Energy Transfer v. Friedman

265 A.3d 421

ENERGY TRANSFER, Appellee

v.Eric FRIEDMAN, Appellant

Pennsylvania Public Utility Commission, Appellee

v.Eric Friedman, Appellant

No. 24 MAP 2021

No. 25 MAP 2021

Supreme Court of Pennsylvania.

Argued: October 26, 2021

Decided: December 22, 2021

Donna M. J. Clark, Esq., Terrance J. Fitzpatrick, Esq., Energy Association of Pennsylvania, David Bruce MacGregor, Esq., Devin Thomas Ryan, Esq., Post & Schell, PC, for Energy Association of Pennsylvania, Amici Curiae.

Claude Joseph Hafner II, Esq., Pennsylvania State Senate, Shannon Amanda Sollenberger, Esq., Senate of Pennsylvania, for State Senators Katie J. Muth and Timothy P. Kearney, Democratic Caucus of the Senate of Pennsylvania, Amicus Curiae.

Paula Knudsen Burke, Esq., for Reporters Committee for Freedom of the Press, 1156 15th St NW, Pennsylvania NewsMedia Association, 3899 N. Front Street, Amicus Curiae.

Shawn Michael Rodgers, Esq., East Goshen Township, Amicus Curiae.

Tuan Naim Samahon, Esq., East Goshen Township, Amicus Curiae.

Megan Keefe Shannon, Esq., Offit Kurman, Attorneys At Law, for Appellant.

Steven K. Bainbridge, Esq., John Edward Herzog, Esq., Renardo Lee Hicks, Esq., Pennsylvania Public Utility Commission, for Appellee Pennsylvania Public Utility Commission.

Melissa Ann Chapaska, Esq., Thomas Joseph Sniscak, Esq., Whitney Elizabeth Snyder, Esq., Hawke McKeon & Sniscak, LLP, Kevin James McKeon, Esq., for Appellee Energy Transfer.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

JUSTICE DONOHUE

This appeal by permission in a case of first impression considers whether the Office of Open Records ("OOR") has the authority to review the denial of an individual's request for records pursuant to the Right to Know Law, 65 P.S. §§ 67.101 – 67.3104 ("RTKL"),¹ where a public utility has designated records responsive to the request as confidential security information ("CSI") under the Public Utility Confidential Security Information Disclosure Protection Act, 35 P.S. §§ 2141.1 – 2141.6 ("CSI Act").² We hold that the Public Utility Commission ("PUC") has exclusive authority to review such requests and, therefore, the OOR erred in exercising jurisdiction over the CSI-designated records. Accordingly, we affirm the order of the Commonwealth Court reversing the OOR's disclosure order.

Factual Background

Eric Friedman ("Friedman") lives in the area where the Sunoco Pipeline L.P. Mariner East 1 Pipeline ("Pipeline") is located. The Pipeline is a highly volatile liquid ("HVL") pipeline owned and operated by Energy Transfer. On January 31, 2019, Friedman attended a public meeting regarding the Pipeline, at which Paul Metro, the PUC's Manager of Safety Division, Pipeline Safety Section, addressed questions regarding pipeline leaks. In the course of answering questions, Metro mentioned that the PUC possessed hazard assessment reports associated with accidents or releases on HVL pipelines, which included estimates of the blast radius resulting from an accident or release.

The following Monday, Friedman submitted a RTKL request to the PUC for

all records in the possession of Paul 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 confidential security information. 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 PUC by an external source or that was developed internally.

Email Request from Eric Friedman to rchiavetta@pa.gov, 2/4/2019.

The PUC denied Friedman's request, stating that the responsive records had been designated CSI and thus were protected from disclosure by the CSI Act and exempt from disclosure under the RTKL. The PUC informed Friedman that he could challenge the denial of his RTKL request by filing an appeal with the OOR. See 65 P.S. § 67.903(5) ("If an agency's response is a denial..., the denial shall be issued in writing and shall include...(5) the procedure to appeal the denial of access under this act."). The PUC did not inform Friedman of its own internal procedures for challenging a public utility's CSI designation.

Having made a RTKL request, Friedman filed an appeal with the OOR, "disputing the confidential nature of the records and the secure nature of the [P]ipeline infrastructure." OOR Decision, 6/26/2019, at 4. The OOR denied his request for disclosure in part. Interpreting the CSI Act from a procedural perspective, the OOR determined that the PUC had failed to prove that the requested records were CSI. It pointed out that, to designate records as CSI, a public utility must comply with the exacting provisions of the CSI Act, which also reside in the PUC's regulations. Specifically, a public utility must clearly state in a transmittal letter to be shared with the requestor that the records contain CSI and explaining why the information is to be treated as confidential. 52 Pa. Code § 102.3(b)(1). Although the PUC had presented the OOR with two affidavits representing that the responsive records contained CSI, the OOR directed the PUC to provide hard copies of the relevant transmittal letters submitted by Energy Transfer. Because the transmittal letters also contained CSI, the PUC provided the OOR with redacted letters and refused to provide them to Friedman at all. The PUC's refusal to provide Friedman with the letters led the OOR to conclude that there was no evidence in the record proving that the responsive records had been properly designated as CSI. Thus, the OOR ruled that Energy Transfer was not entitled to protection from disclosure under the CSI Act.

Nonetheless, the OOR determined that the PUC had proven, through, inter alia, the affidavits, that certain records were exempt from disclosure under the RTKL. Specifically, the PUC had proven that disclosure of the hazard assessment reports "creates a reasonable likelihood of endangering the safety or the physical security of a...public utility[.]" 65 P.S. § 67.708(b)(3). The OOR further determined that some of the responsive records were exempt from disclosure under a second RTKL exception, i.e., records "of an agency relating to a noncriminal investigation, including (ii) Investigative materials, notes, correspondence and reports[.]" 65 P.S. § 67.708(b)(17)(ii). Finally, the OOR determined that Subsection 335(d) of the Public Utility Code³ required disclosure of documents relied on by the PUC in its investigation of the Pipeline, excluding the hazard assessment reports that it found were exempt from disclosure under Section 67.708(b)(3) of the RTKL.

Energy Transfer and the PUC appealed to the Commonwealth Court, which reversed the OOR's decision in a unanimous opinion. PA. Pub. Util. Comm'n v. Friedman , 244 A.3d 515 (Pa. Commw. 2020). The Commonwealth Court recounted its statement in Department of Labor and Industry v. Heltzel , 90 A.3d 823, 832 (Pa. Commw. 2014) (en banc ), that "[c]onflicts as to public access, as opposed to public nature, are governed by Section 3101.1 of the RTKL[,]" which provides that, where there is a conflict between the RTKL and another state law, the provisions of the RTKL shall not apply. Friedman , 244 A.3d at 519 ; 65 P.S. § 67.3101.1. As a result, pursuant to Section 2141.3(c) of the CSI Act, the OOR does not administer the CSI Act and lacks any authority to determine whether information qualifies as CSI. Friedman , 244 A.3d at 519–20 (citing 35 P.S. § 2141.3). Instead, the court opined, challenges to a CSI designation must be brought to the PUC. Id . at 520. The Commonwealth Court observed that Friedman did not exhaust the administrative remedies prescribed in the CSI Act and afforded through PUC regulations. The Commonwealth Court "decline[d] to disrupt the authority of the PUC regarding CSI matters." Id .

Friedman filed a petition for allowance of appeal, and we granted review of the following issue:

Does the Office of Open Records have the authority to order the release of a record in Public Utility Commission's possession when the OOR determines that record does not contain Confidential Security Information as defined in the Confidential Security Information Act, 35 P.S. § 2141.3 et seq. ?

Energy Transfer v. Friedman, ––– Pa. ––––, 252 A.3d 1083 (2021).

Arguments of the Parties

Friedman contends that the OOR had authority to order the disclosure of the records requested under the RTKL. In support, Friedman raises a distinction between disputes regarding the public nature of documents and those regarding public access to documents. He asserts that the OOR has the authority to adjudicate the public nature of documents, while acknowledging that it has less authority with regard to public access to documents. See Heltzel , 90 A.3d 823 (explaining that OOR had authority to interpret federal law regarding the nature of records but not to enforce the procedures in that law for accessing public records).

Friedman also asserts that, even though the RTKL and the CSI Act both address access to records, there is no conflict between the two statutes in this case because the appeal procedure of the CSI Act was not triggered, leaving the OOR with unimpeded authority to adjudicate disclosure of the responsive records. He explains that the RTKL's presumption of public access in 65 P.S. § 67.305 is consistent with the public access provision of the Public Utility Code, which requires any documents relied upon by the PUC in reaching a determination about a public utility to be made part of the record. 66 Pa.C.S. § 335(d). In contrast, the CSI Act exempts some information that might otherwise be subject to disclosure under Subsection 335(d) of the Public...