IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Public Utility :
Commission, :
Petitioner :
:
v. : No. 980 C.D. 2019
:
Eric Friedman, :
Respondent :
Energy Transfer, :
Petitioner :
:
v. : No. 982 C.D. 2019
: Argued: September 17, 2020
Eric Friedman, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: October 21, 2020
Energy Transfer and the Pennsylvania Public Utility Commission
(PUC) (Petitioners) petition for review of the Final Determination of the Office of
Open Records (OOR) granting in part Eric Friedman’s (Requester) appeal of the
PUC’s denial of Requester’s Right-to-Know Law (RTKL)1 request. Petitioners
argue that OOR erred in releasing records beyond the scope of the request.
Specifically, Petitioners assert that OOR erred in deciding that the records requested
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
are not confidential security information under the Public Utility Confidential
Security Information Disclosure Protection Act (CSI Act).2 Further, in Petitioners’
view, OOR erred in relying upon Section 335(d) of the Public Utility Code 3 as it
does not apply. Upon review,4,5 we reverse the decision of OOR.
I. Background
On January 31, 2019, Requester attended a public meeting in East
Goshen Township, Chester County, with PUC representatives. Reproduced Record
(R.R.) at 6a. At the meeting, Requester asked questions related to the blast radius
for Energy Transfer’s (Sunoco Pipeline L.P.) Mariner Highly Volatile Liquids
(HVL) pipelines to which Paul Metro, a PUC representative, responded that the PUC
had its own estimate of “buffer zone” or “blast radius” within Hazard Assessment
Reports associated with accidents on HVL pipelines. Id. The subject of one of these
reports, the Mariner East 1 (“ME1”) Pipeline, runs through Requester’s
neighborhood. Requester’s Br. at 3.
2
Public Utility Confidential Security Information Disclosure Protection Act, Act of
November 29, 2006, P.L. 1435, 35 P.S. §§ 2141.1-2141.6.
3
Public Utility Code, 66 Pa. C.S. §335(d).
4
The present case before this Court encompasses consolidated petitions for review filed
by the PUC and Energy Transfer from OOR’s Order granting in part and denying in part access to
the information contained in Requester’s RTKL request.
5
This Court exercises a de novo standard of review and a plenary scope of review of Office
of Open Records (OOR) determinations. Bowling v. Office of Open Records, 75 A.3d 453, 472
(Pa. 2013). A de novo standard of 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)). This Court may consider facts and legal arguments not
brought before OOR when deciding petitions for review of OOR decisions. Bowling, 75 A.3d at
475-77.
2
Requester filed a RTKL request with the PUC on February 4, 2019,
requesting all records in the PUC’s possession that relate to blast radius calculations
for Energy Transfer’s (Sunoco Pipeline L.P.) Mariner HVL pipelines. R.R. at 6a.
Requester requested:
all records . . . that relate to the calculation or estimation
of the range at which thermal or overpressure events
related to accidents on hazardous . . . HVL pipelines may
be experienced. This request does not seek information
provided by Sunoco if that information has been
designated as confidential security information. Rather, it
seeks records containing or related 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 PUC by an
external source or that was developed internally.
Id. On March 11, 2019, the PUC denied Requester’s RTKL request in its entirety.
Id. at 7a. The PUC determined that “[t]he documents responsive to [Requester’s]
request have been designated as confidential security information (CSI) . . . .” Id. at
100a. “Additionally, the documents are part of a noncriminal investigation and
therefore are exempt from disclosure under the RTKL.” Id.
Requester appealed the PUC’s decision to OOR on April 1, 2019. Id.
at 4a. On June 26, 2019, an OOR Appeals Officer granted in part and denied in part
Requester’s appeal. Id. at 142a. OOR found that the PUC did not prove that the
records requested by Requester are CSI, but that the PUC did demonstrate that
certain records are exempt under Section 708(b)(3) of the RTKL, 65 P.S.
3
§67.708(b)(3),6 and that some records relate to a noncriminal investigation.7 Id. at
147a-56a. As a result, OOR directed the PUC to release to Requester the PUC’s
6
The infrastructure security exemption reads: “The following are exempt from access by
a requester under this act: . . . (b)(3) 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. . . .” Section 708(b)(3) of the RTKL, 65 P.S.
§67.708(b)(3).
7
The noncriminal investigation exemption provision, Section 708(b)(17) of the RTKL, 65
P.S. §67.708(b)(17), reads:
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 of December 12,
1986 (P.L. 1559, No. 169), 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.
(B) Deprive a person of the right to an impartial
adjudication.
(C) Constitute an unwarranted invasion of privacy.
(D) Hinder an agency’s ability to secure an administrative or
civil sanction.
(E) Endanger the life or physical safety of an individual.
4
Bureau of Investigation & Enforcement’s (Bureau of I&E) investigative report
relating to Energy Transfer’s ME1 HVL pipeline, excluding blast radius
calculations. Id. at 160a.
II. Discussion
Petitioners argue that OOR erred in requiring the PUC to release hazard
assessment records related to the Sunoco pipelines. Specifically, Petitioners assert
that OOR erred in finding that the requested records were not protected from
disclosure under the CSI Act. Additionally, while OOR found that the records were
exempt from disclosure under the RTKL’s infrastructure security protection
exemption and the noncriminal investigation exemption, Petitioners argue that OOR
inappropriately directed disclosure of the records pursuant to Section 335(d) of the
Public Utility Code.8
8
Section 335(d) of the Public Utility Code reads:
In addition to any other requirements imposed by law, including the
act of June 21, 1957 (P.L. 390, No. 212), referred to as the Right-to-
Know Law, and the act of July 3, 1986 (P.L. 388, No. 84), known
as the Sunshine Act, whenever the commission conducts an
investigation of an act or practice of a public utility and makes a
decision, enters into a settlement with a public utility or takes any
other official action, as defined in the Sunshine Act, with respect to
its investigation, it shall make part of the public record and release
publicly any documents relied upon by the commission in reaching
its determination, whether prepared by consultants or commission
employees, other than documents protected by legal privilege;
provided, however, that if a document contains trade secrets or
proprietary information and it has been determined by the
commission that harm to the person claiming the privilege would be
substantial or if a document required to be released under this
section contains identifying information which would operate to the
prejudice or impairment of a person’s reputation or personal
security, or information that would lead to the disclosure of a
confidential source or subject a person to potential economic
(Footnote continued on next page…)
5
A. OOR’s Interpretation of the CSI Act
Section 3101.1 of the RTKL states “if the provisions of this act
regarding access to public records conflict with any other Federal or State law, the
provisions of this act shall not apply.” Section 3101.1 of the RTKL, 65 P.S.
§67.3101.1. Petitioners argue that OOR erred in finding that the CSI Act was not
applicable to the Requester’s request and that OOR has no authority to determine
whether a record is properly designated as CSI. Requester contends that OOR may
properly conclude whether a record is CSI material pursuant to Sections 3(c)(4)9 and
510 of the CSI Act, 35 P.S. §§2141.3(c)(4), 2141.5.
retaliation as a result of their cooperation with a commission
investigation, or information which, if disclosed to the public, could
be used for criminal or terroristic purposes, the identifying
information may be expurgated from the copy of the document made
part of the public record. For the purposes of this section, “a
document” means a report, memorandum or other document
prepared for or used by the commission in the course of its
investigation whether prepared by an adviser, consultant or other
person who is not an employee of the commission or by an employee
of the commission.
66 Pa. C.S. §335(d).
9
Section 3(c)(4) of the CSI Act states:
Agency review of the public utility’s designation or request
to examine records containing confidential security
information shall be based on consistency with the definition
of confidential security information contained in this act or
when there are reasonable grounds to believe disclosure may
result in a safety risk, including the risk of harm to any
person, or mass destruction.
35 P.S. §2141.3(c)(4).
10
Section 5 of the CSI Act states:
(Footnote continued on next page…)
6
Petitioners argue that OOR lacks the authority to make the
determination that the records requested by Requester do not qualify as CSI under
the CSI Act. Petitioner asserts that it is the exclusive authority of the PUC to make
such a determination. In support of its position, Petitioners cite to Section 3(c) of
the CSI Act:
Challenges to a public utility’s designation or request to
examine records containing confidential security
information by a member of the public shall be made in
writing to the agency in which the record or portions
thereof were originally submitted. The agency shall
develop protocols and procedures to address challenges to
the designations or requests to examine records containing
confidential security information.
35 P.S. § 2141.3(c).
Subsection 3(c)(6) of the CSI Act, 35 P.S. § 2141.3(c)(6), states:
(a) General Rule. An agency shall not release, publish or otherwise
disclose a public utility record or portion thereof which contains
confidential security information, in accordance with the
provisions of this act.
(b) Exception. Notwithstanding subsection (a), an agency may,
after notification and consultation with the public utility,
disclose a public utility record or portion thereof which contains
confidential security information, in accordance with the
provisions of this act, that is necessary for construction,
renovation or remodeling work on any public building or
project. Release or disclosure of such records or portions thereof
for these purposes does not constitute prohibited disclosure
under subsection (a) and does not result in such records or
portions thereof becoming public records subject to the
provisions of the act of June 21, 1957 (P.L. 390, No. 212),
referred to as the Right-to-Know Law.
35 P.S. §2141.5.
7
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 confidential security information in
camera to determine if they are protected from disclosure
under this act.
Petitioners argue accordingly that any challenge to a designation that a record is CSI
under the CSI Act must be made before the agency which originally received the
record. In the present case, consideration of Requester’s challenge, in Petitioners’
view, appropriately rests with the PUC and, if necessitated by further appeal, this
Court. Requester also acknowledges the relevance of this provision, yet asserts that
the RTKL still allows OOR to review the PUC’s decision because the CSI Act does
not conflict with the RTKL. See Brown v. Pa. Dep’t of State, 123 A.3d 801, 806
(Pa. Cmwlth. 2015).
“Conflicts as to public access, as opposed to public nature, are governed
by Section 3101.1 of the RTKL. Specifically, Section 3101.1 of the RTKL provides
‘[i]f the provisions of [the RTKL] regarding access to records conflict with any other
federal or state law, the provisions of this act [RTKL] shall not apply.’” Dep’t of
Labor & Indus. v. Heltzel, 90 A.3d 823, 832 (Pa. Cmwlth. 2014) (en banc). In
Heltzel, this Court found a conflict between the RTKL and the Emergency Planning
and Community Right-to-Know Act (EPCRA)11 in a dispute over records relating to
hazardous chemicals. This Court held that the “RTKL contemplates OOR’s
interpretation of statutes other than the RTKL when evaluating the public nature of
records.” Id. at 828.
11
Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. §§11021-
11050.
8
Petitioners argue that OOR may review assertions by agencies as part
of OOR’s enforcement of the RTKL, but must defer to an agency’s decisions
regarding CSI since challenges to CSI designations must be heard before the agency
holding the records. See 35 P.S. § 2141.3(c). OOR may direct the requester to file
a challenge of the CSI designation with the agency holding the records. In this case,
the record does not indicate that Requester challenged the CSI designation directly
with the PUC, instead relying on RTKL provisions and appealing the PUC’s denial
with OOR.
While Petitioners also argue that OOR erred in determining that the
information requested by Requester is not CSI, the primary issue before this Court
is whether OOR has the authority to determine whether the requested information is
CSI. This Court appreciates that the analysis by OOR regarding the public nature of
records may require a consideration of additional agency-specific disclosure statutes.
However, as argued by Petitioners, OOR does not administer the CSI Act and is not
directed by statute to oversee the determination of whether requested information
qualifies as CSI.
Under 35 P.S. § 2141.3(c), an individual requesting information from
the PUC that the agency determined to be CSI must challenge this determination
with the PUC. Requester did not exhaust the administrative remedies prescribed
within the relevant statutory provision to challenge the PUC’s classification of the
requested information as CSI. While OOR may have determined that disclosure of
the requested information was appropriate under the RTKL if subject to redaction,
OOR is not vested with the authority to administer the CSI Act, a PUC statute.
Therefore, OOR lacked the authority to determine that the requested information
was not CSI.
9
B. Disclosure of Records under Section 335(d) of the Public Utility Code
Petitioners also argue that OOR erred in requiring disclosure of
Requester’s requested records under Section 335(d) of the Public Utility Code. OOR
made this determination despite also finding that the requested records were exempt
from disclosure under the infrastructure security and noncriminal investigation
exemptions of the RTKL. Petitioners argue that even if disclosure is required under
Section 335(d) of the Public Utility Code, the entirety of the information requested by
Requester is subject to redaction, therefore making it impossible to comply with
Requester’s request for information.
As we have now determined that the information requested by Requester
warrants review by the PUC under the CSI Act, this Court will not reach the issue of
disclosure under Section 335(d) of the Public Utility Code. The PUC, through the CSI
Act, has the authority to determine disclosure in this case. Because the PUC has
classified the information requested by Requester as CSI, Requester must challenge
the PUC’s non-disclosure under the appropriate provision, Section 3(c) of the CSI Act.
We decline to disrupt the authority of the PUC regarding CSI matters.
III. Conclusion
OOR erred in determining that Requester’s requested information is not
CSI. OOR is charged with administering the RTKL and its statutory provisions.
However, as the administration of the CSI Act rests with the PUC, OOR acted
outside of its authority when it determined that the requested information is not CSI
10
and therefore subject to disclosure under the RTKL.
We reverse the Final Determination of OOR.
______________________________
J. ANDREW CROMPTON, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Public Utility :
Commission, :
Petitioner :
:
v. : No. 980 C.D. 2019
:
Eric Friedman, :
Respondent :
Energy Transfer, :
Petitioner :
:
v. : No. 982 C.D. 2019
:
Eric Friedman, :
Respondent :
ORDER
AND NOW, this 21st day of October 2020, we REVERSE the Final
Determination of the Office of Open Records.
______________________________
J. ANDREW CROMPTON, Judge