BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
SB 1488 S
Senator Bowen B
As Amended March 30, 2004
Hearing Date: April 20, 2004 1
Public Utilities Code 4
KH:cjt 8
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SUBJECT
Public Utilities Commission: Public Information
DESCRIPTION
This bill would align the records practices of the
California Public Utilities Commission (CPUC) with the
Public Records Act (PRA), in favor of public disclosure,
and state that all information furnished by a public
utility, or its subsidiary, affiliate or holding company,
shall be made public unless a provision of the PRA or the
CPUC requires it to be withheld.
BACKGROUND
Unlike other state agencies, whose records are generally
open for public inspection, the CPUC operates under a
statute that affords the public access to its records only
when specifically permitted by the CPUC. [Pub. Util. Code
Sec. 583.]
The section creating the presumption against public
inspection has its origin in a law enacted in 1915.
Despite the "open government" reforms in California such as
the Public Records Act (enacted in 1968), the statutory
standard for public access to utility filings with the CPUC
has not fundamentally changed since 1915.
The PRA gives every person the right to inspect and obtain
copies of all state and local government documents not
exempt from disclosure. [Gov. Code Sec. 6253.] Exemptions
(more)
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include corporate financial records and corporate
proprietary information, including trade secrets. [Gov.
Code Sec. 6254, 6254(k), 6254.15.] The PRA also
specifically provides that information held by the CPUC
which is deemed confidential under Public Utilities Code
Section 583 is not required to be disclosed. [Gov. Code
Sec. 6276, 6276.36.]
In January 2004, the Legislature adopted SCA 1 (Burton),
which proposes to make access to records and public
meetings of government officials and agencies a
constitutional right of each citizen. To be enacted, SCA 1
also must be approved by voters and is pending on the
November 2004 statewide ballot. If enacted, SCA 1 would
not repeal or nullify Section 583 or any other existing law
that creates an exception to the right of access to public
records.
CHANGES TO EXISTING LAW
Existing law requires public utilities to furnish to the
California Public Utilities Commission (CPUC) information
necessary for the CPUC to carry out its regulatory duties.
[e.g., Pub. Util. Code Secs. 314, 314.5, 581, 582, 584,
585, 587 and 588.]
Existing law requires that records of every state agency be
made available for public inspection upon request, with
certain exceptions and subject to procedures. [Public
Records Act, Gov. Code Sec. 6250 et seq.]
Existing law establishes a presumption against public
disclosure by providing that no information furnished by a
public utility, or its subsidiary, affiliate or holding
company, shall be made public unless a provision of the
Public Utilities Act or the CPUC requires it to be made
public. [Pub. Util Code Sec. 583.]
This bill would change the presumption to favor public
disclosure by providing that all information furnished by a
public utility, or its subsidiary, affiliate or holding
company, shall be made public unless a provision of the PRA
or the CPUC requires it to be withheld.
This bill would empower the CPUC to designate certain
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categories of information as confidential, if it finds that
the public interest served by not disclosing the
information clearly outweighs the public interest served by
the disclosure of information. Existing statutory
exemptions for disclosure under the PRA, including
financial records and proprietary information, will
continue to apply.
COMMENT
1.Stated need for the bill
The author states that the California Public Utilities
Commission is the only state agency not subject to the
presumption established by the Public Records Act that
information in a state agency's control is public, unless
specifically exempted from disclosure.
The presumption of confidentiality applied to records of
the CPUC originated in 1915 and is inconsistent with the
standard applicable to all other state agencies.
By creating the presumption that utility information
should be kept from the public, current law operates as
an impediment to the practice of open government at the
CPUC. This bill is part of an effort to improve the
transparency of the CPUC process and otherwise enable
effective public participation in CPUC proceedings.
This bill conforms Public Utilities Code Section 583 to
the Public Records Act by changing the presumption that
utility information held by the CPUC is confidential to a
presumption that it is public. The CPUC is empowered by
the bill to protect legitimately confidential information
by affirmatively deciding that it should not be
disclosed.
The author offers the following as examples of how
utilities are abusing the presumption of confidentiality
to withhold far more information than that which is
justifiably confidential:
SCE's April 2003 short-term procurement filing:
This filing was submitted pursuant to a statutory
requirement and serves as the basis for a CPUC
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decision to adopt it. Most of its 170 pages were
redacted in the public version. The CPUC accepted it
in this form. You can't make heads or tails of the
plan from reading the public version.
PG&E's February 2003 motion to designate large
portions of its Energy Resource Recovery Account
(ERRA) application confidential: This application
sought confidential treatment of information that was
publicly available in PG&E's own General Rate Case,
from the Department of Water Resources, and in filings
made with the Federal Energy Regulatory Commission
(FERC). Only after The Utility Reform Network (TURN)
requested disclosure did PG&E admit that it
overreached and agreed to make most of the information
public.
SCE's 2003 application for approval of the
"TrueSolar" project: This application was kept
entirely secret until shortly before it was voted on
in the fall. It was made public at that time only
because the CPUC Energy Division published a proposed
resolution to deny approval which contained all the
details except price.
1.Opponents argue the bill does not adequately protect
market sensitive information and utilities may respond by
withholding relevant information from the CPUC
Southern California Edison comments:
Unfortunately, the [PRA] does not explicitly protect
the disclosure of market sensitive information. []
Therefore, SB 1488 could have the effect of requiring
the disclosure of market sensitive information, which
could have an extremely harmful impact upon utility
ratepayers. SCE strongly believes it is vital to
ensure that market sensitive information is not made
available to market participants, lest they gain an
unfair competitive advantage, which would result in
high utility rates.
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Sempra Energy expresses concerns that truly confidential
information will not be protected and states that
utilities may withhold relevant information from the CPUC
to prevent disclosure:
SB 1488 could also have the effect of limiting the
amount of information to which the commission would
have access, thereby undermining [its] efforts toward
comprehensive issue review and decision-making.
Currently, electric utilities have a certain level of
confidence that designated information submitted to
the commission will remain confidential. The
commission can analyze that information and use it
confidentially in preparing for hearings or conducting
investigations, even while the commission decides if
some of that information should be public. If SB 1488
were to pass, utilities may be forced to withhold
information that they believe should be confidential,
until the commission or an administrative law judge
provides certainty that the information will be
protected. This process could take weeks, during
which time the commission and its staff would not have
access to this information to analyze and use, even on
a confidential basis.
The California Cable & Telecommunications Association
voices similar concerns.
2.PRA requests are handled in a manner that protects truly
sensitive information
Some utilities are concerned that if the presumption of
confidentiality under Section 583 is reversed, the public
will have access to information before the CPUC
determines whether the information is of the kind that
ought to be kept confidential. PG&E states:
SB 1488 would overturn [the current] protections and
instead allow unfettered access by competitors or
third parties to public utility trade secrets or other
sensitive information that is filed with the PUC even
before the PUC has an opportunity to review the
information and determine the appropriate balance
between the public interest in favor of disclosure and
the interest of the public utility in protecting its
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trade secrets or other sensitive information from
disclosure to third parties.
SB 1488 would require that all filings at the CPUC
would be public documents immediately upon filing and
subject to confidential treatment only if the PUC
determines to protect the information or document
after the filings have already been made public. This
simply does not work; once the document or sensitive
information is made public, there is no value in later
determining that the information or document should be
deemed confidential.
Such concerns both misstate the test for evaluating
whether a document should be disclosed or withheld, and
the process by which PRA requests are handled.
Under the PRA,
The agency shall justify withholding any record by
demonstrating that the record in question is exempt
under express provisions of this chapter or that on
the facts of the particular case the public interest
served by not disclosing the record clearly outweighs
the public interest served by disclosure of the
record. [Gov. Code Sec. 6255(a), emphasis added.]
Thus, it is one public interest weighed against a
competing public interest, not the public interest in
disclosure weighed against a private interest in
confidentiality.
Further, the PRA establishes a process for requesting
public records that allows the public agency time to
"determine whether the request, in whole or in part,
seeks copies of disclosable public records . . . ." [Gov.
Code Sec. 6253(c).]
Although this section relates specifically to requests
for copies and not to a request for inspection in the
state agency's office, the section concerning inspection
states, "Any reasonably segregable portion of a record
shall be available for inspection by a person requesting
the record after deletion of the portions that are
exempted by law." [Gov. Code Sec. 6253(a).]
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The fact that deletions of exempted portions are
acknowledged by subdivision (a) presumes some prior
review by the state agency to determine what portion of a
record is exempt from disclosure. Government Code
Section 6255(b) refers to a "response to a written
request for inspection or copies of public records," also
acknowledging that a request for inspection may be
required in advance of the inspection to allow the agency
to determine if the records of which inspection is
requested are "disclosable public records."
3.Suggested amendment to clarify intent regarding
application of PRA exemptions
Verizon comments that with respect to authorizing the PUC
to, by order, designate certain categories of information
as confidential,
the amendments at lines 11-14 at page 2 of the March
30 version of the bill leaves the impression that
[preventing disclosure of information exempt from
disclosure under the PRA] is totally a matter of the
Commission's discretion. This language needs to be
clarified.
Committee staff suggests subdivision (d) be amended to
state:
Nothing in this section requires is intended to permit
disclosure of information that is exempt from
disclosure under the California Public Records Act
(chapter 3.5 (commencing with Section 6250) of
Division 7 of Title 1 of the Government Code).
4.Similar bill concerning State Energy Resources
Conservation and Development Commission passed Committee
last year
In 2003, SB 722 (Bowen) was introduced to establish the
test to be used by the State Energy Resources
Conservation and Development Commission (ERCDC) in
granting a written request for disaggregated or unmasked
records of confidential information it received or
developed. The bill would have required the ERCDC to
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grant the request if the disclosure would not result in
unfair competitive disadvantage to the person that
submitted the information, unless the public interest
served by nondisclosure clearly outweighed the public
interest served by disclosure, or unless another
applicable provision of law exempts the information from
disclosure.
SB 722 was later gutted and amended in the Assembly. It
now permits the California Public Utilities Commission to
authorize the issuance of bonds secured by a dedicated
rate component (DRC) to finance a portion of Pacific Gas
& Electric's (PG&E) bankruptcy related debts and has been
re-referred to the Assembly Committee on Appropriations.
Support: to prior versions of the bill: American
Federation of State, County, and Municipal
Employees (AFSCME), AFL-CIO; Clean Power
Campaign; Environment California
Opposition:to prior versions of the bill: AT&T; California
Association of Competitive Telecommunications
Companies (CALTEL); California Cable &
Telecommunications Association; California
Telephone Association; Pacific Gas & Electric
Company; Pac West; SBC; Sempra Energy; Southern
California Edison; Sprint Communications Company
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote:Senate Energy, Utilities and Communications
Committee, March 23, 2004, Ayes 5, Noes 1
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