Pa. utilities investigation records exempt from release to Wall Street Journal

A Pennsylvania appellate court ruled that The Wall Street Journal was not entitled to records from investigations of public utilities under the state’s open records law.

The ruling overturned an earlier opinion issued by the Pennsylvania Office of Open Records (OOR), which ordered the state public utility commission to release the documents to Journal reporter Daniel Gilbert. Gilbert sought records from the commission's investigations and enforcement actions related to reported incidents and potential state code violations in underground, natural-gas pipelines.

Jennifer Kocher, press secretary for the commission, said the ruling “allows for us to have open and frank discussion with our utilities . . . without them thinking they should be guarded in what information they’re providing us.”

The agency denied Gilbert access to most of the records he sought, citing – among other reasons – an exemption in the state open records law for records relating to noncriminal investigations. The exemption allows agencies to withhold documents such as investigative notes and correspondence, as well as those made confidential by other laws. Additionally, it applies to records that reveal the initiation, progress, or outcome of a noncriminal investigation — with some exceptions for records that, for example, merely disclose the imposition of a penalty or the revocation of a license.

The OOR determined that the commission could not rely on the exemption for noncriminal investigation records because it had only offered “general evidence of investigatory functions,” rather than linking specific records to particular investigatory activities conducted by the agency.

However, the court ruled the exemption did apply, and, in rejecting the OOR’s rationale, said, “To the extent that the OOR argues that the [commission] failed to present sufficient factual evidence before it, such an argument is problematic given that the OOR did not hold a hearing in this matter.”

The court determined that the commission’s investigations were noncriminal investigations to which the exemption would apply. In support, it cited a prior decision in which it ruled that documents related to inspections of nursing homes were noncriminal investigative records where the inspections were conducted to ensure compliance with state and federal regulations and laws.

Likewise, the court ruled, the commission conducted inspections and investigations for the purpose of determining utilities’ compliance with state and federal laws, and these materials should therefore be similarly treated as noncriminal investigation records.

It also noted that under a provision of the state’s public utility code, the commission is only required to release its investigative materials after it takes official action on an investigation, such as entering into a settlement agreement.

Looking at the type of materials requested — which included correspondence and materials related to probable code violations — the court explained that “[a]llowing access to these investigative materials that may contain unsubstantiated statements or allegations about an owner, employee or utility, would be problematic, because the owner, employee or utility would not be provided the opportunity to respond to the materials.”

The release of the materials might also deter utilities owners and employees from cooperating and disclosing relevant information in full from fear of embarrassment or retaliation, the court said.

“It would have had a chilling effect on our ability to talk with the people who were involved in the investigation or in the incidents,” said Kocher. “We want to be sure we’re getting all of the information, as opposed to something that is half the story because they’re worried about public dissemination of information.”

Court records indicate Gilbert and The Wall Street Journal were not represented by counsel before the appeals court, and did not file a brief at the appellate court level. When asked for clarification on why the newspaper did not participate at the appeals stage, the Journal declined to comment.

Gilbert could not be reached for comment.

Related Reporters Committee resources:

· Pennsylvania – Open Government Guide: 2. Discussion of each exemption.