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California PUC Issues Final Resolution for California Public Utilities Commission Safety and Enforcement Division

Source: 
Targeted News Service

SAN FRANCISCO, California, June 30 -- The California Public Utilities Commission issued the following final resolution (No. L-601): Resolution Authorizing Disclosure of Records of the California Public Utilities Commission Safety and Enforcement Division's Investigation of a Gas Line Located At E. Mountain Dr., Near Via Manana and San Ysidro Ln., in Montecito, California:

BACKGROUND

The California Public Utilities Commission ("Commission") received a request seeking disclosure of Commission records concerning the gas incident that occurred at East Mountain Dr., near Via Manana and San Ysidro Ln., in Montecito, California, on January 9, 2018. The Commission staff could not make the investigation records public without the formal approval of the full Commission. The request is treated as an appeal to the full Commission for release of the requested records pursuant to Commission General Order (G.O.) 66-D and Resolution L-436.

DISCUSSION

The requested records are "public records" as defined by the California Public Records Act ("CPRA")./1

The California Constitution, the CPRA, and discovery law favor disclosure of public records. The public has a constitutional right to access most government information./2

Statutes, court rules, and other authority limiting access to information must be broadly construed if they further the people's right of access, and narrowly construed if they limit the right of access./3

New statutes, court rules, or other authority that limit the right of access must be adopted with findings demonstrating the interest protected by the limitation and the need to protect that interest./4

The CPRA provides that an agency must base a decision to withhold a public record in response to a CPRA request upon the specified exemptions listed in the CPRA, or a showing that, on the facts of a particular case, the public interest in confidentiality clearly outweighs the public interest in disclosure./5

The Commission has exercised its discretion under Cal. Pub. Util. Code Sec. 583, and implemented its responsibility under Cal. Gov't. Code Sec. 6253.4(a), by adopting guidelines for public access to Commission records. General Order 66-D took effect on January 1, 2018, and describes the manner in which information must be submitted to the Commission in order to be treated as confidential. However, Commission Resolution L-436 describes the manner in which Commission investigation records will be made public.This resolution authorizes the release of records maintained by the Commission related to this incident, as soon as the Commission's incident investigation is closed.

Because Resolution L-436 limits Commission staff's ability to disclose Commission investigation records in the absence of disclosure during a hearing or a Commission order authorizing disclosure, Commission staff denies most initial requests and subpoenas for investigation records. Commission staff usually informs requestors that their subpoena or public records request will be treated as an appeal under Resolution L-436 for disclosure of the records.

There is no statute forbidding disclosure of the Commission's safety investigation records. With certain exceptions for incident reports filed with the Commission, we generally refrain from making most accident investigation records public until Commission staff's investigation of the incident is complete. Commission staff and management need to be able to engage in confidential deliberations regarding an incident investigation without concern for the litigation interests of plaintiffs or regulated entities.

The Commission has ordered disclosure of records concerning completed safety incident investigations on numerous occasions./6

Disclosure of such records does not interfere with its investigations, and may lead to discovery of admissible evidence and aid in the resolution of litigation regarding the accident or incident under investigation./7

Most of these resolutions responded to disclosure requests and/or subpoenas from individuals involved in electric or gas utility accidents or incidents, the families of such individuals, the legal representatives of such individuals or families, or the legal representatives of a defendant, or potential defendant, in litigation related to an accident or incident.

Portions of incident investigation records which include personal information may be subject to disclosure limitations in the Information Practices Act of 1977 ("IPA")./8

The IPA authorizes disclosure of personal information "[p]ursuant to the [CPRA]."/9

The CPRA exempts personal information from mandatory disclosure, where disclosure would constitute an unwarranted invasion of personal privacy./10

Incident investigation records may include information subject to the lawyer-client privilege, official information privilege, or similar disclosure limitations. The CPRA exempts such information from disclosure./11

The Commission has often stated that Cal. Pub. Util. Code Sec. 315, which expressly prohibits the introduction of accident reports filed with the Commission, or orders and recommendations issued by the Commission, "as evidence in any action for damages based on or arising out of such loss of life, or injury to person or property," offers utilities sufficient protection against injury caused by the release of requested investigation records.

General Order 66-D took effect on January 1, 2018, and describes the manner in which information must be submitted to the Commission in order to be treated as confidential. Information related to this incident was submitted by SoCalGas after the incident in 2018. Consequently, any information identified as confidential pursuant to G.O. 66-D confidentiality declarations submitted by SoCalGas are subject to the review process described in G.O. 66-D Sec. 5.5. Any records properly marked as confidential pursuant to G.O. 66-D will be reviewed for potential release in a separate process, outside of this resolution.

The Commission investigation of the incident is complete; therefore, the public interest favors disclosure of the requested Commission's investigation records, with the exception of any personal information, the disclosure of which would constitute an unwarranted invasion of personal privacy, or any information which is subject to the Commission's lawyer-client or other privilege.

COMMENTS ON DRAFT RESOLUTION

The Draft Resolution was mailed to the parties on May 22, 2020, in accordance with Cal. Pub. Util. Code Sec. 311(g). No comments were received.

FINDINGS OF FACT

1. The Commission received a request seeking disclosure of Commission records concerning the gas incident that occurred at East Mountain Dr., near Via Manana and San Ysidro Ln., in Montecito, California, on January 9, 2018.

2. Access to the records in the Commission's investigation file was denied in the absence of a Commission order authorizing disclosure, pursuant to Commission Resolution L-436.

3. The Commission investigation of the incident is complete.Therefore, the public interest favors disclosure of the requested Commission's investigation records, with the exception of any personal information, the disclosure of which would constitute an unwarranted invasion of personal privacy, or any information which is subject to the Commission's lawyer-client or other Commission-held privilege.

CONCLUSIONS OF LAW

1. The documents in the requested Commission's investigation file and report are public records as defined by Cal. Gov't. Code Sec. 6250, et seq.

2. The California Constitution favors disclosure of governmental records by, among other things, stating that the people have the right of access to information concerning the conduct of the peoples' business, and therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. Furthermore, the California Constitution also requires that statutes, court rules, and other authority favoring disclosure be broadly construed, and that statutes, court rules, and other authority limiting disclosure be construed narrowly; and that any new statutes, court rules, or other authority limiting disclosure be supported by findings determining the interest served by keeping information from the public and the need to protect that interest. Cal. Const. Article I, Sec.Sec. 3(b)(1) and (2).

3. The general policy of the CPRA favors disclosure of records.

4. Justification for withholding a public record in response to a CPRA request must be based on specific exemptions in the CPRA or upon a showing that, on the facts of a particular case, the public interest in nondisclosure clearly outweighs the public interest in disclosure. Cal. Gov't. Code Sec. 6255.

5. Cal. Gov't Code Sec. 6254(c) exempts from mandatory disclosure personal information, the disclosure of which would constitute an unwarranted invasion of personal privacy.

6. Cal. Gov't Code Sec. 6254(k) exempts from disclosure records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

7. The Commission has exercised its discretion under Cal. Pub. Util. Code Sec.583 to limit Commission staff's disclosure of investigation records in the absence of formal action by the Commission or disclosure during the course of a Commission proceeding. Resolution L-436.

8. Cal. Pub. Util. Code Sec.583 does not limit the Commission's ability to order disclosure of records.

9. Cal. Pub. Util. Code Sec.315 prohibits the introduction of accident reports filed with the Commission, or orders and recommendations issued by the Commission, "as evidence in any action for damages based on or arising out of such loss of life, or injury to person or property."

ORDER

1. The request for disclosure of the Commission records concerning the investigation of thegas incident that occurred at East Mountain Dr., near Via Manana and San Ysidro Ln., in Montecito, California, on January 9, 2018is granted, with the exception of any personal information, the disclosure of which would constitute an unwarranted invasion of personal privacy, any information which is subject to the Commission's lawyer-client or other Commission-held privilege, or any information properly marked confidential pursuant to General Order 66-D.

2. The effective date of this order is today.

I certify that the foregoing resolution was adopted by the California Public Utilities Commission at its regular meeting of June 25, 2020, and the following Commissioners approved favorably thereon:

ALICE STEBBINS

Executive Director

MARYBEL BATJER

President

LIANE M. RANDOLPH

MARTHA GUZMAN ACEVES

CLIFFORD RECHTSCHAFFEN

GENEVIEVE SHIROMA

Commissioners

* * *

1/ Cal. Gov't. Code Sec. 6250, et seq.

2/ Cal. Const. Article I, Sec. 3(b)(1).

3/ Cal. Const. Article I, Sec. 3(b)(2).

4/ Id.

5/ The fact that records may fall within a CPRA exemption does not preclude the Commission from authorizing disclosure of the records. Except for records subject to a law prohibiting disclosure, CPRA exemptions are discretionary, rather than mandatory, and the Commission is free to refrain from asserting such exemptions when it finds that disclosure is appropriate. See Cal. Gov't. Code Sec. 6253 (e); Black Panthers v. Kehoe (1974) 42 Cal. App. 3d 645, 656.

6/ Where appropriate, the Commission has redacted portions of investigation records which contain confidential personal information, the disclosure of which would constitute an unwarranted invasion of privacy, and other exempt or privileged information.

7/ See, e.g., Commission Resolutions L-240 Re San Diego Gas & Electric Company, rehearing denied in Decision 93-05-020, (1993) 49 P.U.C. 2d 241; L-309 Re Corona (December 18, 2003); L-320 Re Knutson (August 25, 2005).

8/ Cal. Civ. Code Sec. 1798, et seq.

9/ Cal. Civ. Code Sec. 1798.24(g).

10/ Cal. Gov't. Code Sec. 6254(c).

11/ Cal. Gov't. Code Sec. 6254(k).

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