San Onofre nuclear energy plant and hundreds of collisions and assaults on Uber and Lyft rides, a evaluate of courtroom circumstances and state paperwork discovered.

These powers have been supposed to struggle the corrupting affect of the railroads, however the fee has deployed them to undercut the information act, meant to advertise authorities transparency and accountability, courtroom information present.

The company has denied its procedures violate the act’s necessities that it launch information promptly. In adopting its present coverage in 2018, it referred to as such allegations “merely speculative” and cited “our longstanding practices supporting disclosure and our progressive growth of guidelines that can promote public entry to information in our possession.”

The Camp hearth courtroom case highlights hurdles dealing with anybody looking for information from the company, which regulates energy, water, phone, transportation and different utilities. It’s accountable for making certain utility providers are honest and protected.

In response to Steve Zansberg, the Denver-based legal professional for ABC10, the case poses a elementary query: Is the fee above the state regulation that requires all businesses to promptly launch information about how they conduct public enterprise?

“We’re attempting to carry the PUC accountable,” he mentioned in an interview. “You possibly can’t try this if you happen to don’t have entry to the information that present what’s happening behind the scenes.”

Christofer Nolan, a lawyer representing the company, didn’t reply to emails looking for remark. Terrie Prosper, the fee’s director of reports and outreach, additionally declined to remark.

In addition to the San Rafael-based First Modification Coalition, the lawsuit has gained assist from the Related Press and the Emeryville-based Middle for Investigative Reporting, the nation’s oldest nonprofit investigative newsroom.

Matthew Cate, the Washington, D.C., legal professional who filed a quick on behalf of the organizations, wrote that the fee has a historical past of “illegal delays” in responding to requests and that its practices might encourage different businesses to erect related obstacles to public data.

“The PUC has created a set of procedures utterly opposite to the letter and spirit of the CPRA and the constitutional proper of entry to public information,” Cate wrote, referring to the state public information act.

A evaluate of courtroom circumstances, fee filings, legislative historical past and interviews with attorneys, along with this reporter’s expertise as a requester, discovered a gantlet of obstacles:

• The company can take months or years to launch information. Between Jan. 1, 2017, and April 4, 2022, the company obtained 3,115 requests and took a median of 58 days to shut them, statistics it launched beneath the general public information act present. 5 requests submitted by the Public Press for information regarding hundreds of ride-hailing security incidents have taken between six and 27 months.
• The fee tends to interpret the scope of requested information narrowly, whereas making use of exemptions from disclosure broadly, successfully lowering public entry to data.
• With different state businesses, an individual might instantly search impartial courtroom evaluate of a denied request. However beneath fee guidelines, they need to first file an administrative enchantment after which apply for a rehearing, a much more cumbersome and prolonged course of.
• The fee requires requesters to enchantment inside 10 days or lose their proper to problem its denial, in contrast with 90 days allowed beneath the federal Freedom of Data Act.
• Company guidelines present no deadline for the fee to resolve appeals or rehearings, and the company asserts that requesters might not search courtroom evaluate till it has, successfully holding their requests in limbo. Federal regulation, against this, lets requesters sue as early as 20 working days after interesting.
• With all different California businesses, requesters might search evaluate in an area Superior Court docket. However for the fee they could search evaluate solely in state appeals courts or the California Supreme Court docket, boards which can be extra sophisticated and dear, successfully deterring impartial evaluate of denials.

The fee has mentioned it’s devoted to transparency however should stability that aim with its responsibility to keep up confidentiality of commerce secrets and techniques and private information in firm filings.

It has famous that no different company within the state is required to observe each the information act and the Public Utilities Code, which says any worker who releases confidential data submitted by a utility, until ordered to by the fee, is topic to a misdemeanor cost. This authorized requirement “is exclusive to the Fee and thus analogy to different state businesses or native governments’ processes,” it mentioned, are “inapplicable.”

The company says it adopted its system of administrative enchantment and rehearing to let requesters present data needs to be launched, and utilities present it’s actually confidential, earlier than the commissioners make a remaining determination.

However attorneys for requesters famous that workers of different businesses additionally face felony penalties for improperly releasing data, corresponding to rap sheets or medical information.

And no matter inner course of an company creates, they are saying, it could not violate the information act’s clear deadlines.

Enacted in 1968, the California Public Information Act is modeled on the federal Freedom of Data Act. The state regulation declares that “entry to data regarding the conduct of the individuals’s enterprise is a elementary and crucial proper.”

It says all state businesses “shall” decide whether or not the requested information are releasable inside 24 days, instantly notify the requester and “promptly” launch them. If an company withholds information, it says, requesters might search courtroom evaluate “on the earliest potential time.”

Voters bolstered the regulation in 2004 once they overwhelmingly handed Proposition 59, which embedded these phrases within the state Structure: “The individuals have the precise of entry to data regarding the conduct of the individuals’s enterprise, and, subsequently, the conferences of public our bodies and the writings of public officers and businesses shall be open to public scrutiny.”

Just like the information act, the fee has roots in a voter-backed constitutional modification. The company was created because the Railroad Fee in 1879 however was corrupted by the Southern Pacific Railroad, which dominated state politics, says a historical past written by fee workers.

In 1911, voters propelled by Gov. Hiram Johnson’s reform platform granted the company better autonomy with the intent of stopping corruption. Its authority was prolonged to different utilities and in 1946 it obtained its present title. It’s led by 5 commissioners appointed by the governor for six-year phrases. They oversee 1,402 workers and a $1.1-billion funds.

Three courtroom circumstances highlight how the company has sought to dam public entry.

The 2010 explosion of a PG&E gasoline pipeline in San Bruno killed eight residents and injured dozens extra. San Bruno officers suspected PG&E and company workers have been secretly negotiating an unfairly gentle penalty in opposition to the utility for inflicting the blast.

To search out out, the town requested copies of communications with PG&E executives, however the company largely failed to reply, San Bruno Metropolis Atty. Marc Zafferano recalled.

Town filed an administrative enchantment — solely to find fee guidelines specified no deadline for its determination. Finally, the town sued and reached a settlement through which the company launched information, spurring PG&E to launch many extra.

The information confirmed there have been improper non-public communications between the company and utility, for which PG&E agreed to pay $97.5 million in penalties. It additionally was fined $1.6 billion for violating security requirements.

Underneath the settlement, the fee reviewed its public information procedures. San Bruno urged it to undertake deadlines to finish the “probably countless appeals course of that it utterly controls.”

However in a 2018 order the company dismissed such considerations as speculative and adopted its present coverage, Common Order 66-D.

Michael Aguirre, a former federal prosecutor in San Diego, hit related boundaries when he sought information on the 2012 shutdown of the San Onofre nuclear energy plant, the place engineers had found a radioactive leak.

Aguirre represented utility prospects difficult the fee’s determination that they pay $3.3 billion of the $4.7-billion value of the failed reactor. In 2016, he requested copies of communications between the fee and Gov. Jerry Brown’s workplace about San Onofre. The company claimed they have been confidential.

Aguirre sued in state appeals courtroom, contending the governor’s workplace might need secretly influenced the company’s determination on prices, and the general public had a proper to know. The company, he mentioned, “engaged in excessive delay techniques.”

The fee denied Aguirre’s claims and requested the courtroom to dismiss his lawsuit as a result of he had not utilized for a rehearing on the company till after he sued. Since that software was pending, it mentioned, the courtroom had no jurisdiction.

The courtroom didn’t handle that problem however in June 2018 ordered the company to launch extra information.

In a separate federal lawsuit, Aguirre and his regulation companion, Maria Severson, gained fee approval later that yr of a revised determination saving ratepayers $775 million on the plant closure.

Lately, the fee has made extra data public. It not lets corporations merely stamp their filings “confidential,” requiring particular justifications for secrecy claims.

However as ABC10’s Rittiman discovered, the company nonetheless poses obstacles to information requests.

The Camp hearth in Butte County burned 153,336 acres, destroyed 18,000 buildings and killed not less than 85 individuals. PG&E pleaded responsible to 84 counts of involuntary manslaughter and considered one of inflicting the fireplace.

Rittiman wished to know why the company waived a $200-million effective in opposition to PG&E, and whether or not the governor’s workplace influenced that call.

On Nov. 19, 2020, he requested communications between then-commission President Marybel Batjer and Newsom’s workplace. The company mentioned the information have been confidential.

Rittiman filed an administrative enchantment, which the company denied a yr later. He utilized for a rehearing, which the company denied as improperly filed.

On June 14, 2021, Rittiman sued. The company tried repeatedly to get the case dismissed. However on Might 3 the appeals courtroom lastly heard arguments on whether or not the fee should meet the deadlines within the information act.

Nolan, the company’s lawyer, conceded Rittiman’s request was taking “longer than we want.” Nonetheless, Nolan mentioned that beneath the Public Utilities Fee’s century-old guidelines he couldn’t search courtroom evaluate.

However Affiliate Justice Kathleen M. Banke requested why the courtroom couldn’t conclude that, in later passing the information act, the Legislature “crafted a distinct sort of scheme, and it appears fairly clear that it applies on to the PUC.”

A call within the case is anticipated by Aug. 1.

Rosenfeld writes for the San Francisco Public Press, an impartial nonprofit newsroom that produces investigative and options journalism. For extra of its protection on this subject, see Trip Hailing’s Darkish Information.

This story was produced in partnership with the McGraw Middle for Enterprise Journalism on the Craig Newmark Graduate Faculty of Journalism on the Metropolis College of New York. Help additionally got here from the Fund for Investigative Journalism.