The PUC is not required to disclose a utility employee’s “tip letter” or other records relating to an investigation of the utility’s practices where the documents are not considered by the Commissioners when approving the resulting settlement.

A panel of the Commonwealth Court has held that documents relating to a settled, informal investigation of a utility by the PUC’s Bureau of Investigation & Enforcement (I&E) are not subject to disclosure under either section 335(d) of the Public Utility Code or the provisions of Right to Know Law (RTKL), where the documents are not provided to or considered by the commissioners.  The opinion in Pennsylvania Public Utility Commission v. Seder, No. 2132 C.D. 2013 (Pa. Commw. Ct. Dec. 3, 2014), reverses orders by the Office of Open Records directing the PUC to provide news reporters and their publications with access to an anonymous “tip letter” from a purported PPL employee and other documents relating to the resulting I&E informal investigation of the utility.  As the court itself acknowledged, its construction of section 335(d) and the RTKL allows the parties to a PUC settlement “great leeway in determining which documents are subject to public disclosure.”

The court considered the requirements of section 335(d) and the RTKL in turn.  Under section 335(d), the PUC must disclose documents related to an investigation of a public utility if (1) the commission has made a decision, entered into a settlement or taken any other official action under the Sunshine Act, and (2) the commission relied on the documents in question when doing so. 66 Pa. C.S. § 335(d).  The key question before the court was who constitutes the “commission” in the context of section 335(d):  the commissioners themselves, or the entirety of the PUC, including I&E.  Conceding that the statute is not a model of clarity, the court determined that “commission” means only the commissioners themselves, because they alone are entitled, by majority vote, to make the decisions, enter into the settlements and take the other official actions that are the subject of section 335(d).  The first prerequisite to disclosure was satisfied when the PUC approved the settlement with PPL, but the second was not, because the commissioners did not have access to or rely upon the “tip letter” or other documents when deciding to enter into the settlement.

The court then held that the requested documents are also exempt from public access under section 708(b)(17) of the RTKL, which exempts agency records relating to noncriminal investigations, including complaints, investigative materials, records containing the identity of a confidential source, and records containing information made confidential by law.  65 P.S. § 67.708(b)(17)(i)-(iv).  The “tip letter” is exempt from disclosure because it was the basis for I&E’s institution of an informal investigation.  The remaining documents are exempt because they were created or collected as part of an informal investigation to determine compliance with regulations.  The court reasoned that to require the PUC to disclose the requested documents could lead to public utilities and employees being less likely to provide information out of fear of retaliation or public embarrassment, thus “frustrating the purpose of [the] PUC’s investigations and lessening the effectiveness of the PUC in monitoring the utilities’ compliance with statutory and regulatory requirements.”  (The court concluded with a separate determination that a legal memorandum prepared by an I&E prosecuting attorney analyzing whether the allegations against PPL violated the Public Utility Code is legally privileged and therefore also exempt from disclosure.)

A copy of Pennsylvania Public Utility Commission v. Seder, No. 2132 C.D. 2013 (Pa. Commw. Ct.  Dec. 3, 2014) is available here.