Energy Transer v. R. Moss & Spotlight PA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Energy Transfer, : CASES CONSOLIDATED
Petitioner :
:
v. : No. 1700 C.D. 2019
: Submitted: July 15, 2022
Rebecca Moss and Spotlight PA, :
Respondents :
Pennsylvania Public Utility :
Commission, :
Petitioner :
:
v. : No. 1722 C.D. 2019
:
Rebecca Moss and Spotlight PA, :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: January 20, 2023
Energy Transfer and the Pennsylvania Public Utility Commission
(Commission) have separately petitioned for this Court’s review of the final
determination of the Office of Open Records (OOR) directing the Commission to
provide records requested by Rebecca Moss and Spotlight PA (collectively,
Requesters)1 under the Right-to-Know Law.2 Requesters sought email
communications between certain Commission staff and Energy Transfer. The
Commission denied the request for the stated reason, inter alia, that the records were
protected from disclosure under the Public Utility Confidential Security Information
1
Our Court consolidated the above-captioned cases in an order dated January 10, 2020.
2
Act of February 17, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
Disclosure Protection Act (CSI Act)3 or were exempt under the Right-to-Know Law
as related to a noncriminal investigation. The OOR sustained Requesters’ appeal
but permitted the Commission to redact any information that could be used for
criminal or terroristic purposes. After review of the OOR’s final determination, we
reverse.
Background
On August 23, 2019, Requesters submitted a Right-to-Know request to
the Commission that stated as follows:
Please provide all emails, including attachments, sent or
received by staff of the Public Utility Commission, including but
not limited to Paul Metro, Seth Mendelsohn, Richard Kanaskie,
Kasha Schreffler, Cathy Royer, Anthony Bianco, including
correspondence with Energy Transfer Partners and Sunoco,
including but not limited to Albert Kravatz, between Nov. 1,
2017 and the date this request is processed that relate to pipeline
projects, including Mariner East 1, 2, and 2X pipeline project,
and specifically mention terms including but not limited to “real
time modeling”, and/or “evacuation zone(s)”, and/or “safety
risks”, and/or “buffer zone(s)”, and/or “emergency response
plan(s)”, and/or “accident”, and/or “accident plan”.
Reproduced Record at 6a (R.R. __) (emphasis added). The Commission denied the
request as insufficiently specific. Nevertheless, the Commission did a search of its
records and determined that, except for Paul Metro, none of the named Commission
staff had engaged in email communication with Albert Kravatz. With respect to the
emails sent to or received by Paul Metro, the Commission asserted those emails
contained confidential security information or were related to a noncriminal
investigation. Therefore, the records were exempt from disclosure under the CSI
3
Act of November 29, 2006, P.L. 1435, 35 P.S. §§2141.1-2141.6.
2
Act or the Right-to-Know Law. Requesters appealed the Commission’s decision to
the OOR.
Before the OOR, the Commission submitted a position statement
reciting the above-stated grounds for its denial of the email communications sought
by Requesters. In support, the Commission submitted several affidavits. Richard
A. Kanaskie, the Commission’s Director of the Bureau of Investigation and
Enforcement (Bureau of Enforcement), attested that the requested records, save two,
had been designated confidential security information within the meaning of the CSI
Act. Accordingly, their disclosure
would be reasonably likely to jeopardize or threaten public safety
or preparedness or public protection activity[; . . .] would create
a reasonable likelihood of endangering the safety and physical
security of a public utility[ because t]hese records include
infrastructure records that expose or create vulnerability through
disclosure of location, configuration, or security of public utility
systems, that is pipeline systems[; and, . . .] would jeopardize or
threaten public safety or preparedness or public protection
activity, and create a reasonable likelihood of endangering the
safety and security of a public utility in consultation with
technical Gas Safety staff at the Commission, which agree with
my professional assessment.
R.R. 41a. Kanaskie also attested that, on or about April 17, 2017, the Bureau of
Enforcement began an investigation into one of Energy Transfer’s pipelines, which
investigation was still ongoing, and it has other pending investigations of Energy
Transfer’s pipelines.
Energy Transfer, which participated in the OOR proceeding, also
submitted a position statement. It agreed with the Commission’s position and further
argued that the records at issue contained confidential proprietary information and/or
trade secrets and, thus, were exempt from disclosure under the Right-to-Know Law.
3
Energy Transfer submitted the sworn declaration of Todd Nardozzi, Senior
Manager, attesting that, since April 1, 2017, Energy Transfer has submitted technical
reports, locational drawings, and operational reports to the Commission, which
contain information on the operation, location, and vulnerabilities of its pipelines.
Nardozzi also attested that Energy Transfer has treated this information as
confidential security information in accordance with the requirements of the CSI
Act. Finally, Nardozzi attested that since April 1, 2017, several of Energy Transfer’s
pipelines have been the subject of ongoing, noncriminal investigations by the
Commission.
In their response, Requesters argued that their Right-to-Know request
was sufficiently specific, because it provided both dates and names. They also
argued that the records were not exempt because any confidential information could
be redacted. Finally, they argued the Commission’s claim that the records were part
of a noncriminal investigation was overbroad and, thus, did not authorize an
exemption on that basis.
In its final determination, the OOR agreed that the request was
sufficiently specific because it was limited to a discrete group of documents,
identified email senders or recipients, and provided a keyword list to limit the search.
The OOR also agreed that the requested records were not exempt as confidential
security information. The OOR reasoned that for a record to be exempt as
confidential security information, the public utility must comply with the procedures
for “protecting confidential security information,” as set forth in Section 3 of the CSI
Act, 35 P.S. §2141.3.4 OOR Final Determination at 11; R.R. 90a. Notably, the
4
It states, in pertinent part:
(a) General rule.--The public utility is responsible for determining whether a record
or portion thereof contains confidential security information. When a public utility
4
Commission’s regulation does not authorize the electronic communication of
confidential security information. 52 Pa. Code §102.3(b)(1), (3).5 Because
Requesters sought emails and attachments, the requested electronic records were not
entitled to protection under the CSI Act.
The OOR found that the affidavits of Kanaskie and Rosemary
Chiavetta, Secretary of the Commission, attested to ongoing investigations to which
the requested records pertained. However, this did not end the inquiry. Section
335(d) of the Public Utility Code states, in pertinent part, as follows:
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,
identifies a record as containing confidential security information, it must clearly
state in its transmittal letter, upon submission to an agency, that the record contains
confidential security information and explain why the information should be treated
as such.
(b) Submission of confidential security information.--An agency shall develop
filing protocols and procedures for public utilities to follow when submitting
records, including protocols and procedures for submitting records containing
confidential security information.
35 P.S. §2141.3(a)-(b).
5
It states:
(b) Filing requirements. When a public utility is required to submit a record that
contains confidential security information to the Commission, the public utility
shall do the following:
(1) Clearly state in its transmittal letter to the Commission that the record
contains confidential security information and explain why the information
should be treated as confidential. The transmittal letter will be treated as a
public record and may not contain any confidential security information.
****
(3) Stamp or label each page of the record containing confidential security
information with the words “Confidential Security Information” and place
all pages labeled as containing confidential security information in a
separate envelope marked “Confidential Security Information.”
52 Pa. Code §102.3(b)(1), (3).
5
as defined in the Sunshine Act,[6] 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[.]
66 Pa. C.S. §335(d) (emphasis added). The OOR held that the Bureau of
Enforcement’s filing of a formal complaint against Energy Transfer constituted a
“decision,” which triggered a disclosure obligation under Section 335(d) of the
Public Utility Code. Nevertheless, the OOR authorized the Commission to redact
information that, “if disclosed to the public, could be used for criminal or terroristic
purposes[.]” OOR Final Determination at 17-18; R.R. 96a-97a.
The Commission and Energy Transfer each filed a petition for this
Court’s review of the OOR’s final determination. The appeals were consolidated by
order of this Court.
On appeal,7 the Commission and Energy Transfer raise two issues.
First, they argue that any challenge to a public utility’s designation of a record as
containing confidential security information must be presented to the Commission.
Once records have been so designated by a public utility, they are exempt under the
Right-to-Know Law. Second, they argue that the OOR erred in concluding that the
filing of a complaint by the Commission’s Bureau of Enforcement constituted a
decision or official action of the Commission that required the release of
investigative documents under Section 335(d) of the Public Utility Code.8
6
65 Pa. C.S. §§701-716.
7
This Court’s standard of review of a final determination of the OOR is de novo and our scope of
review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
8
Requesters failed to file a brief pursuant to this Court’s order of July 22, 2021. Accordingly, on
September 14, 2021, this Court entered an order precluding Requesters from filing briefs and
participating in oral argument, if scheduled. Court Order, 9/14/2021, at 1. The parties have not
6
Analysis
We begin with a review of the applicable principles of law. Under the
Right-to-Know Law, records in the possession of a government agency are presumed
to be public unless exempt from disclosure under Section 708 of the Right-to-Know
Law, 65 P.S. §67.708; protected by privilege; or exempt from disclosure under other
law or court order. Section 305 of the Right-to-Know Law, 65 P.S. §67.305.
Exemptions from disclosure are to be narrowly construed. Carey v. Department of
Corrections, 61 A.3d 367, 373 (Pa. Cmwlth. 2013). Further, the government agency
bears the burden of proving a record is exempt from disclosure. Id. at 372.
With regard to an agency’s noncriminal investigation, Section
708(b)(17) of the Right-to-Know Law states, in relevant part, as follows:
(b) Exceptions.--Except as provided in subsections (c) and (d),
the following are exempt from access by a requester under this
act:
****
(17) A record of an agency relating to a noncriminal
investigation, including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence
and reports.
****
(iv) A record that includes information made
confidential by law.
****
(vi) A record that, if disclosed, would do any of the
following:
appealed the OOR’s final determination that the request was sufficiently specific, contrary to the
Commission’s claim.
7
(A) Reveal the institution, progress or result
of an agency investigation, except the
imposition of a fine or civil penalty, the
suspension, modification or revocation of a
license, permit, registration, certification or
similar authorization issued by an agency or
an executed settlement agreement unless the
agreement is determined to be confidential by
a court.
(B) Deprive a person of the right to an
impartial adjudication.
(C) Constitute an unwarranted invasion of
privacy.
(D) Hinder an agency’s ability to secure an
administrative or civil sanction.
(E) Endanger the life or physical safety of an
individual.
65 P.S. §67.708(b)(17)(i-ii), (iv), (vi). Nothing in the Right-to-Know Law
supersedes or modifies the “nonpublic nature of a record or document established in
Federal or State law, regulation or judicial order or decree.” Section 306 of the
Right-to-Know Law, 65 P.S. §67.306. See also Section 102 of the Right-to-Know
Law, 65 P.S. §67.102 (a public record does not include those records exempt from
disclosure under any other Federal or State law or regulation or judicial order or
decree).
With these principles in mind, we turn to the issues on appeal.
I. CSI Act
The Commission and Energy Transfer argue that the OOR exceeded its
statutory authority in holding that the requested records did not constitute
confidential security information because they were submitted electronically to the
Commission. They argue that Requesters had to present this claim to the
8
Commission for a decision. The OOR lacked any authority to adjudicate the
applicability of the CSI Act to records so designated by a utility.
The CSI Act protects confidential security information that a public
utility provides to state agencies, such as the Commission. Confidential security
information is defined as “[i]nformation contained within a record maintained by an
agency in any form, the disclosure of which would compromise security against
sabotage or criminal or terrorist acts and the nondisclosure of which is necessary for
the protection of life, safety, public property or public utility facilities[.]” Section 2
of the CSI Act, 35 P.S. §2141.2. It is the public utility that determines “whether a
record or portion thereof contains confidential security information” and so
identifies the record when submitting it to a state agency. Section 3(a) of the CSI
Act, 35 P.S. §2141.3(a).
Nevertheless, the agency that receives information designated as
confidential may set aside that designation. Section 3(b)-(c) of the CSI Act states,
in relevant part, as follows:
(b) Submission of confidential security information.--An agency
shall develop filing protocols and procedures for public utilities
to follow when submitting records, including protocols and
procedures for submitting records containing confidential
security information. Such protocols and procedures shall
instruct public utilities who submit records to an agency to
separate their information into at least two categories:
(1) Public.--Records or portions thereof subject to the
provisions of the act of June 21, 1957 (P.L. 390, No.
212),[9] referred to as the Right-to-Know Law.
(2) Confidential.--Records or portions thereof requested to
be treated as containing confidential security information
and not subject to the Right-to-Know Law.
9
Formerly 65 P.S. §§66.1-66.9, repealed by the Right-to-Know Law.
9
(c) Challenges to designation of confidential security
information.--Challenges to a public utility’s designation or
request to examine records containing confidential security
information by a member of the public shall be made in writing
to the agency in which the record or portions thereof were
originally submitted. The agency shall develop protocols and
procedures to address challenges to the designations or requests
to examine records containing confidential security information.
Such protocols and procedures shall include:
(1) Written notification to the public utility by the agency
of the request to examine records containing confidential
security information or challenge of its designation.
(2) An opportunity for agency review of the public utility’s
designation.
(3) During the review or any appeal of the agency’s
decision, the agency shall continue to honor the
confidential security information designation by the public
utility.
(4) Agency review of the public utility’s designation or
request to examine records containing confidential
security information shall be based on consistency with
the definition of confidential security information
contained in this act or when there are reasonable grounds
to believe disclosure may result in a safety risk, including
the risk of harm to any person, or mass destruction.
35 P.S. §2141.3(b), (c)(1)-(4).
Recently, the Pennsylvania Supreme Court considered the scope of the
OOR’s authority where the CSI Act is implicated in a record request. In Energy
Transfer v. Friedman, 265 A.3d 421 (Pa. 2021), the requester sought records relating
to the buffer zones for gas pipelines. The Commission did not grant the request
because the records had been designated as containing confidential security
information by the utility. Concluding that the responsive records were not entitled
to be designated confidential security information, the OOR ordered their disclosure.
10
This Court reversed, holding that administration of the CSI Act rested with the
Commission, the state agency that had received those records, and not with the OOR.
Pennsylvania Public Utility Commission v. Friedman, 244 A.3d 515 (Pa. Cmwlth.
2020). On further appeal, the Supreme Court affirmed.
The CSI Act makes “the agency in which the record or portions thereof
were originally submitted” responsible to establish “protocols and procedures” for
the handling of confidential security information, including “challenges” to the
designation of a filing as containing confidential security information. Section 3(c)
of the CSI Act, 35 P.S. §2141.3(c). Section 4 of the CSI Act further states:
Public utility records or portions thereof which contain
confidential security information, in accordance with the
provisions of this act, shall not be subject to the provisions of the
act of June 21, 1957 (P.L. 390, No. 212), referred to as the Right-
to-Know Law.
35 P.S. §2141.4. The Supreme Court concluded that the Commission had exclusive
jurisdiction to determine whether the utility’s designation of confidential security
information was valid and in compliance with its regulations. Friedman, 265 A.3d
at 423.
The Supreme Court reasoned that the General Assembly intended the
Right-to-Know Law to yield to the CSI Act with respect to access to confidential
security information. A record containing confidential security information is not a
“public record” under Section 102 of the Right-to-Know Law, 65 P.S. §67.102. The
CSI Act sets forth exclusive procedures for challenging a public utility designation
of confidential security information and requests for confidential security
information records. Friedman, 265 A.3d at 432. Stated otherwise, the OOR lacked
authority to reverse the Commission’s application of the CSI Act with respect to the
designation of confidential security information.
11
Here, the records sought by Requesters, save two, have been designated
by Energy Transfer as containing confidential security information. As such, they
are excluded from the definition of public records in the Right-to-Know Law.
Section 102 of the Right-to-Know Law, 65 P.S. §67.102; Friedman, 265 A.3d at
431. The OOR lacked authority to rule on the Commission’s application of the CSI
Act and the regulation at 52 Pa. Code §102.3(b) to the requested records. To
challenge Energy Transfer’s alleged lack of compliance with the CSI Act,
Requesters must present their claim to the Commission. Until the Commission takes
action to set aside Energy Transfer’s designation of confidential security
information, the designation must stand. Accordingly, we reverse the OOR’s final
determination because the records sought by Requesters were exempt under the CSI
Act.
II. Section 335(d) of the Public Utility Code
Regarding the two records not designated as confidential security
information, the Commission and Energy Transfer argue that the OOR erred in
determining the filing of a formal complaint, before any action thereon, required
disclosure of investigation materials under Section 335(d) of the Public Utility Code.
They argue that there is no evidence that the Commission has taken formal action
with respect to the ongoing investigation.
Section 335(d) of the Public Utility Code states, in pertinent part, as
follows:
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
Right-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
12
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.
66 Pa. C.S. §335(d) (emphasis added). This provision creates a two-part test to
determine whether a record must be disclosed. First, there must be an investigation
by the Commission. Second, the Commission must make a “decision,” enter into a
“settlement” with a public utility, or take “any other official action, as defined in the
Sunshine Act, with respect to that investigation.” Id. “Official action” is defined
as: “(1) Recommendations made by an agency pursuant to statute, ordinance or
executive order[;] (2) The establishment of policy by an agency[;] (3) The decisions
on agency business made by an agency[; or] (4) The vote taken by any agency on
any motion, proposal, resolution, rule, regulation, ordinance, report or order.” 65
Pa. C.S. §703.
Here, the OOR concluded that the public disclosure requirement in
Section 335(d) was triggered by the Commission’s Bureau of Enforcement’s
“decision” to file a formal complaint against Energy Transfer with the Commission.
In reaching this conclusion, the OOR relied upon this Court’s decision in
13
Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d 755 (Pa. Cmwlth.
2012), and the Supreme Court’s in Pennsylvania Public Utility Commission v. Seder,
139 A.3d 165 (Pa. 2016). However, Gilbert and Seder are distinguishable.
In Gilbert, a reporter requested records related to underground natural
gas pipelines; all enforcement action taken by the Commission; safety records; and
pipeline incident reports. This Court held that the requested records were generated
as part of a “noncriminal investigation” and, thus, exempt from disclosure. In
holding that Section 335(d) of the Public Utility Code did not apply, we explained
that “[i]t is not until after the [Commission’s] investigative materials are presented
as part of a formal complaint, presented at a formal hearing, or presented as part of
a settlement agreement that the materials are public.” Gilbert, 40 A.3d at 760.
Notably, here, Requesters do not assert that the records they seek were part of, or
attached to, the Bureau of Enforcement’s complaint.
In Seder, the requesters sought, inter alia, the investigative file
associated with a settlement agreement between an electric utility and the Bureau of
Enforcement that was approved by the Commission. Noting that the Commission
conceded that it relied upon the requested documents in reaching its decision to
approve and become a party to the settlement agreement, the Supreme Court
concluded that Section 335(d) did apply. It reasoned that Section 335(d)
supplements the Right-to-Know Law and held that the Commission was required to
disclose the requested records, subject to the redaction of confidential source or
information that could subject a person to potential retaliation as a result of her
cooperation with a Commission investigation. Here, there has been no settlement of
the Bureau of Enforcement’s complaint against Energy Transfer.
14
The mere filing of a complaint by the Bureau of Enforcement does not
constitute a “decision” within the meaning of Section 335(d) of the Public Utility
Code because it is not final. At best, it is an inchoate decision because the Bureau
can withdraw or amend its complaint. Section 335(d) requires a decision, settlement,
or other official action, as defined in the Sunshine Act, before documents may be
made available to the public. Stated otherwise, there must be a formal resolution to
the complaint by the Commission, whether by settlement, consent decree or by
adjudication after a full hearing on the merits, before the disclosure requirement in
Section 335(d) of the Public Utility Code is triggered.
Here, there is no evidence of a decision, a settlement, or any official
action with respect to the Bureau of Enforcement’s investigation of the complaint
against Energy Transfer. To the contrary, the affidavits submitted by the
Commission describe the investigations as ongoing. See Affidavit of Chiavetta ¶¶7-
8; R.R. 39a (Bureau’s investigations are active and ongoing); Affidavit of Kanaskie
¶¶3-4; R.R. 40a-41a (Bureau’s investigations are active and ongoing). Accordingly,
the disclosure requirements in Section 335(d) do not apply, and the OOR erred in
directing the Commission to release the requested records pursuant to Section 335(d)
of the Public Utility Code.
Conclusion
We hold that the OOR lacked authority to determine that the requested
records were not entitled to be designated confidential security information because
they took the form of an electronic communication. The OOR also erred in
determining that the Commission was required to disclose the requested records
under Section 335(d) of the Public Utility Code.
15
For these reasons, we reverse the OOR’s final determination that the
Commission must disclose the records sought by Requesters.
_________________________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Energy Transfer, : CASES CONSOLIDATED
Petitioner :
:
v. : No. 1700 C.D. 2019
:
Rebecca Moss and Spotlight PA, :
Respondents :
Pennsylvania Public Utility :
Commission, :
Petitioner :
:
v. : No. 1722 C.D. 2019
:
Rebecca Moss and Spotlight PA, :
Respondents :
ORDER
AND NOW this 20th day of January, 2023, the final determination of
the Office of Open Records, dated November 8, 2019, is REVERSED insofar as it
required disclosure of records requested by Rebecca Moss and Spotlight PA.
_________________________________________________________
MARY HANNAH LEAVITT, President Judge Emerita