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Pennsylvania’s Right-To-Know Law Update: PUC Appeals Right-To-Know Decision to Pennsylvania Supreme Court

Norris McLaughlin Corporate Business Attorneys Biz Law Blog

In December of 2013, the Pennsylvania Public Utility Commission (“PUC”) and an electric utility company reached a settlement regarding an anonymous complaint letter from an employee of the utility.  The employee alleged that during the October 2011 snowstorm electric outages, a work crew member deviated from an assigned high-priority area and allegedly diverted to a lower-priority area.

Seeking the details of the incident, The Morning Call filed a Right-To-Know request, which was denied by the PUC.  The Morning Call and several other newspapers appealed this decision to the Office of Open Records, which ruled that the materials needed to be disclosed.   The PUC appealed this Office of Open Records’ decision to the Pennsylvania Commonwealth Court.  The media coalition, which includes 12 other media outlets, including The Patriot News, The Philadelphia Inquirer and The Associated Press, filed petitions to intervene in the pending case with the Pennsylvania Commonwealth Court.

On October 6, 2014, the Pennsylvania Commonwealth Court heard oral arguments from the media coalition and the PUC regarding whether documents that were produced during the PUC’s investigation should be made public.

On December 2, 2014, the Pennsylvania Commonwealth Court filed its Opinion holding that the Pennsylvania PUC could keep the anonymous letter confidential, despite the media coalition’s argument that, because the tip letter was used in approving a settlement with the electric utility company, it should be made public.  The Pennsylvania Commonwealth Court held that the five voting members of the PUC did not rely on the anonymous tip letter to come to the terms of the settlement agreement and, therefore, the document could remain confidential.  Specifically, the Court said that, “requiring the PUC to disclose the requested documents could lead to public utilities and employees being less likely to cooperate and provide relevant information out of fear of retaliation or public embarrassment, frustrating the purposes of the PUC’s investigation  and lessening the effectiveness of the PUC in monitoring the utilities’ compliance with statutory and regulatory requirements.”

Specifically at issue is a provision in the State Public Utility Code which states that, “any documents relied upon by the Commission in reaching its determination, whether prepared by consultants or Commission employees, other than documents protected by legal privilege” shall be made public.  (66 Pa.C.S.§335).

The decision of the Pennsylvania Commonwealth Court hinged on the interpretation of the term “Commission” and whether the term “Commission” referred to the entire PUC as an entity or, specifically, the five-member PUC Board which ultimately approved the settlement.  The Court held that it was the latter – that the term “Commission” referred to the PUC’s five-member Board and not the entity as a whole.

The battle is not over; however, as the media coalition appealed the Commonwealth Court Decision to the Pennsylvania Supreme Court in December.  The media coalition disagrees with the Pennsylvania Commonwealth Court’s interpretation of the term “Commission.”

The PUC has submitted a brief opposing the Pennsylvania Supreme Court’s review of the issue.  According to the briefs, if the media coalition’s interpretation of the term “Commission” is accepted by the Pennsylvania Supreme Court, it would essentially require the disclosure of all PUC documents.  The media coalition argues that if this decision stands it will thwart the purpose of the Pennsylvania Right-To-Know Law Act.

While the Pennsylvania Supreme Court is not required to hear this appeal and may decide not to rule on this issue, we predict controversial judicial and media focus.  Stay tuned as one of Governor Wolf’s first acts as governor was to attempt to fire Governor Corbett’s appointed Open Records officer.  This action was recently challenged in court and could generate new focus on how Right to Know Act matters will be handled in the future.

If you have any questions or would like to know more, please contact any member of the Economic Development Group or myself, Julie M. Macomb, and we will be happy to assist you.