Scope of Office of Open Records Authority; Public Utility Confidential Security Information Disclosure Protection Act

Pennsylvania Pub. Util. Comm’n v. Friedman, 244 A.3d 515 (Pa. Cmwlth. 2020), allocatur granted Apr. 27, 2021, appeal dockets 24 & 25 MAP 2021

This case arises from Eric Friedman (Requester)’s Right-to-Know law (RTKL) request to the Pennsylvania Public Utility Commission (PUC) seeking the following records:

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.

Slip op. at 3. The PUC denied the request based on its determination that, inter alia, the responsive documents were designated as confidential security information (CSI) under Pennsylvania’s Public Utility Confidential Security Information Disclosure Protection Act (CSI Act).  Requester appealed the PUC’s denial to the Office of Open Records (OOR). OOR found that the PUC and direct-interest participant Energy Transfer referenced in the request did not prove that the records requested were CSI because, although both submitted sworn affidavits that the records were submitted as CSI and are CSI,  they failed to show that the records were properly marked as CSI in accordance with OOR’s interpretation of the PUC’s regulations. Although OOR went on to find that the PUC demonstrated that certain of the records are nonetheless exempt under the RTKL’s security and non-criminal investigation exemptions,  OOR decided that because the PUC’s Bureau of Investigation and Enforcement’s formal complaint against Energy Transfer was based on its investigation of one of the pipelines, and that the filing of a formal complaint in OOR ‘s opinion constituted “official action” under Section 335(d) of the Public Utility Code,  the PUC is required to release BI&E’s  investigative report relating to the pipeline implicated in the formal complaint.

The PUC and Energy Transfer appealed to Commonwealth Court, arguing that because the CSI Act gives the recipient agency the exclusive authority to make CSI determinations, any challenge to a designation that a record is CSI under the CSI Act, whether procedural or substantive, must be made before the PUC, the agency that originally received the record; thus, OOR lacked the authority to reach a determination regarding the CSI status of the records. Requester countered that OOR has the authority under the CSI Act and RTKL to determine that a record does not qualify as CSI if the PUC fails to prove that the records were properly marked as CSI in accordance with the PUC’s regulations.

Commonwealth Court concluded that OOR lacks the authority to make the determination whether records designated as CSI qualify as CSI under the CSI Act, concluding that:

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 administer the CSI Act and is not directed by statute to oversee the determination of whether requested information qualifies as CSI. Under 35 P.S. § 2141.3(c), an individual requesting information from the PUC that the agency determined to be CSI must challenge this determination with the PUC. Requester did not exhaust the administrative remedies prescribed within the relevant statutory provision to challenge the PUC’s classification of the requested information as CSI. While OOR may have determined that disclosure of the requested information was appropriate under the RTKL if subject to redaction, OOR is not vested with the authority to administer the CSI Act, a PUC statute. Therefore, OOR lacked the authority to determine that the requested information was not CSI.

Slip op. at 9.

The Pennsylvania Supreme Court granted allocatur as to the following issue, as stated by the Petitioner:

Does the Office of Open records have the authority to order the release of a record in Public Utility Commission’s possession when the OOR determines that record does not contain Confidential Security Information as defined in the Confidential Security Information Act, 35 P.S. § 2141.3 et seq.?

For more information, contact Kevin McKeon or Dennis Whitaker.

For more information, contact Kevin McKeon or Dennis Whitaker.