Pennsylvania Public Utility Commission v. Gilbert
Commonwealth Court of Pennsylvania
No. 1381 C.D. 2011
March 27, 2012
The Commonwealth Court reversed an Office of Open Records (“OOR”) final determination, denying the disclosure of records relative to the gas pipes of the Pennsylvania Public Utility Commission (“PUC”) because the records qualified for the noncriminal investigation exemption of the Right to Know Law (“RTKL”).
Background
Daniel Gilbert, a reporter for The Wall Street Journal, made an RTKL request to the PUC for the following records related to underground natural gas lines:
- All records related to probable violations identified by the PUC,
- All records related to incidents reported to the PUC by pipeline operators,
- Copies of communications from pipeline owners and operators regarding public awareness programs, and
- Copies of all RTKL requests received by the PUC prior to Gilbert’s.
The PUC granted Gilbert’s request with respect to item (4), but denied it in all other respects under the noncriminal investigation and the internal pre-decisional deliberation exemptions of the RTKL.
Gilbert appealed to the OOR, which determined that the requested records did not fall in the stated exemptions and ordered their disclosure. The PUC appealed to the Commonwealth Court.
Commonwealth Court decision
The court reversed the decision of the OOR, holding that the remaining records are protected by the noncriminal investigation exemption.
The court determined that these investigative records exist as the result of federal regulation that requires the PUC to be inspected every year for licensing. The court referenced its 2010 decision in Department of Health v. Office of Open Records, concluding that “materials generated during detailed surveys and inspections to ensure compliance with federal and state laws or regulations were noncriminal investigative records that are exempt from public disclosure pursuant to section 708(b)(17) of the [RTKL].” The Court ruled that the Gilbert request was not distinguishable from that case and that the same logic should hold here.
The court also found a public policy argument against disclosure of the records. The court reasoned that if the PUC were required to disclose these records, then owners and employees may be less likely to cooperate with inspections for fear of the results finding the public.
“If individuals are less likely to cooperate in the inspections/investigations process, then the inspections/investigations will no longer be an effective means of monitoring the utilities compliance with statutory and regulatory requirements.”