What happens when watchdogs seek records about possible wrongdoing? They hit roadblocks set up a century ago to frustrate robber barons.
Courtesy California National Guard
The 2018 Camp Fire, which destroyed Paradise and other rural communities, was found to have been caused by Pacific Gas & Electric Co. California regulators have blocked a public records request for correspondence with the governor’s office about a $200 million PG&E fine that was waived.
Despite vows to become more transparent, the California Public Utilities Commission has systematically violated the public’s right to know about its handling of deadly disasters and corporate scandals, according to court records and First Amendment attorneys.
Applying century-old laws meant to fight corruption, the commission has effectively limited court enforcement of the state’s public records act. But a state appeals court on May 3 is hearing a lawsuit challenging that practice and could bring more transparency to the commission.
David Snyder, executive director of the First Amendment Coalition, a nonpartisan organization dedicated to advancing government transparency that is supporting the lawsuit, said it’s “absolutely crucial” that people have timely court review of agency denials of their requests for information.
“Administrative agencies should not and cannot have the final say on whether the Public Records Act has been followed,” said Snyder, a lawyer and former journalist. “That’s the proverbial fox guarding the henhouse.”
Citing special powers granted no other state agency, the commission has obstructed requests for records on its handling of catastrophes such as Pacific Gas & Electric Co.’s Camp Fire, the failed San Onofre nuclear power plant and thousands of collisions and assaults on Uber and Lyft rides, a San Francisco Public Press review of court cases and state documents found.
Those powers were intended to fight the corrupting influence of the railroad barons, but the commission has deployed them to undercut the California Public Records Act, meant to promote government transparency and accountability, court records show.
The Legislature and the governor’s office have not resolved the conflict between these historic reforms, legislative records show, despite incidents revealing that secrecy at the agency has contributed to inefficiency and corruption.
Terrie Prosper, the commission’s director of news and outreach, did not respond to several requests for comment for this story.
The agency has denied that its procedures violate the public records act’s requirements that it release records promptly. In adopting its current policy in 2018, it called such allegations “simply speculative” and cited “our longstanding practices supporting disclosure and our progressive development of rules that will promote public access to records in our possession.”
But over the objections of the agency’s lawyers, the state Supreme Court in November reinstated a lawsuit challenging its refusal to release records concerning communications between Gov. Gavin Newsom’s office and the commission about the 2018 Camp Fire — the deadliest wildfire in state history — and the agency’s decision to waive a $200 million penalty against PG&E.
That case, to be heard in the state’s First District Court of Appeal, highlights the hurdles facing anyone seeking records from the powerful agency, which regulates power, water, telephone, transportation and other utilities that affect the lives of all Californians. It is responsible for ensuring that utility services are fair and safe.
The lawsuit was brought by television station ABC-10 in Sacramento and its reporter Brandon Rittiman, whose award-winning coverage of the Camp Fire has garnered national attention.
Steve Zansberg, the station’s Denver-based attorney, said in court records that the commission has a “practice of imposing unreasonable and unlawful roadblocks” to public records.
According to Zansberg, the case poses a fundamental question: Is the commission above the state law that requires all agencies to promptly release records about how they conduct public business?
“We’re trying to hold the PUC accountable,” he said in an interview. “You can’t do that if you don’t have access to the records that show what’s going on behind the scenes.”
Christofer Nolan, one of the lawyers representing the agency in the case, did not respond to an email seeking comment.
The lawsuit has drawn support from the First Amendment Coalition, based in San Rafael; the Associated Press; and the Center for Investigative Reporting, the nation’s oldest nonprofit investigative newsroom.
Matthew Cate, the Washington, D.C., attorney who filed a brief on behalf of the organizations, wrote that the commission has a history of “unlawful delays” in responding to requests and that its practices could encourage other agencies to erect similar obstacles to public information.
“The PUC has created a set of procedures completely contrary to the letter and spirit of the CPRA and the constitutional right of access to public records,” Cate wrote, referring to the state public records act.
A gauntlet of obstacles
A review of court cases, commission filings, legislative history and interviews with attorneys, in addition to this reporter’s experience as a requester, found a gauntlet of obstacles that disadvantage requesters and favor agency denials:
- The agency can take months or years to release records. Between Jan. 1, 2017 and April 4, 2022, the agency received 3,115 requests and took an average of 58 days to close them, statistics it released under the public records act show. Five requests submitted by the Public Press for records concerning thousands of ride-hailing safety incidents have taken between six and 27 months.
- The commission tends to interpret the scope of requested records narrowly, while applying exemptions from disclosure broadly, effectively reducing public access to information.
- With other state agencies, a person may directly seek independent court review of a denied request. But under commission rules, they must first file an administrative appeal and then apply for a rehearing, a far more cumbersome and lengthy process.
- The commission requires requesters to appeal within 10 days or lose their right to challenge its denial, compared with 90 days allowed under the federal Freedom of Information Act.
- Agency rules provide no deadline for the commission to resolve appeals or rehearings, and the agency asserts that requesters may not seek court review until it has, effectively holding their requests in limbo. Federal law, by contrast, allows requesters to sue as early as 20 working days after appealing.
- With all other California agencies, requesters may seek review in local superior court. But for the commission they may seek review only in state appeals courts or the California Supreme Court, forums that are more complicated and costly, effectively deterring independent review of denials.
And though the public records act requires agencies to adopt written guidelines that “reflect the intention of the Legislature to make the records accessible” and post them in “a conspicuous public place,” the commission’s rules are spread piecemeal across four parts of its website and are so labyrinthine that they even confound experienced attorneys.
Clicking on the FAQ link at the bottom of the agency’s request form returns a page that says “Nothing here yet! Check back soon.” A separate search of the website does return a functional FAQ page, but neither it nor the “Requester Resources” page mentions appeals or rehearings.
A unique agency
The commission has said in official filings that it is dedicated to transparency but must balance that goal with its legal duty to maintain confidentiality of trade secrets and personal data contained in filings it receives from companies.
The commission has noted that no other agency in the state is required to follow both the public records act and the Public Utilities Code, which says any employee who releases confidential information submitted by a utility, unless ordered to by the commission, is subject to a misdemeanor charge. This legal requirement “is unique to the Commission and thus analogy to other state agencies or local governments’ processes,” it said, are “inapplicable.”
The agency says it adopted its system of administrative appeal and rehearing to give requesters a chance to show records should be released while allowing utilities a chance to show the information is truly confidential before the commissioners make a final decision.
However, attorneys for requesters noted that employees of other agencies also face criminal penalties for improperly releasing information, such as criminal histories or medical records.
And whatever internal process an agency creates, they say, it may not violate the public records act’s clear deadlines.
Enacted in 1968, the California Public Records Act is modeled on the federal Freedom of Information Act. The state law declares that “access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”
It says all state agencies “shall” determine whether a request seeks copies of releasable records within 24 days of receipt, immediately notify the requester of that determination and “promptly” release public records. If an agency withholds records, requesters may seek court review “at the earliest possible time.”
Voters bolstered the law in 2004 when they overwhelmingly passed Proposition 59, which embedded these words in the state Constitution: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
Like the public records act, the commission has roots in a voter-backed constitutional amendment. The agency was created as the Railroad Commission in 1879 but was corrupted by the Southern Pacific Railroad, which dominated state politics, according to a history written by commission staff.
In 1911, voters propelled by Gov. Hiram Johnson’s reform platform granted the agency greater autonomy with the intent of preventing corruption. Its authority was extended to other utilities and in 1946 it received its current name. It is led by five commissioners appointed by the governor for six-year terms. They oversee 1,402 employees and a $1.1 billion budget.
San Bruno fights secrecy
The 2010 explosion of a PG&E gas pipeline in San Bruno killed eight residents, injured dozens more and destroyed or damaged scores of homes. It also revealed what San Bruno City Attorney Marc Zafferano described in an interview as a “roadblock at every turn” as he sought information from the commission.
San Bruno officials had grown concerned that PG&E and agency staff were holding secret meetings that would result in an unfairly light penalty against the utility. To find out, the city requested communications with PG&E executives, but the agency largely failed to respond, Zafferano said.
So the city filed an administrative appeal — only to discover agency rules specified no deadline for its decision.
After more delays, the city sued in San Francisco Superior Court only to hit another hurdle: the public utilities code barred lawsuits against the commission in superior court.
Originally intended to stop industrial titans from using diverse courts to undermine commission rulings, the utilities code allowed lawsuits against agency regulatory decisions only in state Supreme Court.
Efforts to expand judicial review of the commission’s decisions over the years have variously met with opposition from its leadership and several governors, who saw those efforts as an impediment to both regulation and business.
In 1991 Gov. Pete Wilson vetoed a bill that would have allowed such lawsuits in the state Court of Appeal.
“At this critical state in its economic and social evolution, California can ill afford the delay, expense and uncertainty invited by enlarged predicates for judicial review contained in this bill,” he said.
Only in 1996 was the law changed to allow lawsuits challenging limited kinds of commission decisions in the appeals court — a measure the commission opposed until it was narrowed.
In 2015, the Legislature passed a bill to let superior courts hear public records lawsuits against the agency, but Gov. Jerry Brown vetoed it, saying he supported more transparency but was concerned such a change “will only result in increased litigation and likely delay commission decision-making.”
In 2017, an early version of a reform bill would have allowed public records lawsuits against the agency to proceed in Superior Court. The provision had backing from the California Newspaper Publishers Association, but it was dropped from the final bill.
The commission thus moved to dismiss San Bruno’s lawsuit from superior court for lack of jurisdiction. But the city negotiated a settlement in which the agency released records, spurring PG&E to release many more.
The records confirmed there were improper private communications between the agency and utility, for which PG&E agreed to pay $97.5 million in penalties. It also was fined $1.6 billion for violating safety standards.
As part of the settlement, the commission reviewed its public records procedures. San Bruno urged the agency to adopt deadlines to end the “potentially endless appeals process that it completely controls.” The city also recommended letting requesters challenge agency delays and denials of requests in superior courts.
These obstacles, Zafferano told the commission, “will likely continue to deter all but the most determined and well-funded participants from obtaining the prompt access to public records that all public agencies are required to provide.”
But in a 2018 order the agency dismissed such concerns as “speculative” and adopted its current policy, known as General Order 66-D.
Blocked records on reactor leak
Michael Aguirre, a former federal prosecutor in San Diego, ran into similar barriers when he sought records on the 2012 shutdown of the San Onofre nuclear station, at which engineers had discovered a radioactive leak.
Aguirre represented utility customers challenging the commission’s decision that customers should pay $3.3 billion of the $4.7 billion cost of the failed reactor.
In January 2015, he requested written communications between the commission and Gov. Brown’s office regarding the reactor. The agency released about 900 pages but withheld more than 100 records.
Aguirre sued the commission in San Francisco Superior Court for violating the records act. The agency asked the court to dismiss the case on the ground that it lacked jurisdiction — but Superior Court Judge Ernest Goldsmith disagreed.
Goldsmith found “there is a violation of the Public Records Act by withholding public records.” And since the agency had made clear it would not release the records, he ruled in 2016, requiring Aguirre to exhaust his administrative remedies by appealing would be “futile.”
But the state appeals court overruled Goldsmith, saying the lower court lacked jurisdiction.
This forced Aguirre to start over. Later that year, he requested copies of communications between the commission and Brown’s office about San Onofre.
The agency denied his request 11 days later, claiming the records were exempt because they concerned the governor’s communications or the commission’s deliberative process.
Seven days later, Aguirre filed an administrative appeal. Four months after that, the commissioners affirmed the denial.
This time, Aguirre sued the agency in state appeals court. He contended that the governor’s office might have secretly influenced the agency’s decision to let the utility pass costs to customers, and the public had a right to know.
The agency, he said, had “engaged in extreme delay tactics in violation of the prompt determination requirements of the Public Records Act.”
The commission denied Aguirre’s claims and asked the court to dismiss his lawsuit because he had not applied for a rehearing until after he sued. Since that application was pending, it said, the court had no jurisdiction.
The appeals court did not address whether the commission’s appeals procedures violated the public records act. But in June 2018, it ruled that the agency had improperly withheld records and ordered their release.
In a separate federal lawsuit, Aguirre and his law partner, Maria Severson, won commission approval later that year of a revised decision that saved ratepayers $775 million on the plant closure.
“While the PUC has feigned interest in greater transparency, it actually has historically worked to thwart disclosure of public records,” Severson said in an interview. “You are on the slowest possible track if you are trying to get information to the public in a timely way.”
Fighting release of fire records
In recent years, the commission has revised some policies to make more information public. It has posted more documents online. And it no longer lets companies simply stamp their filings “confidential,” now requiring specific justifications for secrecy claims.
But as Sacramento TV reporter Rittiman found, the agency still poses obstacles to records requests.
The Camp Fire in Butte County burned 153,336 acres, destroyed 18,000 structures and killed at least 85 people. PG&E eventually pleaded guilty to 84 counts of involuntary manslaughter and one of illegally setting the fire, caused by its faulty power line.
Rittiman believed there was a public interest in knowing why the agency waived a $200 million fine against PG&E and whether the governor’s office influenced that decision.
On Nov. 19, 2020, the ABC-10 special projects reporter filed four requests seeking records of communications between then-commission president Marybel Batjer and Gov. Newsom’s office.
Eleven days later, the agency told Rittiman that governor’s communications are confidential and closed his requests.
Rittiman appealed. Under agency rules, its legal division is supposed to prepare a draft resolution deciding the appeal, then send it to the commissioners for public review and comment. The resolution is scheduled for a hearing and vote. If requesters disagree with that decision, they may apply for a rehearing.
Requesters may not seek court review of the agency’s decision, it claims, until the commission decides the rehearing and requesters have “exhausted their administrative remedies.”
In Rittiman’s case, the agency did not schedule a hearing on his appeal, leaving his request hanging.
Four months later, on April 14, 2021, Zansberg wrote the commission saying that unless it held a hearing at its next meeting, Rittiman would consider its inaction to be a “constructive denial” of his appeal and seek court review.
Zansberg also challenged the agency’s claim that the records were exempt from release because they were governor’s communications. He noted that the state appeals court had said in two other rulings that the exemption applied only to communications sent by correspondents outside of government, not intra-governmental ones like those Rittiman sought.
Still, no hearing was set. On June 14, Zansberg filed Rittiman’s lawsuit against the commission in state appeals court. He posed two key questions: Is the agency subject to the time limits in the public records act? Or can it simply ignore requests, indefinitely, and thereby permanently avoid judicial review?
But the agency tried repeatedly to get the case thrown out of court before any judge could answer those questions.
It argued that the court had no jurisdiction because Rittiman’s administrative appeal was pending. The appeals court agreed, citing the public utilities code that says requesters must exhaust administrative remedies before suing.
Zansberg asked the state Supreme Court to review the case. The court ordered the commission to submit an update on his appeal.
On Sept. 27, the agency said it expected to vote on his administrative appeal in November.
Moreover, the agency’s lawyers declared, the high court itself had no jurisdiction in the case because Rittiman had “not waited for the Commission to prepare a resolution of the matter.”
Nevertheless, the court on Oct. 20 granted Rittiman’s motion for review and directed the appeals court to order the agency to show why it should not promptly release the Camp Fire records.
The commission once again told the appeals justices they had no jurisdiction. Only now it said that was because Rittiman had failed to apply for a rehearing. (On Nov. 19, 2021, exactly a year after the original records request was filed, the commission had finally denied his initial appeal.)
Zansberg replied that the Supreme Court already rejected the jurisdiction claim by ordering the appeals court to review the case. And besides, he had applied for a rehearing, emailing it to three agency attorneys a month earlier.
Commission attorney Nolan admitted to the court that Zansberg had emailed the application— but now asserted it was invalid because he had not followed agency rules for electronically filing documents.
As a result, Nolan said, the court still had no jurisdiction to hear the case.
To Zansberg, it seemed that the commission was turning the legal machinery voters had given it to fight corruption against a reporter who was trying to expose it.
“If this type of games-playing and procedural rigamarole was what the legislature contemplated as fulfilling an agency’s duties,” he said in an email, “then the public records act might as well be stricken from California’s Government Code.”
For more coverage on this topic, see the whole series: Ride Hailing’s Dark Data.
This story was produced in partnership with the McGraw Center for Business Journalism at the Craig Newmark Graduate School of Journalism at the City University of New York. Support was also provided by the Fund for Investigative Journalism.