Law allows state PUC to keep utilities data secret
by Eric Nalder, Jaxon Van Derbeken, San Francisco Chronicle
Californians concerned about dangerous pipelines running underneath their neighborhoods are barred from obtaining government records about them by a 60-year-old state law backed by Pacific Gas and Electric Co. and other utilities, a Chronicle investigation shows.
The vast majority of documents at the California Public Utilities Commission are off-limits to the public under the state law, and a related agency regulation, including investigation reports on natural-gas pipeline accidents and safety audits of companies like PG&E.
"Everything is secret unless it is declared otherwise," said Frank Lindh, general counsel for the five-member utilities commission since 2008 and before that a lawyer for PG&E.
In most other states, such documents are routinely available. But California’s law – one of the strictest in the nation – requires a vote of the Public Utilities Commission for an outsider to see unreleased paperwork. Records show that the panel consults with utilities first.
The commission’s confidentiality powers have frustrated average citizens seeking information about pipelines in their community and even hampered accident-related investigations.
"There’s no transparency whatsoever," said Anthony Moscarelli, who was denied access to documents about two aging gas pipelines that run within feet of his home in Suisun City. "They are pretty much immune."
After the September 2010 explosion of a PG&E pipeline in San Bruno that killed eight people, state regulators and PG&E officials couldn’t locate a report detailing a natural-gas blast in 1963 that resulted in the heart attack death of a San Francisco firefighter and destroyed a home.
PG&E and the utilities commission both stamped it confidential under the secrecy law, records show. The commission later destroyed its copy, officials say.
"You just don’t destroy" such documents, said Richard Kuprewicz, an independent safety expert who advises federal officials on pipeline safety regulations. They provide "critical historical information (that) can be used to help management make informed decisions about their system," he said.
"The lack of transparency in utility regulation should be deeply alarming to anyone concerned about gas pipeline safety in California," said San Francisco City Attorney Dennis Herrera, whose office has labored to obtain documents from the Public Utilities Commission.
New look likely
California’s secrecy statute has survived under the radar, but is likely to get more attention because of the San Bruno disaster. After a yearlong investigation, the National Transportation Safety Board blamed the explosion on long-standing neglect at PG&E and a failure by the utilities commission to track what was happening at the company it regulated.
Lindh said the commission has been more open since San Bruno, and the agency has posted several documents connected to the disaster on its website, including pre-accident audits of PG&E. When it comes to pipeline safety issues, Lindh said, "for the most part I believe the public does deserve public information."
"Nevertheless, we operate under the statutes," Lindh said.
When the commission formed an independent panel of experts to probe the San Bruno explosion, it noted that PG&E could mark records "confidential" before submitting them to investigators. But the commission also said the panel could, when it published its report, release any records that PG&E could not "sufficiently justify" withholding from the public.
Nine months later, the panel’s final report referred to numerous documents and interviews with unidentified commission and utility employees that it said remained under wraps because PG&E had asserted its confidentiality rights under the law.
San Bruno residents who lost family members and homes are also affected by secrecy laws. Under another statute, they aren’t allowed to use the commission’s investigative documents to buttress claims in a lawsuit. Nearly 100 lawsuits involving 350 victims have been filed against PG&E over the blast.
And, despite Lindh’s reassurances about the commission’s increasing openness, numerous officials and ordinary Californians have been denied pipeline safety documents since the explosion, forcing them to appeal to the commission.
‘Play a game’
In June, Moscarelli got a letter from the commission saying it wouldn’t release documents about the condition of two large natural gas pipelines running behind his Suisun City house because PG&E said it would pose "corporate and public safety risks."
Moscarelli, who was seeking records showing whether the pipelines met safety requirements, said he was forced to "play a game" to cajole small amounts of information out of state regulators and PG&E.
"If I charge forward, they’ll clam up," he said.
Lindh declined to comment on Moscarelli’s case, saying the letter "speaks for itself."
PG&E spokesman David Eisenhauer also declined to discuss the case, though he said some documents must be withheld for security reasons.
"Any time we get requests for information, we work hard to comply with those and do so in a way that is open and transparent as we possibly can," he said.
Rare in U.S.
Only a handful of utilities commissions in other states – Alabama, Maine, Missouri, Oregon, Pennsylvania and Wyoming – have similar power to withhold documents from the public, according to a Chronicle survey of regulatory agencies nationwide.
Other California state agencies and local governments don’t have that authority. They are required by a state open records law to presume in most cases that official records are public.
The secrecy statute was passed in 1951, along with a provision prohibiting the use of Public Utilities Commission investigation records in civil lawsuits. The commission also passed its own rule in the mid-1950s prohibiting release of documents, like accident reports, produced by commission staff.
Terry Francke, an expert on government secrecy in the state, said the commission had "extraordinary" leeway to keep documents secret.
"It doesn’t appear to serve any public purpose," said Francke, general counsel of the nonprofit advocacy group Californians Aware. "It is simply protective of the industry."
"It’s just crazy," said John Geesman, a retired member of the California Energy Commission whose policy-setting agency clashed with the utilities commission over its reliance on confidentiality.
That argument was over whether commission secrecy undermined competition among electricity suppliers. But Geesman said the issue of transparency in pipeline safety is equally important.
The commission and its regulated utilities operate under a tacit agreement that "things are just a lot easier if we don’t have to deal with the ugly glare of public attention," Geesman said.
But public attention is really an "antibiotic" that can prevent accidents like San Bruno, he said.
Some utilities commissions in other states post pipeline accident investigation reports and inspections on a website after they are completed.
In California, however, accident investigation reports are posted only if the Public Utilities Commission seeks punitive action against a company – something that has happened only once for a gas-related violation, a fatal explosion in Rancho Cordova (Sacramento County) in 2008.
Herrera said his office has labored for months to learn details about the pipeline network running under San Francisco, including reports on the PG&E line that exploded in 1963 in Bernal Heights.
"We certainly haven’t gotten everything we wanted," Herrera said. "There should be more transparency."
Even prosecutors and federal agencies have been forced to jump through hoops to obtain commission records.
Nearly 100 people, most of them lawyers, have appealed to the commission in the past five years to obtain investigation reports on gas pipeline accidents, electrocutions, railroad deaths and utility-involved fires, records show. Safety-audit reports and inspection records also have been withheld.
Under the system, documents remain sealed unless someone is willing to pry them open. Thus, the official accounts of 34 of the 42 serious gas pipeline incidents reported to the commission since January 2006 aren’t yet available, records show.
In all its formal resolutions releasing records, the commission has acknowledged that the documents are the sort that would be handed over under the state open records law.
But the secrecy statute requires the cumbersome extra process. It is also expensive, often involving an attorney, and the delays have ranged from weeks to nearly a year, records show.
The secrecy statute has even slowed the work of San Bruno investigators.
San Mateo County District Attorney Steve Wagstaffe said his office encountered "foot dragging" when it asked the commission for tens of thousands of documents to help the prosecutor’s criminal investigation of PG&E.
The commission wanted his office to sign a blanket agreement saying the documents could be read only by the district attorney’s staff and not shared with outside experts or witnesses, Wagstaffe said. That wasn’t acceptable to San Mateo County or to federal and state law enforcement agencies involved in the investigation, he said.
Prosecutors and the state commission eventually reached an agreement that Lindh termed "amicable."
"I was surprised in a case of this magnitude that the negotiations dragged on," Wagstaffe said. "It wasn’t a burst pipe where someone singed a finger; this was a major event that had resulted in the loss of eight lives."
TV station’s trouble
A news media request for commission documents six years ago reveals how the law can be manipulated to filter criticism of public utilities.
KNBC, a Los Angeles television station, asked for records regarding gas pipeline accidents in its area in December 2005. Commission records show the Public Utilities Commission dragged out the process for six months, citing the secrecy statute.
Southern California Gas argued the station had not identified any "legitimate reason" for receiving "safety-related" reports. It added that the station should not be allowed to "create undue public alarm" to "boost its own ratings and revenues" by broadcasting them, records show.
Southern California Gas spokeswoman Denise King said a TV station’s "interest in high ratings" is an issue the commission should consider in deciding whether to release records. Under the California Open Records Act of 1968, however, requesters can’t be required to justify their motives.
In June 2006, the Public Utilities Commission released most of the records in the case but sympathized with Southern California Gas, saying in a resolution that it had "admonished media requesters to be sensitive in their use of public records" in the past.
Repeal bids defeated
The secrecy laws have survived several attempts to repeal them, including a bid seven years ago by then-state Sen. Debra Bowen, now California’s secretary of state.
"Utilities were really strongly opposing it," Bowen said.
Utility lobbyists made sure that when Bowen’s bill got to the Assembly in 2004, it required nothing more than a utilities commission study of the agency’s confidentiality practices, records show. Bowen said she doubted the study would accomplish much, and she was right.
Rules didn’t change
The commission made only a few changes in the way electricity pricing records are redacted. The rules governing release of pipeline safety records remained the same.
State Sen. Leland Yee, D-San Francisco, chairman of the committee responsible for public records laws, said he was "absolutely horrified" to learn of the special secrecy powers granted to the Public Utilities Commission.
He said the only way to assure the public’s "right to know" about pipeline safety is through reasonable access to state records without a vote of an appointed commission.
Yee promised to introduce new legislation to wipe out the secrecy statute. Bowen said that with the memory of the San Bruno disaster still fresh in the public’s mind, this is a "great time" to try again.
"They cannot have a different set of rules that governs the people’s right to know," Yee said.
Complete coverage: To see Chronicle reports on pipeline safety since the 2010 explosion in San Bruno, video of the disaster and government investigative documents, go to www.sfgate.com/san-bruno-fire.
A history of California Public Utilities Commission secrecy.
1951 Lawmakers pass California Public Utilities Code Section 583, which says the public can’t see documents obtained from regulated utilities unless the commission approves. Document leakers can be charged with a misdemeanor. Another section says agency investigations can’t be used in lawsuits.
1955 Commission increases confidentiality with its own rule, General Order 66, which reasserts that the public can’t have access to accident reports.
1967 The commission passes an even more restrictive version of General Order 66, expressing concern that utilities won’t make "full disclosure" of circumstances leading to accidents if they know records might be made public.
1968 Legislature passes California Open Records Law freeing up public documents at other agencies, but the secrecy code remains the law at the utilities commission.
1985 Legislature amends secrecy law to say former commission employees can be charged with misdemeanor for releasing records.
2004 Utilities lobby defeats attempt by then-state Sen. Debra Bowen to eliminate secrecy law.
2006 Utilities commission study concludes that General Order 66 warrants revision. Nothing is done to revise it.
2011 Independent panel appointed by the utilities commission issues public report on San Bruno explosion. Documents cited in the report aren’t made public because of the secrecy statute.