Media Outlets Snag Secret Letter Behind $60K Deal

     (CN) — Media outlets can access a tip letter that led a Pennsylvania electric company to pay $60,000 for inadequately restoring power after a snowstorm, the Pennsylvania Supreme Court ruled.
     The dispute stems from a snowstorm that disrupted the electrical service of over 388,000 PPL Electric Utilities Corp. customers on Oct. 29, 2011, court records show.
     The Public Utility Commission later received an anonymous tip letter supposedly authored by a PPL employee, claiming that PPL had violated its priority-ranking policy.
     The commission’s Bureau of Investigation and Enforcement soon found that PPL may have violated a Public Utility Code section barring unreasonable interruptions in utility services, as well as PPL’s internal policies regarding service restoration priority.
     PPL ultimately settled with the commission for $60,000, and the parties agreed to keep the tip letter confidential.
     Though the commissioners held a public meeting and requested public comments on the matter, they received none, so they approved the settlement in October 2013.
     Yet the commission denied Right-to-Know-Law requests for all documents related to the settlement made by Scott Kraus, a reporter for the Allentown, Pa.-based newspaper The Morning Call, and Andrew Seder, a reporter for Wilkes-Barre, Pa., newspaper The Times Leader.
     The reporters filed separate appeals with the Office of Open Records, arguing that Public Utility Code Subsection 335(d) obligates the commission to disclose the tip letter and other files.
     But the commission maintained that the records contain information about a confidential source, and would subject her or him to potential economic retaliation and impaired reputation.
     Open Records, however, granted the reporters’ appeals, and the commission appealed.
     The Commonwealth Court ultimately reversed Open Records’ findings, holding that the subsection’s use of “commission” is limited to the commissioners, not the entire commission.
     The reporters appealed, and the Supreme Court of Pennsylvania’s Middle District reversed the lower court’s ruling Wednesday.
     “The General Assembly defined ‘Commission’ as ‘[t]he Pennsylvania Public Utility Commission of this Commonwealth’ and did not limit that term to encompass only the PUC Commissioners,” Judge Max Baer wrote for the six-judge panel.
     This “harmonizes” the subsection, according to the ruling.
     “Subsection 335(d) provides that, whenever the PUC conducts an investigation of a public utility’s act and enters into a settlement with the public utility, the PUC shall make part of the public record and release publicly any documents relied upon by the PUC in reaching its determination, which includes both the investigation and the eventual action,” Baer wrote. “The statutory language makes clear that ‘a document’ means, inter alia, any document used by the PUC in the course of its investigation, regardless of who prepared the document.”
     The judge later added: “It is indisputable at this juncture that the PUC relied upon the sought-after documents when making its determination to enter the settlement agreement with PPL, which included both [the Bureau of Investigation and Enforcement’s] investigation and the PUC Commissioners’ official action. Indeed, in the responses it filed in the [Office of Open Records], the PUC essentially conceded that it relied upon the documents in reaching its decision to enter into the settlement agreement.”
     Three justices joined Baer’s opinion, while Chief Justice Thomas Saylor Justice Kevin Dougherty dissented.
     “Governmental transparency is of paramount significance when the PUC enters into settlement agreements with public utilities, as such agreements are negotiated behind doors closed to the public,” Baer wrote. “The disclosure requirements of Subsection 335(d) allow the public to view that which informs the PUC’s decisions to enter into settlement agreements with public utilities.”
     PA Media Group Vice President of Content Cate Barron said “This is good news for all Pennsylvanians and a big victory in the fight for open records in our state.”
     “It was also great to see media from across the state present a united front in this important effort,” Barron added.
     But commission spokesman Nils Hagen-Frederiksen said the agency is “disappointed” with the ruling and is reviewing its options.
     “We are deeply concerned that this ruling will have a chilling effect on PUC investigations and compromise our public safety mission – potentially dissuading whistleblowers, consumers and other concerned parties from providing information to the commission or speaking freely because of fears that, at some point in the future, their statements to investigators could become public even if the commission did not rely on their information during any decision-making process,” Hagen-Frederiksen wrote.
     “The PUC is committed to transparency regarding the decisions made by commissioners – which occur in a public setting, are broadcast live (and recorded for future viewing) and include hundreds of thousands of case documents published on our website,” Hagen-Frederiksen added. “But, we are also committed to safeguarding the information necessary for our investigators and prosecutors to properly do their jobs.”
     The intervenors did not return requests for comment Tuesday. They include WNEP-TV, Channel 16; Times Shamrock; Times News LLC; The Associated Press; Reading Eagle Co.; Pocono Mountains Media Group; Philadelphia Media Network LLC; Lancaster Newspaper Inc.; and Calkins Media Inc.

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