Pennsylvania Public Utility Commission v. Seder

139 A.3d 165, 635 Pa. 570
CourtSupreme Court of Pennsylvania
DecidedMay 25, 2016
StatusPublished
Cited by23 cases

This text of 139 A.3d 165 (Pennsylvania Public Utility Commission v. Seder) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Public Utility Commission v. Seder, 139 A.3d 165, 635 Pa. 570 (Pa. 2016).

Opinions

OPINION

Justice BAER.1

This appeal presents the issue of whether Subsection 335(d) of the Public Utility Code (“Code”), 66 Pa.C.S. § 335(d), requires the Public Utility Commission (“PUC”) to disclose a “tip letter” and an investigative file associated with a settlement agreement entered into by PPL Electric Utilities Corporation (“PPL”) and the PUC’s Bureau of Investigation and Enforcement (“I & E”), which was ap[167]*167proved by the PUC’s Commissioners (“PUC Commissioners”). For the reasons that follow, we hold that Subsection 335(d) clearly and unambiguously obligates disclosure. We, therefore, respectfully reverse the Commonwealth Court’s order, which held that disclosure was not required, and reinstate the final determinations of the Office of Open Records (“OOR”).

The factual background underlying this matter is undisputed. On October 29, 2011, a snowstorm affected PPL’s service area, causing over 388,000 PPL customers to experience disruption in their electrical service. In November of 2011, the PUC received an anonymous tip letter supposedly authored by a PPL employee. The tip letter alleged that PPL violated its priority-ranking policy when restoring power after the October 2011 snowstorm.

Soon thereafter, I & E conducted an informal investigation of PPL based upon the tip letter and concluded that PPL may have violated 66 Pa.C.S. § 1501,2 as well as PPL’s internal policies regarding service restoration priority. The investigation resulted in PPL and the PUC, through I & E, entering into a settlement agreement, which the PUC Commissioners were required to consider for approval. Under the agreement, PPL did not admit to any wrong doing; however, it agreed to take corrective action to safeguard against a similar incident occurring in the future. In addition, the parties agreed that PPL would pay a civil settlement fee of $60,000.

To facilitate the PUC Commissioners’ consideration of the settlement agreement, I & E prosecuting attorney Michael Swindler made available to the PUC Commissioners a transmittal letter, the settlement agreement, and the parties’ statements in support of the agreement. PUC’s Motion to Submit Affidavit, 1/28/2014, Exhibit A (Affidavit of Michael Swindler). I & E did not turn over any other documents to the PUC Commissioners for their deliberations regarding the settlement agreement. Id. In addition, I & E and PPL agreed to treat the tip letter as a confidential document. Id.

In August of 2013, the PUC Commissioners held a public meeting regarding the settlement agreement and issued an order requesting public comments. The PUC received no comments, and the PUC Commissioners approved the settlement agreement in October of 2013. The settlement agreement and the parties’ supporting statements were made public; however, the details regarding the tip letter and most of I & E’s investigative material were not released to the public.

In the meantime, on August 28, 2013, Appellant Scott Kraus, a reporter for the Allentown-based newspaper The Morning Call, made a Right-to-Know-Law3 (“RTKL”) request asking the PUC to provide him with all documents related to the [168]*168settlement, including the tip letter. Around the same time, Appellant Andrew Seder, a' reporter for Wilkes-Barre newspaper The Times Leader, also requested the PUC to make available to him the tip letter. The PUC denied both requests.

In its denial letters, the PUC explained that it must provide “public records” pursuant to the RTKL. See 65 P.S. § 67.301(a) (stating that “[a] Commonwealth agency shall provide public records in accordance with this act”). The RTKL defines “public record” as a “record, including, a financial record, of the Commonwealth or local agency that[, inter alia,] is not exempt from being disclosed under other Federal or State law[.]” 65 P.S. § 67.102. The PUC, espousing distinct rationales, has taken the general position that the sought-after records are exempt from disclosure under Subsection 335(d) of the Code, which is the focus of this appeal and provides:

(d) Release of documents. — In addition to any other requirements imposed by law, including the act of June 21, 1957 (P.L. 390, No. 212), referred to as the RighL-to-Know Law, and the act of July 3, 1986 (P.L. 388, No. 84), known as the Sunshine Act, whenever the commission conducts an investigation of an act or practice of a public utility .and makes a decision, enters into a settlement with a public utility or takes any other official action, as defined in the Sunshine Act, with respect to its investigation, it shall make part of the public record and release publicly any documents relied upon by the commission in reaching its determination, whether prepared by consultants or commission employees, other than documents protected by legal privilege; provided, however, that if a document contains trade secrets or proprietary information and it has been determined by the commission that harm to the person claiming the privilege would be substantial or if a document required to be released under this section contains identifying information which would operate to the prejudice or impairment of a person’s reputation or personal security, or information that would lead to the disclosure of a confidential source or subject a person to potential economic retaliation as a result of their cooperation with a commission investigation, or information which, if disclosed to the public, could be used for criminal or terroristic purposes, the identifying information may be expurgated from the copy of the document made part of the public record. For the purposes of this section, “a document” means a report, memorandum or other document prepared for or used by the commission in the course of its investigation whether prepared by an adviser, consultant or other person who is not an employee of the commission or by an employee of the commission.

66 Pa.C.S. § 335(d) (footnotes omitted).

When the PUC first denied Appellants’ requests, it based its decision on the portion of Subsection 335(d) which states that, if a document subject to public disclosure contains information that would lead to the disclosure of a confidential source, would subject a person to potential economic retaliation, or would operate to impair a person’s reputation, then “the identifying information may be expurgated from the copy of the document made part of the public record.” 66 Pa.C.S. § 335(d). The PUC contended that the records sought by Appellants contain information that, in fact, would lead to the disclosure of a confidential source, would subject a person to potential economic retaliation, and would operate to impair a person’s reputa[169]*169tion.4 In terms of redacting this information, the PUC asserted, “[D]ue to the form and brevity of the letter, redaction of the identifying information as to both the confidential source and the accused person is not practical.” Letter of PUC Right-to-Know Officer Rosemary Chiavetta, dated October 4, 2013. Accordingly, the PUC took the position that, because redaction was not practical, the entire document was not subject to disclosure.

Appellants filed separate appeals with the OOR, where they argued, inter alia, that Subsection 335(d) actually obligates the PUC to disclose the tip letter and related investigative files.

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Bluebook (online)
139 A.3d 165, 635 Pa. 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-public-utility-commission-v-seder-pa-2016.