Eric Friedman won an important (though partial) victory in Commonwealth Court on April 25. He has been trying for years to get access to documents of the Pennsylvania Public Utility Commission (PUC) that are supposed to be public, and it looks like he’s finally going to get at least some of them. You can read the Court’s full opinion here.
This is the resolution of a dispute over what documents Friedman (and, by extension, any of us) has a right to see when filing a request under Pennsylvania’s Right To Know (RTK) law. In this particular case, the documents being requested consisted of communications between Energy Transfer (ET, the owner of Mariner East) and the PUC.
Background: Friedman’s two requests. The recent opinion concerns the second RTK request that Friedman filed concerning Mariner East documents. The first request (which he filed in February of 2019) requested records showing the size of the pipeline blast radius as calculated by the PUC. PUC acknowledged having these records, but denied Friedman’s request on the basis that the documents contained “confidential security information” (CSI). Friedman appealed to the Office of Open Records (OOR) which supported his request, and overruled the PUC’s denial of it, but the PUC appealed that decision to the courts. Ultimately, that case was decided by the Pennsylvania Supreme Court in December of 2021. The court held that only the PUC could determine what was CSI and could deny Friedman’s request on that basis.
While the litigation over this request was working its way through the system, Friedman filed a second RTK request in June of 2019. In it, Friedman did not mention the blast radius calculations. Instead, he requested the “transmittal letters” from ET to the PUC concerning Mariner East and documents submitted along with them as long as they were “public in nature”. Transmittal letters are the cover letters that utilities (which ET was considered to be) must provide when they submit documents to the PUC. In this second request, Friedman was clear that he was not asking for anything containing CSI; only for public documents.
PUC: “Sorry, none of this is public”. PUC’s own regulations are specific. They say that transmittal letters are “public documents”, and it is reasonable to suppose that many of the attached documents (which are often routine reports) would be public as well. In any case, PUC regulations require utilities to designate records as public, releasable under the Right to Know law, or “containing CSI” and not releasable under the RTKL. Transmittal letter must “clearly explain” why the any information claimed to by CSI should be treated as confidential. PUC’s rules also state that the transmittal letters themselves “will be treated as  public records and may not contain any” confidential information.
But the PUC chose to disregard its own regulations (claiming it had the right to do so if it wanted). Despite Friedman’s second RTK request seeking only records specifically defined as public under PUC regulations, PUC also turned down Friedman’s second RTK in its entirety.
The PUC made several arguments for its blanket denial of Friedman’s request: it might reveal CSI (even though Friedman was not asking for CSI); it might reveal ET’s business secrets; it would be too much work for the PUC; it relates to ongoing “non-criminal investigations” of ET. Friedman again appealed this denial to the OOR, which again supported his request. Again, the PUC appealed to the courts.
Judges: “Yes, some of it is public”. In the recent opinion, a three-judge panel held that the transmittal letters and associated non-CSI documents are indeed public and must be provided under RTK requests. The opinion concludes that “… with regard to non-CSI transmittal letters and Non-CSI Records … we hold the OOR did have the authority to determine whether those records were subject to disclosure under the RTKL. The responsive non-CSI transmittal letters are public records … as set forth in the PUC’s regulations, and the OOR did not err in ordering their disclosure. In regard to the responsive Non-CSI Records, the OOR did not err in ordering these records’ disclosure because [the PUC and ET] did not meet their burden of establishing that [exemptions in the regulations] exempt them from disclosure.”
Implications. This case is an important win for those who seek public records from the PUC. It establishes that the OOR does have the authority to order the release of public documents. It allows the PUC to determine what constitutes CSI (and is therefore not subject to RTK requests), but, for each document, the PUC must specify its reasons for arguing that CSI is involved.
Most importantly, it affirms that the records specifically defined as public records in PUC’s regulations—transmittal letters and associated non-CSI records submitted by utilities—must indeed be released under the Right to Know law. Based on this opinion, PUC must now provide these things to Friedman. In the past, when he has received such records, Friedman has posted them publicly, so there is reason to believe he will also do so with these records.
In response to this ruling, Eric tells me: “The PUC has for years tried to hide what it knows about the size of the blast radius associated with Sunoco’s hazardous, highly volatile liquids export pipelines, and when it knew it. The records this Court has directed PUC to release will provide visibility into some dark corners of this secretive agency. It’s time to put the ‘public’ into ‘Public Utility Commission’.”
Eric Friedman’s success in this case, and the precedent it establishes, represents an important win for transparency in PUC’s regulatory processes.
Much appreciated post Kudos to Eric. Hope you are doing well. Susan and Jim Salava
Eric Friedman has been a champion of the people since the beginning of Mariner East 2. I congratulate him on this win. Unfortunately, Sunoco , government agencies, and the courts wrongfully played this whole mess out until those pipes were in the ground and operating.