Commonwealth Court: certain natural gas pipeline records not public

A state appellate court panel reviewing an appeal from a journalist who sought certain records from the Pennsylvania Public Utility Commission has determined that records relating to the safety of natural gas pipelines are not public.

The Commonwealth Court panel was charged with reviewing a case dating back to last March in which Wall Street Journal reporter Daniel Gilbert sought a host of records from the Public Utility Commission relating to underground natural gas pipelines.

Gilbert sent a written request to the PUC back on March 31, 2011 seeking electronic copies of various natural-gas pipeline records.

They included: records related to probable violations identified by the PUC, records relating to pipeline incidents reported to the PUC by pipeline operators, copies of communications from pipeline owners and operators regarding public awareness programs as required by the Pipeline Safety Improvement Act of 2002, and copies of all requests under Pennsylvania’s Right-To-Know Law received by the PUC between Jan. 1, 2011 and the present.

On May 9, 2011, according to the court ruling, the PUC granted Gilbert’s request as to the final item in his list, dealing with the Right-To-Know Law requests, but it denied the other items in Gilbert’s request.

Later that month, Gilbert and the newspaper appealed the PUC’s decision to Pennsylvania’s Office of Open Records, challenging only the PUC’s claims of exemptions for gas safety records related to noncriminal investigations conducted by the PUC and records that reflected internal, pre-decisional deliberations of the PUC, since those requested records were not public records under the law, the ruling states.

After hearing Gilbert’s appeal, the OOR determined that the PUC did not establish that the requested records were protected by the noncriminal investigation exemption or by the internal, pre-decisional deliberations exemption.

On June 27, 2011, the OOR granted Gilbert’s appeal and directed the PUC to provide his requested records within 30 days.

The PUC then challenged the OOR’s decision in Commonwealth Court.

In the majority ruling, which was written by Senior Judge Rochelle S. Friedman, and joined by Judges Bernard L. McGinley and P. Kevin Brobson, the court determined that the records created by gas safety inspectors who work in the PUC’s Bureau of Investigation and Enforcement are not public records under the state’s Right-To-Know Law because they involve “noncriminal investigations.”

“It is not until after the PUC’s investigative materials are presented as part of a formal complaint, presented at a formal hearing, or presented as part of a settlement agreement that the materials are made public,” the ruling states.

The ruling also states that granting access to all records relating to probable violations, pipeline incidents reported by a pipeline operator and copies of communications from pipeline owners and operators regarding public awareness campaigns, including communications that advise state officials of pipeline locations, is problematic because they are “quite broad” and include investigative materials gathered by gas safety inspectors.

“Allowing 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 ruling states.

The ruling goes on to say that releasing such materials publicly would lead pipeline owners and operators to be less likely to cooperate and provide information to inspectors out of fear of retaliation or public embarrassment.

“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,” the ruling states.

The court concluded that such inspections and investigations conducted by the utility commission constitute a “noncriminal investigation” under the law and, as such, are not subject to public disclosure.