PA PUC v. E. Friedman

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Public Utility :
Commission, :
Petitioner :
:
v. : No. 1560 C.D. 2019
:
Eric Friedman, :
Respondent :
Energy Transfer, :
Petitioner :
:
v. : No. 1576 C.D. 2019
: Argued: June 23, 2022
Eric Friedman, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
PRESIDENT JUDGE COHN JUBELIRER FILED: April 25, 2023
In these consolidated petitions for review, the Pennsylvania Public Utility
Commission (PUC) and Energy Transfer (together, Petitioners) seek review of the
October 10, 2019 Final Determination of the Office of Open Records (OOR)
granting in part and denying in part Eric Friedman’s (Requester) appeal of the PUC’s
denial of Requester’s Right-to-Know Law (RTKL)1 request (Request). Relevantly,
the PUC denied the Request, asserting the responsive records constituted or
contained confidential security information (CSI) not disclosable under the Public
Utility Confidential Security Information Disclosure Protection Act (CSI Act),2 the
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
Act of November 29, 2006, P.L. 1435, 35 P.S. §§ 2141.1-2141.6.
Request was insufficiently specific and overly broad, and any responsive records
were separately exempt from disclosure under Section 708(b)(2)-(3), (11), and (17)
of the RTKL, 65 P.S. § 67.708(b)(2)-(3), (11), (17). The OOR reversed, concluding
Petitioners had not established that the denied records contained or constituted CSI
or that the claimed RTKL exceptions applied. Petitioners filed separate petitions for
review, arguing the OOR lacked the authority to determine whether a record is
properly designated as CSI and erred in finding that the requested records were not
protected by the CSI Act or otherwise exempt under Section 708(b) of the RTKL.
During the pendency of this action, this Court decided Pennsylvania Public
Utility Commission v. Friedman, 244 A.3d 515 (Pa. Cmwlth. 2020) (Friedman I),
which involved Requester and a different request for Energy Transfer records from
the PUC, the PUC’s determination that those records were CSI and not subject to
release, and the OOR’s reversal based on the PUC not establishing that there was
CSI in the records or that the records were CSI. In Friedman I, we held: the OOR
had erred in determining that the requested records were not or did not contain CSI;
the authority to administer the CSI Act rests with the PUC; and the OOR acted
outside its authority when it determined that requested records were not CSI or did
not contain CSI and, therefore, were subject to disclosure under the RTKL. Id. at
519-20. Unsurprisingly, Petitioners submitted briefs arguing that Friedman I
required a reversal of the OOR Final Determination in this matter, and Requester
responded that Friedman I was distinguishable.
Following this briefing, the parties agreed to stay resolution of this matter
while our Supreme Court considered Requester’s appeal of Friedman I.3 The
3
On July 29, 2021, the parties filed a joint status report advising the Court of the status of
the Friedman II proceedings and requesting that oral argument be stayed pending resolution in that
matter. The request in the joint status report is dismissed as moot.
2
Supreme Court rendered its decision affirming Friedman I in Energy Transfer v.
Friedman, 265 A.3d 421 (Pa. 2021) (Friedman II), on December 22, 2021. The
Supreme Court held that challenges to a request for CSI records or a public utility’s
designation of CSI must be presented to the PUC because the CSI Act expressly
provides the PUC with exclusive jurisdiction over these issues. Id. at 431. On
January 20, 2022, this Court ordered the parties to file supplemental briefs
addressing Friedman II and heard oral argument on June 23, 2022.
I. BACKGROUND
A. The Request
Energy Transfer is the owner of Sunoco Pipeline LP (Sunoco Pipeline or
Sunoco), which is a jurisdictional public utility, (Reproduced Record (R.R.) at
0012a, 0077a), and operates the Mariner East 1 Pipeline, a highly volatile liquid
pipeline, Friedman II, 265 A.3d at 423. On June 9, 2019, Requester emailed the
PUC’s Open Records Officer, Secretary Rosemary Chiavetta (Secretary), the
following:
Under Pennsylvania’s [RTKL], I respectfully request the following
records of the . . . PUC[].
1. Any record(s) of the PUC that contain the names of “authorized
[PUC] employees” as that term is used in 52 Pa. Code [§] 102.3(a)(3).[4]
2. All transmittal letters submitted to the PUC by Sunoco Pipeline, or
any parent or subsidiary of Sunoco Pipeline, as the term “transmittal
letter” is used in 52 Pa. Code [§] 102.3(b)(1).[5]
4
In relevant part, Section 102.3(a)(3) of the PUC’s regulations states: “Unless required by
order or other directive from the [PUC] or its staff that records containing [CSI] shall be filed with
the [PUC], public utilities shall do the following: . . . (3) Make the record containing [CSI]
available for review upon request by authorized [PUC] employees.” 52 Pa. Code § 102.3(a)(3).
5
Section 102.3(b) of the PUC’s regulations provides in its entirety:
3
3. All records that were submitted to the PUC along with the transmittal
letters specified in [I]tem [No.] 2 above that fall in the category of
“Records that are public in nature and subject to the [RTKL],” in
accordance with 52 Pa. Code [§] 102.3(b)(2)(i).
(R.R. at 0009a.6)
After invoking the 30-day extension period set forth in Section 902(b) of the
RTKL, 65 P.S. § 67.902(b), the PUC denied the Request in its entirety by letter dated
July 16, 2019. (R.R. at 0010a-0014a.7) Regarding Item No. 1, the PUC explained
it does not maintain a record of employees authorized to review CSI, and no
responsive record exists which could satisfy the Request. (Id. at 0012a.) The PUC
denied the Request as being insufficiently specific and overbroad. The PUC also
(b) Filing requirements. When a public utility is required to submit a record that
contains [CSI] to the [PUC], the public utility shall do the following:
(1) Clearly state in its transmittal letter to the [PUC] that the record contains [CSI]
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 [CSI].
(2) Separate the information being filed into at least two categories:
(i) Records that are public in nature and subject to the [RTKL].
(ii) Records that are to be treated as containing [CSI] and not subject to the
[RTKL].
(3) Stamp or label each page of the record containing [CSI] with the words
“Confidential Security Information” and place all pages labeled as containing [CSI]
in a separate envelope marked “Confidential Security Information.”
(4) Redact the portion of the record that contains [CSI] for purposes of including
the redacted version of the record in the public file.
52 Pa. Code § 102.3(b).
6
The Request is found in Item No. 1 of the Certified Record.
7
The PUC’s denial is found in Item No. 1 of the Certified Record.
4
explained the records were exempt from disclosure pursuant to: (1) the noncriminal
investigation exception of the RTKL, 65 P.S. § 67.708(b)(17)8; (2) the infrastructure
security exception within the RTKL, which protects the release of records that could
endanger public utility facilities, 65 P.S. § 67.708(b)(3)9; and/or (3) the CSI Act.
(R.R. at 0013a.)
8
The noncriminal investigation exception provision, Section 708(b)(17) of the RTKL,
states in relevant part:
The following are exempt from access by a requester under this act:
....
A record of an agency relating to a noncriminal investigation, including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence and reports.
(iii) A record that includes the identity of a confidential source, including
individuals subject to the act . . . known as the Whistleblower Law[, Act of
December 12, 1986, P.L. 1559, as amended, 43 P.S. §§ 1421-1428].
(iv) A record that includes information made confidential by law.
(v) Work papers underlying an audit.
(vi) A record that, if disclosed, would do any of the following:
(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.
....
65 P.S. § 67.708(b)(17).
9
The infrastructure security exception states: “[t]he following are exempt from access by
a requester under this act:” “[a] record, the disclosure of which creates a reasonable likelihood of
endangering the safety or the physical security of a building, public utility, resource, infrastructure,
facility or information storage system[.]” 65 P.S. § 67.708(b)(3).
5
B. Appeal to OOR
Requester appealed to the OOR on August 6, 2019. Energy Transfer was
permitted to participate, and both it and the PUC filed Position Statements and
supporting affidavits, asserting essentially the same position as the PUC’s July 16,
2019 letter denying Requester’s request. Specific to it, Energy Transfer raised the
trade secrets and confidential proprietary information exception of the RTKL, 65
P.S. § 67.708(b)(11).10 The PUC also asserted that the public safety exception, 65
P.S. § 67.708(b)(2),11 applied and any challenges to the designation of documents
submitted to the PUC as CSI must be raised with the PUC, and “not the OOR, which
has no authority over the issue.” (R.R. at 0088a, 0090a.12)
Several affidavits were offered in support of Petitioners’ positions before the
OOR. The PUC submitted the affidavit of Secretary, in which Secretary stated that
the PUC’s Bureau of Investigation and Enforcement (BIE) “ha[d] initiated numerous
noncriminal investigations against Sunoco Pipeline, L.P. a/k/a Energy Transfer” and
the PUC did “not have any responsive records other than those that are part of these
[BIE] investigations.” (Id. at 0095a.) Secretary also stated that Requester “has not
challenged Sunoco Pipeline[]’s designation of [CSI] pursuant to Chapter 102 of the
[PUC’s] regulations[,]” which, in part, sets forth the procedures for challenging a
10
The trade secrets or confidential proprietary information exception states: “[t]he
following are exempt from access by a requester under this act:” “[a] record that constitutes or
reveals a trade secret or confidential proprietary information.” 65 P.S. § 67.708(b)(11).
11
The public safety exception states: “[t]he following are exempt from access by a
requester under this act:” “[a] record maintained by an agency in connection with the military,
homeland security, national defense, law enforcement or other public safety activity that, if
disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or
public protection activity[.]” 65 P.S. § 67.708(b)(2).
12
The PUC’s responses to Requester’s appeal and affidavits in support thereof are found
at Item No. 9 in the Certified Record.
6
confidentiality designation. (Id.) The PUC also offered the affidavit of Paul J.
Metro, Manager of BIE’s Safety Division (Metro). (Id. at 0102a-03a.) Metro stated:
3) [BIE] is and has been, for more than five years, engaged in multiple
noncriminal investigations of Sunoco Pipeline and affiliated
companies.
4) To the best of my knowledge, in the last two years, [BIE] has
received from Sunoco Pipeline hundreds of transmittal letters with
thousands of attached documents.[13] Every document submitted by
Sunoco Pipeline that contains confidential material – including CSI –
must be identified through and attached to a transmittal letter. Sunoco
Pipeline’s transmittal letters have multiple documents attached in many
cases.
5) [BIE] does not have any requested records other than records that are
part of a noncriminal investigation.
6) Many of the numerous records submitted to [BIE] under Sunoco
Pipeline’s transmittal letters contain “[CSI]” within the meaning of the
[CSI Act] . . . . In my professional opinion, release of records marked
as CSI would compromise security against sabotage or criminal or
terroristic acts . . . .
7) To access and review all of the documents requested by [Requester]
would be unduly burdensome on [BIE] staff.
(Id.)
Energy Transfer submitted a declaration by Todd Nardozzi, Senior Manager
of Energy Transfer’s Department of Transportation Compliance (Nardozzi), in
support of Energy Transfer’s positions (verified statement). (Id. at 0077a-0081a.14)
Nardozzi indicated Energy Transfer submitted documents for a variety of reasons
13
Metro noted that, “[g]iven the number of documents at issue and the extremely
constricted timeframe for responding to a [RTKL] appeal, [BIE] has not had sufficient time to
confirm the exact number of documents.” (R.R. at 0102a n.1.)
14
Energy Transfer’s response to Requester’s appeal and the verified statement are found
at Item No. 7 of the Certified Record.
7
and stated that part of his job is to ensure the protection and safety of Energy Transfer
assets, including records and other documents, and that he has “knowledge of
records submitted to the [PUC] and possibly implicated by the June 9, 2019 request”
for Item Nos. 2 and 3. (Id. at 0077a.) Nardozzi explained that “[s]ince 2008, [Energy
Transfer] has submitted substantial information regarding the operation, location,
and vulnerabilities of [Energy Transfer]’s pipeline, which it treats as [CSI] in
accordance with the” CSI Act. (Id. at 0078a.) Nardozzi also stated Energy Transfer
“consistently provide[s] the PUC with valuable trade secret information . . . which
may be implicated by such requests” and Energy Transfer “treats its proprietary and
trade secret information as confidential and takes substantial steps to guard its
secrecy. . . .” (Id. at 0079a.)
On October 10, 2019, the OOR issued its Final Determination.15 Regarding
Item No. 1, which sought records relating to PUC employees referenced in Section
102.3(a) of the regulations, the OOR found the PUC had met its burden of proving
that responsive records do not exist. (Final Determination at 6-7.) Regarding Item
Nos. 2 and 3, the OOR found the Request to be sufficiently specific and not
overbroad. The OOR also found Petitioners had not proven that the requested
records were considered or contained CSI, which would preclude their disclosure,
or the applicability of the cited Section 708(b) exceptions to disclosure.
As to the transmittal letters requested in Item No. 2, the OOR held “[f]or a
record to be designated as non[]disclosable CSI under the [CSI] Act, [Energy
Transfer/Sunoco Pipeline] and the [PUC] must comply with the ‘[p]rocedures for
submitting . . . and protecting [CSI]’ set forth in [Section] []3 [of the CSI Act] and
15
The OOR’s Final Determination can be located in the Certified Record at Item No. 17,
and in the Reproduced Record at pages 0128a-58a.
8
52 Pa. Code § 102.3(b)(1), as a condition precedent for nondisclosure.” (Id. at 16.)
The OOR stated that
[t]he regulations implementing the CSI designation procedures of the
[CSI] Act clearly state that a transmittal letter “may not contain any
[CSI].” 52 Pa. Code § 102.3(b). In addition, the same regulation, which
implements Section []3(a) of the [CSI] Act, provides that the public
utility “must clearly state in its transmittal letter, upon submission to an
agency, that the record contains [CSI] and explain why the information
should be treated as such”; most importantly, it expressly states that
“the transmittal letter will be treated as a public record.” 52 Pa.
Code § 102.3(b). . . .
....
. . . Section []3 of the [CSI] Act makes clear that the [PUC] shall instruct
public utilities that materials submitted are to be segregated in[to] two
categories – one of which is “subject to the provisions of the [RTKL]”
and one which is not. In contrast to the [CSI] Act, the protocols and
procedures developed by the [PUC] for the submission of confidential
documents, including CSI, include express language stating that “[t]he
transmittal letter will be treated as a public record” without the
limiting language [“]and subject to the RTKL.[”] 52 Pa. Code
§ 102.3(b)(1) (emphasis added). Whereas[] the subsection addressing
the documents to be submitted as attachments to transmittal letters
distinguishes between “[r]ecords that are public in nature and subject
to the [RTKL]” and “records that are to be treated as containing [CSI]
and not subject to the [RTKL].” 52 Pa. Code § 102.3(b)(2)(i)-(ii)
(emphasis added).
(Id. at 16-18 (emphasis in original).)
Concerning Item No. 3, requesting records submitted with the transmittal
letters that would be records that are public in nature and subject to the RTKL, the
OOR explained “Section []3 of the [CSI] Act contemplates that the records attached
to a transmittal letter may include public, as well as confidential information and
places the onus on the [PUC] to instruct public utilities ‘[that] submit records to an
agency to separate their information into at least two categories[,]’” one public and
9
subject to the RTKL, and one confidential and not subject thereto. (Id. at 20.) The
OOR noted that Requester expressly limited his request in Item No. 3 “to ‘[r]ecords
public in nature and subject to the [RTKL],’” and “[b]ased on a plain reading of [52
Pa. Code § 102.3(b)], the records requested would not include non[]disclosable
material because,” in order for that material to be non[]disclosable, “[Energy
Transfer/Sunoco Pipeline] would have had to submit the records segregated into
‘public’ and ‘non-public’ categories, with the confidential material marked as CSI
and placed in a separate envelope.” (Id. at 21 (first and second alterations in
original).) The OOR rejected the argument that inadvertent or erroneous inclusion
of CSI within a transmittal letter would prohibit the PUC from disclosing such
information. The OOR explained “neither party has identified responsive records or
presented nonconclusory evidence that any responsive transmittal letters[,]
records[,] or attachments contain CSI, for which an argument for redaction may [be]
possibl[e] . . . under [Section 3(e) of the CSI Act,] 35 P.S. § 2141.3(e).” (Id. at 22.)
Thus, the OOR rejected Metro’s affidavit and Nardozzi’s verified statement as being
insufficient to establish that all responsive records constituted protected CSI under
the CSI Act. (Id. at 20-22.)
The OOR also found Petitioners’ challenge to the OOR’s jurisdiction to
review and determine the designation of CSI in submissions by public utilities to be
without merit. The OOR explained
the [CSI] Act and the regulations specifically mandate that certain
records are public and/or subject to [the] RTKL. Accordingly, in this
adjudication, the OOR is not determining the propriety of a CSI
designation; rather, we are analyzing applicability of the RTKL to the
records requested, which are subject to the RTKL.
(Id. at 22-23.)
10
Next, the OOR addressed Petitioners’ RTKL exception arguments. Upon its
review, the OOR held Petitioners did not demonstrate that records attached to the
transmittal letters were exempt pursuant to Section 708(b)(2)-(3), (11), and (17).
Regarding Section 708(b)(2) and (3), the public safety and infrastructure exceptions,
the OOR explained that although Metro and Nardozzi attested the records “contained
CSI and other security-sensitive information, [the PUC] has not identified any
responsive records.” (Id. at 25.) Comparing the Request here to the request made
in Friedman I and II, the OOR noted the request there sought “‘calculations or
estimates of blast radius . . . regarding accidents or releases from [highly volatile
liquid (]HVL[)] pipelines,’ a particularly described record to which the [PUC’s]
evidence regarding risk of public safety or security of a public utility could be
attributed” and “here, no [such] records have been identified at all.” (Id. (emphasis
in original).) As a result, the OOR held
[b]ecause the [PUC] has not identified the responsive transmittal letters
and publicly designated documents attached to them, the conclusory
and speculative statements made regarding the risk of harm in the
release of all potential responsive records do not support the [PUC’s]
and [Energy Transfer/Sunoco Pipeline]’s position that the disclosure of
the public portions of Item 3 would jeopardize public safety or the
security of a public utility.
(Id.)
As to the trade secrets exception pursuant to Section 708(b)(11), the OOR
found that no responsive records had been identified and “Nardozzi’s declarations
are merely conclusory and speculative and fail to demonstrate that implicated
records, in fact, contain confidential proprietary or trademarked information.” (Id.
at 29.) Regarding the noncriminal investigation exception set forth in Section
708(b)(17), the OOR explained that while Metro and Secretary attested to multiple
11
ongoing investigations of Energy Transfer by BIE, the PUC had “not identified any
individual investigation by number or general description. As a result, the [PUC]
has not shown that the requested records relate to noncriminal investigations
conducted by” the PUC. (Id. at 27.)
Petitioners each filed petitions for review of the OOR’s Final Determination,
which were consolidated.16 After briefing and oral argument, this matter is now
ready for disposition.
II. DISCUSSION
While Petitioners’ filings appear to suggest that all the responsive records
either were CSI or contained CSI, Petitioners conceded at oral argument that there
are two distinct groups of records – those which are CSI or contain CSI, or are
alleged to do so (CSI Records), and those which are not CSI or do not contain CSI
(Non-CSI Records). We will initially address the first group of records – CSI
Records.
A. CSI Records
Petitioners first challenge, pursuant to Friedman I and II, the OOR’s authority
to determine whether a record is properly designated as CSI or as containing CSI
and argue the OOR erred in finding Petitioners did not establish that the requested
records were protected by the CSI Act. Petitioners assert Friedman I and II made
clear that the CSI Act placed exclusive authority to hear challenges to the designation
16
This Court exercises a de novo standard of review and a plenary scope of review of OOR
determinations. Bowling v. Off. of Open Recs., 75 A.3d 453, 472 (Pa. 2013). De novo review
permits the court to determine the case anew, including matters pertaining to testimony and other
evidence. Id. at 466 n.14 (citing Commonwealth v. Emerick, 96 A.2d 370, 373-74 (Pa. 1953)).
Accordingly, this Court may consider facts and legal arguments not brought before the OOR when
deciding petitions for review of OOR decisions. Id. at 475-77.
12
of a record as CSI or as containing CSI in the agency to which the records were
submitted, in this case the PUC. Requester argues the OOR did not exceed its
authority because it did not administer the CSI Act in its Final Determination, but
simply ordered the release of non-CSI records, which are subject to the RTKL,
making Friedman I and II distinguishable. Requester asserts Friedman I and II are
further distinguishable because, unlike those in that case, the affidavits of Secretary
and Metro, and verified statement of Nardozzi, did not establish that the responsive
records contained or constituted CSI.
As these arguments reflect, this case involves the interplay between the CSI
Act and the RTKL. Thus, an overview of the law concerning the CSI Act and the
RTKL, as well as Friedman I and II, is necessary to resolving whether the OOR
exceeded its authority in its Final Determination.
1. Relevant Statutory Provisions
The RTKL was implemented as “remedial legislation to facilitate government
transparency and accountability,” and the RTKL is “construed to maximize access
to public records” in an agency’s possession. McKelvey v. Pa. Dep’t of Health, 255
A.3d 385, 399-400 (Pa. 2021). The RTKL was also implemented “[t]o ‘prohibit
secrets, scrutinize the actions of public officials, and make public officials
accountable for their actions,’ [and] the RTKL places the statutory duty of disclosing
public records ‘solely on the government agency.’” Friedman II, 265 A.3d at 428-
29 (quoting McKelvey, 255 A.3d at 400). The RTKL mandates that a
Commonwealth agency or a local agency “shall provide public records in
accordance with” the RTKL without regard to a requester’s “intended use of the
public record . . . unless otherwise provided by law.” Sections 301 and 302 of the
RTKL, 65 P.S. §§ 67.301, 67.302. A record in the possession of a Commonwealth
13
agency or local agency “shall be presumed to be a public record.” Section 305(a) of
the RTKL, 65 P.S. § 67.305(a). Relevantly, the RTKL defines “public record” as “a
record . . . of a Commonwealth agency or local agency that . . . is not exempt from
being disclosed under any other Federal or State law or regulation or judicial order
or decree.” Section 102(2) of the RTKL, 65 P.S. § 67.102(2). The RTKL establishes
the OOR to
review[] record requests and denials of record requests through the lens
of the RTKL. In defining “public record” in the RTKL, however, the
General Assembly anticipated the OOR’s interpretation of other laws.
Cf. [Dep’t of Lab. & Indus. v.] Heltzel, 90 A.3d [823,] 828 [(Pa.
Cmwlth. 2014)] . . . . The RTKL contains two caveats related to how
other laws impact its presumption that a record is public and, therefore,
subject to public disclosure. These caveats concern the nature of a
record and the accessibility of a record, which are distinct concepts. Id.
at 831 . . . .
According to the first caveat, nothing in the RTKL “shall supersede or
modify the public or nonpublic nature of a record or document
established in Federal or State law, regulation or judicial order or
decree.” [Section 306 of the RTKL,] 65 P.S. § 67.306. Thus, where a
federal or state law establishes a record as public, the record is not
subject to a public record analysis under the RTKL. “Given this
significant consequence, a statute should be clear when it establishes
the public nature of records.” Heltzel, 90 A.3d at 832. According to
the second caveat, if the provisions of the RTKL “regarding access to
records conflict with any other Federal or State law, the provisions of
[the RTKL] shall not apply.” [Section 3101.1 of the RTKL, 65 P.S.]
§ 67.3101.1. Thus, where a federal or state law prescribes certain
procedures to access records in a manner that conflicts with the
RTKL, the provisions of the other law prevail.
Friedman II, 265 A.3d at 429-30 (emphasis added).
The CSI Act was enacted “to create mechanisms for the safeguarding of [CSI]
of public utilities that is provided to various state agencies, such as the [PUC], from
disclosure that may compromise security against sabotage or criminal or terrorist
14
acts.” Id. at 430 (quoting Designation of Qualified Documents for Elec. Filing, L-
00070187, 2008 WL 5582647, at *2 (Pa. PUC Nov. 19, 2008)). The CSI Act defines
CSI 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. Regarding procedures for submitting, challenging,
and protecting CSI,17 Section 3(a)-(c) of the CSI Act states:
(a) General Rule.--The public utility is responsible for determining
whether a record or portion thereof contains [CSI]. When a public
utility identifies a record as containing [CSI], it must clearly state in its
transmittal letter, upon submission to an agency, that the record
contains [CSI] and explain why the information should be treated as
such.
(b) Submission of [CSI].--An agency shall develop filing protocols
and procedures for public utilities to follow when submitting records,
including protocols and procedures for submitting records containing
[CSI]. Such protocols and procedures shall instruct public utilities
[that] 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 . . . [RTKL].
(2) Confidential.--Records or portions thereof requested to be
treated as containing [CSI] and not subject to the [RTKL].
(c) Challenges to designation of [CSI].--Challenges to a public
utility’s designation or request to examine records containing [CSI] by
a member of the public shall be made in writing to the agency in which
17
“[T]he procedure set forth in the CSI Act pursuant to which a member of the public may
challenge a designation of CSI first to the PUC and then to the Commonwealth Court or request
in writing to examine CSI” is embodied in the Pennsylvania Code, 52 Pa. Code § 102.4(a)(1),
(2)(i)-(v). Friedman II, 265 A.3d at 426 n.4.
15
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 [CSI] . . . .
35 P.S. § 2141.3(a)-(c).
2. Friedman I and Friedman II
Shortly after the petitions for review were filed in this matter, this Court issued
Friedman I. In that case, Requester submitted a request to the PUC under the RTKL
for records transmitted to the PUC by Energy Transfer which had not been
designated as CSI.18 Friedman II, 265 A.32 at 424. As here, after the PUC denied
the request in its entirety because the responsive records had been designated as CSI,
Requester appealed the PUC’s denial with the OOR. The OOR held that the PUC
had not proven that the requested records were CSI and, therefore, directed their
disclosure.
Petitioners appealed to this Court, making essentially the same arguments as
they make here – any challenges to a designation of a record as CSI under the CSI
Act must be made before the agency originally receiving the record and the
responsive records were exempt from disclosure pursuant to RTKL exceptions.
18
The request in Friedman I and Friedman II sought
all records in the possession of [] Metro, his superiors or subordinates, that relate
to the calculation or estimation of the range at which thermal or overpressure events
related to accidents on hazardous, highly volatile liquid (HVL) pipelines may be
experienced. This request does not seek information provided by Sunoco if that
information has been designated as [CSI]. Rather, it seeks records containing or
relating 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 [the]
PUC by an external source or that was developed internally.
Friedman II, 265 A.3d at 424 (quotation and citation omitted).
16
Petitioners argued that the OOR erred in finding that the records requested were not
protected from disclosure pursuant to the CSI Act. We agreed, explaining that, under
the plain language of the CSI Act, the “OOR does not administer the CSI Act and
is not directed by the statute to oversee the determination of whether requested
information qualifies as CSI.” Friedman I, 244 A.2d at 519-20. Instead, we
concluded, “the administration of the CSI Act rests with the PUC,” and the OOR
acted outside its authority by determining that the requested information was not
CSI. Id. at 520. This Court did not reach whether the records were exempt under
the RTKL because all the responsive records involved were CSI. Requester
appealed to the Supreme Court, which affirmed in Friedman II.
In Friedman II, our Supreme Court described the issue before it as “whether
the OOR had any statutory authority to identify and release to the public records that
a public utility has submitted to the PUC with a designation of CSI.” 265 A.3d at
428. In resolving this issue, the Supreme Court recognized that the RTKL and the
CSI Act “overlap[ped] in the areas of designating and disclosing a record[, and b]oth
statutes include procedures for requesting a record in possession of an agency and
for challenging the denial of a record request.” Id. However, “[t]hey diverge . . .
with respect to identifying the nature of, and providing access to, records
containing CSI.” Id. (emphasis added). Concerning the proper administrative
body authorized to enforce the CSI Act, the Supreme Court explained
[w]hereas the OOR enforces the RTKL, the CSI Act identifies as the
administrative body authorized to consider and review a public utility’s
submission of CSI, “the agency in which the record or portions thereof
were originally submitted,” and having “protocols and procedures to
address [filing CSI-designated records and] challenges to the
designations or requests to examine records” containing CSI. 35 [P.S.]
§ 2141.3(b), (c)(1)-(4).[] As with the RTKL, the CSI Act also addresses
the impact of other laws. Specifically, public utility “records or
17
portions thereof which contain [CSI], in accordance with the provisions
of this act, shall not be subject to the provisions of the
[RTKL].” [Section 4 of the CSI Act,] 35 P.S. § 2141.4.
Friedman II, 265 A.3d at 430-31 (first, third, and sixth alterations added) (footnote
omitted). As to which entity has jurisdiction regarding determinations of what
material constitutes CSI, the Supreme Court held
[u]pon review of the purposes and provisions of the RTKL and the CSI
Act, we conclude that reconciling the two statutes weighs in favor of
the PUC having exclusive jurisdiction with regard to CSI. Evidence
of this primacy is found foremost in the plain language of the competing
statutes with respect to three topics: the type of information protected
from disclosure, the applicability of other laws, and specific procedures
for submitting CSI-designated records and challenging a CSI
designation or request for records containing CSI.
Id. at 431 (emphasis added). Regarding the disclosure of CSI and the General
Assembly’s intent, the Supreme Court explained
[b]ecause the disclosure of a public utility’s CSI-records could present
a significant risk to public safety, we conclude that the General
Assembly intended to provide a unique vehicle in the CSI Act for
protecting CSI from disclosure. To that end, it removed CSI from
the domain of the OOR under the RTKL and placed it squarely in
the hands of public utilities and qualified agencies under the CSI
Act. In other words, where CSI-designated records are at issue, the
General Assembly intended the specific provisions of the CSI Act
to prevail over the general provisions of the RTKL.
Id. (emphasis added).
In response to Requester’s belief that “Energy Transfer’s procedural blunder
with respect to its transmittal letters was fatal to its designation of the records as CSI
and, therefore, to protection under the CSI Act” and characterization of the central
issue as being “whether the OOR had the authority to determine if Energy Transfer
18
complied with the CSI Act’s procedures for designating records as CSI,”
Friedman II, 265 A.3d at 426, 432 (emphasis added), the Supreme Court focused on
which entity, the PUC or the OOR, has the requisite authority to administer the CSI
Act, both substantively and procedurally. The Supreme Court concluded
[t]he PUC is . . . the administrative body that oversees public utilities
in Pennsylvania, the PUC receives records from public utilities and has
developed protocols and procedures for the filing of a CSI record, the
maintenance of CSI records, and challenges to CSI-designations and
requests to examine CSI records. 35 P.S. §§ 2141.2 & [2141].3; 52 Pa.
Code §§ 102.3 & [102].4. Such challenges include claims that a public
utility failed to comply with the filing requirements of the CSI Act. In
such cases, the PUC has express authority, and the expertise, to
determine if a public utility record has been properly designated,
both substantively and procedurally, and to afford a public utility
with the opportunity to resubmit a record that was improperly,
defectively, or not designated as CSI. 52 Pa. Code § 102.3(d)-(f).
Thus, determining the consequences of failing to comply with the
CSI Act or PUC regulations is also an express function of the PUC,
not the OOR.
Based on our interpretation of the RTKL and the CSI Act, we conclude
the General Assembly intended for the RTKL to yield to the CSI Act
in the dual areas of designating and accessing CSI. In short, a CSI-
record is not a “public record” under the RTKL and, therefore, is not
subject to disclosure through a RTKL request. . . .
....
. . . [T]he OOR had authority to interpret the CSI Act as to the public
nature of Energy Transfer’s CSI, but it was not in a position to enforce
the CSI Act’s procedures for public access to CSI. Although
Friedman specifically requested non-CSI records from the PUC
through the RTKL, the PUC determined, as it was authorized to do,
that Energy Transfer had designated records responsive to
Friedman’s request as containing CSI. That designation and
determination triggered the protections of the CSI Act, including
the procedure for challenging a CSI-designation or the denial of a
request for records that contain CSI in the PUC. The OOR had only
to consider the definition of “public record” in the RTKL to realize that
19
CSI-designated records fall outside its bailiwick and that it lacked
authority to apply the substantive or procedural provisions of the
CSI Act or to conclude that records designated by Energy Transfer as
CSI and accepted by the PUC as CSI were, in fact, public and
accessible.
Id. at 432-33 (emphasis added). Based on this reasoning, the Supreme Court
affirmed Friedman I, agreeing the OOR lacked the authority to consider the nature
of CSI-designated records or the public accessibility of those records. The Supreme
Court explained that “[u]pon receipt of CSI-designated records and supporting
affidavits [from the PUC], the OOR should have yielded jurisdiction of
[Requester’s] request to the PUC.” Id. at 434.
3. Analysis
Petitioners maintain the OOR has no authority to determine whether a record
is properly designated as CSI pursuant to the CSI Act, and, pursuant to Section 3 of
the CSI Act, challenges to transmittal letters that are averred to contain CSI or
records submitted along with transmittal letters that are designated as CSI or contain
CSI must be brought to the PUC, not the OOR. Petitioners assert review of a PUC
decision regarding a challenge to a CSI designation then lay with this Court, not the
OOR, pursuant to Section 3(c)(6) of the CSI Act.19 Petitioners maintain the
affidavits were sufficient to support that this matter involves designations under the
19
Section 3(c)(6) of the CSI Act states:
Following written notification by the agency of its decision on confidentiality, the
public utility and member of the public shall be given 30 days to file an appeal in
Commonwealth Court where the court may review the records containing [CSI] in
camera to determine if they are protected from disclosure under this act. During
pendency of the in camera review, the records subject to the in camera review shall
not be made part of the public court filing.
35 P.S. § 2141.3(c)(6).
20
CSI Act, which removes the matter from the OOR’s consideration. According to
Petitioners, Friedman II unequivocally establishes that the proper forum for
challenging any CSI designation, both procedurally (whether the public utility
followed the procedures necessary for the information to be protected under the CSI
Act) and substantively (whether the information is actually CSI), is with the PUC,
not the OOR. Petitioners argue the Supreme Court made clear in Friedman II that
the OOR may not review a utility’s and agency’s compliance with the CSI Act’s
procedures as a condition precedent to a record being subject to the CSI Act’s
protections.
Requester argues this case deals with a request made for records that were not
CSI records; thus, Friedman I and II are inapplicable. Requester draws the Court’s
attention to Item No. 2 of the Request, explaining he is requesting public records,
as expressly defined by Section 102.3(b)(1) of the PUC’s own regulations, 52 Pa.
Code § 102.3(b)(1), because Petitioners did not submit any evidence showing that
the requested transmittal letters were either designated as CSI or contained material
designated as CSI. (Requester’s Suppl. Br. at 3-4.) He similarly asserts, as to Item
No. 3, that he sought only records not designated CSI and, therefore, those records
were subject to disclosure due to the non-designation of those records. Requester
argues that, unlike Friedman II, there is no affidavit here asserting that Energy
Transfer made the “procedural blunder” of improperly marking requested transmittal
letters as CSI. (Id. at 4.) Rather, Requester asserts Petitioners produced no evidence
or affidavit reflecting that Energy Transfer made any procedural error in indicating
whether a responsive record is or contains CSI. Requester argues Friedman II
affords public utilities protection under the CSI Act where they commit a
“procedural blunder” of improperly marking a public record as CSI, but this
21
protection only applies when the utility actually commits a designation error.
Requester contends the affidavits and verified statement fail to support Petitioners’
position that the records responsive to the Request constitute or contain CSI and
amount to nothing more than conclusory evidence.
Regarding the CSI Records, a review of the OOR’s Final Determination here
reflects the OOR made the same errors reversed in Friedman I and II. The OOR
made an express determination that, in order for a record to be nondisclosable CSI,
Petitioners were required to comply with the procedures for submitting and
protecting CSI “as a condition precedent” for preventing their disclosure under the
CSI Act. (Final Determination at 16 (emphasis added).) However, Friedman II
rejected a similar procedural argument by Requester, which was the CSI Act did not
protect the transmittal letters because the request was for records that were not CSI
records and transmittal letters are not to contain CSI, reasoning Requester’s
argument was based on the OOR’s finding that the CSI Act’s procedural
requirements had not been met. 265 A.3d at 433.
As the Supreme Court explained, “the PUC has express authority, and the
expertise, to determine if a public utility record has been properly designated, both
substantively and procedurally, and to afford a public utility with the opportunity
to resubmit a record that was improperly, defectively, or not designated as CSI.”
Id. at 432 (emphasis added). Determining the consequences of a public utility’s
failure to comply with PUC regulations or the CSI Act regarding the submission of
documents “is [] an express function of the PUC, not the OOR.” Id. at 433
(emphasis added). Regardless of the protocols and procedures developed by the
PUC providing that transmittal letters should not contain CSI, the PUC, upon its
review, determined that at least some of the responsive records here did include
22
nondisclosable CSI. Pursuant to Friedman II, once the PUC made this determination
and advised the OOR of its position through affidavits and supporting evidence, the
OOR’s inquiry should have ended with regard to those responsive CSI Records, and
“the OOR should have yielded jurisdiction of [Requester’s] request to the PUC.” Id.
Thus, the proper forum for Requester to challenge the PUC’s determination that
there are responsive records containing CSI or are CSI is with the PUC, not the
OOR.20 As a result, any challenge to transmittal letters that contain CSI and other
CSI Records is outside the OOR’s authority, and the Final Determination directing
their disclosure is reversed.
However, our inquiry does not end here, and we now turn to the OOR’s Final
Determination directing the disclosure of Non-CSI Records.21
B. Non-CSI Records
The Non-CSI Records consist of transmittal letters not containing or not being
alleged to contain CSI and other records submitted by Energy Transfer to the PUC
not containing or are not being alleged to contain CSI. Because these records are
not alleged to contain or are not CSI, they are not entitled to protection under the
CSI Act. Thus, we must determine whether, as Petitioners contend, “both the
transmittal letters and attachments BIE received from [Energy Transfer] are exempt
from disclosure” under the RTKL exceptions, (PUC’s Br. at 25; see Energy
Transfer’s Br. at 39-49), or as Requester argues are disclosable because Petitioners
20
As the Supreme Court noted, “[o]ur holding here does not foreclose [Requester’s] ability
to challenge Energy Transfer’s CSI-designation on procedural or substantive grounds pursuant to
the CSI Act and corresponding PUC regulations.” Friedman II, 265 A.3d at 434 n.13.
21
To the extent Petitioners argue that all of the responsive records are covered by the RTKL
exceptions, we need not address those exceptions regarding the CSI Records because those records
are not subject to disclosure under the RTKL.
23
failed to meet their burden of proving the applicability of those exceptions. We
begin with the non-CSI transmittal letters.
1. Non-CSI Transmittal Letters
Petitioners argue that all the responsive records, which would include the non-
CSI transmittal letters, are protected from public disclosure by the claimed RTKL
exceptions and the OOR erred in concluding otherwise. Requester asserts the OOR
committed no error because transmittal letters are to be treated as public records
under Section 102.3(b)(1) of the PUC’s regulations.
As Friedman II recognized, the RTKL distinguishes between access to
records and the public nature of records. Section 306 of the RTKL states
“[n]othing in this act shall supersede or modify the public or nonpublic nature of
a record or document established in Federal or State law, regulation or judicial
order or decree.” 65 P.S. § 67.306 (emphasis added). “Section 306 of the RTKL
provides that [state] law operates to supersede contrary provisions” of the RTKL
where that law establishes the public nature of a document. Heltzel, 90 A.3d at 831.
“Once ‘established’ by statute as ‘public,’ a record is no longer subjected to a
traditional public record analysis under the RTKL.” Id. at 832.
The OOR relied on Section 102.3(b)(1) of the PUC’s regulations to hold that
transmittal letters are disclosable public records. (Final Determination at 16-18.)
This regulation states:
When a public utility is required to submit a record that contains [CSI]
to the [PUC], the public utility shall do the following:
(1) Clearly state in its transmittal letter to the [PUC] that the record
contains [CSI] 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 [CSI].
24
52 Pa. Code § 102.3(b)(1) (emphasis added).
Here, non-CSI transmittal letters “will be treated as a public record . . . .” Id.Subsection (b)(1) does not include, as Section 102.3(b)(2) (relating to other records
submitted by a utility) does, the statement “subject to the [RTKL],” which
specifically invokes the RTKL’s processes. Compare 52 Pa. Code § 102.3(b)(1),
with 52 Pa. Code § 102.3(b)(2). Having been designated a “public record” by
Section 102.3(b)(1) without any limitation, those non-CSI transmittal records are no
longer subject to the traditional public record analysis, which would include a
consideration of the RTKL’s exceptions. Heltzel, 90 A.3d at 832. Thus, although
Petitioners argue that the responsive non-CSI transmittal letters are exempt from
disclosure pursuant to Section 708(b)(2)-(3), (11), (17) of the RTKL, non-CSI
transmittal letters were made public, but not “subject to the [RTKL],” 52 Pa. Code
§ 102.3(b)(2), and the RTKL’s exceptions may not be used to alter the designated
public nature of those letters. This holding is consistent with Friedman II because,
unlike the records at issue in Friedman II, the inquiry here does not involve
transmittal letters that were designated as erroneously containing CSI. Rather, our
analysis on this issue relates only to non-CSI transmittal letters, which are to be
treated as a public record without limitation by the PUC’s regulations.
2. Non-CSI Records
There is no dispute the OOR has the authority to consider whether the non-
CSI records were exempt from disclosure pursuant to Section 708(b)(2)-(3), (11), or
(17). Rather, the issue is whether the OOR erred in concluding that Petitioners did
not meet their burden of proving the applicability of those exceptions to these non-
CSI records.
25
Regarding the public nature of and public access to records submitted by a
public utility, Section 3(b) of the CSI Act directs the PUC to develop procedures for
public utilities to submit their records, which should provide two categories of
records, those which are public and subject to the RTKL, and those which are
confidential and not subject to the RTKL. 35 P.S. § 2141.3(b). In accordance with
Section 3(b) of the CSI Act, Section 102.3(b)(2) of the regulations provides the
following:
When a public utility is required to submit a record that contains [CSI]
to the [PUC], the public utility shall do the following:
....
(2) Separate the information being filed into at least two categories:
(i) Records that are public in nature and subject to the
[RTKL].
(ii) Records that are treated as containing [CSI] and not
subject to the RTKL.
52 Pa. Code § 102.3(b)(2). While this regulation indicates that records that do not
contain CSI (excluding non-CSI transmittal letters) are public in nature, it
specifically links, without limitation, those records to the RTKL’s provisions. The
RTKL’s provisions include the Section 708(b) exceptions.
Regarding public access to records, “[c]onflicts as to public access, as
opposed to public nature, are governed by Section 3101.1 of the RTKL[, 65 P.S.
§ 67.3101.1].” Heltzel, 90 A.3d at 832. Section 3101.1 of the RTKL provides: “If
the provisions of [the RTKL] regarding access to records conflict with any other
Federal or State law, the provisions of [the RTKL] shall not apply.” 65 P.S.
§ 67.3101.1. Here, there is no conflict as to how Non-CSI Records are to be
26
accessed by the public because, although there are regulations describing how
challenges to a designation of a record as CSI are to be made to the PUC, 52 Pa.
Code § 102.4, there are none describing how the public can request access to non-
CSI records in the first instance. Rather, both the CSI Act and the regulations link
the non-CSI records to the RTKL and its provisions.
Under the RTKL, the burden is on Petitioners to prove, by a preponderance
of the evidence, the applicability of a RTKL exception. See 65 P.S. § 67.708(a)(1);
Pa. State Police v. Kim, 150 A.3d 155, 157 (Pa. Cmwlth. 2016). “A preponderance
of the evidence under the RTKL is ‘tantamount to a more likely than not inquiry.’”
Pa. State Police, 150 A.3d at 157 n.5 (quoting W. Chester Univ. v. Schackner, 124
A.3d 382, 393 (Pa. Cmwlth. 2015)). Here, Petitioners submitted affidavits and a
verified statement to meet their burden of proof.
Generally,
[a]ffidavits are the means through which a governmental agency details
the search it conducted for the documents requested and justifies
nondisclosure of the requested documents under each exemption
upon which it relied []. The affidavits must be detailed,
nonconclusory, and submitted in good faith. . . . Absent evidence of
bad faith, the veracity of an agency’s submissions explaining reasons
for nondisclosure should not be questioned. . . . In other words, a
generic determination or conclusory statements are not sufficient
to justify the exemption of public records.
Off. of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwlth. 2013) (en banc)
(citation omitted) (emphasis added); see also McGowan v. Pa. Dep’t of Env’t Prot.,
103 A.3d 374, 382-83 (Pa. Cmwlth. 2014) (generally, where “no evidence has been
presented to show that [an agency] acted in bad faith, the averments in [that
agency’s] affidavits should be accepted as true.”). However, exceptions to the
27
RTKL are to be read narrowly. Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638, 646
(Pa. Cmwlth. 2016).
With these principles in mind, we turn to the Section 708(b) exceptions
Petitioners’ assert apply to the remaining, responsive Non-CSI Records.
a. Public Safety and Public Utility Infrastructure Security Exceptions
The PUC contends Metro’s “affidavit identified [] specific records within the
scope of” the Request, which include “blast radius zones, damage assessments, and
operating parameters of [Energy Transfer] pipelines, and [] how release of those
records risks harm to the public and [Energy Transfer] pipelines from criminal or
terrorist acts.” (PUC’s Br. at 26.) Moreover, the PUC maintains its affidavits
establish that the responsive “records clearly relate to a public safety activity, BIE’s
investigation of [Energy Transfer’s] pipelines,” and disclosure would be “reasonably
likely to endanger public safety and public utility infrastructure.” (Id.)
Energy Transfer argues the public safety exception under Section 708(b)(2)
“exempts the requested records because they involve emergency response plans,”
and the public utility infrastructure security exception under Section 708(b)(3)
“exempts many of the records because disclosure would create a reasonable
likelihood of endangering the safety or the physical security of public utility
infrastructure.” (Energy Transfer’s Br. at 42.) Energy Transfer asserts the OOR
erred in comparing the Request in this case to the request at issue in Friedman I
because, in Friedman I, Requester sought specific “blast radius calculations,” which
allowed the PUC to identify specific responsive records to which the claimed
exceptions applied. (Id. at 44.) In essence, Energy Transfer contends Metro’s
affidavit was not conclusory, but reflected a response to Requester’s “open-ended
and untethered” request for documents encompassing every transmittal letter and
28
attached record Energy Transfer has ever submitted pursuant to the CSI Act.22 (Id.
at 44-45.)
Requester responds Petitioners offer mere speculation in the affidavits and
verified statement that Non-CSI Records could present a security risk if released.
Requester asserts Nardozzi fails to describe any Energy Transfer designated Non-
CSI Records or explain how the Non-CSI Record disclosure could cause a security
risk. Moreover, Requester contends Metro’s affidavit centers on records marked as
CSI, without addressing Requester’s request for attachments specifically designated
as non-CSI. Requester “accepts the possibility that disclosure of some of the records
could create a security risk,” but argues Petitioners “have not provided any detail as
to the scope of these records that would enable an assessment of which records may
or may not implicate security implications.” (Requester’s Br. at 20 (emphasis in
original).)
Section 708(b)(2), the public safety exception, exempts the following records
from access under the RTKL: “[a] record maintained by an agency in connection
with the military, homeland security, national defense, law enforcement or other
public safety activity that, if disclosed, would be reasonably likely to jeopardize or
22
Regarding Section 708(b)(2)-(3), Energy Transfer argues in its reply brief that
Requester’s “argument reinforces the compelling need to treat the records at issue as [CSI], such
that challenges to the designation will be adjudicated by the PUC under the CSI Act, not by [the]
OOR under the RTKL. Every document [the] OOR ordered to be released is necessarily, by the
terms of the Request, something transmitted by Energy Transfer to the PUC’s [BIE] as [CSI].”
(Energy Transfer’s Reply Br. at 12 (emphasis added).) This argument was made, however, in
reference to the claimed public safety and public utility infrastructure security exceptions pursuant
to the RTKL. Because our analysis here involves only Requester’s request for Non-CSI Records,
which Petitioners’ claim are exempt from disclosure pursuant to the RTKL, we find no support for
Energy Transfer’s argument that these Non-CSI Records should be treated as CSI Records. Here,
Item No. 3 of the Request sought, specifically, records which are public in nature and subject to
the RTKL that accompanied the transmittal letters at issue. (R.R. at 0009a.)
29
threaten public safety or preparedness or public protection activity[.]” 65 P.S.
§ 67.708(b)(2). To successfully invoke
this exception, an agency must show: (1) the record at issue relates to
a law enforcement or public safety activity; and[] (2) disclosure of the
record would be “reasonably likely” to threaten public safety or a public
protection activity. Adams[ v. Pa. State Police, 51 A.3d 322 (Pa.
Cmwlth. 2012)]. In interpreting the “reasonably likely” part of the test,
as with all security-related exceptions, we look to the likelihood that
disclosure would cause the alleged harm, requiring more than
speculation.
Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 374-75 (Pa. Cmwlth. 2013). Section
708(b)(3), the public utility infrastructure security exception, states: “The following
are exempt from access by a requester under this act: . . . [a] record, the disclosure
of which creates a reasonable likelihood of endangering the safety or the physical
security of a building, public utility, resource, infrastructure, facility or information
storage system[.]” 65 P.S. § 67.708(b)(3). In order to meet this exception, “the
proponent must show that the disclosure of the records, rather than the records
themselves, would create a reasonable likelihood of endangerment to the safety or
physical security of certain structures.” McKelvey, 255 A.3d at 394.
Both of these exceptions are security related, and “[a]n agency must offer
more than speculation or conjecture to establish the security-related exceptions
under the [RTKL].” California Borough v. Rothey, 185 A.3d 456, 468 (Pa. Cmwlth.
2018); see also Lutz v. City of Philadelphia, 6 A.3d 669, 676 (Pa. Cmwlth. 2010).
A substantial and demonstrable risk is one that is “‘actual or real and apparent.’”
Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 180 (Pa. Cmwlth. 2019)
(quoting Carey, 61 A.3d at 373) (emphasis omitted).
30
Petitioners rely on the affidavits and verified statement to argue they
established the applicability of both the public safety exception and the public utility
infrastructure security exception, but the OOR found this evidence to be insufficient.
(Final Determination at 25.) Reviewing that evidence, we agree with the OOR.
Here, Secretary’s affidavit states only that BIE “has initiated numerous
noncriminal investigations against” Energy Transfer, and the PUC “does not have
any responsive records other than those that are part of these [BIE] investigations.”
(R.R. at 0095a.) The Secretary’s affidavit offers no insight or details related to these
exceptions. Metro’s affidavit states “[m]any of the numerous records submitted to
[BIE] under Sunoco Pipeline’s transmittal letters contain ‘[CSI]’. . . . In my
professional opinion, release of records marked as CSI would compromise
security against sabotage or criminal or terroristic acts regarding pipeline facilities”
in a number of ways. (Id. at 0103a (emphasis added).) While Metro’s attestation
provides that many records submitted to BIE contain CSI and describes specific
dangers related to releasing records marked as CSI, his statement referenced security
concerns related only to CSI Records. Metro does not identify or address records
not containing or not constituting CSI or explain why release of those records would
meet the standards required by these exceptions. Nardozzi’s verified statement
similarly focused on CSI Records. (R.R. at 0077a-0081a.) Therein, Nardozzi
referenced those “[r]ecords in possession of the PUC that contain [Energy
Transfer’s] [CSI] . . . that, if disclosed, could be used to facilitate damage or
disruption to [Energy Transfer’s] pipelines.” (Id. at 0078a (emphasis added).) As
with Metro’s affidavit, Nardozzi’s verified statement does not identify or address
records beyond those designated as CSI or containing CSI or explain why the Non-
CSI Records fall within one of these exceptions.
31
Based on the evidence presented, Petitioners did not show it was more likely
than not that release of the Non-CSI Records “would be ‘reasonably likely’ to
threaten public safety or a public protection activity,” Carey, 61 A.3d at 374-75, or
that disclosure of the Non-CSI Records “would create a reasonable likelihood of
endangerment to the safety or physical security of certain structures,” McKelvey, 255
A.3d at 394. For these reasons, the OOR did not err in concluding Petitioners did
not meet their burden of proving that the public safety and public utility
infrastructure security exceptions applied to exempt the Non-CSI Records from
disclosure.
b. Trade Secrets/Confidential Proprietary Information Exception
Energy Transfer argues Nardozzi’s verified statement is sufficient to support
its argument that Item Nos. 2 and 3 of the Request implicate records exempt from
disclosure pursuant to the trade secrets/confidential proprietary information
exception found in Section 708(b)(11).23 Energy Transfer contends it “has
consistently provided the PUC with valuable trade secret information, such as
processes, formulas, and plans, which may be implicated by the Request” and
generally argues Nardozzi’s verified statement satisfies the requirements of Section
708(b)(11) for establishing this exception. (Energy Transfer Br. at 45-49.) Energy
Transfer argues the OOR erred in rejecting this exception based on a lack of
specificity in the response because, Energy Transfer asserts, the Request lacked
specificity and there are thousands of pages of documents implicated by Requester’s
broad request. (Energy Transfer Br. at 49.)24 Energy Transfer also argues that, if
23
The PUC did not offer any argument regarding this exception.
24
Energy Transfer further contends “[t]he record is clear that hundreds of transmittal letters
and thousands of pages of documents are implicated, and that Energy Transfer would not have
submitted any of those records to the PUC under the CSI Act regulations if it did not believe that
they needed to be kept confidential.” (Energy Transfer’s Br. at 49 (emphasis added).) To the
32
additional specificity was needed, the OOR should have afforded it the opportunity
to provide more supporting evidence.
Requester argues Nardozzi’s verified statement “merely parrots back th[e]
definition” of a trade secret and does not make any representations about any
particular record. (Requester’s Br. at 22.) Requester asserts Nardozzi’s verified
statement is devoid of detail regarding what documents would be exempt under this
exception. According to Requester, simply reciting the statute, without more, is
insufficient to exempt records under this exception. Energy Transfer, Requester
argues, is seeking a blanket exception for all records because some of those
documents might be exempt, a result that is inconsistent with the RTKL.
Section 708(b)(11) exempts from disclosure “[a] record that constitutes or
reveals a trade secret or confidential proprietary information.” 65 P.S.
§ 67.708(b)(11). The RTKL defines the terms “confidential proprietary
information” and “trade secret” differently; thus, these terms must be analyzed
separately. Off. of the Governor v. Bari, 20 A.3d 634, 648 (Pa. Cmwlth. 2011).
Confidential proprietary information is defined as: “[c]ommercial or financial
information received by an agency: (1) which is privileged or confidential; and
(2) the disclosure of which would cause substantial harm to the competitive position
of the person that submitted the information.” 65 P.S. § 67.102. To be considered
confidential proprietary information, the information must satisfy both components
of this two-part test. Bari, 20 A.3d at 649. When determining whether information
is “‘confidential,’ we consider the efforts the parties undertook to maintain [its]
secrecy.” Dep’t of Pub. Welfare v. Eiseman, 85 A.3d 1117, 1128 (Pa. Cmwlth. 2014)
extent that Energy Transfer argues this information, or these records, are CSI subject to the CSI
Act, we emphasize that the analysis pursuant to Section 708(b)(11) concerns only Non-CSI
Records.
33
rev’d on other grounds, 125 A.3d 19 (Pa. 2015). In considering whether disclosing
confidential information will result in substantial harm to the competitive position
of the entity from which the information was obtained, that entity must show:
“(1) actual competition in the relevant market; and[] (2) a likelihood of substantial
competitive injury” based on the release of the information. Dep’t of Corr. v.
Maulsby, 121 A.3d 585, 590 (Pa. Cmwlth. 2015).
Like the confidential proprietary information test, trade secret information
must satisfy both components of a two-part test in order to be considered a trade
secret. A trade secret is defined as:
Information, including a formula, drawing, pattern, compilation,
including a customer list, program, device, method, technique or
process that:
(1) derives independent economic value, actual or potential, from not
being generally known to and not being readily ascertainable by proper
means by other persons who can obtain economic value from its
disclosure or use; and
(2) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
65 P.S. § 67.102. Information may constitute a trade secret under the RTKL
based upon the following factors: (1) the extent to which the
information is known outside of the business; (2) the extent to which
the information is known by employees and others in the business;
(3) the extent of measures taken to guard the secrecy of the information;
(4) the value of the information to the business and to competitors; (5)
the amount of effort or money expended in developing the information;
and (6) the ease or difficulty with which the information could be
properly acquired or duplicated by others.
Smith on behalf of Smith Butz, LLC v. Pa. Dep’t of Env’t Prot., 161 A.3d 1049, 1064
(Pa. Cmwlth. 2017). “A ‘trade secret’ must be an ‘actual secret of peculiar
34
importance to the business and constitute competitive value to the owner.’” Id.(quoting Parsons v. Pa. Higher Educ. Assistance Agency, 910 A.2d 177, 185 (Pa.
Cmwlth. 2006)). Substantial secrecy and competitive value are the most important
of the trade secret criteria. Id.In the verified statement, Nardozzi explained:
Since 2008, [Energy Transfer] has provided the PUC with numerous
records containing commercial and financial information regarding
[Energy Transfer’s] operations. This information includes details
regarding [Energy Transfer’s] specialized business practices and
operations that [were] developed after investing significant time and
resources. For example, Sunoco is required to create various
procedures and plans for construction, operation, and maintenance of
its pipelines pursuant to 49 C.F.R. Part 195. Each pipeline operator is
required to have its own such procedures and plans. Sunoco has
invested significant time and resources to create these proprietary
documents that have substantial economic value within the industry.
(R.R. at 0079a (emphasis added).) Regarding trade secrets, Nardozzi stated:
Since 2008, [Energy Transfer] has consistently provided the PUC with
valuable trade secret information, such as processes, formulas, and
plans, which may be implicated by the requests. This information
includes details regarding [Energy Transfer’s] specialized business
practices and operations, which derive their value from not being
generally known. This information is the result of [Energy Transfer’s]
years of experience operating its pipeline system and significant
monetary investment in the development of its proprietary processes.
(Id. (emphasis added).) Finally, Narduzzi indicated “[Energy Transfer] treats its
proprietary and trade secret information as confidential and takes substantial steps
to guard its secrecy” by “limiting access . . . to authorized personnel and requiring
non-disclosure agreements prior to disclosing” the information to third parties. (Id.
at 0079a-0080a.)
35
Nardozzi’s verified statement does not specify any particular records as being
responsive and simply tracks the language found in the statute itself, although not
completely. Here, Nardozzi alluded to records “which may be implicated by the
Request[],” (id. at 0079a (emphasis added)), but did not provide or describe any
particular Non-CSI Records so as to allow for a determination as to whether those
responsive records were actually subject to this exception. There is no meaningful
way to determine if a responsive record, listed in the verified statement merely as
“commercial [or] financial information” or “processes, formulas, and plans,” (id.),
is implicated by the Request, and exempt from disclosure, based on the generic
information provided by Nardozzi. “[A] generic determination or conclusory
statements are not sufficient to justify the exemption of public records.” Scolforo,
65 A.3d at 1103.
Also absent from Nardozzi’s verified statement was reference to the
competitive harm to Energy Transfer if the responsive records were released and the
competitive value the records provided to Energy Transfer, which are required to
establish that the responsive records were, respectively, confidential and privileged
information or a trade secret. Maulsby, 121 A.3d at 590; Smith, 161 A.3d at 1064.
Finally, although Energy Transfer now argues that Nardozzi could not be more
specific due to the number of potential responsive records implicated, the size of a
request does not excuse the obligation to produce responsive records. Pa. State Sys.
of Higher Educ. v. Ass’n of State Coll. & Univ. Facs., 142 A.3d 1023, 1031-32 (Pa.
Cmwlth. 2016) (PASSHE). Rather, where the number of potentially responsive
records is so large that determining whether they would be exempt from disclosure
within the timeframe is not possible, the agency must provide the OOR with
information regarding the number of potential records and the amount of time
36
needed in order for the OOR to grant additional time to determine if exceptions
would apply. Id. at 1032. There is no indication in the record of any such request
in this matter.
For these reasons, the OOR did not err in finding that Energy Transfer did not
meet its burden of proving that the Non-CSI Records were exempt under the trade
secrets/confidential and privileged information exception.
c. Noncriminal Investigation Exception
Petitioners argue the OOR erred in finding that they did not meet their burden
of proof on the noncriminal investigation exception because the affidavits and
verified statement establish that all of the responsive records were submitted by
Energy Transfer to BIE as part of ongoing investigations. This is because, as the
PUC contends, “the purpose of BIE [is] to conduct investigations and prosecute
enforcement actions.” (PUC’s Br. at 27 (emphasis omitted).) Moreover,
investigations of pipelines conveying natural or artificial gas or petroleum products,
like the one operated by Energy Transfer, are part of the PUC’s official duties as the
investigations are conducted pursuant to the Public Utility Code, 66 Pa.C.S. §§ 101-
3316, compliance with which the PUC is responsible for enforcing. The PUC argues
its “affidavits establish[] that BIE is and has been, for more than five years, engaged
in ‘a systematic or searching inquiry, a detailed examination, or an official probe’ –
multiple noncriminal investigations – of [Energy Transfer] and affiliated
companies.” (PUC’s Br. at 29 (quotation omitted).)
Energy Transfer argues that for Petitioners to meet their burden of proof under
Sherry v. Radnor Township School District, 20 A.3d 515 (Pa. Cmwlth. 2011), and
Moore v. Office of Open Records, 992 A.2d 907 (Pa. Cmwlth. 2010), they were only
required to supply affidavits, made under penalty of perjury, which constituted
37
competent evidence supporting the application of the exceptions. (Energy
Transfer’s Br. at 41.) Energy Transfer acknowledges that Metro’s affidavit is
“laconic,” but nonetheless asserts the affidavit is complete and supports the claimed
exception. (Id. at 42.) In addition, Energy Transfer contends the “OOR has no cause
to require the specifics of the noncriminal investigations at issue in order to conclude
that they exist,” and there was no evidence of bad faith, which would provide a basis
to reject Metro’s affidavit. (Id.)
Requester argues that not only did Petitioners fail to provide any case
numbers, but they also failed to even describe the investigations and/or the records
themselves. The PUC’s reliance on the mere assertion of numerous, ongoing
investigations, Requester maintains, is insufficient to exempt all of the responsive
records Energy Transfer has ever submitted. Requester points out the Request did
not seek any documents created by the PUC or investigative materials, such as the
PUC’s notes and analysis; rather, the Request sought transmittal letters and Non-CSI
Records submitted by Energy Transfer.
Section 708(b)(17)(ii) exempts from disclosure “record[s] of an agency
relating to a noncriminal investigation, including: . . . [i]nvestigative materials,
notes, correspondence and reports.” 65 P.S. § 67.708(b)(17)(ii). Investigation, as
used in Section 708(b)(17), is not defined by the RTKL, but has been defined as
meaning “a systematic or searching inquiry, a detailed examination, or an official
probe” that is a “part of the agency’s official duties.” Sherry, 20 A.3d at 523 (quoting
Pa. Dep’t of Health v. Off. of Open Recs., 4 A.3d 803, 811, 814 (Pa. Cmwlth. 2010)).
Additionally, an agency must show that the investigation “surpass[es] the [agency’s]
routine performance of its duties and entail a systemic or searching inquiry, detailed
examination, and/or official probe.” Id. An agency “cannot rely on broadly stating
38
what investigations . . . entail” to meet its burden under this exception “because
merely stating that an investigation occurred is not sufficient.” Pa. Dep’t of Lab.
& Indus. v. Darlington, 234 A.3d 865, 877 (Pa. Cmwlth. 2020) (citing Bagwell, 131
A.3d at 660) (emphasis added). In determining whether this exception applies,
“courts [should] focus[] on the nature of the particular documents involved and
whether they were created during the course of an investigation.” Dep’t of
Health, 4 A.3d at 813 (emphasis added). Applying these principles, we discern no
error in the OOR’s determination that Petitioners did not meet their burden of proof
on this exception.
In Pennsylvania Public Utility Commission v. Gilbert, the requester sought
access to records related to underground natural gas pipelines, including “[a]ll
records related to probable violations identified by the [PUC,]” such as those related
to safety and kept by pipeline operators for inspection, “[a]ll records related to
pipeline incidents reported to the [PUC],” and any other communications received
by the PUC from pipeline operators as mandated by the “Pipeline Safety
Improvement Act of 2002.”25 40 A.3d 755, 757 (Pa. Cmwlth. 2012). The PUC
denied the request for incident reports, as well as communications from pipeline
owners and operators regarding public awareness programs procured by PUC gas
safety inspectors during their compliance evaluations based on the noncriminal
investigation exception. The requester appealed, and the OOR found the responsive
records to be public and not exempt from disclosure under Section 708(b)(17).
On appeal to this Court, the PUC argued the OOR erred in not exempting the
requested gas safety inspection records under the noncriminal investigation
exception. This Court agreed and reversed, explaining
25
This Act was created through Chapter 601 of Title 49 of the United States Code, 49
U.S.C. §§ 60101-60137.
39
[h]ere, the investigations performed by the PUC are done as part of the
requirement for eligibility for funding from the United States
Department of Transportation Pipeline and Hazardous Materials Safety
Administration (PHMSA).[] In order to qualify for funding, PHMSA
requires an annual certification by the PUC. To facilitate the
certification process, the PUC created [the BIE] and hired gas safety
inspectors whose sole duty is to conduct inspections/investigations of
gas utilities for compliance with applicable state and federal gas safety
regulations. (Affidavit of Paul Metro . . . .) The gas safety inspectors’
inspections/investigations involve the investigation of the gas utility’s
entire operation, the plant, the infrastructure, the records and
employees. (Id. . . .) The purpose of these inspections/investigations
is to assess whether the gas utility is providing the quality of service
mandated by law. (Id.) The gas safety inspections involve
systematic, searching, detailed examinations of a natural gas
utility’s operations and whether such operations were in
compliance with the applicable federal and state pipeline safety
regulations.
Gilbert, 40 A.3d at 759-60 (emphasis added). The Court in Gilbert compared the
matter before it to the one in Department of Health, which involved records from
government-mandated inspections and surveys of nursing homes the disclosure of
which could lead to less cooperation in future inspections and surveys, and
determined the records requested in Gilbert were related to BIE investigations and
inspections to ensure compliance with the Code and other state and federal
regulations. Id. at 760. Noting that the records at issue involved investigative
materials of BIE’s inspectors and ordering disclosure could reveal, among other
information, unsubstantiated allegations, the inspectors’ notes, and employee
statements, the Court observed such disclosure could lead to less cooperation in
future investigations or inspections as a result contrary to public policy. Gilbert, 40
A.3d at 760-61. Ultimately, the Court concluded the inspections qualified as
40
noncriminal investigations and the requested investigative materials and utility
employee statements were exempt from public disclosure. Id. at 761-62.
In Darlington, this Court distinguished between records resulting from regular
inspections and those from inspections or investigations which exceeded the regular
review of an agency. There, a requester sought “any and all records and relevant
materials . . . including but not limited to correspondence, inspections,
investigations, reports, citations, violations, penalties, photographs, etc.[,] pertaining
to” a specific incident at an energy plant. 234 A.3d at 868. The Department of Labor
and Industry (DOL) denied the request as it implicated records related to a
noncriminal investigation. The requester appealed to the OOR, arguing the DOL’s
response was vague and non-specific. The DOL filed a position statement
explaining the records were gathered pursuant to its investigation of whether the
specific incident violated the Boiler and Unfired Vessel Pressure Law26 (Boiler
Law), pursuant to its powers under Section 4 of the Boiler Law, 35 P.S. § 1331.4.
The DOL also submitted an attestation by the director of the DOL’s Bureau of
Occupational and Industrial Safety (BOIS), which we characterized as stating that
“BOIS conducted a thorough examination of the records and determined the records
fell under the ‘statutory mandate’ of the Boiler Law and that none of the records fell
into an exception to the noncriminal investigation exemption.” Id. The OOR asked
the DOL to provide a supplemental attestation with additional details and
descriptions of the records. In this supplemental attestation, the BOIS director stated
that some inspections were “regular inspections performed on a periodic basis.
Others, however, [were] the direct result of a boiler and/or other regulated pressure
vessel incident or a complaint.” Id. at 869.
26
Act of June 18, 1998, P.L. 655, 35 P.S. §§ 1331.1-1331.18.
41
The OOR granted in part and denied in part the requester’s appeal. After
reviewing the original and supplemental attestations by the BOIS director, and
examining the Boiler Law, the OOR distinguished Department of Health and found
that the attestations established an exemption for the inspections related to the
incident but did not establish an exemption for the regular inspections, which did not
rise to the level of a noncriminal investigation. On the DOL’s appeal, this Court
addressed the regular boiler field inspection reports at issue, agreeing with the
OOR’s determination
that the routine inspections at issue d[id] not meet the standards of a
“noncriminal investigation” as set out in our precedent for essentially
four reasons: 1) because the Boiler Law itself differentiates between
“inspections” and “investigations”; 2) because the inspections can be
performed by non-[DOL] personnel while the investigations cannot be;
3) the affidavits did not provide sufficient details to show how the
inspections met the standards in our case law; and 4) the disclosure here
does not raise the same public policy concerns as were present in
Department of Health.
Darlington, 234 A.3d at 874-75. Regarding the BOIS director’s attestations, we held
they were insufficient to establish the exception’s applicability because they
only list[] what the safety inspection reports entail and gives a very
general description of what the [DOL] does in both investigations and
inspections. Importantly, [the BOIS director] also does not distinguish
between what a routine field inspection involves compared to an
investigation of boiler-related incidents, notwithstanding that the
statute distinguishes between the two activities.
Id. at 876 (bold emphasis added). We held the attestations did not demonstrate that
the DOL was “making a systematic and searching inquiry, a detailed examination,
or an official probe” into operations and compliance with the Boiler Law and
regulations. Id. (quoting Dep’t of Health, 4 A.3d at 811). Thus, the attestations did
42
not support a finding that the regular inspections were noncriminal investigations
the records of which would be exempt.
Examining the evidence offered by Petitioners here, we conclude this matter
is more like Darlington than Gilbert, and the noncriminal investigation exception
requirements, as set forth in our precedent, have not been met. Petitioners appear to
invite this Court to establish a bright line rule. In Petitioners’ view, to establish the
applicability of this exception, they only need to submit an affidavit declaring the
ongoing occurrence of “multiple investigations.” This position is contrary to our
precedent, which holds that “merely stating that an investigation occurred is not
sufficient.” Darlington, 234 A.3d at 877 (emphasis added).
Metro’s affidavit, which the PUC asserts satisfies its burden, states that BIE
has been engaged in multiple noncriminal investigations of Energy Transfer for
more than five years, BIE had received “hundreds of transmittal letters with
thousands of pages of attached documents,” and BIE “does not have any requested
records other than records that are part of a noncriminal investigation.” (R.R. at
102a-03a.) These statements reflect only that noncriminal investigations of Energy
Transfer have occurred, which is insufficient under our precedent, and do not
establish that the investigations were “a systematic and searching inquiry, a detailed
examination, or an official probe,” rather than just being part of its “routine
performance of its duties.” Sherry, 20 A.3d at 523.
Further, Metro stated: “To access and review all of the documents requested
by [Requester] would be unduly burdensome on [BIE] staff,” and the number of
documents involved and the limited timeframe prevented BIE from confirming the
exact number of documents involved. (R.R. at 0102a-03a.) However, determining
whether a record is exempt under this exception requires the Court to “focus[] on the
43
nature of the particular documents involved and whether they were created during
the course of an investigation.” Dep’t of Health, 4 A.3d at 813 (emphasis added).
The failure to review the responsive documents and provide details as to why they
fall within this exception, or to request additional time to do so, PASSHE, 142 A.3d
at 1031-32, prevents a determination of whether a particular document involved
was created during the course of a noncriminal investigation.
Secretary’s affidavit provides even less than Metro’s affidavit. Therein,
Secretary simply states that BIE “has initiated numerous noncriminal investigations
against” Energy Transfer and has no responsive records other than those related to
those investigations. (R.R. at 0095a.) Nardozzi’s verified statement is also vague
and general in nature, with no indication of which, if any, of the responsive records
implicate an ongoing noncriminal investigation, either by number or general
description. (Id. at 0077a-0080a.) Nardozzi indicated Energy Transfer submits
information to the PUC for a variety of reasons, including in applications for
operational approvals and in compliance filings, which could be viewed as being
contrary to the PUC’s claim that the only records the PUC has relate to noncriminal
investigations. (Id. at 0078a.) Accordingly, Secretary’s affidavit and Nardozzi’s
verified statement do not show that the requested records relate to a noncriminal
investigation, which would be “a systemic or searching inquiry, detailed
examination, and/or official probe,” rather than just being part of its “routine
performance of its duties.” Sherry, 20 A.3d at 523.
The affidavits and verified statement submitted in this matter are unlike the
more detailed affidavit found to be sufficient in Gilbert. The affidavits in Gilbert
established that the investigations performed were done pursuant to PHMSA,
described the purpose of those investigations, and noted the specific gas safety
44
inspections there involved “systematic, searching, detailed examinations of a natural
gas utility’s operations and whether such operations were in compliance with the
applicable federal and state pipeline safety regulations.” Gilbert, 40 A.3d at 759-60.
In contrast, Metro’s and Secretary’s affidavits offer only obscure references to
multiple or numerous ongoing investigations, and do not explain what law or laws
these investigations pertain to or the purpose of these investigations, even in a
general sense. And, Nardozzi’s verified statement suggests Energy Transfer has
submitted documents which might be unrelated to ongoing investigations.
Based on our precedent, Petitioners’ submissions are simply not enough.
Petitioners’ evidence must offer some level of specificity beyond that all records
received by BIE are exempt by default due to the nature of BIE as an investigative
body. This is because an agency cannot rely merely on a statement that an
investigation has occurred, without more. Darlington, 234 A.3d at 877. For these
reasons, the OOR did not err in determining that Section 708(b)(17)’s noncriminal
investigation exception does not apply to any responsive Non-CSI Records.
III. CONCLUSION
To the extent the OOR held that any transmittal letters or records which are
alleged to constitute CSI or contain CSI should be disclosed, under Friedman I
and II, the OOR does not have the authority to consider whether those letters or
records actually contain CSI or are CSI. Administration of the CSI Act, which
includes determining whether records submitted to the PUC are properly (or
improperly) designated as containing or constituting CSI, rests with the PUC,
“which has the expertise” to make such determinations. Friedman II, 265 A.3d at
432. Accordingly, we reverse the Final Determination of the OOR with regard to
this category of records. However, with regard to non-CSI transmittal letters and
45
Non-CSI Records, which Petitioners acknowledged at oral argument exist, we hold
the OOR did have the authority to determine whether those records were subject to
disclosure under the RTKL. The responsive non-CSI transmittal letters are public
records without reference to the RTKL, as set forth in the PUC’s regulations, and
the OOR did not err in ordering their disclosure. In regard to the responsive Non-
CSI Records, the OOR did not err in ordering these records’ disclosure because
Petitioners did not meet their burden of establishing that the exceptions pursuant to
Section 708(b)(2)-(3), (11), and (17) applied to exempt them from disclosure. Thus,
we affirm the Final Determination with regard to these categories of records.
__________________________________________
RENÉE COHN JUBELIRER, President Judge
46
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Public Utility :
Commission, :
Petitioner :
:
v. : No. 1560 C.D. 2019
:
Eric Friedman, :
Respondent :
Energy Transfer, :
Petitioner :
:
v. : No. 1576 C.D. 2019
:
Eric Friedman, :
Respondent :
ORDER
NOW, April 25, 2023, the October 10, 2019 Final Determination of the
Office of Open Records is hereby AFFIRMED IN PART and REVERSED IN
PART in accordance with the foregoing opinion. The parties request in the July 29,
2021 Joint Status Report to stay oral argument in this matter is DISMISSED as
moot.
__________________________________________
RENÉE COHN JUBELIRER, President Judge